U.S. v. Thuna

• Decision Date: 18 March 1986
• Docket Number: No. 85-1422,85-1422
• Citation: 786 F.2d 437
• Parties: UNITED STATES of America, Appellee, v. Martin G. THUNA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 437

786 F.2d 437

UNITED STATES of America, Appellee, v. Martin G. THUNA, Defendant, Appellant.

No. 85-1422.

United States Court of Appeals,

First Circuit.

Argued Dec. 4, 1985.

Decided March 18, 1986.

Alberto Tellechea, Orlando, Fla., with whom Law Offices of Francisco M. Lopez-Romo, San Juan, P.R., was on brief, for defendant, appellant.

Ricardo R. Pesquera, Asst. U.S. Atty., with whom Jose A. Quiles, Acting U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Martin G. Thuna appeals from his conviction for the possession and interstate transportation of stolen goods. Thuna contends that the district court committed reversible errors, including: (a) redacting a statement given by Thuna to an FBI agent, and refusing to allow him to cross-examine the agent on the deleted material; (b) failing to exclude prosecution evidence that Thuna claims should have been, but was not, shown to him earlier; (c) admitting the testimony of Dennis Bolton, a printer, although Bolton's testimony was irrelevant and was improper rebuttal; and (d) giving instructions that eased the government's burden of proof on the issue of appellant's state of mind. Since we do not find merit in any of these arguments, we affirm.

I.

The evidence at trial tended to establish the following:

Martin Thuna was the president of Farmedics, Inc., a California pharmaceutical and health products distributor. He was also the president of two companies in Puerto Rico, Drogueria Save-On and Drogueria Isla, which purchased most of the merchandise subsequently distributed by Farmedics.

On July 30, 1982, a container loaded with 2,805 cartons of Tic Tac candies was stolen from Ferrero, Inc., a Tic Tac distributor based in Puerto Rico. ¹ Four days later, while on a business trip to Puerto Rico, Thuna phoned the executive vice president of Farmedics, Jose Ferrer, to determine if Farmedics could sell some Tic Tacs. After quickly checking with some California distributors, Ferrer reported to Thuna that Farmedics would be able to sell the candy.

A distributor Ferrer contacted spoke to others, one of whom wrote down the information he received about the Tic Tacs. His figures on the quantity and flavors available, relayed to him by this distributor who had been contacted by Ferrer, exactly matched the quantity and flavors of the stolen shipment of Tic Tacs as recorded on the bill of lading pasted to one of the stolen cartons. According to the government, this suggested that Thuna had a copy of the bill of lading in front of him when he contacted Ferrer. If Thuna did have the bill of lading, he certainly would have known that the Tic Tacs were stolen, since that document listed the intended recipient of the shipment.

After he heard that it would be possible to sell the Tic Tacs, Thuna instructed Felix Vasquez, an accountant for Drogueria Save-On, to prepare ten checks for $5,000 each, payable to fictitious names. Thuna then purchased the load of stolen Tic Tacs for $50,000, and shipped it to Farmedics on August 4. Farmedics promptly sold the Tic Tacs to James Miller, a distributor.

Several weeks later, Miller received some inquiries as to whether the Tic Tacs he had distributed were legitimate. Miller called Ferrer, who stated that the Tic Tacs were not stolen and that documentation was available. Miller subsequently returned approximately 1,262 cartons of the candy that he was unable to sell. Farmedics then sold the returned candy to Peninsula Brokerage, which sold them to Opportunity Sales.

Over the next several weeks, Opportunity received information from various sources that the candy it had purchased might have been stolen. Opportunity reported this information to Peninsula, which promptly made inquiries to Farmedics. Farmedics representatives, including Thuna himself, gave assurances that the candy was not stolen. Despite the repeated inquiries, Farmedics made no effort to check with Ferrero U.S.A., the American distributor of Tic Tacs, to determine the legality of the shipment. Eventually, Opportunity contacted the FBI, the Marshals Service, and Ferrero U.S.A. After checking the production code numbers on the candy, Ferrero determined that the Tic Tacs being sold by Opportunity were from the stolen load, and purchased the remaining 370 cases in Opportunity's stock.

Felix Vasquez, the accountant for Drogueria Save-On, testified that about a month and a half after the original purchase in Puerto Rico (soon after the initial inquiries regarding the legality of the Tic Tacs were made), Thuna delivered to him an invoice bearing the name of E & M Distributors purportedly documenting the purchase of 1,380 cases of Tic Tacs. Thuna instructed Vasquez to enter the invoice amount into accounts payable. In addition, Vasquez testified that on January 17, 1983, after Ferrero had determined that the Tic Tacs were stolen, Thuna requested that the accountant return to him the ten cancelled checks, made out to fictitious names, that had reportedly been used to pay for the Tic Tacs.

On January 28, 1983, FBI Agent William Stovall went to the California offices of Farmedics to interview Thuna about the stolen Tic Tacs. Thuna presented the invoice showing that he had purchased the candy from E & M Distributors, and said that he had done business with E & M before. At trial, however, the government presented evidence that the address given on the E & M invoice does not exist; that of the two telephone numbers listed, one belonged to a gas station and the other to a private individual; and that the company was not incorporated in Puerto Rico.

Thuna also told the FBI agent that the Tic Tacs he purchased from E & M were sold directly to Peninsula Brokerage. He failed to mention the original sale to Miller and Miller's subsequent return of the unsold candy, nor did he reveal that he had received inquiries as to the legitimacy of the candy.

On September 24, 1984, a federal grand jury returned four-count superseding indictments against Thuna and Juan Ortiz Negron and a two-count indictment against Alfonso Rivera Mercado for their roles in possessing and transporting the stolen load of Tic Tacs. ² Trial by jury began on March 11, 1985. At the close of the government's case, all three defendants moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29. Thuna's motion was granted on the two conspiracy counts, but was denied on the remaining two counts. ³

On March 25, 1985, the jury returned a verdict finding Thuna guilty of possession of goods known to be stolen and having a value in excess of $100, and of interstate transportation of goods known to be stolen and having a value in excess of $5,000. The court sentenced Thuna to eight years on each count, the sentences to run concurrently. Thuna appealed.

II.

After his January 28, 1983 meeting with Thuna in California, FBI Agent Stovall prepared a "302 Report" summarizing what Thuna had told him. Part of the 302 Report appears to refer to the manner in which Thuna came to know of the load of Tic Tacs. It reads in part,

In this particular instance, he [Thuna] remembered an individual coming to his office there [in Puerto Rico] and speaking with the office manager, Juan Ortiz. Thuna advised he contacted his salesman, Jose Ferar [sic], in the U.S. and asked him if he thought they could sell these items. ⁴

Prior to the trial, co-defendant Juan Ortiz moved for redaction of Thuna's statement. Ortiz contended that the reference implicating him was hearsay, and impermissibly violated his sixth amendment rights because the declarant, Thuna, was not subject to cross-examination. ⁵ The district court, relying on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), granted Ortiz's motion and ordered the sanitation of Thuna's statement by deleting the words "there and speaking with the office manager, Juan Ortiz." Subsequently, upon motion of co-defendant Rivera, the court ordered the deletion of the entire sentence ("In this particular instance he remembered an individual coming to his office there and speaking with the officer manager, Juan Ortiz."). ⁶

Thuna objected to leaving out the sentence on the ground that it would create a misleading impression as to his role in the transaction. He argued that the relative roles played by each co-defendant bore heavily on the issue of his knowledge. Thuna also strenuously objected to the court's accompanying order that counsel refrain from examining Agent Stovall at trial in such a way as to bring out the deleted material. On appeal Thuna argues that the court's failure to pay heed to his objections was prejudicial to his defense and violated his sixth amendment right to cross-examination.

Thuna never moved formally to sever the trial of his case from that of the co-defendants. Contrast United States v. Gonzales, 749 F.2d 1329 (9th Cir.1984); State v. Barnett, 53 N.J. 559, 252 A.2d 33 (1969); People v. LaBelle, 18 N.Y.2d 405, 276 N.Y.S.2d 105, 222 N.E.2d 727 (1966); cf. United States v. Meacham, 626 F.2d 503, 510-12 (5th Cir.1980). If the co-defendants had not been tried with him, of course, his whole statement could have come in. But even without having formally taken such an initiative, Thuna was entitled to object to use of any truncated version of his statement that significantly distorted the statement's original tenor in a way prejudicial to him. A court may not recast admissible evidence so as to create a materially false impression that is harmful to the interest of one of the parties. ⁷

Thuna argues that the redaction of his statement was harmful in that it distorted the nature of his testimony, "giving the jury the impression that Thuna purchased the Tic Tacs from a company known as E & M Distributors and eliminating Thuna's explanation as to how the existence of the Tic Tacs became known to him."

The record indicates, however, that it was...