U.S. v. Reda
| Citation | 765 F.2d 715 |
| Decision Date | 13 June 1985 |
| Docket Number | Nos. 84-2270,84-2290 and 84-2331,s. 84-2270 |
| Parties | 18 Fed. R. Evid. Serv. 692 UNITED STATES of America, Appellee, v. Thomas REDA, Appellant. UNITED STATES of America, Appellee, v. Michael Edward O'CONNOR, Appellant. UNITED STATES of America, Appellee, v. Clarence Dale CUNNINGHAM, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Paul Rosenberg, Des Moines, Iowa, for Reda.
Terry Wright, Des Moines, Iowa, for O'Connor.
Lylea Dodson, Des Moines, Iowa, for Cunningham.
Robert C. Dopf, Asst. U.S. Atty., Des Moines, Iowa, for appellee.
Before ROSS and BOWMAN, Circuit Judges, and OLIVER, * Senior District Judge.
Thomas Reda, Michael Edward O'Connor and Clarence Dale Cunningham were indicted on May 24, 1984 in the Southern District of Iowa. The three-count indictment charged appellants in Count 1 with violation of 18 U.S.C. Sec. 2314, transporting in interstate commerce from Las Vegas, Nevada to Des Moines, Iowa, stolen jewelry have a value in excess of $5,000; in Count 2 with a violation of 18 U.S.C. Sec. 2315, concealing, storing, and bartering stolen jewelry, having a value in excess of $5,000, which had moved in interstate commerce, knowing the same to have been stolen; and in Count 3 with a violation of 18 U.S.C. Sec. 371, conspiring together to transport in interstate commerce the stolen jewels.
Appellants present several issues for review which we shall address individually. We affirm the judgments of the district court in regard to each defendant.
On May 7, 1984, approximately $130,000 in jewelry belonging to Sam Angel was stolen from his car in Las Vegas, Nevada. Sam Angel was a self-employed jewelry salesman who operated in the casinos. He reported the theft on May 11, 1984. On May 14, 1984 Cunningham received a telephone call from O'Connor from Las Vegas. On May 15, according to the evidence presented by the government, O'Connor and Reda arrived in Des Moines on Ozark flight 641. Reda and O'Connor went to the Hyatt House Hotel where Reda, who registered under the name of Jack R. Weber, obtained adjoining rooms 417 and 419.
On May 16, 1984 Cunningham, identifying himself as Mr. Williams, contacted John Lacey, Assistant Manager of the Des Moines Gold and Silver Buyers, and arranged to meet him in the lobby of the hotel. Reda and Cunningham informed Lacey that there were a number of jewelry items available for purchase and escorted him to room 419. Lacey was shown a large suitcase filled with jewelry which still had identification tags and price tags on them. Reda told Lacey that the items were worth approximately $300,000 and that they could be purchased for ten cents on the dollar. Lacey asked if they were "hot." Reda said they were obtained in Ohio as a result of an insurance scheme. Lacey was left with a definite impression that they were stolen. Reda refused Lacey's offer of $10,000. Lacey indicated he would attempt to locate a buyer and left.
Lacey, however, contacted the F.B.I. who instructed him to contact Reda and inform him that Lacey had a friend coming in from Omaha who might be interested in purchasing the jewelry. At approximately 10:15 a.m., May 17, F.B.I. and state law enforcement agents set up surveillance of adjoining rooms 417 and 419. About 10:30 a.m. all three defendants were observed going and coming from room 417 to an automobile registered in Cunningham's name.
At approximately 1:15 p.m. Special Agent Peter Klismet met with Lacey and Reda in the hotel lounge. At 1:36 p.m. O'Connor was observed looking out of room 417 and placing a "Do Not Disturb" sign on the door. Five minutes later Reda took Klismet to room 419. Reda unlocked the adjoining door between room 417 and 419 and brought a suitcase containing the jewelry from room 417 to 419. Reda told Klismet that the jewels had been stolen in Ohio and stored for approximately three months. He gave the impression that he had received indemnification for them from an insurance company.
Klismet examined the jewelry and purportedly was attempting to determine whether he would buy it. Klismet asked whether Cunningham knew the items were "hot." Reda said, "He semi-knows." Reda also indicated the possibility of some future sales of gold coin medallions. Reda and Klismet discussed price, but Klismet indicated a desire to speak to Lacey before finalizing the deal.
After Klismet left at approximately 3:00 p.m. O'Connor and Cunningham carried suitcases later found to contain the jewelry to Cunningham's automobile. Minutes later Cunningham was arrested in the automobile with the jewelry and Reda and O'Connor were arrested in the hotel rooms.
O'Connor was carrying on his person a torn piece of paper containing a handwritten list of various jewelry items and figures totaling $211,000 and an address book listing the telephone numbers for Reda and Cunningham. A piece of paper matching the torn list was found on Reda containing the name Mike and a phone number. Cunningham was carrying the key to room 419.
There was a hole in the wall between rooms 417 and 419 behind the dresser and a hole in the dresser in room 417. Angel testified that he knew Cunningham and O'Connor from playing cards with them in Las Vegas and that he had seen Reda "around" in that city but had never said two words to him. Two defense witnesses, Bundy and Courson, testified that they knew both Angel and Reda and that they had seen them in lengthy conversation with each other. In addition, witness Courson testified that Reda had told him that Angel was going to "front" him some jewelry to pull off some sort of a "scam."
None of the defendants testified. Reda's attorney, however, stated in his opening statement and in his closing argument that Reda had leased the jewelry from Sam Angel for the purpose of perpetrating a "scam on prospective purchasers by which Mr. Reda would get the purchasers' money and retain the jewelry." Reda's attorney contended that Reda planned to use the "leased" jewelry to attract prospective buyers; that Reda would show the jewelry in the hotel room; that he would place the buyer's money and the jewelry in a dresser drawer on the pretext of going to the car to get the rest of the jewelry; that someone in the adjoining room would remove both the money and the jewelry and be gone before the prospective buyer caught on. Reda's defense, as asserted through his attorney, was that the jewelry was not stolen and that Reda had lawful possession for the purpose of perpetrating the "scam."
Cunningham's defense, presented in the same manner, was that Reda and Angel were perpetrating a fraud scheme with Angel's jewelry of which Cunningham had no knowledge. It was Cunningham's position that O'Connor had approached him to find buyers for a commission of 20%.
O'Connor's attorney contended that the government failed to prove that O'Connor had any knowledge of the source of the jewelry or that the jewelry had been stolen. O'Connor's counsel maintained that O'Connor had merely put Reda in contact with Cunningham who was to contact prospective buyers. The jury rejected each defendant's defense.
The single issue for appeal presented by Reda was the refusal of the trial court to give a tendered instruction on credibility requested by Reda.
Reda focuses attention on Sam Angel's testimony at trial that he did not know Reda or have any relationship with him, that he had seen Reda "around," but that they had hardly talked. Attention is also directed to the testimony of the two professional card players who testified for the defense that they had seen Angel and Reda talking in the casinos over the years and to defense witness Courson's testimony that Reda had told him of a "scam" he was planning for which Angel was going to furnish some jewelry.
Reda contends that the jury was given no appropriate instruction on what consideration should be given the "impeachment" evidence of the two defense witnesses under which the jury could find that the government's witness Angel had lied about how well he knew Reda. Reda requested the following instruction, which the district court refused to give:
The testimony of a witness may be discredited or impeached by showing that he previously made statements which are inconsistent with his present testimony. The earlier contradictory statements are admissible only to impeach the credibility of the witness, and not to establish the truth of these statements. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has been impeached.
If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars; and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.
The district court, however, did give Instruction No. 24 which read as follows:
Evidence that at some other time a witness, other than the accused, has said or done something, or has failed to say or do something, which is inconsistent with the witness' testimony at the trial, may be considered by the jury for the sole purpose of judging the credibility of the witness; but may never be considered as evidence or proof of the truth of any such statement.
The district court also gave Instruction No. 28 which read in part:
You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.
You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence that tends to show whether a witness is worthy of belief....
After making your judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves.
We conclude that the instructions given and all the instructions viewed in their...
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