Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellants Konigsberg, Nalewajka, Juliano and Celso were indicted, tried and convicted of unlawful possession of goods stolen from interstate commerce in violation of Title 18 U.S.C. § 659. Appellant Zax was indicted, tried and convicted of unlawful concealment of goods valued in excess of $5,000 which had been stolen from interstate commerce, in violation of 18 U.S.C. § 2315.
Appellants argue that they had standing to move for the suppression of evidence, to object to its introduction and that the evidence should have been suppressed.
The case centers around the hijacking of some 3,000 men's suits in Parksville, New York. Approximately 1,700 of these were brought to Bayonne, New Jersey and placed in an old garage at 15 West 22nd Street that city. There was substantial evidence that on the night of January 11, 1962, the garage was located in a very poor neighborhood. It was unheated, its windows were constantly being broken by neighborhood children, it had been vacant since the early part of 1961, at least on one occasion the police had removed some old drunks who had entered through a side door. The owner of the building, testifying on behalf of the defense, said that he didn't take care of the building, that he wanted to get rid of it.
Zax said that he had leased this garage on a month to month basis at $100 a month in December, 1961. Levine, the landlord, a witness for Zax, said the latter rented the place for two months. Zax said he gave Levine a hundred dollars cash. Levine says this was paid him "* * * the end of December in 1961." Zax claimed that he desired to store some furniture of the "Garden State Betterment League" in the garage. He had some furniture moved in during the first week of January 1962 and then had it taken out "* * * because it was raining in there. It was all wet and it was getting - the leather was starting to - I told them to take it back again because I wasn't going to do nothing more there for a while." The oil burner would not start because it was full of water. Asked regarding his intentions for the garage, he answered, "Well, I figured we would hold it for a while and try to get a tenant for it." He testified that around January 6, 1962, one Joseph Pope told him he "* * * would like to use it [the garage] for a week or two * * * I said, Well, you will have to get out if I get a steady tenant" and he said, "All right. I will rent it for a week or two." And he said "How much do you want * * *?" And I said "$50." Q. "And did you lease it to him?" A. "Yes." Around the second of January 1962, Zax saw two fellows in the garage who gave him "no good answer" as to what they were doing there. They had a bottle with them anyhow. Zax also explained that entrance could be made into the building "through the back". According to him, his intention had been to have glass put in the broken windows.However, on January 11, 1962, the windows had all been covered from the inside with plywood. Agent Tootell testified that Zax told him that he had personally boarded up the windows of the first floor of the garage building after he rented it from Levine. Zax during the critical period was manager of a saloon called the HooHa Club which was across the street from the garage.
In January 1962, prior to the 10th of the month, Walter L. Parker, a Federal Bureau of Investigation agent of approximately fourteen years experience, received a telephone call from a reliable confidential source telling him that "there was apparently an unlimited quantity of Bond clothes available that was being disposed of in the Bayonne, New Jersey area." Some numbers on the tags of the clothing were given and the clothing was said to be in the area of the Hoo-Ha Club. The Bureau checked the clothing identification with the manufacturer who identified it as part of the stolen shipment. There was testimony that the reputation of Zax, the "operator of this bar" and at least some of its patrons "* * * in law enforcement is not too good". Because of all this the Bureau started a surveillance of the Hoo-Ha and garage location on the evening of January 10th. A car was noticed entering the garage about 8:30 that night. It backed out about ten minutes later and parked on 22nd Street. Several suits with white tags on them were seen lying on the back seat of the automobile. Appellant Juliano suddenly appeared on 22nd Street. A little later a man who came from the Hoo-Ha drove the car away.
About 9:30 the next night, Juliano moved an automobile from in front of the garage to allow a station wagon to back in. Several men left the Hoo-Ha and went into the garage and its door was closed. For about the next hour there was no light from the garage visible to the watching agents. The latter did hear "* * * the rustling of papers and a lot of laughter." Then the garage door was raised from the inside. Four Bureau agents were about two feet in front of the door as it opened. Their testimony is that the lights were off in the garage but with the light from the street and from their flashlights they saw in the garage piles of suits on the floor and in the station wagon. Appellant Celso was in the driver's seat of the station wagon. The agents told the people in the garage they were under arrest. Juliano started to walk out. He and Celso, Konigsberg and Nalewajka who were also in the garage, were taken into custody. Under the circumstances, a search warrant, which had been obtained earlier, was not used. Zax was not in the garage at the time. He was arrested the next day.
Prior to trial the defendants moved to suppress the evidence of the stolen suits. The trial court took testimony and heard exhaustive argument on that motion for seven days. The motion as to Konigsberg, Juliano, Celso and Nalewajka was denied at the conclusion of the argument on the grounds: that the garage at the time of the seizure of the suits was not a building within the purview of the Fourth Amendment whereby search thereof without a warrant would constitute an invasion of the privacy of any of the defendants; that none of the defendants had standing to challenge the seizure as persons aggrieved by unlawful search and seizure and that "* * as a fact the Agents acting pursuant to the provisions of 18 U.S.C. § 3052 did have reasonable ground to believe at the time the arrests were made that each person in the garage had committed or was committing a felony."
Against the overwhelming proof to the contrary, appellants make no attempt to argue that the garage involved was appellants' house within the purview of the Fourth Amendment in which they were entitled to Constitutional protection of their privacy. None of the defendants, including Zax, had a then present possessory interest in the garage. The only one, according to Zax as a trial witness, who had the right at that time to use the building was the mysterious Mr. Pope to whom Zax said he had rented the premises for a week or two on January 4th, 5th, 6th or 7th.Zax asserted that he had received the agreed fifty dollars rent from Pope and had given him a key. As the trial judge mentioned in his opinion, there had been some suggestion by counsel for the other four defendants that the latter were in the building with the permission of Pope but there is no record support for this. Certainly, Pope was not produced at the trial. Zax stated regarding him, "I know he has not been around in quite a while." Beyond question if appellants were legitimately in the garage as invitees or guests of Pope as sublessee they might well have been under the Fourth Amendment umbrella. However, that is not the situation and, as above noted, there is no pretension that it is.
What appellants are really saying definitely and directly is that since they were caught cold in the garage with the stolen clothes, they were in possession of the clothes and therefore they do not have to prove either a right to be on the premises or to the clothes. Appellants point to their indictment for possession of merchandise stolen in interstate commerce as bringing them within the rule of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). The Jones decision concerned a prosecution for violation of federal narcotic laws. The defendant had been convicted under 26 U.S.C. § 4704(a), with having "purchased, sold, dispensed and distributed" narcotics not in or from the "original stamped package" and under 21 U.S.C. § 174 for having "facilitated the concealment and sale of" the same narcotics, knowing them to have been imported illegally into the United States. Both those statutory provisions permit conviction upon proof of the defendant's possession of the narcotics and, with respect to 26 U.S.C. § 4704(a), of the absence of the appropriate stamps. As the Court said p. 258, 80 S. Ct. p. 730, "Possession was the basis of the Government's case against petitioner." The entire point of the Jones opinion as far as we are concerned on this appeal is that the Supreme Court there extended the doctrine that a genuine possessory interest in the premises involved made out a sufficient interest in the premises to establish such person as one aggrieved by the search. The Court (page 267, 80 S. Ct. page 734) extended the doctrine to include "* * anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him." That necessary condition did not exist here. Nor does the ambivalent argument that possession of the stolen clothes in the defendants "eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged." Jones p. 263, 80 S. Ct. p. 732. That holding was specifically directed to the sui generis problem before the Court as to which the latter held p. 263, 80 S. Ct. p. 732, "The same element in this prosecution [narcotics] which has caused a dilemma, i.e., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged ." (Emphasis supplied).
In Jones, by statute, proof of possession was enough to convict. The controlling law of this appeal has no such provision or intimation. Possession is only one element of the crime charged. The theft, interstate commerce, knowledge of the theft and value of the stolen clothes all were matters of proof by the Government without which the charge would fall as a matter of law. The Jones rule governs as of course in a proper case. It is not applicable to the issue before us. Cf. United States v. Romano, 203 F.Supp. 27, 30-31 (D.C.D.Conn.1962). Ramirez v. United States, 294 F.2d 277 (9 Cir. 1961).
Appellants also argue that the arrests of the four defendants in the garage were without probable cause. The reason advanced for this proposition is that "At the time the arrest was announced the Agents were without reasonable grounds to believe that the persons arrested had committed or were in the process of committing a felony." Appellants in this statement are, as they must, giving the converse of the statutory power to arrest without warrant. 18 U.S.C. § 3052. Actually the Agents had with them a search warrant for the garage building issued earlier in the day, January 11, 1962. At the garage, prior to the opening of its door from the inside, the Agents knew that some suits resembling the stolen shipment and bearing identification tags like those marking the missing suits had been brought from the garage the night previous. They had a whole series of incidents, some of which are briefly alluded to in the statement above, focusing on the Hoo-Ha Club, its management and habitues with particular reference to the garage, its condition, use and contents. The Agents were directly in front of and close to the garage door, prior to any opportunity of serving the warrant. At that time the door was opened from within and rose up leaving the interior of the garage in the plain view of the Agents. They, without search, saw a mass of men's suits with identification tags, piled up in a station wagon in the garage and on the floor thereof. Upon the entire factual circumstances, the Agents then had justifiable grounds for believing that a felony had been and was being committed. Arresting the four defendants in the garage was proper under the statute and called for on the part of the Agents.
Appellants allege substantial error because their motion for the name of the informant referred to in the above factual statement was denied. In this instance reliance is placed upon Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). That opinion sets out the basic standards under which the trial judge may require disclosure of an informant's identity. It occurs, as Mr. Justice Burton said for the Court, pp. 60-61, 77 S. Ct. p. 628, "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, * * *." From our own study of this record, the disclosure of the informer's name was palpably not essential to the fair determination of this cause. Nor was its relevancy and helpfulness to the defense shown. The preservation of the informer's anonymity is to encourage and protect him in performing his obligation to communicate knowledge of commission of crimes to law enforcement officials. As the Court said in Roviaro, p. 62, 77 S. Ct. pp. 628-629:
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."
The trial judge in this matter under its particular facts was well within his sound discretion in refusing to permit the informer's identity to be revealed.
The conviction of Zax for the statutory offense of concealment of the stolen property is protested as inconsistent with the other verdicts returned and therefore the result of passion, etc. It is urged that acquitting Zax of possessing and storing the property makes it impossible for a reasonable jury to find him guilty of being a part of the deliberate, criminal concealment of the suits after their theft. It would seem to have weighed heavily with the jury, as far as the possession charge was involved, that Zax admittedly was not in the garage with the suits as were the other four when arrested. Pointing to the obvious sharp distinction between storage and concealment, the jury did not find anyone guilty of storage. The evidence was all to the effect that the suits were concealed in the dilapidated garage for the purpose of processing them for surreptitious sale, not for storage.
Zax was the lessee of the garage. He did testify that he subleased it to Pope for one or two weeks. The jury may not have believed this. There was valid evidence that Zax had to do with the boarding up of the garage windows during the critical period. He had the garage locks changed at that time. There was evidence that Zax stated that as late as January 9, 1962, he had allowed a truck driver, not identified, to unload his truck in the garage. An Agent testified that Zax, together with Nalewajka and Juliano, on January 9 and 10, 1962 while in the Hoo-Ha Club took turns looking across the street in the direction of the garage.The same Agent on January 9, 1962 saw Zax go from the Hoo-Ha and returned shortly thereafter "* * * with some pieces of cardboard, a hammer and what appeared to be some thumb tacks." Then he and Nalewajka left and the Agent saw that "they were walking directly to this big building where there is an old garage there." Under all of the evidence the jury reasonably could, as it did, find Zax guilty of primary relationship to the concealment of the suits.
On behalf of appellant Konigsberg, by way of supplemental brief, it is argued that the latter was denied the assistance of counsel under Escobedo v. State of Illinois, 84 S. Ct. 1758, 12 L. Ed. 2d 977, op. filed June 22, 1964. In that case petitioner was, according to the Supreme Court p. 1760, "* * * a 22-year-old of Mexican extraction with no record of ...