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United States v. Caverly

decided: April 8, 1969.

UNITED STATES OF AMERICA
v.
RICHARD F. CAVERLY, APPELLANT AT NO. 17002, AND JAMES S. RIZEK, APPELLANT AT NO. 17001 (TWO CASES)



Hastie, Chief Judge, and McLaughlin and Stahl, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

Appellants were indicted (April 16, 1964) and convicted (May 5, 1965) of stealing, purloining or converting property of the United States of a value of more than One Hundred Dollars (18 U.S.C. ยง 641). The property involved consisted of bound volumes of the Congressional Record from its inception to the present time. The volumes had been in the City of Scranton, Pennsylvania, Public Library. The latter at all times pertinent to this appeal was and is a United States Government depository library. The admitted removal of the Congressional Record set and numerous books, documents, pamphlets, etc. from the library took place during the period from January 1961 to approximately November 1961. The trial of defendants-appellants was had in April and May of 1965.*fn1

Appellant-defendant Caverly in January 1961 was the librarian of the said City of Scranton, Pennsylvania Public Library and had been so employed since December 1958. Appellant Rizek in January 1961 was a book dealer and, according to him, had been engaged in that business for the twenty years then last past. A witness in his own defense, he admitted that in 1957 he was a book dealer inter alia and that on December 11, 1957 he had been convicted in New Jersey on an indictment containing fourteen counts of embezzlement and two counts of forgery. He was given a sentence of five years imprisonment with the sentence suspended and placed on probation. Within that probationary period, in January 1961, he went to the Scranton Library where he saw and had a talk with appellant Caverly. Both appellants assert that this was their first meeting. The Government proofs strongly indicate that Rizek and Caverly set up their basic scheme of abstracting material from the Scranton library at that time.

Charles O. Venick who was employed by Rizek from March 1961 to September or October 1961, testified at the trial. He said that within those dates he and Rizek, and sometimes other employees also, "went to the Scranton library several times." He had nothing to do with any arrangements between Rizek and Caverly. He was just told by Rizek "what titles and material to put on the station wagon or trailer or truck." He said that Rizek told him that Caverly was a "prostitute" and that "he felt he could take Caverly for anything he wished to and he would pay Caverly with his check and what Caverly did with the money was no concern to him because once he was paid the title was our material." Venick, speaking of a particular trip he and Rizek made to the Scranton library reference room, said that on the way there Rizek told him they "were going into the reference room to pull some material and it would be a good day because the reference librarian would not be there that day." Venick asked Rizek how he knew that and Rizek answered "Mr. Caverly informed him." Venick said the material they loaded was made up of "Government documents, periodicals, reference materials, some books and that's it -- some maps." Explaining his status with Rizek, Venick testified, "Well, I was an employee of Rizek's but I was fronting Raritan Book Company for him because he was unable to sell any books." The material Venick took from the library on the trips he named he brought to a warehouse and office in New Brunswick, New Jersey, the rent of which was paid by Rizek.

Immediately following that first talk between Rizek and Caverly, the latter introduced Rizek to Mrs. Hopkins the assistant reference librarian and perhaps Miss Rice, the reference librarian.*fn2 Mrs. Hopkins was asked if "At that meeting you were given any instructions by Mr. Caverly?" She answered:

"Well, Mr. Caverly told us that Mr. Rizek was going to be in the Library and he would be going through our stacks and he was going to take some materials not needed by the Library or that we wouldn't use, and he also told us that Mr. Rizek would take some of our bound periodicals and he would have them returned on microfilm."

Mrs. Hopkins testified that Rizek removed books and other materials from the library starting in January 1961 and until November 1961. According to her the first few times Rizek took away library material he had a U-Drive-It truck. She was questioned whether at that time the library had a copy of the Government regulations concerning Government documents, including the Congressional Record. She answered that the library did have a copy of the regulations in pamphlet form. She identified the pamphlet shown her as the library copy of said regulations and it was marked in evidence as Government Exhibit 2. The witness told that she had complained to the library trustees in April of 1962 about the removal of books and that they had not been replaced by microfilm. On cross-examination Mrs. Hopkins was asked "But you didn't find it necessary to go to a member of the Board of Trustees until April 1962?" She answered "I didn't find it necessary because I was hoping that Mr. Caverly and Mr. Rizek would do as they had promised. Q. What had they promised? A. They promised that the material would be returned on microfilm."

Miss Cresswell, the cataloguer of the library throughout the involved period, had been employed at the library since 1925. She testified that during the time Rizek was removing books from the library, those books were never checked out with her in accordance with the necessary processing of the library books which was the only method the library had of keeping track of them. She said she had "Asked Mr. Caverly on several occasions for a list of the books which were being removed from the Library, he always promised, and I never received any list which would indicate to me what books were being taken from the library."

Miss Cresswell thoroughly explained the library inventory card index system which was kept by her. She repeated that none of the books and other material taken by Rizek was ever checked out through the library card inventory system. She identified Government Exhibit #3 as "the card record of the Congressional Record, Annals of Congress, Congressional Globe, which were the predecessors of the Congressional Record, which the Library received from the government as a government depository and which we recorded as we received them on these cards." From those cards Miss Cresswell in 1962 "was able to make a report in the inventory that these books were missing from our shelves." The witness did not pretend to have actual knowledge of the date of receipt of the 1839, 1840 Congressional Globe volumes. The Scranton library was built in 1891 approximately. She thought those books were received in the early days of the library as a government depository. Regarding the library's Congressional Records the witness repeated on cross-examination in effect her statement on direct examination saying that "Our Congressional Records, to my knowledge, were only received as a depository. * * * They were part of our documentary collection * * * were kept as the Government depository collection -- as a collection." Those volumes were on the library identification cards and as to them Miss Cresswell stated "I can say from our cards they were part of our collection."

It should be specifically strssed that Miss Cresswell in addition to her own vital first-hand knowledge of the Congressional Record volumes which had been in the library, testified from the authentic, carefully kept business records of the library which unmistakably and properly established said volumes as Government depository material.*fn3

Mr. H. W. Buckley, Superintendent of Documents of the United States Government Printing Office since July 1953, was a most important witness. He stated that federal depository libraries came under his jurisdiction and that the Scranton library is a Government depository. Such a library "is eligible to receive copies of United States government publications for the convenience of the public." With respect to the documents furnished such library at its request, he said:

"They are distributed to that library but under the provision of the law that they are not given to the library in as much as all depository publications ...


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