U.S. v. Moore

• Decision Date: 19 June 1975
• Docket Number: 74-2150,Nos. 74-2835,74-2268,s. 74-2835
• Citation: 522 F.2d 1068
• Parties: 1 Fed. R. Evid. Serv. 147 UNITED STATES of America, Plaintiff-Appellee, v. Emslie Leander MOORE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Floyd MOORE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pieter Cornelis PANNEKOEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1068

522 F.2d 1068

1 Fed. R. Evid. Serv. 147

UNITED STATES of America, Plaintiff-Appellee, v. Emslie Leander MOORE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Floyd MOORE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Pieter Cornelis PANNEKOEK, Defendant-Appellant.

Nos. 74-2835, 74-2150, 74-2268.

United States Court of Appeals Ninth Circuit.

June 19, 1975.

Rehearing Denied Aug. 25, 1975.

George W. Hunt (argued), San Diego, Cal., for Emslie Leander Moore.

James Meyers, Asst. U. S. Atty. (argued), San Diego, Cal., for United States.

Leif F. Tessem (argued), San Diego, Cal., for Floyd Moore.

Joseph W. Ruff (argued), San Diego, Cal., for Pieter Cornelis pannekoek.

OPINION

Before CHAMBERS, Circuit Judge, RICH, ^* Judge, United States Court of Customs and Patent Appeals, and ELY, Circuit Judge.

ELY, Circuit Judge:

Each of the three appellants was indicted, along with alleged co-conspirators Charles Heckler and Frank Rezabek, for one count of conspiracy to steal, conceal, and sell United States Government property, in violation of 18 U.S.C. §§ 371 and 641. Appellant Emslie Leander Moore (hereinafter Lee Moore) was indicted on an additional count, charging the substantive offense of concealing stolen Government property, a violation of 18 U.S.C. § 641.

Heckler's case was severed from the others, and he was subsequently called as a witness for the prosecution. In a jury trial, appellants Floyd Moore and Pieter Pannekoek were convicted on the conspiracy count. The same jury failed to reach a verdict as to Frank Rezabek, and his case was scheduled for retrial. Appellant Lee Moore, who was physically unable to undergo the jury trial with his co-defendants, later waived his right to a trial by jury and proceeded to trial before the district judge. The Government submitted its case against Lee Moore on the transcript of the earlier jury trial, and the judge found Lee Moore guilty on both of the counts charged against him. ¹

Lee Moore was ordered imprisoned for five years on each of his two convictions, with the sentences to run concurrently, and fined in the total amount of $10,000. Floyd Moore was sentenced to imprisonment for two years, with all but six months suspended. Pannekoek was sentenced to imprisonment for two years and ordered to pay a $5,000 fine.

The facts of the cases against the appellants center around a scheme to steal new Government-owned hand tools from a self-service Naval supply facility, known as the "Serv-Mart," located at the North Island Naval Base, San Diego, California, and to sell those tools at a Los Angeles marketplace for wholesale tool dealers, known as the "Paramount Swap Meet." The conspiracy began approximately in 1971 when Heckler, the Serv-Mart's assistant manager, agreed to allow Lee Moore, at that time a Navy enlisted man, to make unauthorized exchanges of merchandise that Lee Moore had acquired elsewhere for new hand tools from the Serv-Mart. After these exchanges had continued for approximately four months, Lee Moore, with Heckler's assistance, began to remove tools from the Serv-Mart without providing anything in exchange. In consideration for his co-operation, Heckler at all times received a percentage of the proceeds from the sales of the stolen or exchanged Serv-Mart tools. According to the Government's theory, appellants Floyd Moore and Pannekoek and co-defendant Rezabek participated in the theft scheme by receiving the stolen tools from Lee Moore, selling them at the Swap Meet, and returning at least a portion of the proceeds to Lee Moore. ²

After the conspiracy was discovered in 1973, Naval supply officials inventoried the North Island Serv-Mart and discovered that the facility had suffered inventory losses of approximately $400,000 between February, 1972 and March, 1973.

I. Lee Moore's Appeal

Lee Moore's first three contentions on this appeal concern an affidavit filed by FBI Agent Reginato in support of applications for warrants to search Lee Moore's house and automobile. Acting on the basis of the affidavit, a magistrate issued the warrants, and FBI agents, executing the warrants, seized numerous new, Government hand tools that later were introduced into evidence against the appellants.

A substantial portion of the Reginato affidavit consists of recited facts assertedly reported to various FBI agents by a single, unnamed informer. Lee Moore first argues that the district judge erred in refusing his two motions for an order requiring the Government to reveal the informer's identity.

The Government sought to withhold the informer's identity because the informer had expressed fear for his safety should his identity become known. Lee Moore argued, on the other hand, that if the identity of the informer were revealed, and if the informer were the individual Moore thought him to be, the defendants would then be able to make an initial showing that there were substantial falsehoods in the Reginato affidavit. Such a showing would have entitled the defendants to an evidentiary hearing on the facts asserted in the affidavit. United States v. Harris, 501 F.2d 1, 5-6 (9th Cir. 1974); United States v. Damitz, 495 F.2d 50 (9th Cir. 1974); See United States v. Bolton, 458 F.2d 377, 378 n. 6 (9th Cir. 1972).

Specifically, Lee Moore calls into question a portion of the Reginato affidavit which states that the informer reported to the FBI that on February 23 or 24, 1973, the informer observed numerous Government hand tools in Lee Moore's house and garage. Lee Moore's attorney filed his own affidavit with the court, in which he stated that his client believed the Government's infomer to be one Wachhold, who had visited the Lee Moore residence on the specified dates, that he had interviewed Wachhold, and that Wachhold had said that he had not reported to the FBI that he had seen Government tools in the Moore residence. According to the attorney's affidavit, Wachhold also stated that he had not told the FBI that he feared for his safety if Lee Moore and the other alleged co-conspirators were to learn that he was the FBI's informer.

Initially, Lee Moore's argument presents the question whether the Supreme Court's holding in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), would require disclosure of an informer's identity if such disclosure would enable an accused to make a substantial showing of material falsehoods in an affidavit submitted in support of an application for a search warrant. We think it unnecessary to decide this question, however, since we hold that the trial judge correctly found, after conducting an In camera inquiry, that knowledge of the informer's identity would not enable Lee Moore to establish that there were substantial falsehoods in the Reginato affidavit.

Acting on the basis of the attorney's affidavit, the district judge conducted In camera interviews with certain FBI agents and the Government's true informer, during which he learned the informer's identity and inquired, insofar as he believed necessary, into the Government's reasons for secrecy and the bases for certain portions of the Reginato affidavit. In recent cases, our court has approved such In camera interviews for the purposes of determining whether law enforcement officers have justifiably trusted the conclusions drawn by an informer whose reliability has otherwise been established, United States v. Anderson, 509 F.2d 724, 727-30 (9th Cir. 1974), Cert. denied, 420 U.S. 910, 95 S.Ct. 831, 42 L.Ed.2d 840 (1975); United States v. Tutweiler, 505 F.2d 758 (9th Cir. 1974), and whether knowledge of an informer's identity would be helpful to an accused's defense on the merits, United States v. Rawlinson, 487 F.2d 5 (9th Cir. 1973), Cert. denied, 415 U.S. 984, 94 S.Ct. 1579, 39 L.Ed.2d 881 (1974). The In camera procedure provides an equally-acceptable accommodation of the competing interests of the Government and the accused in the situation presented here wherein the question is whether a law enforcement officer has lied. Through disclosure of the informer's identity to the trial judge, and such subsequent inquiries by the judge as may be necessary, the Government can be protected from any significant, unnecessary impairment of necessary secrecy, yet the defendant can be saved from what could be serious police misconduct. ³ Having examined the sealed transcript of the In camera proceedings, we believe that the trial judge's conclusion, i. e., that knowledge of the informer's identity would not aid Moore in making the required showing, was correct.

Lee Moore next contends that there was ample other evidence of substantial misrepresentations in the Reginato affidavit to support his demand for an evidentiary hearing on the facts therein presented. Moore points out here, as he did in the trial court, that paragraph one of the affidavit states that the informer had provided reliable information to the FBI on Five occasions in the past, while paragraph nine recites that the informer had provided reliable information on only Two past occasions. Additionally, Lee Moore argues that certain language in the affidavit could lead a careful reader to the conclusion that a vehicle described in certain of the factual allegations in the affidavit was not the same vehicle for which a search warrant was sought. In our view, neither of these apparent inconsistencies in the language of the affidavit approaches the "substantial showing of falsehood" that is required. United States v. Harris, 501 F.2d 1, 5-6 (9th Cir. 1974).

Acting carefully to protect the defendant's rights, the district judge inquired into both of these alleged discrepancies during the In camera interviews discussed above. We emphasize that these In camera inquiries were not intended as, nor were they, substitutes for the evidentiary hearing to which the appellant would have been entitled had he made the threshold substantial showing of falsehood. Rather,...