United States v. Emslie Leander Moore, United States of America v. Floyd Moore, United States of America v. Pieter Cornelis Pannekoek

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…

(concurring and dissenting):

I concur in the majority opinion except as to the reversal of Floyd Moore’s conviction. I believe that the district court’s decision not to rule that the Rezabek statement was inadmissible against Floyd as a matter of law, if incorrect, was harmless error. Floyd Moore and Rezabek were tried together. Initially, the district court concluded that the statement was admissible against Rezabek but not Floyd, and gave a limiting instruction to that effect. Later, after the government had rested, the court changed its ruling and determined that there was sufficient evidence to send to the jury the question of whether Floyd’s failure to respond to the statement could be treated as an adopted admission.

Because the statement was plainly admissible against co-defendant Rezabek, the jury would have heard it in any event. Thus, the majority’s argument comes down to the proposition that reversal is compelled because of the prejudice possibly created by telling the jury that it was permissible for them to find that Floyd adopted the statement as his own. In view of all the other evidence linking Floyd to the conspiracy, I cannot conclude that the absence of this…

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: 1 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…