U.S. v. Thornberg, s. 87-5089

• Decision Date: 20 April 1988
• Docket Number: Nos. 87-5089,s. 87-5089
• Citation: 844 F.2d 573
• Parties: UNITED STATES of America, Appellee, v. Steven L. THORNBERG, Appellant. UNITED STATES of America, Appellee, v. Steven H. OLSON, Appellant. UNITED STATES of America, Appellee, v. James E. THORNBERG, Appellant. to 87-5091.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 573

844 F.2d 573

UNITED STATES of America, Appellee, v. Steven L. THORNBERG, Appellant.

UNITED STATES of America, Appellee, v. Steven H. OLSON, Appellant.

UNITED STATES of America, Appellee, v. James E. THORNBERG, Appellant.

Nos. 87-5089 to 87-5091.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1987.

Decided April 20, 1988.

Rehearing Denied in No. 87-5089 May 16, 1988.

Terrence J. Fleming, Scott Tilsen, Jonathan E. Fruchtman, Minneapolis, Minn., for appellants.

Donald M. Lewis, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before ARNOLD, FAGG, and BEAM, Circuit Judges.

ARNOLD, Circuit Judge.

This is a prosecution for mail fraud. The government alleged that between January 1980 and December 1984 the defendants, as owners and officers of several different companies, carried out a scheme to defraud the companies' creditors and customers. Generally, the indictment charged that the defendants' companies, which sold grain-processing equipment, would buy their inventory and advertising on credit, without intending to pay for them, and then would sell the equipment to customers, requiring payment in cash before delivery. Much of the merchandise would be delivered late or in bad condition. As part of the scheme, when disgruntled creditors and customers made complaints or threats, the defendants would stave them off either by falsely promising to rectify the problem or by threatening them with legal action for interfering with business relations or reputation. When the heat on a particular company got too great, the defendants would seek bankruptcy protection, or otherwise cease doing business as that company, and incorporate a new company to repeat the cycle.

The defendants were tried jointly, and the trial took 20 days over a two-month period. The jury convicted Jim Thornberg on 17 of 26 counts, Steve Olson on 21 of 27 counts, and Steve Thornberg (Jim's brother) on four of ten counts. The major issue before us, which all three defendants press, is whether the trial should have been severed. In addition, Jim Thornberg argues that the District Court ¹ erred in refusing to exclude certain evidence as a sanction for the government's violation of Fed.R.Crim.P. 16, and Steve Thornberg argues that the evidence was insufficient to support his guilty verdicts, that the Court erred in excluding the testimony of one of his witnesses, that one of his proposed jury instructions should have been submitted, and that he suffered prejudicial preindictment delay. We affirm the judgments in all respects.

I.

We turn first to the severance issue. ² The most crucial aspect of this claim is whether the defendants properly preserved this issue for appellate review. The answer to this question will determine the standard of review we will apply. If the issue was preserved, our review is for abuse of discretion in applying the standard of Fed.R.Crim.P. 14, which states in part:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

The showing of prejudice necessary to succeed on an appeal under this Rule is a showing that the joinder adversely affected the substantial rights of the complaining party. United States v. Bostic, 713 F.2d 401 (8th Cir.1983). On the other hand, if the issue was not preserved, we review for plain error. This requires appellants to show not only that there was a Rule 14 violation affecting their substantial rights, but also that there is some extraordinary reason for us to reverse for such error despite their failure to raise the issue in the trial court. For a discussion of the factors involved in noticing plain error in criminal cases, see United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1986). See also Fed.R.Crim.P. 52(b) ("Plain errors ... affecting substantial rights may be noticed....") (emphasis supplied).

A.

In general, preserving an issue is a matter of making a timely objection to the trial court and clearly stating the grounds for the objection, so that the trial court has an opportunity to prevent or correct the error in the first instance. See, e.g., Fed.R.Evid. 103(a). Unless the issue was brought to the attention of the trial court in this manner, we are loath to reverse, even if there is error, for at least two reasons. First, as a practical matter, without a timely objection a reviewing court cannot know whether the appellant knew of the error at the time it was made, but decided nevertheless to accept the ruling in the hope that it would not harm his case. Thus the reviewing court cannot be sure that the appellant did not consent to the error. Second, in most cases it is simply unfair to reverse a trial court on the basis of an issue that it has not had an opportunity to consider. In our adversarial system, so long as the proceeding is conducted within the bounds of fundamental fairness, it is not the duty of the trial court to anticipate and evaluate every possible error that might be alleged. Rather, it is the role of counsel to bring such matters to the court's attention.

Preserving the issue of refusal to sever is a bit more complicated. Federal R.Crim.P. 12(b)(5) requires that a motion to sever be made before trial, and failure to do so then results in a waiver of the objection, unless cause is shown. Fed.R.Crim.P. 12(f). Each of the defendants here complied with this Rule. In addition, our cases have stated that, even though a pretrial motion to sever is denied, the objection is not preserved unless the motion is renewed at the end of the government's case or at the end of all the evidence. ³ E.g., United States v. Shearer, 606 F.2d 819, 821 (8th Cir.1979). It is undisputed in this case that none of the defendants renewed the severance motion at the end of the government's case or at the close of all the evidence, and the government therefore argues that the issue was not preserved and we should review for plain error only.

We do not agree with the broad stroke of the government's argument. Like all procedural rules, our rule on preserving a motion to sever must be applied in light of these purposes; it cannot stand as a monolith, an end in itself. It has no life apart from the reasons for which it exists. Thus we turn to the specific severance motions made by each appellant, and view them against the backdrop we have discussed, to determine whether they have been properly preserved.

1. Jim Thornberg based his pretrial motion for severance on the ground, among others, that Steve Olson would present a defense that would be inconsistent with his own, i.e., Jim would try to depict Olson as the dominant force in their companies, and the one responsible for the fraudulent activities, while Olson would present the same portrait of Jim. This motion was properly denied, as are most pretrial severance motions made on the ground that joinder may permit a parade of horribles at trial, because, at the pretrial stage, it usually is not certain that the anticipated horrible will come to pass. At the status conference just before trial, Jim renewed his severance motion on the ground that Steve Thornberg would also present an inconsistent defense, similar to Olson's. Sept. 4, 1986 Tr. at 12-13. The Court denied this motion also, commenting that there was "nothing different or new to change the circumstances ... with respect to the trial of the case...." Id. at 40. This ruling, we think, put Jim on notice that, if the circumstances did change, he should bring that change to the Court's attention.

During trial, both Steve Olson and Steve Thornberg put on evidence that Jim controlled their companies and was solely responsible for any fraud that may have occurred. This evidence was adduced during the government's case, by way of cross-examination of government witnesses, and during the defendants' cases. Jim never renewed his motion to sever. ⁴ Since Jim gave no indication that he thought this evidence warranted severance just before, or at any time after, it was actually introduced, we cannot be sure that he did not consent to it. Nor did the trial court have an opportunity to pass on the issue at a time when the alleged inconsistency of the defenses of Jim's codefendants became concrete. We therefore hold that Jim Thornberg did not preserve the severance issue. And, reviewing the issue thus presented, we do not find plain error. We do not think the District Court abused its discretion by refusing to sever his case, and, in any event, we do not find this to be the extraordinary case in which we would reverse despite the appellant's failure to preserve the point. See United States v. Young, supra.

2. Steve Olson moved for severance in a pretrial motion, which was denied. He renewed it at the pretrial status conference, arguing that the jury would be unable to compartmentalize the evidence relating to him from that relating to the others. This was one of the grounds that he had raised in his pretrial motion, and the Court denied it at the status conference for the same reason it denied Jim's, because there had been no change in circumstances.

During trial, Olson renewed his severance motion on the ground that the admission of bankruptcy documents relating to one of the companies, which dated from a time before Olson was involved with that company, was prejudicial to him. The Court denied the severance. This motion went to the same issue he had raised in his pretrial motions, whether the jury could compartmentalize the evidence which did not relate to him. This showed that Olson did not abandon his pretrial objections on that ground and gave the Court an opportunity to pass on the issue at a time when it could properly assess the likely prejudice. Thus, even though the motion was...