U.S. v. Namer

Decision Date04 January 1988
Docket NumberNo. 87-3128,87-3128
Citation835 F.2d 1084
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David Israel NAMER, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

John R. Martzell, New Orleans, La., defendant-appellant.

Robert Boitmann, Curtis Collier, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, POLITZ, and JOLLY, Circuit Judges.

POLITZ, Circuit Judge:

This case has been tried twice and appealed twice. The first trial concluded in convictions which the trial court set aside because of improper closing arguments by the prosecutor. In the second trial, David Israel Namer was convicted of conspiracy, 18 U.S.C. Sec. 371, and three substantive counts in violation of 18 U.S.C. Secs. 2, 1343, and 2314. On his first appeal Namer challenged, inter alia, the trial court's refusal to suppress certain evidence seized during execution of a state search warrant.

Upholding the challenge, we concluded that the affidavit upon which the warrant was based contained a "crucially material ... misrepresentation [which] was made, at the least, with reckless disregard for the truth." United States v. Namer, 680 F.2d 1088, 1094 (5th Cir.1982). We found the search warrant faulty for lack of probable cause to support its issuance and remanded for a hearing and findings on the doctrines of independent source, attenuation, inevitable discovery, and harmless error. Id. at 1090.

On remand the district court conducted an evidentiary hearing, found all four doctrines applicable and denied the motion for a new trial. Namer appeals. We are bound to accept the factual findings of the district court, unless we deem them clearly erroneous. Based on those findings, for the reasons assigned, we affirm.

Background

Many of the essential facts are set forth in our prior opinion. 680 F.2d 1088-91. We note additional facts, some developed on remand, and underscore those most critical to today's decision.

Namer, doing business as Financial Management Services, Inc., offered to secure loan commitments for the permanent financing of various building projects. Typically, such capital projects require interim, short-term financing during construction, followed by permanent, long-term financing upon completion of construction. The commitment of a permanent financier is a threshold requirement for the usual interim financing agreement.

In a typical scenario, a party wishing to build or develop would engage the services of a loan broker to obtain a commitment for permanent financing from a lending institution. For a fee, the broker would prepare and submit the necessary application, with its myriad attachments. Namer's practice required advance payment of the broker's fee, subject to a refund if a commitment was not obtained. Armed with the standby or permanent commitment, the investor-developer could approach short-term lenders and request the funds needed for land acquisition and construction.

Three such transactions are involved in the instant convictions. The first relates to a standby commitment to Tropic Sales and Development, acting through Richard Gazie and Terry Ziegler, for a real estate project in Florida. The second involved a commitment to Astro Bowling Center, represented by Louis LaDuke, for a bowling alley project in Texas. The third transaction related to a proposed drydock facility in Louisiana, involving Gilmar Marine and its parent corporation, Gilco, represented by Raymond Smego and Anthony Fiasco.

Namer secured commitments for Tropic Sales and Gilmar, and attempted to get a commitment for Astro Bowling from Sinton Service Corporation, a wholly-owned subsidiary and service arm of Sinton Savings Association, a Texas savings and loan institution. In the relevant instances Sinton Service was represented by Jerry Simmons, a vice-president, who was directly accountable to the president of Sinton Savings, Robert Cartwright. 1

When Namer was getting the two commitments and working on the third, Sinton Service was insolvent, incapable of funding the commitments, and under instructions from state banking authorities to refrain from issuing commitments.

The conspiracy count charged Namer and Simmons with conspiring to defraud investors by causing them to pay fees for worthless commitments. Each of the three transactions spawned substantive counts, involving either use of the mails, 18 U.S.C. Sec. 1343, or inducement of interstate travel, 18 U.S.C. Sec. 2314. Namer was convicted of the conspiracy count, two interstate travel counts regarding the Smego and Fiasco transactions, and one wire fraud count respecting the LaDuke transaction. He was acquitted of an interstate travel count involving LaDuke, and a wire fraud and interstate travel count relating to transactions with Gazie and Ziegler.

It is significant to note that all of the convictions were based on events occurring after August 2, 1977, the date Gazie informed Namer of Sinton's insolvency. The acquittals related to events occurring prior to that date.

Namer's activities drew the attention of the Orleans Parish District Attorney's office in late 1976 when it received the first of four complaints against him. LaDuke complained on November 3, 1977. The Orleans Parish District Attorney secured a search warrant for Namer's records and caused it to be executed. On the earlier appeal we found that warrant constitutionally infirm. Namer complains specifically of three items of evidence gathered during that illegal search and resultant testimony:

(1) two letters linking Namer with Sinton Service which referenced LaDuke;

(2) a loan commitment form for Tropic Sales from Jerry Simmons; and

(3) the testimony of Ziegler and Gazie.

Namer contends that since the documentary evidence was tainted by the unconstitutional search and seizure, everything derived from that tainted source should be excluded from evidence. The obvious critical fruit is the testimony of Gazie and Ziegler about the August 2 telephone call which, Namer insists, derived directly from leads gathered in the faulty search.

To place Namer's challenges in perspective we must attempt a sequential unfolding of the criminal investigations, either explicit or implicit in the trial court's findings or else not seriously questioned in the trial evidence.

The state investigation proceeded under the guidance of Pauline Hardin, then a state assistant district attorney. When she became an assistant United States Attorney a federal investigation was commenced. The records compiled by the Orleans Parish District Attorney, including the paperwork seized in the illegal search, were subpoenaed to the federal grand jury. Notably, the original four complaints about Namer, all predating the seizure, were numbered amongst those records.

Evidence reflects that in 1977 the FBI in Dallas was investigating Simmons, Cartwright, and Sinton Service. A Dallas FBI agent uncovered a commitment to Gilmar Marine, and on February 10, 1978 he sent a lead to the New Orleans FBI office for the interview of William O. Clay, Gilmar's representative in Baton Rouge. This Dallas FBI agent had no knowledge of the state search or of its product. Four days later Clay was interviewed and he connected Gilmar to Sinton and Namer. At this point, the agent became aware of the pending fraud investigation of Namer. Simultaneously with the interview of Clay, and pursuant to the Dallas lead, the Pittsburgh FBI office was alerted; it informed New Orleans of the information that Gilmar's attorney had furnished that office. The Pittsburgh office had no knowledge of the state search when it was contacted by Gilmar's attorney.

On March 3, 1978, Kim Peterson, an FBI informant in Houston, contacted FBI agent Rollen Powell in New Orleans and connected Namer, LaDuke, Simmons, and Sinton. LaDuke was invited to the United States Attorney's office and was interviewed on March 9, 1978. At that time LaDuke furnished a letter from Namer and a cancelled check which LaDuke had given Namer for the fee. The check reflected the name of Namer's bank. On that same day the United States Attorney subpoenaed Namer's bank records referring specifically to items connected with the parties who had complained to the district attorney. Although no reference was made to Tropic Sales, the subpoena requested all data on Namer's account between April and December 1977.

Upon receipt, the FBI did a workup of the bank records. Agent Powell then made a four-page redaction which listed more than two-score suspect transactions. Included were a $22,000 wire transfer from Tropic Sales to Financial Management Services dated July 1, 1977, and a $14,200 wire transfer a few days later from Financial Management to the account of Sinton Service, referencing a Tropic Sales commitment.

After sorting out this information, on June 9, 1978 agent Powell "set" a lead to his Miami counterparts suggesting a contact with Tropic Sales. On June 15, 1978 an interview of Gazie and Ziegler produced a copy of the Sinton commitment and information about communications with Namer, particularly about a telephone call on August 2, in which Gazie told Namer of Sinton's insolvency.

District Court Findings

The district court found five units of evidence derived from sources independent of the information gathered in the tainted search. All testimony and documentation relating to Gilmar Marine was found to be the product of the complaint by Gilmar's attorney to the FBI in Pittsburgh; alternatively, it derived from the lead from the Dallas agent to the New Orleans FBI which came before the search. A trace of Gilmar's payment to Namer would have disclosed Namer's bank account.

The court also found that information and documentation from LaDuke and his attorneys were the direct result of LaDuke's complaint to the district attorney, made before the search, and his...

To continue reading

Request your trial
13 cases
  • Rogers v. Lynaugh
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 30, 1988
    ...v. Hasting, 461 U.S. 499, 515 n. 6, 103 S.Ct. 1974, 1983 n. 6, 76 L.Ed.2d 96 (1983) (Stevens, J., concurring); United States v. Namer, 835 F.2d 1084, 1089-90 (5th Cir.1988); United States v. Sardelli, 813 F.2d 654, 656-57 (5th Cir.1987); Blackburn v. Cross, 510 F.2d 1014, 1017, 1019 (5th Ci......
  • United States v. Rodriguez
    • United States
    • U.S. District Court — District of Idaho
    • July 9, 2020
    ...is whether the police would have discovered the evidence if the misconduct had not occurred.’ " Id. (quoting United States v. Namer , 835 F.2d 1084, 1087 (5th Cir. 1988) ).B. Fifth Amendment In Miranda v. Arizona , 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court h......
  • U.S. v. Seals
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 24, 1993
    ...should not be suppressed, provided that it would have been legitimately uncovered pursuant to normal police practices. United States v. Namer, 835 F.2d 1084 (5th Cir.), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988); United States v. Brookins, 614 F.2d 1037 (5th Cir.198......
  • State v. Poppe
    • United States
    • Idaho Court of Appeals
    • March 9, 2017
    ...the misconduct had not occurred." United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir. 1989) (quoting United States v. Namer, 835 F.2d 1084, 1087 (5th Cir. 1988)). The State "can meet its burden by establishing that, by following routine procedures, the police would inevitably h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT