728 F.2d 44 (1st Cir. 1984), 83-1127, United States v. Del Toro Soto

Docket Nº:83-1127.
Citation:728 F.2d 44
Party Name:UNITED STATES of America, Appellee, v. Victor DEL TORO SOTO, Defendant, Appellant.
Case Date:February 29, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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728 F.2d 44 (1st Cir. 1984)

UNITED STATES of America, Appellee,

v.

Victor DEL TORO SOTO, Defendant, Appellant.

No. 83-1127.

United States Court of Appeals, First Circuit

February 29, 1984

Argued Nov. 9, 1983.

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John H. LaChance, Boston, Mass., by appointment of the Court, for defendant, appellant.

Lydia Lizarribar, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before CAMPBELL, Chief Judge, ROSENN, [*] Senior Circuit Judge, and BREYER, Circuit Judge.

ROSENN, Senior Circuit Judge.

Victor del Toro Soto and Francisco Rivera Gonzalez were tried to a jury in the United States District Court for the District of Puerto Rico, convicted of and sentenced for aiding and abetting in the tearing, cutting, and injuring of two United States mail pouches and for stealing mail matter and money from a postal employee by use of force and violence in violation of 18 U.S.C. Secs. 2, 1706, and 2114. Del Toro Soto then appealed to this court, contending that the district court erred in rejecting his request under the Jencks Act, 18 U.S.C. Sec. 3500 (1976), (the Act) for the production of a report made by a witness for the Government. We agreed with the defendants that the report constituted a "statement" within the meaning of the Act, United States v. Del Toro Soto, 676 F.2d 13 (1st Cir.1982), and therefore remanded to the district court for a determination of whether the report was producible within the meaning of section 3500(b).

On remand, the district court conducted a hearing, examined the report, and again concluded that the defendant was not entitled to the report. The district court entered new final judgments of conviction in each case, from which Del Toro Soto has appealed. We affirm his conviction.

I.

The only direct evidence presented by the Government to establish Del Toro Soto's participation in the crime came from the testimony of Victor Garcia Ramos and Jose Maldonado Vega. The picture that emerged from their testimony went like this. Garcia Ramos lived with Iris Rivera, a postal clerk at the Hato Rey Station. Sometime prior to September 1980, Garcia Ramos met Del Toro Soto and asked defendant to introduce him to someone who could rob a postal truck. Garcia Ramos seemed to fear that his relationship with Iris Rivera made it unwise for him to take part in such a scheme himself. Del Toro Soto introduced Garcia Ramos to Maldonado Vega and Hector Arriaga. The four agreed to a plan.

Late in the afternoon on September 4, 1980, the four men met at the Quintana Housing Project. They then drove in two cars to the Hato Rey Station. Once there, Garcia Ramos and Del Toro Soto positioned their car so that they could signal their accomplices the moment they spotted the mail truck leaving the station. They gave the signal, and then left the area. Maldonado Vega jumped into the mail truck and flashed a gun at the driver, Enrique Coira. Two blocks later Arriaga hopped into the truck, and the pair instructed the driver to drive to a location where Rivera Gonzalez waited with a car. The threesome ordered driver Coira to open the back of the mail truck, and then took two or three locked pouches from the truck and put them into the trunk of the car in which Rivera Gonzalez had waited. They then locked Coira in the back of the mail truck, rendezvoused with Del Toro Soto and Garcia Ramos, and then all five proceeded to Del Toro Soto's apartment. There they divided approximately $18,900 in cash, with Garcia Ramos, Maldonado Vega, and Arriaga each taking one third of the pot and giving a small portion to Rivera Gonzalez and Del Toro Soto.

On the fifth day of trial, Postal Inspector Cardona, the case agent, testified for the Government. On cross-examination defense counsel inquired as to whether Cardona had made any notes or reports concerning the evidence to which he testified. Cardona replied that he had indeed, including a

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report he filed with the U.S. Attorney's office. The defense thereupon asked that the report be produced. The court denied the request, stating that such a report "is not 3500 material" and therefore "you would not have a right to it." 1

In remanding, we agreed with the defendant that the report constituted a "statement" within the meaning of the Act. Our remand instructions could not have been clearer:

The procedure to be followed on remand is well settled. The district court must examine the report in camera and, after a complete inquiry, supplement the record with express findings. If it is then determined to reaffirm the denial of the motion to produce, new final judgments of conviction should be entered in each case. If appellate review is sought, the report should be placed in a sealed envelope for transmission to this court. If, on the other hand, the report is determined to be producible, there must be a new trial in both cases unless the error is deemed harmless.

Del Toro Soto, supra, 676 F.2d at 17.

On May 5, 1982, the district court held a hearing at which it examined the report. On February 8, 1983, it issued a memorandum order stating, among other things, that "[t]he presentation letter [report] did not relate to the subject of matter of Inspector Cardona's direct testimony." United States v. Del Toro Soto, No. 80-2043, slip op. at 4 (D.P.R. Feb. 8, 1983). It further observed that "we would at best consider the government's failure to produce as harmless error." Id.

II.

A.

On this appeal, defendant first contends that the district court erred in ruling that no portion of Inspector Cardona's report was producible within the meaning of 18 U.S.C. Sec. 3500(b). He maintains that, although the defense has never been permitted to examine the report, the trial court's discussions comparing the report to Cardona's testimony plainly contradicts its ruling. We agree.

  1. When we remanded this case to the district court, we instructed it to determine whether the report " 'relate[s] generally to the events and activities testified to' " by Inspector Cardona. Del Toro Soto, supra, 676 F.2d at 16 (quoting United States v. Ferreira, 625 F.2d 1030, 1034 (1st Cir.1980) (quoting United States v. O'Brien, 444 F.2d 1082, 1086 (7th Cir.1971)). We reminded the court to "supplement the record with express findings," Del Toro Soto, supra 676 F.2d at 17, so that, on appeal, we could better assess the means by which it proceeded

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    from factual findings to its legal conclusion.

    Despite our instructions, the district court's opinion suggests that it was more concerned with defending the merits...

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