United States v. Arthur Leonard Vissars, Jr., United States of America v. Marc Jeffrey Keenberg

596 F.2d 400 UNITED STATES of America, Plaintiff-Appellee, v. Arthur Leonard VISSARS, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marc Jeffrey KEENBERG, Defendant-Appellant. Nos. 78-2243, 78-2391. United States Court of Appeals, Ninth Circuit. May 7, 1979. Clifford E. Tedmon, Asst. Federal Defender, Sacramento, Cal., Wendy Cole Wilner (argued), Ventura, Cal., for defendants-appellants. Harry E. Hull, Jr., Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before HUFSTEDLER and CHOY, Circuit Judges, and BARTELS, * District Judge. CHOY, Circuit Judge: 1 Marc Keenberg appeals from his conviction on two counts of theft of Government property; Arthur Vissars appeals from his conviction on two counts of aiding and abetting the Keenberg thefts. We affirm. I. Statement of the Case 2 Keenberg is operations manager of Ekco Metals (Ekco), a scrap metal company located in Los Angeles, California. Vissars is employed by Ekco as a truck driver. 3 On July 13, 1977, Keenberg went to the Mare Island Naval Shipyard to inspect several lots of scrap material for the…

Marc Keenberg appeals from his conviction on two counts of theft of Government property; Arthur Vissars appeals from his conviction on two counts of aiding and abetting the Keenberg thefts. We affirm.

I. Statement of the Case

Keenberg is operations manager of Ekco Metals (Ekco), a scrap metal company located in Los Angeles, California. Vissars is employed by Ekco as a truck driver.

On July 13, 1977, Keenberg went to the Mare Island Naval Shipyard to inspect several lots of scrap material for the purpose of submitting bids on the lots. The scrap yard at Mare Island had been under surveillance since March, 1977, because of appar *402 ent thefts of scrap metal and misuse of Government property. John Baker had been placed in the scrap metal yard as an undercover agent by the Naval Investigative Service. Baker met Keenberg and escorted him on a tour of the yard. During the tour the two discussed methods of illegally obtaining scrap metal.

Ekco submitted a successful bid for one lot of Mare Island scrap. On August 17, 1977, Vissars drove an Ekco truck to Mare Island where he met Keenberg. The truck had been loaded with sand and two barrels of metal washers, which were dumped inside…

concurring and dissenting:

I concur in the opinion affirming Vissars’ conviction. However, I cannot join the majority in the Keenberg case because I do not believe that the Bruton error was harmless beyond a reasonable doubt.

The case against Keenberg was strong, but I do not believe that it was overwhelming. Therefore, I would agree with the majority if we were applying an ordinary harmless error rule. I cannot conscientiously apply the constitutional error standard as the majority does. In reaching this conclusion I am influenced not only by the weight of the evidence as a whole, but also by the impact on the whole course of the trial of the improper admission of the testimony in violation of the Bruton rule. After the testimony was admitted, Keenberg had no practicable course open to him other than taking the stand and attempting to establish entrapment. Accordingly, I would reverse Keenberg’s conviction for Bruton error.