534 F.2d 186: United States of America, Plaintiff-appellee, v. Veronza Leon Curtis Bowers, Defendant-appellant
United States Court of Appeals, Ninth Circuit. - 534 F.2d 186
April 1, 1976.As Modified on Denial of Rehearing and Rehearing En BancJune 11, 1976
Doron Weinberg (argued), of Stender, Stender & Weinberg, San Francisco, Cal., for defendant-appellant.
John G. Milano, Asst. U.S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
Before BROWNING and CHOY, Circuit Judges, and LUCAS,* District Judge.
Appellant was convicted of murdering Kenneth C. Patrick, park ranger employed by the United States Park Service, in violation of 18 U.S.C. § 1114. We affirm.
The park ranger's body was found beside Mount Vision Road in Point Reyes National Seashore. He had been shot three times with an Astra Pistol using 9 mm ammunition of Yugoslavian manufacture. Three spent 9 mm shell casings were found nearby. One was of Yugoslavian manufacture; another of Finnish manufacture bore the marking "VPT 44." Four crossbow bolts fitted with hunting tips were also found in the immediate area.
Evidence developed in subsequent investigation indicated that appellant Bowers, Alan Veale, and Jonathan Shoher had been stopped by the park ranger while on an expedition to poach deer, and appellant Bowers had shot the ranger. Appellant and Alan Veale were indicted for murder. The cases were severed for trial, appellant Bower's trial to lead. Veale elected to testify against appellant. After appellant's conviction, the indictment against Veale was dismissed.
1. The contention pressed most strongly by appellant is that the district court erred in denying a motion to suppress certain evidence seized during a search of a residence at 976 Vernal Road, Mill Valley, California.1 The search was conducted pursuant to a search warrant. Appellant contends that the affidavit submitted to the magistrate did not establish probable cause. The affidavit is set out in full in the margin.2 We are to pay "substantial deference" to the decision of the magistrate. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 726 (1964); see also Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697, 707 (1959). Doing so, we conclude that the affidavit was sufficient, though by no great margin. The general basis of our conclusion is this: the circumstances of the murder and the evidence found at the scene suggested the existence of other undiscovered objects evidencing the crime,3 in the main, these objects were of a kind (guns, ammunitions, archery equipment, clothes) likely to be found where the persons involved lived; and a web of circumstances connected appellant, Veale, and Shoher to each other, these three to the murder, and Veale and Shoher to the house to be searched.
Appellant is particularly insistent that the affidavit did not establish probable cause to believe the evidence of the crime would be found at the Mill Valley address.4 "The magistrate is not required to determine whether in fact the items to be searched for are located at the premises to be searched, but only whether there is reasonable ground to believe they are there." United States v. Damitz, 495 F.2d 50, 55 (9th Cir. 1974). This standard is met. From the information in the affidavit the magistrate could reasonably infer that at least some of the objects sought were probably at the Mill Valley address, even though "the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely" to conceal the property sought. United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).5 The objects sought were of a kind likely to have been retained for the six weeks that elapsed between the murder and the search,6 and, as we have said, would probably be found where the perpetrators lived. Veale had admitted involvement in the murder (note 2, paras. 8, 11). A bullet similar in size and markings to ones found at the murder scene had been discovered in a car owned by Shoher (notes 2, paras. 5, 19). Veale's San Francisco apartment had been searched and the objects sought had not been found (note 2, para. 13). A group of which appellant, Shoher, and sometimes Veale, were a part, had moved to Mill Valley (note 2, para. 21). Veale's girlfriend had twice telephoned Veale at the Mill Valley address (note 2, paras. 23, 24). Shoher's car (note 2, para. 18) had been seen parked at this address (note 2, paras. 25, 26).
2. We agree with the district court that appellant failed to make a sufficient showing to require the government to affirm or deny that his counsel's telephone had been tapped. Assuming the showing was sufficient to establish electronic surveillance had occurred, nothing offered suggested any connection between the claimed surveillance and this proceeding, as required by United States v. Alter, 482 F.2d 1016, 1026 (9th Cir. 1973). See United States v. Vielguth, 502 F.2d 1257, 1260 (9th Cir. 1974); United States v. See, 505 F.2d 845, 856 (9th Cir. 1974). The only possibly relevant showing concerned a telephone conversation between counsel and appellant's wife, but the affidavits revealed that this conversation occurred many months before the murder and related to legal problems concerning children who were living with the Bowers.
Since the appellant made no showing requiring a government response, he cannot complain because the government voluntarily furnished certain tapes to the court for in camera inspection. United States v. See, supra.
3. Appellant contends that the prosecution was guilty of misconduct in failing to reveal that a prosecution witness had committed perjury before the grand jury. Witness Darnell Phillips testified before the grand jury that Alan Veale told him, "We (Veale and Bowers) shot the ranger." Phillips later testified (at a trial other than appellant's) that Veale told him "Daoud (Bowers) shot him." Assuming United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), applies, the failure of the prosecutor to notify the court and the grand jury of the change in Phillips' testimony was harmless beyond any doubt. Both versions of Phillips' testimony implicated Bowers. Appellant's counsel was aware of the alleged perjury well before trial, but made no motion to dismiss the indictment.
4. A government witness was allowed to testify that he had made a microscopic comparison of one of the bullets found in the ranger's body with a bullet found in appellant's attache case and that in his expert opinion the marks on these bullets indicated they had been loaded into the same gun (not the murder weapon). Appellant objected to the admission of this opinion on the ground that there was no showing that "tool mark identification" was generally accepted as sufficiently reliable to justify admission of expert opinion based upon its use. Appellant fails to distinguish between the procedure and its application to the particular case. The record was sufficient to permit the trial court to conclude that "tool mark identification" rests upon a scientific basis and is a reliable and generally accepted procedure.7 Whether its use in the particular case resulted in a reliable opinion was a different question, to be explored in cross-examination of the expert witness. The jury was properly instructed to give the expert testimony such weight as the jury thought it deserved.
5. Appellant cites four statements of the prosecuting attorney to the jury as misconduct. As to three of these there was no objection at trial and no request for a corrective admonition. None of the three constitute plain error. United States v. Perez, 491 F.2d 167, 173 (9th Cir. 1974). The statement objected to was to the effect that the prosecution would not have been allowed to prove that at the time of the murder appellant was wanted by law enforcement officers, thus providing a motive for the murder. If the statement was error, it was error shared by the trial court and clearly made in good faith. On the whole record, it was harmless.