Petition for Writ of Certiorari — Jackson v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

GEORGE JACKSON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GEORGE H. LOWE*

BOND, SCHOENECK & KING, LLP

Attorneys for Petitioner

One Lincoln Center

Syracuse, New York 13202

(315) 422-0121

*Counsel of Record

QUESTIONS PRESENTED

Petitioner George Jackson was convicted of conspiracy to

violate the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and

3373(d)(1)(B), and substantive Lacey Act violations. The al-

leged scheme involved the processing of eggs from Lake On-

tario salmon into caviar, which then was sold for human

consumption. A New York regulation (6 N.Y.C.R.R. § 37.1)

purportedly prohibited the sale of salmon eggs from Lake

Ontario as anything other than bait. Jackson’s sole defense at

trial was that he did not know that the sale of Lake Ontario

salmon eggs for human consumption was illegal. On this is-

sue the prosecutor’s case rested upon a former Food and Drug

Administration investigator who testified that Jackson had

stated to her that he was aware of New York’s regulatory ban

on such sales. The prosecutor failed to disclose Jackson’s al-

leged statements prior to trial.

The following questions are presented:

1. What is meant by “government agent”, “interrogation”,

and “before or after arrest”, in Fed. R. Crim. P. 16(a)(1 (A)?

2. In what manner should a prosecutor provide Rule

16(a)(1)(A) materials to defense counsel?

3. Was Jackson prejudiced by the prosecutor’s failure to

.comply with Rule 16?

TABLE OF CONTENTS

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No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

:

i

-

;

GEORGE JACKSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

George Jackson respectfully petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in

this case.

OPINIONS BELOW

The summary order of the Court of Appeals (App., infra, /)

is not reported. The opinion and order of the District Court,

deciding post-trial motions, (App, 6 ) also is not reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 12, 1996. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Rule 16(a)(1)(A) of the Federal Rules of Criminal Proce-

dure, entitled “Governmental Disclosure of Evidence,” pro-

vides, in pertinent part:

(A) Statement of Defendant. Upon request of a de-

fendant the government must disclose to the defen-

dant and make available for inspection, copying, or

photographing: . . . that portion of any written rec-

ord containing the substance of any relevant oral

statement made by the defendant whether before or j

after arrest in response to interrogation by any per- ;

son then known to the defendant to be a government

agent; ... . The government must also disclose to

the defendant the substance of any other relevant

oral statement made by the defendant whether be-

fore or after arrest in response to interrogation by

any person then known by the defendant to be a

government agent if the government intends to use

that statement at trial.

STATEMENT OF THE CASE

The Charges and Petitioner’s Defense

George Jackson’s formal education ended in the seventh

grade. For a few years prior to 1989 Mr. Jackson was a part-

time employee of Tempotech Industries, Inc. (“Tempotech”),

working at Tempotech’s facility in Hart, Michigan, during the

fall salmon spawning season. In the off-season he generally

worked at fish processing plants in Alaska. Tr., 9/28/94,

3

p. 67-68.' Starting in 1989 Mr. Jackson became a full-time

Tempotech employee.

The Lacey Act violations were based upon a New York

regulation (6 N.Y.C.R.R. § 37.1) that purportedly prohibited

the sale of salmon eggs from Lake Ontario as anything other

than bait. The scheme, according to the indictment, involved

the acquisition by Tempotech employees working in Pulaski,

New York, of Lake Ontario salmon eggs. Thereafter Tempo-

tech employees processed these eggs into caviar at a Tempo-

tech facility in Pulaski. If the volume of eggs acquired by the

Pulaski employees exceeded the processing capacity of the

Pulaski facility, Tempotech would air freight these eggs to the

Hart, Michigan, plant for processing. Once the eggs were

processed into caviar in Pulaski, that caviar was shipped to

Hart. Thereafter this caviar was sold in New York and else-

where, including Japan.

Mr. Jackson never was employed at Tempotech’s Pulaski

facility and indeed never had been to Pulaski. His sole de-

fense at trial was that he did not know that the sale of Lake

Ontario salmon eggs for human consumption was illegal.

Prior to trial Mr. Jackson was unaware of any evidence in-

consistent with this defense.

Investigator Gould of the

Food and Drug Administration

In an Order deciding post-trial defense motions, the District

Court stated as follows:

In contrast to the Gehl defendants, the prosecution

case against Jackson rested heavily upon the

strength of one witness, Wendy Gould, a former

FDA imspector. Mr. Jackson’s defense was that he

did not know that the sale of Lake Ontario salmon

eggs for human consumption was illegal. Essentially,

' The trial transcript shall be cited as “Tr.”, with a reference to the date

and page.

4

Ms. Gould testified that in a conversation between

she and Mr. Jackson, he acknowledged that he was

aware of New York’s regulatory ban on such sales.

App., infra, 32.

Indeed, Investigator Gould’s testimony was direct and to

the point:

A. [By investigator Gould] . . . Both Mr. Jackson

and Mr. Gehl told me that they knew it was il-

legal to use the New York eggs to produce

caviar ....

Q. [By the prosecutor] . . . I want to be very clear,

that information was provided to you by

George Jackson?

A. That information was provided to me by both

Mr. Jackson during inspection, and Mr. Gehl at

the conclusion of the inspection on two separate

OCCASIONS. . ..

Tr., 10/3/94, p. 11-12.

This evidence of Mr. Jackson’s alleged statements was

stark, dramatic, and directly contradictory to his defense. Yet

the evidence was not disclosed to defense counsel until three

days after the trial commenced. C.A. App. 1347-1348.

In addition to the failure to disclose these alleged oral

statements by Mr. Jackson, the prosecutor also failed to prop-

erly disclose Investigator Gould’s written reports and notes,

which allegedly contained the substance of relevant oral

statements by Mr. Jackson.

With respect to Investigator Gould’s written inspection re-

ports, these were obtained by the Government in “early '93”

(trial commenced in September, 1994). At some point in the

summer of 1994 the reports apparently were turned over to

defense counsel by the Government’s case agent, an investi-

gator with the New York State Department of Environmental

Conservation (“DEC”). The investigator provided them to

defense counsel, however, only as two documents among “the

whole packet from the Food and Drug Administration;” he

turned over other packets as well. Tr., 9/29/94, p. 106-107.

Neither he nor anyone else ever identified these documents as

ones “containing the substance of . . . relevant oral state-

ment[s]” made by Mr. Jackson. And no one reading the

documents themselves, without guidance, would ever con-

clude that they were in any was the basis for Investigator

Gould’s testimony as to Mr. Jackson’s alleged statements.

We respectfully submit that the “written record” provision

of Rule 16(a)(1)(A) is not satisfied by having a government

agent turn over documents, the relevance of which is not ap-

parent, buried among others during document discovery.

The second type of “written record” which allegedly con-

tained the substance of oral statements made by Mr. Jackson

was Investigator Gould’s handwritten notes. C.A. App. 1302.

The Government asserts that they were produced to defense

counsel eleven days prior to the commencement of trial. As-

suming this to be accurate, again, no one on behalf of the

Government identified these notes as “containing the sub-

stance of . . . relevant oral statement[s]” made by Mr. Jackson.

In addition, no one “reading” the notes (to the extent they

were decipherable) would ever conclude that they were the

basis for investigator Gould’s testimony as to Mr. Jackson’s

alleged statements.

The Government’s omissions in these respects were com-

pounded by the fact that the prosecutor did it the correct way

with regard to another alleged oral statement by Mr. Jackson,

but one that had nothing to do with Investigator Gould. On

October 15, 1993, defense counsel was advised in writing by

the prosecutor of an alleged oral statement made by Mr. Jack-

son to the DEC investigator. In short, Mr. Jackson was lulled

into the belief that the only oral statement that he had to be

concerned about (and which in fact was of no concern at all)

was the one made to the DEC investigator. C.A. App. 1040.

Significantly, the prosecutor's failure to disclose this evi-

dence, which was crucial to the case against Mr. Jackson, was

not an oversight but rather was a conscious, knowing, and in-

tentional decision. Government’s Supplemental Appendix,

206-207; Government Brief below, p. 19, ftn. 13. It appears to

be the position of the prosecutor that Rule 16 disclosure was

not required here because Investigator Gould was not a

“government agent” and because “before or after arrest” there

was no “interrogation.”

In fact, Gould’s reports identify her as an “investigator”.

C.A. App. 1297. According to her own testimony, she was at

the Tempotech facility, and asking questions of Mr. Jackson,

in order to investigate allegations “that Tempotech has been

receiving New York eggs and making caviar, which was ille-

gal... .” and in order to “try to determine if they were, in

fact, using New York eggs for the production of caviar.” C.A.

App. 1287. She visited the facility four different times, all for

the purpose of “determin{ing] if they were still receiving New

York eggs; and if so, if these eggs were being used for pro-

duction of caviar.” C.A. App. 1292. Her final visit was be-

cause she and the FDA did not believe that what they were

being told “was necessarily true.” C.A. App. 1292-1293.

Prior to questioning Mr. Jackson, Investigator Gould dis-

played to him her credentials, including her badge. She did

not “flash” them, because, in her words, “that’s a little omi-

nous” and “it can be a little nerve-wracking to some people.”

C.A. App. 1299. She also showed Mr. Jackson, prior to ques-

tioning him, a formal “Notice of Inspection”. Government's

Supplemental Appendix, 218. First, on this formal govern-

ment form, Ms. Gould identified herself as an “investigator”.

Second, surely an unsophisticated layperson, with a seventh

grade education, would conclude from this Notice, on top of

the badge and credentials, that the person he was dealing with

was one of authority, who had the power of the federal gov-

ernment behind her.

Finally, Investigator Gould’s sleuthing, and her reports,

were in support of a criminal investigation. On September 14,

1990, the FDA sent to the IRS Criminal Investigation Divi-

sion a variety of documents pertaining to Tempotech, including

7

Investigator Gould's “Establishment Inspection Report”. The

covering letter, a copy of which was sent to Investigator

Gould, states: “These documents are being furnished to you as

part of our cooperative law enforcement efforts.” Govern-

ment’s Supplemental Appendix, 307. According to her note-

book, Investigator Gould herself “spoke to Norm Meadows.

IRS” on the previous day, September 13, 1990, for half an

hour. Tr., 10/3/94, morning session, p. 46. During this same

month, and in October of 1990, Gould continued to visit the

Tempotech facility, and to question Mr. Jackson.

Under these circumstances, and since the factual issues un-

derlying the Lacey Act charges against Mr. Jackson are iden-

lical to the factual issues which Gould was investigating, it

would be the height of elevation of form over substance to

deny the applicability here of the mandatory provisions of

Rule 16(a)(1)(A).

Prejudice to Petitioner

The prosecutor's failure to comply with Rule 16 substan-

tially prejudiced Mr. Jackson, particularly with respect to trial

preparation that could have been pursued and with respect to

trial and plea strategy.

First, the Government’s failure to comply with Rule

16(aX(1)(A) precluded Mr. Jackson from pursuing, pre-trial,

areas of investigation which clearly could have influenced the

jury’s view of Investigator Gould. After the trial, in Novem-

ber, 1994, Mr. Jackson learned of a prior civil lawsuit. in

Michigan, which was based in part on allegedly improper acts

by Investigator Gould in her role as an FDA investigator.

If prior to trial Mr. Jackson had known of Investigator

Gould’s potentially devastating testumony he would have in-

vestigated her background then, just as he undertook to do

post-trial. In this fashion he would have learned. pre-trial, of

the allegations of impropriety by Gould. Mr. Jackson also

would have interviewed those making the allegations, and

pursued whatever further leads developed. In addition, Mr.

Jackson surely would have issued a trial subpoena for the

FDA’s personnel file on Investigator Gould and for any other

agency files pertaining to the allegations of improper conduct.

He would have been particularly interested in, and Investiga-

tor Gould would have been cross-examined about, whether

the allegations of impropriety had anything to do with the

subsequent termination of her employment at FDA.

The Government’s failure to comply with Rule 16(a)(1)(A)

precluded Mr. Jackson from pursuing in a timely fashion ar-

eas of investigation such as these, which clearly could have

influenced the jury’s view of Investigator Gould, who pro-

vided the Government’s sole evidence on the element of Jack-

son’s alleged knowledge of the regulatory ban.

With respect to trial and plea strategy, it is obvious that In-

vestigator Gould’s testimony, which directly contradicted Mr.

Jackson’s defense, would have significantly affected his strat-

egy. in both of these areas, if disclosed prior to trial. As stated

in United States v. Padrone, 406 F.2d 560, 561 (2d Cir.

1969), “where it is apparent, as here, that [the defendant's]

defense strategy may have been determined by the failure to

comply, there should be a new trial.” See also United States v.

Alvarez, 987 F.2d 77, 85 (Ist Cir. 1993) (failure to disclose

“deprived [the defendant] of the opportunity to design an in-

telligent litigation or plea strategy that responded to the al-

leged statement”).

As a specific example of impact on trial strategy, Mr. Jack-

son’s attorney did not learn of Investigator Gould’s devastat-

ing testimony that “Jackson . . . told me that [he] knew it was

illegal to use the New York eggs to produce caviar” until after

opening statements were made. The prosecutor knew of this

testimony at /east a week earlier, prior to opening statements.

If defense counsel had known of Gould’s expected testimony

it obviously would have been addressed in the opening and

counsel never would have argued that there wouid be “little

evidence” against Mr. Jackson. In this fashion the jury might

have been “prepared” for this testimony, which not only was

stark and dramatic but which also, as the District Court found,

was the strength of the prosecution case against Mr. Jackson.

Finally, the prejudice to Mr. Jackson caused by the Gov-

ernment’s failure to comply with Rule 16 was directly com-

pounded when the prosecutor, in his opening summation, told

the jury:

Now, ladies and gentlemen, the judge is going to

tell you in this case that the defendants were under

no obligation whatsoever to call any witnesses and

that, of course, is true. The Government has the

burden of proof and we gladly assume that burden.

But that doesn’t mean that they couldn’t call wit-

nesses if they wanted to. Don’t think for one second

that if there wasn’t -- if there was someone out there

who could have come in and said it ain’t so, that

they couldn’t have called them in a second and --

C.A. App. 84-85. Defense counsel immediately objected and

moved for a mistrial. The District Court denied the motions

but gave a “curative” instruction to the jury. C.A. App. 8588.

In an Order resolving post-trial motions the Court found that

this statement by the prosecutor was “manifestly intended .. .

to be a comment on the failure of the accused to testify.” C.A.

App. 1016.

As noted by the District Court, “the prosecution case

against defendant Jackson rested heavily upon the strength of

one witness, Wendy Gould.” C.A. App. 1023. Indeed, Mr.

Jackson’s defense was that he did not know that the sale of

Lake Ontario Salmon eggs for human consumption was ille-

gal. Mr. Jackson submits thai the sole evidence against him

on this fundamental issue of his knowledge of the regulatory

ban was Gould’s testimony as to purported conversations

between them. Therefore when the prosecutor made his im-

proper statements the jury would have focused on Investigator

Gould, and concluded that she must be telling the truth, be-

cause otherwise Mr. Jackson, who was in the courtroom and

heard her testimony, would have been called “in a second”

and “said it ain’t so,” i.e., testified as to his version of the

conversations.

10

Thus the prosecutor’s improper statements presumably

caused the jury to focus upon, and give additional weight to,

Gould’s “uncontradicted” testimony, which testimony in turn

had been improperly bolstered by Jackson’s inability to fully

cross-examine her because of the Rule 16(a)(1)(A) violation.

In short, one error compounded the other, with the result that,

in tandem, they clearly amounted to substantial prejudice to

Mr. Jackson.

Jurisdiction Below

The District Court possessed subject matter jurisdiction

over the case pursuant to 18 U.S.C. § 3231. The basis for ju-

risdiction in the Court of Appeals was 28 U.S.C. § 1291 and

18 U.S.C. §§ 3557 and 3742.

REASONS FOR GRANTING THE PETITION

The fact that petitioner was unjustly convicted, and now is

serving a term of imprisonment which, even if he were guilty,

is, under the circumstances, draconian, probably does not

qualify as a “special and important reason” for the granting of

a writ of certiorari. However, the underlying issue, i.e., the

meaning of Rule 16(a)(1)(A) and the manner in which prose-

cutors comply with the Rule, does meet this test.

Significant discovery in criminal cases was a long time in

coming. (Wright, Federal Practice and Procedure: Criminal 2d

§ 252.) Even now it is of limited scope, and cannot compare

to the very broad discovery that is routine and mandated in

civil actions, where what is at stake is only money and prop-

erty, not, as with petitioner, five years and ten months of free-

dom. (For example, in criminal cases motions for bills of

particulars are rarely granted, depositions generally are un-

available, and the narrow requirement of the Jencks Act fre-

quently is met on the eve of trial. See Sarokin & Zuckerman,

“Presumed Innocent? Restrictions on Criminal Discovery in

Federal Court Belie This Presumption,” 1991, 43 Rutgers L.

Rev. 1089.)

Under these circumstances, the limited discovery that is

available in a criminal case should be provided fully and

11

freely. This is particularly true, we submit, with respect to the

accused’s own alleged statements, which obviously have vast

potential to be incriminating, and also frequently form the

primary basis for the defendant’s plea and trial strategy.

This Court should give direction to prosecutors and the de-

fense bar as to the meaning of Rule 16(a)(1)(A), its general

applicability, and the process to be followed in complying

with the Rule.

CONCLUSION

The petition for a writ of certiorari should be granted.

RESPECTFULLY SUBMITTED,

GEORGE H. LOWE *

BOND, SCHOENECK & KING, LLP

One Lincoln Center

Syracuse, New York 13202

Telephone: (315) 422-0121

Attorneys for Petitioner

*Counsel of Record

APPENDIX

A-l

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NDNY-syny

SUMMARY ORDER 22-2"300

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS

OR ANY OTHER COURT, BUT MAY BE CALLED TO

THE ATTENTION OF THIS OR ANY OTHER COURT

IN A SUBSEQUENT STAGE OF THIS CASE, IN A RE-

LATED CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house, Foley Square, in the City of New York, on the 12th

day of January, one thousand nine hundred and ninety-

six.

PRESENT: .

Honorable Pierre N. Leval wae neta

Honorable Guido Calabresi ae

Second Circuit

Circuit Judges, Filed

Honorable Arthur Spatt, Jan 12 1996

District Judge ia x gas ~

UNITED STATES OF AMERICA.

Appellee,

V. 95-1097 (L),

95-1113 & 95-1433

TEMPOTECH INDUSTRIES, INC.,

GEHL PRODUCTIONS, LTD.,

ROBERT J. GEHL, GEORGE

JACKSON,

Defendants-Appellants.

* United States District Judge, Eastern District of New York, sitting

by designation.

A-2

APPEARING FOR APPELLEE:

Craig A. Benedict, Assistant U.S. Attorney, Northern District

of New York, Syracuse, New York

APPEARING FOR APPELLANTS TEMPOTECH IN-

DUSTRIES, INC., GEHL PRODUCTIONS, LTD., AND

ROBERT J. GEHL:

Richard E. Zuckerman, Honigman Miller Schwartz and Cohn,

Detroit, Michigan

APPEARING FOR APPELLANT GEORGE JACKSON:

George H. Lowe, Bond, Schoeneck & King, Syracuse, New

York

Appeal from the United States District Court for the North-

ern District of New York (Neal P. McCurn, Judge).

This cause came on to be heard on the transcript of record

from the United States District Court for the Northern District

of New York and was argued by counsel.

ON CONSIDERATION WHEREOF, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the judg-

ment of the District Court be and it hereby is affirmed.

In connection with interstate transportation and sale of

contaminated caviar from Lake Ontario, defendants Robert J.

Gehi, George Jackson, Tempotech Industries, and Gehl Pro-

ductions were indicted in September 1993 for: conspiracy to

violate the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and

3373(d)(1)(B); substantive Lacey Act violations; and aiding

and abetting such violations. Additionally, Gehl, Tempotech,

and Gehi Productions (“the Gehl defendants”) were indicted

for conspiracy: to defraud the United States regarding cur-

rency transactions exceeding $100,000; to cause financial

institutions to fail to file currency transaction reports; and to

structure transactions at financial institutions. The Gehl de-

fendants were also charged with related substantive financial

crimes in violation of 31 U.S.C. § 5324(1) and (3), and with

forfeiture.

A-3

In October 1994, a jury found the defendants guilty of the

charged offenses. The evidence showed that over a period of

more than eight years, Robert Gehl and employees of his

companies, Tempotech and Gehl Productions, including

George Jackson, had illegally processed and sold nearly one

million pounds of salmon egg caviar in exchange for millions

of dollars in cash, which they then structured to avoid detec-

tion. They carried out this scheme by taking caviar from Lake

Ontario -- from which fish may not be sold, under New York

law, except as bait -- shipping it to their plant in Michigan as

bait, repackaging it there as Lake Michigan caviar, and then

shipping it to New York for human consumption. The district

court sentenced Gehl to 87 months imprisonment and fined

him $250,000. It sentenced Jackson to 70 months imprison-

ment. Additionally, the court fined Tempotech $1,000,000,

and Gehl Productions $1,200,000, and ordered Tempotech to

forfeit $482,400.

On appeal, the defendants raise innumerable issues. We

have reviewed them and find that none have merit.

The defendants challenge their Lacey Act convictions con-

tending that the underlying state regulation upon which the

convictions relied, 6 NYCRR § 37.1 (“Regulation 37.1”), is

invalid. Among other things, they claim that Regulation 37.1,

which prohibits the sale of Lake Ontario salmon eggs for hu-

man consumption, unconstitutionally burdens interstate com-

merce and is unenforceable because it was not properly

promulgated under New York law. Putting aside such ques-

tions as whether collateral attack upon Regulation 37.1 is war-

ranted in light of the defendants’ failure to exhaust

administrative remedies, see McGee v. United States, 402

U.S. 479 (1971); United States v. General Nutrition Inc., 638

F. Supp. 556, 561-562 (W.D.N.Y. 1986), we disagree. As the

district court carefully noted, United States v. Gehl, 852 F.

Supp. 1150, 1153-60 (N.D.N.Y. 1994), the regulation furthers

the legitimate purpose of minimizing health risks and is nei-

ther more burdensome than necessary, nor protectionist. It

clearly is within the bounds of the commerce clause.

a

A-4

Additionally, the regulation was properly promulgated. De-

fendants are correct that New York’s Environmental Conser-

vation Law § 11-0325(1), which gave the Department of

Environmental Conservation (DEC) the authority to promul-

gate Regulation 37.1, refers to fish and not to fish eggs. But

we agree with the district court that the New York Legislature

intended to give DEC broad authority to regulate fish and

wildlife. We see no reason why the grant of authority to

promulgate regulations pertaining to fish does not encompass

authority to regulate fish eggs. We also reject the defendants’

claim that there was no actual disease associated with the con-

sumption of Lake Ontario salmon caviar; the evidence of

chemical contamination at Lake Ontario was more than

enough to justify state action to protect public health.

In challenging the indictment upon which they were con-

victed, the defendants argue, among other things, that the in-

dictment’s grouping of Lacey Act violations into five counts,

one for each year from 1988 to 1992, was an impermissible

aggregation of offenses; they contend that each violation re-

quired a separate count. We disagree. So long as the method

of aggregating offenses is reasonable -- and here it was, given

the ongoing multi-year nature of the scheme -- the govern-

ment need not charge a defendant with the smallest “unit of

prosecution” available. See United States v. Tutino, 883 F.2d

1125 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990);

United States v. Margiotta, 646 F.2d 729, 732-33 (2d Cir.

1981); United States v. Provenzano, 334 F. 2d 678, 684-685

(3d Cir.), cert. denied, 379 U.S. 947 (1964). Where the prose-

cution alleged years of illegal activity encompassing thou-

sands of illegal transactions, the government was not required

to burden the court and the jury with an indictment in many

thousands of counts.

The defendants argue that they were prejudiced by the gov-

ernment’s failure to disclose before trial incriminating oral

statements they made to Wendy Gould, an FDA consumer

safety specialist, while she was inspecting their facilities years

before they were indicted. The government contends the

statements made to Gould are not covered by Rule 16, be-

A-5

cause Gould was conducting an administrative inspection un-

related to this criminal case, and, therefore, was not a

“government agent” as that term is used in the rule. See

United States v. Burns, 15 F.3d 211, 214 (Ist Cir. 1994). We

need not resolve that dispute about the scope of Rule 16, as

there was no abuse in the trial court’s handling of the issue.

The government learned of the oral statements just prior to

trial, and the district court took proper steps to ensure that

there would be no prejudice to the defendants. The court had

Gould provide her entire testimony and submit to cross ex-

amination in camera and then it gave the defense a one week

adjournment to prepare for her testimony in front of the jury.

This adequately protected the defendants’ interests. See

United States v. Giraldo, 822 F.2d 205, 212 (2d Cir.), cert.

denied, 493 U.S. 943 (1989).

The defendants also make numerous allegations of prosecu-

torial misconduct, none of which have merit. However, one

issue raised by defendants calls for comment and “a note of

caution to criminal prosecutors,” United States v. Reyes, 18

F.3d 65, 72 (2d Cir. 1994). The government questioned its

first witness, an official from the DEC, regarding “rumors” of

the defendants’ illegal activities that apparently led to the

opening of the investigation. Counsel for the defense objected

more than once to this line of questioning, noting that it was

irrelevant hearsay that could be “extremely prejudicial.” The

district court allowed the testimony on the prosecutor’s argu-

ment that the testimony was offered not for the truth of the

matter, but as “background” to explain why the DEC under-

took its investigation. Such testimony is not appropriate.

There was no reason to tell the jury why the DEC undertook

its investigation, and such information was all the more inap-

propriate when it included potentially prejudicial matter. The

government relies on our discussion ir United States v. Har-

wood, 998 F.2d 91, 99 (2d Cir.), cert. denied, 114 S.Ct. 456

(1993), as support for its position. The citation is surprising.

For in Harwood, we held that the challenged testimony was

“clearly inadmissible hearsay.” Reversal of the conviction

was avoided only because the incident was harmless. /d.

A-6

Similarly because the evidence below was overwhelming,

the introduction of the prejudicial “background” evidence was

undoubtedly harmless and does not call for reversal of well

merited convictions. Prosecutors, however, should be mindful

that in offering such prejudicial matter as “background,” they

are not only acting improperly but also are running an unrea-

sonable risk of the reversal of the convictions they secure. See

Reyes, 18 F.3d at 72; United States v. Rivera, 61 F.3d 131,

136 (2d Cir. 1995).

As noted above, the numerous other issues raised are with-

out merit. We therefore affirm the judgments of conviction.

Hon. Pierre N. Leval, U.S.C.J.

Hon. Guido Calabresi, U.S.C.J.

Hon. Arthur Spatt, U.S.D_J.

B-1

UNITED STATES DISTRICT COURT = [—>epoa

NORTHERN DISTRICT OF NEW YORK COURT

| N.D. OF N.Y

UNITED STATES OF AMERICA a7 *

| AT O'CLOCK |

-\- M

| GEORGE A. RAY

ROBERT J. GEHL; GEORGE JACKSON; | CLERK

TEMPOTECH INDUSTRIES, INC. on

and GEHL PRODUCTIONS, INC.. 93-CR-300

Defendants

APPEARANCES OF COUNSE!I

HON. THOMAS J. MARONEY CRAIG A. BENEDIC1

United States Attorney for the Assistant U.S. Attorney

Northern District of New York

P.O. Box 7198

Syracuse, NY 13261-7198

BOND SCHOENECK & KING GEORGE H. LOWE, ESO

Attorneys for Def. George Jackson

One Lincoln Center

Syracuse, NY 13202

HONIGMAN MILLER RICHARD |

SCHWARTZ & COHN ZUCKERMAN, ESO

Attorneys for Defs. Robert Gehl.

Tempotech Industries & Gehl! Productions

2290 First National Building

Detroit, Ml 48226-3583

NEAL P. McCURN, S.J

*

B-2

BACKGROUND

Familiarity with this prosecution is assumed. Therefore,

only those facts necessary to decide the post-trial defense

motions currently pending before the court will be set forth

herein.

On October 7, 1994, after a trial of approximately two

weeks, the jury found defendant Robert J. Gehl guilty of one

count of conspiring to violate the Lacey Act, (count 1); guilt

of five separate ccunts of actually violating the Lacey Act,

(counts 2-6); and guilty of conspiracy in connection with fi-

nancial structuring (count 7). The jury also found defendant

Gehl guilty of structuring and assisting in structuring as to

certain transactions which are fully detailed in counts eight

through twenty-four of the indictment. Finally, with respect to

count 25 of the indictment--the forfeiture count--based upon

the foregoing, the jury found that property, real or personal, of

defendant Gehl was involved in each of the substantive

structuring offenses charged in counts eight through twenty-

four. Similarly, with respect to defendant Tempotech Indus-

tries, Inc., the jury found that defendant guilty on counts one

through twenty-four of the indictment, as described above.

The jury further found that Tempotech’s property, real or per-

sonal, was also involved in each of the substantive structuring

offenses (counts eight through twenty-four). Without distin-

guishing between Mr. Gehl and Tempotech, the jury found

that property of those two defendants, totaling $482,400, was

involved in the substantive structuring counts.

Insofar as the second corporate defendant is concerned,

Gehl Productions, Inc., the jury found that defendant guilty of

violating, as well as conspiring to violate, the Lacey Act

(counts one through six). The jury also found Gehl Produc-

tions guilty of conspiracy to structure (count seven). How-

ever, the jury found Gehl Productions not guilty of the

' In particular, the defendants were charged in those counts with violating

sections 3372(aX2A) and 3373(d)\(1)(B) of the Lacey Act, which is

found in Title 16 of the United States Code.

B-3

substantive structuring counts and the related forfeiture count

(counts eight through twenty-five).” Finally, the jury found

defendant George Jackson guilty of conspiring to violate and

of violating the Lacey Act (counts one through six), the only

counts of the indictment in which he was named.

The Gehl defendants timely filed three separate motions

challenging this verdict. First, they move for judgment of ac-

quittal pursuant to Fed. R. Crim. P. 29. Second, they move for

a new trial pursuant to Fed. R. Crim. P. 33. Last, these same

defendants move for an arrest of judgment as allowed under

Fed. R. Crim. P. 34. Although the Gehl defendants are seek-

ing post-verdict relief under three separate rules, with one ex-

ception, the basis for each of these motions is identical. More

specifically, the Gehl defendants contend that they are entitled

to those various forms of post-verdict relief for the following

reasons: (1) prosecutorial misconduct; (2) prejudicial surplus-

age in the indictment; (3) the invalidity of the New York

regulation underlying the Lacey Act counts; (4) claimed evi-

dentiary errors; (5) count two violated the statute of limita-

tions; (6) insufficiency of the evidence as to all of the

substantive counts and the forfeiture count; (7) the indictment

does not comply with the Lacey Act and it violates the Fifth

and Sixth Amendments; and (8) the jury instructions were in

error. In seeking an arrest of judgment, the Gehl defendants

further maintain that such relief is mandated because the in-

dictment improperly charged the substantive Lacey Act

counts in the disjunctive. Defendant Jackson seeks the same

post-verdict relief as do the Gehl defendants. Indeed, he spe-

cifically adopts all of the Gehl defendants’ arguments in this

regard. See Affidavit of George H. Lowe (Nov. 23, 1994) at

q?

W<-

* Unless mentioned individually, for brevity, Robert J. Gehl, Tempotech

Industries, Inc. and Gehl Productions, Ltd. will be veferred to collectively

throughout as the “Gehl defendants.”

B-4

In these various motions, basically the defendants have left

it to the court’s discretion as to which argument should be

made in connection with which Rule.’ After reviewing Rules

29, 33, and 34, the court has determined that the only proper

ground for defendants’ Rule 29 motion for judgment of ac-

quittal is the challenge to the sufficiency of the evidence.’ As

will be seen, however, the standards for determining the suf-

ficiency of the evidence differ depending upon whether such a

challenge is brought under Rule 29 or whether it is brought

under Rule 33. Thus, because a challenge to the sufficiency of

the evidence may also properly be brought as a Rule 33 mo-

tion for a new trial, the court will also address that argument

in the context of a motion under that Rule. In addition, as will

also become evident, the focus of a Rule 34 motion for arrest

of judgment is relatively narrow, and the court has decided

that the defendants’ challenge to the validity of the New York

regulation underlying the Lacey Act counts, the arguments

that the indictment does not comply with the Lacey Act and

that it is violative of the Fifth and Sixth Amendments, as well

as the argument that the indictment improperly charges in the

disjunctive, are more appropriately addressed under this Rule.

The remaining arguments as to prosecutorial misconduct,

prejudicial surplusage in the indictment, claimed evidentiary

errors and claimed errors in the jury instructions, as well as

the government’s alleged failure to comply with Rule

16(a)(1)(A) in connection with the testimony of Wendy

> See Memorandum of Law in Support of the Gehl Defendants’ Motion

for a New Trial (“New Trial Memorandum”) at 15; Memorandum of Law

in Support of the Gehl Defendants’ Motion for Judgment of Acquittal

(“Judgment of Acquittal Memorandum”) at 9; and Memorandum of Law

in Support of the Gehl Defendants’ Motion for Arrest of Judgment at 7.

* 2 Charles A. Wright, Federal Practice and Procedure § 466 (1982)

(“There is only one ground for a motion for a judgment of acquittal. This

is that ‘the evidence is insufficient to sustain a conviction’ of one or more

of the offenses charged in the indictment or information.”) (footnote

omitted); See also United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.

1983) (The “very nature” of a Rule 29 motion for judgment of acquittal is

“to question the sufficiency of the evidence to support a conviction.”)

(citations omitted).

Pe dena nae TE Soh

B-5

Gould, a former Food and Drug Administration (“FDA”) in-

spector, will all be considered as part of defendants’ motion

for a new trial under Rule 33.

DISCUSSION

I. Rule 29 Motion for Judgment of Acquittal

A. Sufficiency of the Evidence

In United States v. Delanoy, 93-CR-360, 1994 U.S. Dist.

LEXIS 16200 (N.D.N.Y. Oct. 18, 1994), Chief Judge McA-

voy of this district accurately set forth the standards govern-

ing a motion for judgment of acquittal brought pursuant to

Fed. R. Crim. P. 29:

It is well settled that the defendant advancing a Rule

29 motion has a very heavy burden. United States v

Khan, 787 F.2d 28, 33 (2d Cir. 1986). An acquittal

may be granted pursuant to Rule 29 only if the evi-

dence is insufficient to sustain a conviction. United

States v. Lopez, 625 F.2d 889, 895 (9th Cir. 1980).

The question is whether a reasonable mind might

have fairly concluded the defendant was guilty be-

yond a reasonable doubt. United States v. Artuso.

618 F.2d 192, 195 (2d Cir. 1980). In determining

this motion, the court must draw all reasonable in-

ferences in favor of the prosecution, and must exam-

ine all the evidence in the light most favorable to

the government with respect to each element of the

offenses charged. /d. ‘The relevant question is not

whether this court believes that the evidence at trial

established guilt beyond a reasonable doubt... .

rather the proper inquiry is whether, after viewing

the evidence in the light most favorable to the

prosecution, ‘any rational trier of fact could have

found the essential elements of the crime beyond a

reasonable doubt.” Khan, 787 F.2d at 33-34, quot-

ing, Jackson, 443 U.S. [at] 318-19 . . . . This

framework assures that the reviewing court will not

substitute its own judgment for that of the jury.

i]

B-6

United States v. Gaviria, 805 F.2d 1108, 1116 (2d

Cir. 1986).

Id. at *2- *4. Stated more succinctly, the “traditional stan-

dard” for challenging the sufficiency of evidence, in particu-

lar, is “whether ‘the record evidence could reasonably support

a finding of guilt beyond a reasonable doubt{[.]”* United States

v. Leung, 93-1784, 93-1880, 1994 U.S. App. LEXIS 33041, at

* 20 (2d Cir. Nov. 21, 1994) (quoting Jackson v. Virginia,

443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))

(other citation omitted). Regardless of whether defendants’

motion challenging the sufficiency of the evidence is viewed

under the standards just outlined, or under the arguably more

lenient standards of a motion for a new trial under Rule 33 set

forth below, the court finds that the evidence in this case was

sufficient to sustain the jury’s verdict as to counts two

through six and eight through twenty-five of the indictment.”

The defendants make three separate arguments as to the

sufficiency of the evidence with respect to the Lacey Act

convictions: (1) statute of limitations; (2) that the government

is bound by the bill of particulars; and (3) that the government

failed to prove the necessary elements of such convictions.

The government did not specifically respond to any of these

three arguments, leaving the court to speculate, at least in

part,” as to what the government’s position is now. In any

event, the court will address these arguments seriatim.

The defendants accurately note that count two of the in-

dictment alleges a single Lacey Act violation for the year

> The defendants are challenging the sufficiency of the evidence as to

every count of the indictment but two, and those are counts one and seven

- the conspiracy counts.

© The court is familiar with these arguments because they are similar, al-

though not identical given the procedural posture of the case, to those

advanced by defendants at various times during this extended prosecution.

This familiarity does not, however, excuse the government’s failure to

respond, particularly because these defense arguments directly address the

government’s proof, or lack thereof, at trial.

B-7

1988. They also correctly state, and the government does not

dispute, that the five year statute of limitations applicable to

the Lacey Act’ expired for two-thirds of 1988 prior to the

September 1, 1993 return of the indictment herein. From

there, the defendants assert that “[bJecause [at trial] the only

evidence of 1988 caviar sales to New York were for sales oc-

curring before September 1, 1988, Count two is barred by the

statute of limitations.” Judgment of Acquittal Memorandum

at 3. Alternatively, stated somewhat differently, the defen-

dants contend that they are entitled to a judgment of acquittal

on count two “because there is insufficient evidence to prove

a Lacey Act violation occurring between September |, 1988

and December 1, [sic] 1988[,]” the only relevant time frame

for 1988 given the expiration of the statute of limitations part

way through that year. See id. The court disagrees. The testi-

mony of Gregory Rappleye in particular established sales of

Lake Ontario salmon eggs as caviar within New York State at

least in October, 1988. See Tr. (Sept. 30, 1994) at 35-37. Con-

sequently, the defendants’ motion for judgment of acquittal

on this ground is denied.

The defendants’ second insufficiency of the evidence ar-

gument is that the government is bound by its Bill of Particu-

lars, which supposedly listed the poundage and approximate

value, by year, for caviar which the government claims defen-

dants sold in violation of regulation 37.1. In this case, Rick

Boeve, a government witness, was shown that bill of particu-

lars, but he was unable to identify the source of the salmon

eggs listed thereon for each of the years 1988-1992. Tr. (Sept.

29, 1994 - afternoon) at 47-51. Furthermore, it is the defen-

dants’ recollection of the trial that “[t]he government never

offered any witness that could, or did know whether the

salmon eggs listed on the Bill of Particulars originated in

” See United States v. Thomas, 887 F.2d 1341, 1348-1349 (9th Cir. 1989)

(Lacey Act, because it does not specifically define a limitations period

therein, falls into that category of cases governed by the “catch-all” five

year statute of limitations set forth in 18 U.S.C. § 3282).

B-8

Michigan or New York waters.” Judgment of Acquittal

Memorandum at 5.

To be sure, as just stated, Mr. Boeve was unable to identify

the source of the salmon eggs referenced in the government’s

Bill of Particulars. Examining all of the evidence in a light

most favorable to the government, as the court must,® how-

ever, in the court’s opinion there was sufficient proof, even in

the absence of testimony from Mr. Boeve, as to the source of

the salmon eggs for each of the years charged in counts two-

through six of the indictment. Therefore, the court denies de-

fendants’ motion for judgment of acquittal insofar as that mo-

tion is premised upon the government’s failure to strictly

conform its proof to the Bill of Particulars.

The defendants’ final argument as to the sufficiency of the

evidence pertaining to the substantive Lacey Act counts is not

new to the court. As they did at trial, the defendants contend,

basically, that the government improperly collapsed into one

step what they claim are the two steps required to establish a

Lacey Act violation. In making this argument, the defendants

rely, as they did previously, upon United States v. Carpenter,

933 F.2d 748 (9th Cir. 1991). The court adheres to its prior

ruling that Carpenter has no bearing on this case because it

involved a prosecution under section 3372(a)(1) of the Lacey

Act, and this case involves a prosecution under a different

subsection of that Act - section 3372(a)(2)(A). In accordance

with the plain language of 16 U.S.C. § 3372(a)(2)(A), there

was ample proof in the record that the defendants sold Lake

Ontario salmon eggs in interstate commerce in violation of

New York State regulation 37.1. Consequently, the court de-

nies defendants’ motion for judgment of acquittal on this ba-

sis as well.

The Gehl defendants further maintain that there is insuffi-

cient evidence to sustain counts eight through twenty-four

of the indictment - the so-called structuring counts. They

* See Delanoy, supra, at *3 (citation omitted).

B-9

likewise assert that there was insufficient evidence to support

count twenty-five - the forfeiture count. Considering all of the

proof adduced at trial, the court finds that the Gehl defendants

have failed to meet their “very heavy burden” of showing

that they are entitled to a judgment of acquittal on any of

these counts. There is more than sufficient evidence in the

record to sustain these convictions. Moreover, were the court

to grant such motion, the result would be that the court would

be substituting its judgment for that of the jury, and that is

strictly prohibited. See Delanoy, supra, at *4 (citation omit-

ted). Thus, in light of the foregoing, the court hereby denies,

in all respects, defendants’ - motion for a judgment of acquit-

tal under Fed. R. Crim. P. 29.

II. Rule 33 Motion for New Trial

A. Sufficiency of the Evidence

In its discretion, the court under Fed. R. Crim. P. 33 “may

grant a new trial . . . if required in the interest of justice.” Fed.

R. Crim. P. 33 (emphasis added). “Under Rule 33, the court

has broader powers than it does in determining a motion for

acquittal and may consider the credibility of witnesses and

may weigh the import of evidence.” Delanoy, supra, 1994

U.S. Dist. LEXIS 16200, at *5 (citing United States v. Valen-

tine, 644 F.Supp. 818, 821 (S.D.N.Y. 1986)). Even so, gen-

erally motions for a new trial are “not favored and should be

granted only with great caution.” /d. (quoting Valentine, 644

F.Supp. at 821) (quoting in turn United States v. Lombar-

dozzi, 343 F.2d 127, 128 (2d Cir. 1965)).'° Despite the court’s

broader powers under this Rule, it is not convinced that any of

the defendants are entitled to a new trial hereunder based

upon a claimed insufficiency of the evidence. Therefore, the

9 .

See id. at *2.

° The authority to grant a new trial based upon the “interest of justice”

Should “only [be] exercised,..., in the mosi extraordinary circum-

stances.” United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993)

(citation omitted).

B-10

court hereby denies defendants’ motion for a new trial insofar

as it is based upon a claimed insufficiency.

B. Prosecutorial Misconduct

The Gehl defendants vehemently contend that AUSA Bene-

dict engaged in prosecutorial misconduct in several ways.

First, they assert that he improperly referred to the legislative

history of 6 N.Y.C.R.R. § 37.1 (“the regulation”) - the regu-

lation which formed the basis for the Lacey Act counts of this

prosecution - and that such references were “inflammatory

and prejudicial.” New Trial Memorandum at 1. Second, the

Gehl defendants contend that in his closing argument AUSA

Benedict improperly referred to the residents of New York as

victims of contamination. Third, they argue that Benedict

made a number of improper comments in his closing argu-

ment, including several remarks about the defendants’ failure

to testify or to call witnesses, and the defendants believe this

last comment in particular was intentional. Fourth, the defen-

dants contend that various other comments made by the

prosecutor during the course of he trial are part of what they

believe to be a “continuous pattern of intentional misconduct”

by the prosecutor such that the court has no choice but to

grant this motion for a new trial. Jd. at 9.

1. Summation

Before considering these claimed areas of prosecutorial

misconduct, because the defendants focus primarily upon

AUSA Benedict’s closing argument, it should be noted that

“la] prosecutor’s statements during summation, if improper,

will result in a denial of due process rights only if, in the con-

text of the entire summation, they cause the defendant sub-

stantial prejudice.” United States v. Rivera, 22 F.3d 430, 437

(2d Cir. 1994) (and cases cited therein) (emphasis added). In

Rivera, the Second Circuit reiterated that “(t]he determination

of whether there was such prejudice depends largely on an

analysis of the severity of the misconduct, the curative meas-

ures taken by the court, and the certainty of conviction absent

the misconduct.” Jd. (citations omitted). It is against this

B-11

standard which the court must examine the claimed impro-

prieties in AUSA Benedict’s summation.

a. Legislative History

The defendants complain in several ways about the prose-

cutor’s references to the purpose underlying the promulgation

of section 37.1 At this point, however, the court wi!l focus

only on the prosecutor’s closing argument.’ ' After reviewing

the transcript of that argument, including rebuttal, it does not

appear to the court that the prosecutor commented on the in-

tent b.” 1nd section 37.1. Interestingly, the defendants do not

cite to any particular part of the transcript wherein they claim

such references might be found. Thus, obviously, there can be

no finding of prosecutorial misconduct on this basis.

Even if it could be inferred that in his closing the prosecu-

tor in some way commented upon the purpose of section 37.1,

the court still would be forced to conclude that no prosecuto-

rial misconduct resulted from such comments. First of all,

besides the fact that none of the three cases relied upon by

defendants on this issue arose in the Second Circuit, those

'' It is not clear whettier the defendants contend that the purported refer-

ences in the indictment (which was published to the jury) to the regula-

tion’s purpose, as well as such references in the jury instructions, in and of

themselves, rise to the level of prosecutorial misconduct, or whether the

defendants are arguing that those acts are just part of an ongoing pattern

of misconduct engaged in by the prosecutor in this case. Presumably the

defendants are making both arguments.

As the parties are well aware, this is not the first time that the issue of

the propriety of mentioning the purpose behind section 37.1 has arisen in

this case. In any event, the court remains convinced that insofar as the

indictment can be construed as making such references, it did not sub-

stantially prejudice defendants so as to form an independent basis for a

claim of prosecutorial misconduct. Similarly, the fact that the government

requested a jury charge in connection with the purpose of section 37.1,

which the court eventually gave, also does not, standing alone, amount to

prosecutorial misconduct. Finally, the court will consider later in this de-

cision whether the matters just discussed, along with the alleged improper

comments in the AUSA’s summation are indicative in this case of a con-

tinuing pattern of prosecutorial misconduct, as the defendants suggest.

ere erenseceniataraneaiaiiniiiiiieiiasiaeaanmeaaaiiainaeiiin

B-12

cases are also each readily distinguishable. United States v.

Leon, 534 F.2d 667 (6th Cir. 1976), involved a situation

where the prosecutor commented extensively on the purposes

of the federal gambling statute, and he did so even after the

trial court had sustained an objection to such comments. See

id. at 679-681. Likewise, the Seventh Circuit in United States

v. Fullmer, 457 F.2d 447 (7th Cir. 1972), reversed a licensed

gun dealer’s conviction where the prosecutor commented that

when it passed the Gun Control Act of 1968, Congress was

concerned, among other things, about the use of ammunition

and guns “for sniping and creating disturbances, and so

forth.” Jd. at 449. In discussing the prosecutor’s remarks in

Fullmer, the Ninth Circuit accurately pointed out that those

remarks “did not strongly relate to the defendant’s conduct.”

United States v. Ray, 731 F.2d 1361, 1368 (9th Cir. 1984).

Furthermore, “[i]t is a large leap from selling guns to sniper

attacks.” Jd. The relevance of the third case relied upon de-

fendants, United States v. Norton, 639 F.2d 427 (8th Cir.

1981), is significantly undermined because, as did Fullmer,

that case too involved a prosecutor “testify[ing]” in closing

argument about the purpose of the Gun Control Act - a statute

not at issue in this case. /d. at 429.

Here, even if the prosecutor in his closing statement did

refer to the underlying purpose of section 37.1 (but, again, the

court does not read his statement that way), then such refer-

ences were obviously not extensive; nor were they an integral

part of the prosecution’s strategy. See Ray, 731 F.2d at 1369.

Moreover, as already explained, because there is more than

sufficient evidence to support these convictions, and because

this claimed misconduct, if it occurred, is far from severe, the

court cannot find “substantial prejudice” such as would result

in a denial of defendants’ due process rights. See United

States v. McCaghren, 666 F.2d 1227, 1232 (8th Cir. 1981).

b. Contamination

The defendants’ second complaint about the prosecutor's

summation is that, in their words, he referred “to the residents

of New York as victims of contamination[.]” New Trial

B-13

Memorandum at 4. The defendants then assert that such

comment was improper because “[t]here was no evidence in-

troduced to support this argument and the sole purpose was to

inflame the jury about poisons in the New York food supply.”

Id. at 5. The government did not bother to respond to this ar-

gument in its opposing memorandum of law.

For several reasons, the court finds that these remarks do

not rise to the level of prosecutorial misconduct. First, in their

zeal, in the court’s opinion, the defendants have somewhat

overstated what the prosecutor said in this regard. The prose-

cutor did specifically ask the jury to “remember one thing:

this is not a matter without victims.” Tr. (Oct. 6, 1994) at 74.

He then went on to mention that the defendants knew that

these fish eggs were “contaminated;” and he also mentioned

that because the people who bought it “had no idea what they

were buying[,]” they could not “exercise an informed deci-

sion” in deciding whether or not to eat such fish eggs. /d. at

74 and 75. In the court’s view, however, all of this is slightly

different than if the prosecutor had made a blanket assertion

that as a direct result of he defendants’ conduct, the residents

of New York were “victims of contamination.” Even though

the court disagrees with the defendants’ characterization of

these remarks by the prosecutor, what is more important at

this juncture is that the defendants did not object to those

comments at the time. Because of that, at least in this Circuit,

“the statement(s] will not be deemed ground for reversal un-

less it amounts to a ‘flagrant abuse[;]"”"” and obviously the

prosecutor's passing references, as just described, certainly do

not amount to a “flagrant abuse.”

Lastly, the two First Circuit cases cited by defendants to

Support their argument stand in sharp contrast to the present

case and thus do not persuade the court, in the slightest,

that the complained of statements by the AUSA constitute

* Rivera, 22 F.3d at 437 (quoting United States v. Ortiz, 857 F.2d 900.

904 (2d Cir. 1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352. 103

L.Ed.2d 820 (1989)) (other citations omitted).

a

B-14

prosecutorial misconduct. Both Arieta-Agressot v. United

States, 3 F.3d 525 (Ist Cir. 1993), and United Sates v.

Moreno, 991 F.2d 943 (lst Cir.), cert. denied, U.S. __, 114

S.Ct. 457, 126 L.Ed.2d 389 (1993), were cases in which the

prosecutors made highly inflammatory comments, specifi-

cally designed to play upon the jury’s emotions. For example,

in Moreno, the prosecutor told the jury in his opening state-

ment that the evidence would show that the community had

been “plagued by ..., senseless violence, shootings and kill-

ings{,]” but no such evidence was ever presented. 991 F.2d at

947. In addition to the fact that the prosecutor’s comments in

Moreno were far more inflammatory and thus employed to

arouse the passion of the jury and nothing more, the defen-

dants herein have conveniently overlooked the fact that on

appeal the First Circuit found that the trial court’s “powerful

and contemporaneous instruction was adequate to dispel any

prejudice caused by the prosecutor’s remarks.” /d. at 948.

Consequently, the Circuit Court found that “([t]he district

court acted within its discretion . . . concluding that the prose-

cutor’s misstatement did not so poison the well as to require a

new trial.” Jd at 949 (internal quotation omitted) (citation

omitted).

In a similar vein, as the First Circuit describes it, through-

out his closing argument, the government attorney in Arieta-

Agressot “urged the jury to view this case as a battle in the

war against drugs, and the defendants as enemy soldiers.”

3 F.3d at 527” Plainly, the prosecutor’s remarks in this case

as to contamination fall far short of the rhetoric employed by

the government attorney in Arieta, and thus because of that

important factual distinction, the court does not read Ariefa as

requiring a new trial in this case based upon what could, at

'* What follows is a representative sampling of the prosecutor's patently

improper comments in that case: “Nobody has the right to poison the

people and poison our children.” 3 F.3d at 527. “Because the defendants

are not soldiers in the army of good. They are soldiers in the army of evil,

in the army which only purpose [sic] is to poison, to disrupt, to corrupt.”

Id

An. 1

B-15

most, be described as an “incidental embellishment.” See id

at 530 (internal quotation and citation omitted).

c. Failure to Testify or Call Witnesses

As should be apparent by now, the court is easily satisfied

that no prosecutorial misconduct occurred as a result of either

the prosecutor’s supposed references in his closing to the pur-

pose of section 37.1 or his references therein to victims and

contamination. More troublesome, however, is the defen-

dants’ argument, particularly as to defendant George Jackson,

that AUSA Benedict improperly remarked in his closing as to

the defendants’ failure to testify or call witnesses. Following

is the a statement by AUSA Benedict which forms the pri-

mary focus of this aspect of the defense motion:

Now, ladies and gentlemen, the judge is going to

tell you in this case that the defendants were under

no obligation whatsoever to call any witnesses and

that, of course, is true. The Government has the

burden of proof and we gladly assume that burden.

But that doesn’t mean that they couldn’t call wit-

nesses if they wanted to. Don’t think for one second

that if there wasn’t -- if there was someone out there

who could have come in and said it ain't so, that

they couldn’t have called them in a second and --

Tr. (Oct. 6, 1994) at 84-85. At that point the prosecutor was

interrupted by the objection of both defense counsel. /d at 85.

The court sustained the objection and counsel for the Gehl

defendants requested a sidebar conference, and both defense

counsel then moved for a mistrial. /d. at 85-86. The court in-

structed AUSA Benedict “not to go into that any more.” /d. at

87. After indicating that it would give a curative instruction.

the court stated, “I think it’s improper what you are doing. |

don’t think it rises to the stature so prejudicial it would call

for a mistrial at this point however.” Jd Almost immediately

thereafter the court gave the following curative instruction:

Ladies and gentlemen, | will instruct you -- I am

going to instruct you that the defendants here have

en

B-16

an absolute right not to take the stand and testify

themselves. They also have an absolute right not to

put in any proof, to make the government meet its

burden of proof beyond a reasonable doubt, by the

government's evidence of their guilt.

| want you to keep that in mind. They have no

obligation to put on any witnesses.

Id. at 87-88. The prosecutor then continued his closing state-

ment.

Consistent with the court’s earlier curative instruction,

when charging the jury, the court gave the following instruc-

tion with respect to the fact that the defendants did not testify:

A defendant in a criminal case has an absolute

right under our Constitution not to testify.

The fact that these defendants did not testify must

not be discussed or considered by the jury in any

way when deliberating and in arriving at your ver-

dict. No inference of any kind may be drawn from

the fact that a defendant decided to exercise his

privilege under the Constitution and did not testify.

Tr. (Oct. 7, 1994) at 26-27. The court further explicitly in-

structed the jury as follows with respect to the burden of

proof:

As a result of the defendant’s plea of not guilty

the burden is on the prosecution to prove guilt be-

yond a reasonable doubt.

This burden never shifts to the defendant for the

simple reason that the law never imposes upon the

defendant in a

criminal case the burden or duty of call-

ing any witness or producing any evi-

dence.

Re ears ee tari eee mee mean aa

B-17

The law presumes the defendant to be innocent of

the charge against him. Thus, the defendant, al-

though accused, begins the trial with a clean slate,

with no evidence against him.

This presumption of innocence alone is sufficient

to acquit the defendant unless you, as jurors, are

satisfied beyond a reasonable doubt of his guilt, af-

ter a careful and impartial consideration of all of the

evidence in this case.

Id. at 28.

In addition to the foregoing, the defendants highlight sev-

eral other statements in the prosecutor’s summation which

also form the basis for their claim of prosecutorial miscon-

duct. In particular, they note the AUSA’s misstatement where

he said, “Gehl testified,” when in fact he did not. Tr. (Oct. 6,

1994) at 108. After counsel for the Gehl defendants objected,

the AUSA said that he did not mean to say that Mr. Gehl had

testified; he meant to say that “Gehl said to Ms. Gould.]” /d

The defendants also contend that the prosecutor improperly

remarked that “[w]hen you don’t have strong evidence,” you

have to make certain arguments to confuse the jury. /d. at 118.

The defendants point to two other comments in the prosecu-

tor’s summation which they believe were improper. The first

of these is AUSA Benedict’s statement in rebuttal: “[{I] don’t

know what the attorney [for the Gehl defendants] was trying

to accomplish with his letter to the FDA[;]” he then went on

to say, in connection with that letter, that “there is nothing on

it and not a shred of evidence that that was ever shown to

George Jackson.” /d. at 230. Lastly, the defendants assert that

the prosecutor’s comment in closing that this was “a very im-

portant case,” to which they timely objected, was also highly

i4

improper. = /d. at 240.

Taking all of these comments together, the defendants

Strenuously maintain that their Fifth Amendment right to

* The court sustained that objection.

B-18

remain silent and not call witnesses was violated by the same.

They further argue that those collective remarks by the prose-

cutor impermissibly shifted the burden of proof. The court

will separately address each of these arguments.

“*tI}t is axiomatic that the Government may not comment

on a defendant’s failure to testify at trial[.]’” United States v.

Pitre, 960 F.2d 1112, 1124 (2d Cir. 1992) (quoting United

States v. McDermott, 918 F.2d 319, 327 (2d Cir. 1990), cert.

denied, 500 U.S. 904, 111 S.Ct. 1681, 114 L.Ed.2d 76

(1991)). Nor may the government “suggest that the defendant

has any burden of proof or any obligation to adduce any evi-

dence whatever[.]” United States v. Parker, 903 F.2d 91, 98

(2d Cir., cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112

L.Ed.2d 158 (1990). The government may, however,

“comment on defendant’s failure to call witnesses to contra-

dict the factual character of the Government’s case, as well as

on defendant’s failure to support his own factual theories with

witnesses.” McDermott, 918 F.2d at 327 (citations omitted).

The Second Circuit has repeatedly recognized, though, that

“{w]hen the evidence that the defendant has not adduced is in

the control of the defendant alone or where the jury would

naturally and necessarily interpret the Government’s summa-

tion as a comment on the defendant’s failure to testify that the

Government’s comments run afoul of the Fifth Amendment.”

Id. (citing United States v. Bubar, 567 F.2d 192, 199 (2d

Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d

151 (1977)). Importantly, as alluded to earlier, “[t]o obtain a

reversal of a conviction on the ground that the prosecutor has

crossed the boundary between permissible and impermissible

argument, a defendant must show that the improper argument

caused him substantial prejudice.” Parker, 903 F.2d at 98

(citations omitted). However, “[e]ven where the prosecutor's

argument was clearly impermissible, [the Second Circuit]

ha[s] been reluctant to reverse where the transgression was

isolated, the trial court took swift and clear steps to correct the

implication of the argument, and the evidence against the de-

fendant was strong.” See id. (citation omitted). As will be ex-

plained, that is precisely the situation presented here, at least

with respect to the Gehl defendants.

en Sh nh ned ee

ee oe ee ee

B-19

Preliminarily, before examining the individual statements

which form the basis for the prosecutorial misconduct claim,

the court will briefly address defendants’ argument that the

AUSA’s remark about the defendant’s failure to call wit-

nesses was intentional. As the defendants are well aware, the

Second Circuit plainly stated in Pitre, as it has before, that

“[t]o reverse a conviction for improper commentary on the

right to remain silent, [it] must find that the comment was

‘manifestly intended or [was] of such a character that the jury

would naturally and necessarily take it to be a comment on

the failure of the accused to testify.” Pitre, 960 F.2d at 1124

(internal quotation omitted) (citation omitted) (emphasis

added). Under the Pitre standard, the court is forced to con-

clude that this particular remark by AUSA Benedict was

“manifestly intended.” The court bases this conclusion upon

two factors. The first is that the remark was made quite early

on in the government’s summation, not in the government's

rebuttal. It is not as though the government was prompted to

respond to any defense closing argument.

Second, the court agrees with defendant Jackson that based

upon the prosecutor’s argument at the sidebar, together with

the fact that the next day he provided copies of two relevant

Second Circuit decisions to the Court,’* there is little doubt

that AUSA Benedict was fully aware of the boundaries for

making such remarks in closing. The court is unable to find,

however, viewing the assertedly prejudicial remark in context,

and taking into account the prompt curative instruction given

right after that remark, as well as the court’s later instruction

to the jury that the defendants have a right not to call wit-

nesses or testify, that the jury would “naturally and necessar-

ily” take such remark to be a comment on the failure of the

accused to testify, at least as to the Gehl defendants. See id

But, for reasons which will be more clear as the court

discusses each of the other remarks which are part of the

'S United States v. Bautista, 23 F.3d 726 (2d Cir.), cert. denied US.

__, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); and United States v. Gotchis.

803 F.2d 74 (2d Cir. 1986).

B-20

defendants’ prosecutorial misconduct claim, the court cannot

find that AUSA Benedict engaged in a “continuous pattern of

misconduct” during the trial. New Trial Memorandum at 8.

It is not difficult to decide whether certain of the prosecu-

tor’s statements in closing amounted to prosecutorial miscon-

duct in terms of the Gehl defendants. The short answer is that

they did not; the Gehl defendants, quite simply, are unable to

demonstrate to the court’s satisfaction the “substantial preju-

dice” necessary to prevail on a claim of prosecutorial miscon-

duct. Insofar as the first component of substantial prejudice is

concerned - the seriousness of the misconduct - overall, the

court does not find that the alleged misconduct was that seri-

ous. It is true that in summation the prosecutor remarked that

the defendants could have “call{ed] witnesses if they wanted

to.” Tr. (Oct. 6, 1994) at 85. That remark was prefaced, how-

ever, by the prosecutor’s statement that “the judge is going to

tell you ... that the defendants were under no obligation

whatsoever to call any witnesses and that, of course, is true.”

Id. at 84-85. In addition, the prosecutor unequivocally re-

minded the jury that it “has the burden of proof and we gladly

assume that burden[,]” before mentioning that the defendants

could have called witnesses had they chosen to do so. /d. at

85. And, the court did, in fact, instruct the jury not once, but

twice, that the defendants had no obligation whatsoever to call

any witnesses or to testify and that the burden of proof, at all

times, remains on the government. More specifically, imme-

diately following these remarks by the prosecutor the court

gave a curative instruction, which is fully set forth herein. '°

At this point, it is worth mentioning that in Parker, supra,

the Second Circuit declined to find serious misconduct in the

government’s summation, even though the prosecutor repeat-

edly questioned why the defendant had not called his sister to

testify. 903 F.2d at 99. The Court reasoned, inter alia, “the

prosecutor had begun this portion of the argument by stating

that Parker had no obligation to call any witness and that the

16 . .

See discussion, supra, at 17.

B-21

burden rested solely on the government to prove his guilt be-

yond a reasonable doubt.” /d. If the prosecutor’s repeated

question of a defendant’s failure not to call a particular wit-

ness in Parker was not a “serious misconduct,” then certainly

the prosecutor’s similar isolated reference, surrounded as it

was by an accurate statement of the burden of proof and a

statement that the defendants were not required to call any

witnesses, cannot be considered serious misconduct of the

type necessary to sustain a finding of substantial prejudice.

See United States v. Rosa, 11 F.3d 315, 342 (2d Cir.), __

US. __, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994)

(prosecutor’s question in rebuttal as to why a defendant had

not called a particular witness was proper where he “was care-

ful not to suggest that [the defendant] had any burden of proof

or any obligation to adduce any evidence).”

Assuming arguendo that the prosecutor’s comments in

summation regarding defendants’ failure to call witnesses

could somehow be found to rise to the level of “serious mis-

conduct,” the court would still be unable to find the requisite

substantial prejudice as to the Gehl defendants. That is so be-

cause the court gave a curative instruction directly after that

remark, and the court also gave explicit jury instructions later

that the defendants had an absolute right not to testify and that

the burden of proof remained, at all times, on the government.

Therefore, even if the necessary serious misconduct were

shown, the court firmly believes that it took the necessary

measures to cure the same. Third, as to the certainty of con-

victions absent the alleged improper statements the proof as

already discussed in connection with defendants’ challenge to

the sufficiency of the evidence leads the court to conclude that

at least with respect to the Gehl defendants, the jury would

have found them guilty of the charges which they did, even if

the prosecutor had not mentioned that the defendants could

have called witnesses “if they wanted to.” Tr. (Oct. 6, 1994)

at 85.

The defendants make the bald assertion that the prosecu-

tor’s statements, particularly as to the defendants’ failure to

call witnesses, amounted to impermissible burden shifting.

B-22

See New Trial Memorandum at 7. The court disagrees. Re-

jecting a similar burden-shifting argument, the Second Circuit

in Gotchis, supra, soundly reasoned, in words which could

have been written with this case in mind:

No presumptions - [g]iven the common definition

of presume as to suppose to be true without proof, -

were ever presented to [the jury.] While it might

have been preferable for the prosecutor to have re-

stricted herself to emphasizing the lack of evidence

tending to disprove her case, rather than inviting the

jury to speculate about specified witnesses the de-

fendant might have called, we do not think the latter

comments could fairly be interpreted to mean that

the defendant had any obligation to produce these

witnesses.

803 F.2d at 80-81 (internal quotations and citations omitted).

More recently, the Second Circuit in Bautista, supra, again

rejected an argument of impermissible burden shifting. In that

case the defendant argued that the following statement by the

prosecutor improperly shifted the burden of proof to him as to

the elements of the offense:

The defense does not have a burden of proving

anything to you but when they do make an argu-

ment to you .. . you don’t have to accept it. At that

point, they are obligated to come forward with

evidence.

23 F.3d at 733 (emphasis added). Acknowledging that this

statement was “inapt,” and cautioning that “prosecutors

should avoid statements suggesting that the defense ‘is obli-

gated’ at any time ‘to come forward with evidence,’” the

Court held, nonetheless, “when considered in context [this

statement] would not have been understood by a reasonable

jury as anything more than an argument that the jury need not

believe uncorroborated defense theories.” Jd. (footnote omit-

ted). Similarly, in the present case, when the prosecutor's re-

mark is read in context, the court does not believe that a

B-23

reasonable jury would have construed that comment as

“naturally and necessarily” commenting on the defendants’

failure to testify, especially the Gehl defendants.

As previously mentioned, there are a few more remarks

made by the prosecutor during his closing which the defen-

dants assert support a finding of prosecutorial misconduct,

and the court will briefly address each of those.'’ The

AUSA’s reference to Mr. Gehl testifying, when he did not,

rather than saying, as the AUSA eventually did that Gehl

“said to Ms. Gould,” strikes the court as nothing more than an

innocent slip of the tongue. Ironically, had defense counsel

not highlighted this remark by objecting to it not once, but

twice, the court doubts whether the jury would have even

noticed it. Moreover, in any event, given the government’s

fairly lengthy closing argument, it is highly unlikely that that

misstatement remained in the jury’s collective conscience

during deliberations.

The defendants also take issue, as earlier noted, with the

prosecutor’s comment that “[w]hen you don’t have strong

evidence, you have got to make any argument you can[,]” and

the mention of defense counsel’s confusing the jury. Tr. (Oct.

6, 1994) at 118. The defendants seem to be contending that

that comment, in and of itself, amounts to prosecutorial mis-

conduct, warranting a new trial. See New Trial Memorandum

at 9. To support that position, the defendants rely solely upon

United States v. Boldt, 929 F.2d 35 (lst Cir. 1991). The

prosecutor in Boldt stated in closing argument that “‘it’s a

favorite defense tactic to try to get you to focus on unneces-

sary facts or to get you emotionally wrapped up with the

” Because they did not address it when analyzing the issue of prosecuto-

rial misconduct, seemingly, the defendants do not believe that the prose-

cutor’s reference in rebuttal to defense counsel’s FDA letter is a

significant part of that argument. Thus, because the defendants themselves

do not deem that comment worthy of lega! analysis, neither does the

court.

'* Tr. (Oct. 6, 1994) at 108.

B-24

defendant.’” Jd. at 40. While the First Circuit did find that

that statement was “clearly improper,” the defendants in this

case conveniently ignore the fact that the First Circuit de-

clined to find that such impropriety required a new trial. /d. A

new trial was not necessary there, reasoned the First Circuit,

because the comment was “fairly isolated,” and the trial court

gave a “strong and thorough” curative instruction, besides

sustaining an immediate defense objection. /d. at 41.

In the present case, unlike Boldt, the defendants did not

immediately object to this comment by the prosecutor which

they now claim was objectionable. Presumably that was a

tactical decision on the part of counsel to avoid highlighting

to the jury what defense counsel perceived to be a prejudicial

remark. Regardless, the court, obviously, did not give a cura-

tive instruction because none was requested and no objection

was made. Without deciding whether defendants may have

waived their right to object to this particular comment in the

prosecution’s closing, the court finds that, as in Boldt, this

comment was “fairly isolated.” Furthermore, in the court’s

opinion, the prosecutor’s comment here was not nearly as

prejudicial as that in Boldt, and thus the serious misconduct

element of substantial prejudice is absent. In addition, as al-

ready discussed, in light of the overwhelming evidence of

guilt with respect to the Gehl defendants., the certainty of

conviction here was great - whether or not the prosecutor

made this fleeting reference to the defendants lack of strong

evidence as justification for making arguments which confuse

the jury.

Finally, to support their view that the prosecutor’s refer-

ence in closing to this as a “very important case”’” was im-

proper and thus requires a new trial, the defendants cite to

United States v. Cole, 755 F.2d 748 (11th Cir. 1985). In Cole

the prosecutor made almost the exact same comment as did

AUSA Benedict. The Cole Court did agree that such com-

ment was improper, but it found that “these comments did not

'? Tr. (Oct. 6, 1994) at 240.

eee

B-25

prejudicially affect any of the appellants’ substantive rights.”

Id. at 769 (citations omitted). In reaching that conclusion, the

Court stressed the immediate curative instruction; and it also

noted that any resulting error from such comments was

“harmless.” /d. (citation omitted). Even though this court did

not give a curative instruction per se, it did sustain the defen-

dants’ immediate objection to this comment. Tr. (Oct. 6,

1994) at 240. In so doing, in an effort to diminish the prosecu-

tor’s mention of the importance of this case, the court stated,

“Every case is important.” /d. Furthermore, as with nearly all

of the prosecutor’s remarks in closing,” which the defendants

complain of by this motion, when viewed, as they must be,

“in the context of the entire summation,””’ the court cannot

find, insofar as the Gehl defendants are concerned, that AUSA

Benedict engaged in prosecutorial misconduct while giving

his summation.

By now it should be obvious that there has been one Sig-

nificant omission from the court’s analysis and that is the is-

sue of whether the prosecutor’s statement that the defendants

“could [have] call[ed] witnesses if they wanted to””” amounts

to prosecutorial misconduct in terms of defendant Jackson.”

That omissiun was deliberate. In all candor, given the nature

of the proo’ against Jackson, the court finds this issue trouble-

some, far more so than in the case of the Gehl defendants.

In contrast to the Gehl defendants, the prosecution case

against defendant Jackson rested heavily upon the strength of

one witness, Wendy Gould, a former FDA inspector. Mr.

° The only exception being the prosecutor’s rhetorica! query in closing as

to why defendants did not call any witnesses.

_ Rivera, supra, 22 F.3d at 437 (citations omitted).

” Tr. (Oct. 6, 1994) at 85.

* To clarify, for reasons already discussed in connection with the Gehl

defendants, this comment aside, the court does not find that any of the

prosecutor’s other closing remarks amounted to prosecutorial misconduct

with respect to defendant Jackson.

B-26

Jackson’s defense was that he did not know that the sale of

Lake Ontario salmon eggs for human consumption was ille-

gal. Essentially, Ms. Gould testified that in a conversation

between she and Mr. Jackson, he acknowledged that he was

aware of New York’s regulatory ban on such sales. So, argues

defendant Jackson, he was the only witness who could have

possibly contradicted Ms. Gould’s testimony. Thus, when the

prosecutor questioned in closing why defendants did not call

any witnesses, defendant Jackson contends that that query

was clearly improper because the only possible inference

which the jury could draw is that “Gould must be telling the

truth,” because otherwise Jackson would have taken the stand

and contradicted her testimony. Defendant George Jackson's

Reply to Government’s Opposition to Posi-Trial Motions

(“Jackson Reply”) at 3. Jackson further asserts that because of

the “closeness” of the government’s case against him, “the

prosecutor’s improper statements cannot be viewed as harm-

less.” Jd. at 4.

To support this argument, defendant Jackson relies solely

upon United States v. Hardy, 37 F.3d 755 (Ist Cir. 1994),

wherein the First Circuit found that the prosecutor did im-

properly comment upon the defendant's failure to take the

stand and testify. In Hardy, the prosecutor stated that the de-

fendants are “still running and hiding today.” Jd. at 757. “The

time has come for them to stop running and stop hiding.” /d.

When the defendant objected and requested a limiting in-

struction, the prosecutor explained to the court that he was

“just drawing an analogy between their running and hiding on

that night and the Government's burden of proving guilt be-

yond a reasonable doubt.” /d. The district court was not satis-

fied with that response and instructed the jury to disregard

that remark, but it refused to grant the defendants’ motion for

a mistrial.

On appeal, the First Circuit held that the prosecutor’ s

comment had violated the Fifth Amendment because “(t]he

natural and necessary implication of that prosecutor's remark

was ... that the defendants were running from the evidence

presented against them, and hiding behind their right to

B-27

silence during the trial.” /d at 758. The Hardy Court next

considered whether a new trial was required, and for several

reasons, found that it was. The first justification for ordering a

new trial was that the prosecutor’s remark “[w]as manifestly

intended or was of such character that the jury would natu-

rally and necessarily take it to be a comment on the failure of

the accused to testify. ” Id. at 757 (internal quotation and cita-

tion omitted).”* The Court also believed that, “in a sense,”

those remarks were “deliberate.” Jd. at 758. A second factor

which weighed in favor of granting a new trial was that the

prosecutor’s remarks were “not an isolated instance of mis-

conduct{[;].” the prosecutor there had made a number of other

disturbing remarks over the course of the trial. /d (citation

omitted). The Court further reasoned that even though a limit-

ing instruction was given,” “jajn i improper comment that may

seem insignificant where the evidence is overwhelming can

assume a very different aspect in a close case. This is such a

close case.” Jd** Fourth, the Court pointed out that “the

strength of the evidence proffered against Hardy was not

overwhelming.” /d. Of particular import is that it does not ap-

pear that any one of those factors alone would necessarily

have required a new trial. Rather, it seems that it was the

combination of these factors which the Hardy Court found

warranted a new trial.

* Even though Hardy is a First Circuit case, as the Second Circuit recog-

nized in United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir.

1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388 25 L.Ed.2d 665 (1970),

the just quoted language “has become rather a favorite of many courts,

including this one[.]” /d. at 1269; see, e.g., McDermott, supra, 918 F.2d at

327.

* In charging the jury, the trial court also “state[{d] generally that the gov-

ernment had the burden of proof, that the defendants’ had a constitutional

right not to testify, and that the jury should not draw any negative infer-

ences from the exercise of that right.” Hardy, 37 F.3d at 757, n. 3.

*® The court observes that defendant Jackson, without discussing any other

aspect of Hardy, relies upon this quote and urges that his case too is a

“close” one. See Jackson Reply at 4.

B-28

Aside from the fact that its precedential value is somewhat

limited because it did not arise in the Second Circuit, Hardy is

distinguishable from this case. Therefore, this court does not

believe that the Court’s reasoning therein entitles defendant

Jackson to a new trial. The first basis for distinguishing Hardy

is that AUSA Benedict's remark was not made while he was

specifically referring to defendant Jackson; nor was he even

discussing Ms. Gould’s testimony at the time. In fact, AUSA

Benedict was not even referring to the Lacey Act violations at

that point in this summation.” Therefore, in contrast to

Hardy, this court is not convinced that the jury would

“naturally and necessarily [have] interpret[ed] the Govern-

ment’s summation as a comment on the defendant's failure to

testify... .” See McDermott, supra, 918 F.2d at 327 (citation

omitted). As already discussed, though, as in Hardy, the court

does believe that “in a sense,” AUSA Benedict’s comment

about the defendants not calling any witnesses was deliber-

ate. But, assuming for the moment that this particular com-

ment by AUSA Benedict did amount to misconduct, as should

be apparent from the court’s earlier discussion, his other

comments in closing and elsewhere did not constitute mis-

conduct; and so, unlike Hardy, at the very most, this was an

isolated instance of prosecutorial misconduct. Furthermore,

in contrast to the Hardy jury, the court does not believe that

this jury “was exposed to a number of emotional and prejudi-

cial arguments which potentially interfered with its ability to

appraise the evidence objectively and dispassionately.” See

Hardy, 37 F.2d at 759.

The last element analyzed by the Hardy Court - the

strength of the proof - is a factor which, arguably, could tip

either way. Certainly the court is unable to describe the proof

against defendant Jackson as overwhelming. The only direct

evidence of defendant Jackson’s knowledge of regulation 37.1

2” Defendant Jackson was only charged in those counts of the indictment

pertaining to the Lacey Act.

** See discussion, supra, at 20-21.

B-29

came from Ms. Gould. By the same token, there was strong

inferential evidence from which the jury could have found, as

evidently they did, that defendant Jackson knew that the sale

of Lake Ontario salmon eggs for human consumption was il-

legal and that he was guilty of the charged crimes. That infer-

ence as to his knowledge could easily be drawn from the

proof as to Jackson's position with Tempotech, the nature of

his work there, as well as his close association with Robert

Gehl. Thus when each of the factors identified by the Hardy

Court is examined in the context of this case, the court does

not find that defendant Jackson is entitled to a new trial.

AUSA Benedict’s remark in closing as to the defendants’

failure to call any witnesses, while unfortunate and certainly

uncalled for, is not, standing alone, the kind of remark which

requires a new trial.

Second Circuit case law supports the same result. In

Follette, supra, the Second Circuit considered, inter alia, a

prosecutor's comment in summation as to the defendant's

lack of contradictory evidence. In Follette, the Court

“reviewed the many precedents which, in almost every in-

stance, have ‘held that remarks concerning lack of contradic-

tion are forbidden only in the exceedingly rare case where the

defendant alone could possibly contradict the government's

testimony[.]’” United States v. Dioguardi, 492 F.2d 70, 82

(2d Cir.), cert. denied, 419 U.S. 587, 95 S.Ct. 134, 42 L.Ed.2d

112 (1974) (quoting Follette, 418 F.2d at 1269). After review-

ing those cases, the Court concluded

where the prosecutor confines himself to arguing

the strength of his case by stressing the credibility

and lack of contradiction of his witnesses, we will

not be astute to find in this a veiled comment on the

defendant's failure to testify even if in practical fact,

although not in theory, no one else could controvert

them.

Follette, 418 F.2d at 1270. At first glance it might appear that

this case falls into that small category of “exceedingly rare”

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cases described by the Follette Court.” Considering Bene-

dict’s summation in its entirety, though, the court construes

his remark as to the defendants’ failure to call witnesses as

being the type of remark just described by the Follette Court.

Thus, in accordance with the Second Circuit’s implicit direc-

tion therein, this court will not read into the prosecutor’s re-

mark a “veiled comment on the defendant’s failure to

testify[.]” See id.

Moreover, according to the Follette Court, “[t]he trend has

been, ..., to treat the two adverbs [naturally and necessarily]

in the conjunctive and to stress the ‘necessarily.’ ” /d. at 1269.

As previously explained in distinguishing Hardy, read in

context, the court cannot find that the jury would “naturally

and necessarily interpret” that singular, general remark, made

while the prosecutor was discussing crimes with which defen-

dant Jackson was not even charged, as a comment on defen-

dant Jackson’s failure to testify. Lastly, the court posits that

any conceivable misunderstanding this particular remark by

AUSA Benedict might have engendered on the part of the

jury, as to defendant Jackson, was cured by the immediate

curative instruction, which was in turn bolstered by the

court’s general instructions on burden of proof and the defen-

dants’ absolute right not to testify. See United States v. Bubar,

567 F.2d 192, 200 (2d Cir.), cert. denied, 434 U.S. 872, 98

S.Ct. 217, 54 L.Ed.2d 151 (1977); see also United States v.

Knoll, 16 F.3d 1313, 1323 (2d Cir. 1994) (citation omitted)

(“[A]ppellants have not shown substantial prejudice as a result

of the prosecutor’s statements, .. . , a particularly heavy burden

inasmuch as the trial court gave a curative instruction as part of

*° The following observation by the Second Circuit in Follette demon-

strates just how rare such cases are: “[W]e have discovered only four de-

cisions by federal courts of appeals among the multitude that have been

cited by counsel or disclosed by our own research, over the past half-

century, where comments as to non-contradiction have led to reversal.”

418 F.2d at 1270 (and cases cited therein), admittedly, the court’s research

as to such decisions in the last quarter of a century since Follette was not

exhaustive, but given the court’s general familiarity with the case law since

then, it is reasonable to conclude that this trend has continued to this day.

B-31

its charge.”). For all of these reasons, the court is unable to find

that defendant Jackson was substantially prejudiced by the

prosecutor’s gratuitous remark about the defendants’ failure to

call witnesses. Accordingly, the court denies defendant Jack-

son’s motion for a new trial based upon the prosecutor’s

claimed misconduct at various points during his summation.

2. Other Misconduct Claims

Not wanting to leave any stone unturned, the defendants

also point to comments made by the prosecutor during the

course of the trial which they claim, in combination with the

comments analyzed in section II(B)(1)(c) above, violated their

Fifth Amendment rights. Again, these comments were di-

rected at the fact that the defendants’ proof, or the lack

thereof. More specifically, early on in the case the prosecutor

stated, in the jury’s presence, “[T]here is going to be expert

testimony that both sides apparently are going to present.” Tr.

(Sept. 26, 1994) at 11-12. The defendants objected and moved

for a mistrial; that motion was denied. A couple of days later,

during defense counsel’s cross-examination of a government

witness, he offered a document into evidence. Tr. (Sept. 28,

1994 - afternoon) at 103. The government objected, Stating,

“[t]hey can offer whatever they want in their case[.]” Ia.

Neither of these comments, taken in isolation, or when

considered in the context of the entire trial, is tantamount to

serious misconduct. As to the former comment, in light of the

defendants’ pre-trial requests in connection with their antici-

pated expert, including a request for an adjournment so that

that expert would have sufficient time to prepare, it was rea-

sonable for the prosecutor to assume, at that point in time, that

perhaps the defendants also intended to have an expert wit-

ness testify. The prosecutor cannot be faulted for what ap-

pears to have been a change in defense strategy midway

through the trial. In addition, as to this remark, as well as the

remark that defendants “can offer whatever they want in their

‘ Eventually, the court overruled that objection. Tr. (Sept. 28, 1994 -

afternoon) at 103-105.

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case.””! it cannot be forgotten that both of these were but

passing remarks in a fairly lengthy trial. Accordingly, the

court finds that none of these remarks made during the course

of the trial substantially prejudiced the rights of any of these

defendants.

To summarize, a defendant seeking a new trial on the

grounds of prosecutorial misconduct has a high hurdle to

clear. In the present case, none of the defendants are able to

clear that high hurdle. In his summation, AUSA Benedict

walked perilously close to that “fine line”? between permis-

sible and impermissible argument, especially insofar as de-

fendant Jackson is concerned. In the end, however, when his

remarks are examined, as they must be, against the standards

recited earlier, the court concludes that those remarks,

whether viewed in isolation, or collectively, cannot support a

finding that the Fifth Amendment rights of any of these de-

fendants were violated. The most that can be said of the

AUSA’s remarks in this case, particularly his questioning

during summation of the defendants’ decision not to call any

witnesses, is that such remarks amounted to prosecutorial

overkill; but, as the case law makes clear, prosecutorial

overkill is not equivalent to prosecutorial misconduct.

Broadly grouped, there are three remaining grounds for de-

fendants’ motion for a new trial: prejudicial surplusage in the

indictment; evidentiary errors; and claimed errors in the jury

instructions. In contrast to the prosecutorial misconduct ar-

gument, most of these arguments, including all of those made

as part of defendants’ Rule 34 motion, are familiar to the

court, some more so than others. Giver: that familiarity, to-

gether with the ample record arising out of the extensive pre-

trial motions and motions in limine, as well as other pre-trial

submissions, there is no need for the court to engage in an in-

depth analysis of the remaining defense arguments. Instead,

the court will only briefly address these remaining arguments.

*" Id. at 103.

2 See Parker, supra, 903 F.2d at 98.

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C. Prejudicial Surplusage

The defendants maintain, as they did on at least two occa-

sions prior to trial, that “[t]he Indictment contains a number of

inflammatory and prejudicial references that have nothing to

do with the crimes charged.” New Trial Memorandum at 9.

The court abides by its prior rulings that the language in the

indictment of which defendants complaint, is not so prejudi-

cial and inflammatory so as to require that it be stricken; and

the court sees absolutely no basis for so doing, particularly at

this late juncture.

D. Evidentiary Errors

There are four claimed evidentiary errors by the defen-

dants. Here again, obviously, these arguments are not new to

the court in that they were made in some instances just prior

to trial, and in others during the trial.

1. Predicates of Investigation

The first asserted evidentiary error is that the court should

not have permitted James Mazuicca of the New York State

Department of Environmental Conservation (“DEC”) to tes-

tify by way of “background” as to predicate information

which caused an investigation to be launched into defendants’

activities. The defendants believe that this background infor-

mation, which included, among other things, a statement that

Mazuicca was informed that “Mr. Gehl was in New York City

at the time hiding the eggs that we had asked them not to

sell[,]”** was improper hearsay in that it was offered for the

truth of the matter asserted, at least in the defendants’ opinion.

They also maintain that this proof was improperly admitted

because it was irrelevant. The government did not bother to

address this issue in its post-trial Opposition memorandum.

The settled rule in this Circuit is that “ ‘[w]hen statements

by an out-of-court declarant are admitted as background, they

Tr. (Sept. 28, 1994 - morning) at 89.

(diate ama ii i i

B-34

are properly so admitted not as proof of the truth of the mat-

ters asserted but rather to show circumstances surrounding the

events, providing explanation for such matters as the under-

standing or intent with which certain acts were performed.”

United States v. Harwood, 998 F.2d 91, 99 (2d Cir.), cert.

denied, _U.S._, 114 S.Ct. 456, 126 L.Ed.2d 388 (1993)

(quoting United States v. Pedroza, 750 F.2d 187, 200 (2d Cir.

1984)) (other citations omitted). Here, contrary to what de-

fendants assert, the background testimony of Mr. Mazuicca

was not offered for the truth of the matter asserted. In fact, the

court specifically instructed the jury accordingly at that time.

See Tr. (Sept. 28, 1994 - morning) at 89-90. Rather, this tes-

timony was offered to show why Mr. Mazuicca took ceriain

actions in connection with his investigation of the defendants

herein. Moreover, even if the court did err in allowing this

testimony, such error was harmless in light of the record as a.

whole. See Harwood, 998 F.2d at 99 (citing, inter alia, Fed.

R. Crim. P. 52(a)).

2. Gehl’s Prior Guilty Plea

Next, making the exact same arguments as they did in their

“Motion to Exclude 404(b) Evidence,” the defendants main-

tain that the court improperly admitted Robert Gehl’s guilty

plea from the Middle District of Florida. This argument too

was the subject of quite extensive pre-trial argument, and the

court abides by its prior ruling, and declines to find that a new

trial is justified on the basis of this purported error.

3. Inadequate Foundation for Certain

Government Exhibits

The defendants contend that there was an inadequate foun-

dation for government exhibits JM 1-5, 8, 10-21 and 24 and

thus the court improperly admitted those exhibits. Those

documents were either produced pursuant to a grand jury sub-

poena or were seized pursuant to two search warrants exe-

cuted as part of the investigation of this case. The court

declines to revisit this issue which was the subject of some

argument during the trial; and the court further denies defen-

dants’ motion for a new trial on the basis of this claimed error.

NN

B-35

4. Statements of Wendy Gould

All of the defendants bitterly contend that the court should

not have allowed Ms. Gould, a former FDA inspector, to tes-

tify that the defendants advised her that they were aware that

it was illegal to make caviar out of Lake Ontario salmon eggs.

The basis for this argument is that, according to the defen-

dants, the government did not fully comply with Fed. R.

Crim. P. 16(a)(1)(A), with respect to discovery pertaining to

Ms. Gould’s testimony. More specifically, the defendants

contend™ that the government did not comply with the fol-

lowing portion of that Rule:

Upon request of a defendant the government shall

disclose to the defendant and make available for in-

spection, copying, or photographing: ... ; that por-

tion of any written record containing the substance

of any relevant oral statement made by the defen-

dant whether before or after arrest in response to

interrogation by any person then known to the de-

fendant to be a government agent; ....

Fed. R. Crim. P. 16(a)(1)(A).

This is yet another controversy which was the subject of

thorough argument, both oral and written, during the trial and

the record reflects that. Indeed, the court gave careful consid-

eration to the parties’ respective arguments on this issue and

then made an oral ruling in chambers, and the record should

also reflect that ruling. Nothing in the papers currently before

the court has caused the court to retreat, in any way, from its

prior ruling on this issue. Thus, obviously, the court is not

persuaded that the prosecutor’s Supposed non-compliance

with Rule 16(a)(1)(A) entitles the defendants to a new trial.

** in a reversal of roles, the Gehl defendants make a rather cursory argu-

ment on this point, and then go on to adopt the arguments, both oral and

written, defendant Jackson made on this issue during the trial. See New

Trial Memorandum at 13.

B-36

E. Jury Instructions

Insofar as the jury charge is concerned, the defendants

contend that the court erred in failing to give a multiple con-

spiracies instruction in connection with count seven. In

United States v. Medina, 944 F.2d 60 (2d Cir. 1991), cert.

denied, _U.S._, 112 S.Ct. 1508, 117 L.Ed.2d 646 (1992),

the Second Circuit repeated the settled rules with respect to

the failure to given a multiple conspiracies charge:

Even if a multiple conspiracies charge should

have been given, the failure to do so does not auto-

matically require reversal... . To obtain a reversal,

a defendant must show both the likelihood of mul-

tiple conspiracies having existed, and substantial

prejudice resulting from the failure to give the re-

quested charge. .. . In order to demonstrate the ex-

istence of multiple conspiracies, a defendant must

show evidence of separate networks operating inde-

pendently of each other.

Id. at 65 (internal quotations and citations omitted).

Here, the defendants have not shown that they suffered

“substantial prejudice” due to the court’s refusal to give the

requested multiple conspiracies charge. Nor have they shown

evidence of “separate networks operating independently of

each other.” See id. Thus, the court denies defendants’ motion

for a new trial insofar as it is premised upon this claimed error

in the jury instructions. Likewise defendants’ due process

rights were not violated, as they contend, because of the

court’s refusal to charge that to prove a Lacey Act violation,

the government had to prove that the defendants knew of the

existence of regulation 37.1. Consequently, the court declines

to upset the convictions and grant defendants a new trial on

the basis of these asserted errors in the jury instructions.

To summarize, the court does not find persuasive any of the

arguments offered by the defendants in support of their mo-

tion for a new trial, and the court hereby denies the same in its

entirety.

B-37

III. Rule 34 Motion for Arrest of Judgment

Rule 34 motions for arrest of judgment “ ‘[aJre allowed

only (1) where the indictment charges no offense and

(2) where the court had no jurisdiction over the offense

charged.’ ” United States v. Carbonell-Iznaga, 87 CR. 0518,

1987 U.S. Dist. LEXIS 12:33, at *8 (S.D.N.Y. Dec. 31, 1987)

(emphasis added) (quoting United States v. Rosenberg, i195

F.2d 583, 603 (2d Cir. 1952)) (other citations omitted). “In

deciding a Rule 34 motion: ‘a court may not look beyond the

face of the ‘record,’ which consists of ‘no more than the in-

dictment, the plea, the verdict... when the plea is not

guilty .. . and the sentence; it does, not cover anything which

took place in pays [sic].’” /d. at *9 (quoting United States v.

Stolon, 555 F.Supp. 238, 239 (E.D.N.Y. 1983) (quoting in

turn United States v. Bradford, 194 F.2d 197, 201 (2d Cir.

1952) (and cases collected therein)).

In the present case, none of the defendants challenge the

court’s jurisdiction, rather, they make the following argu-

ments which the court deems are properly made under Rule

34: (1) invalidity of regulation 37.1; (2) compliance with the

Lacey Act; (3) related Fifth and Sixth Amendment violations:

and (4) disjunctive pleading. Once again, none of these argu-

ment are new to the court; they were all the subject of exten-

sive pre-trial motions, especially the challenge to regulation

37.1. The defendants have not pointed to any change in the

law, nor have they provided the court with any other compel-

ling reason as to why the court should retreat from its earlier

rulings on these issues. In short, nothing has changed in the

intervening months since these arguments were first posited

to the court which persuades it to modify or reverse any of its

prior rulings on these issues. Accordingly, the defendants’

motion for an arrest of judgment under Fed. R. Crim. P. 34 is

denied in its entirety.

For all of the reasons set forth above, the motions for a

judgment of acquittal pursuant to Fed. R. Crim. P. 29, for a

new trial pursuant to Fed. R. Crim. P. 33, and/or for an arrcst

of judgment pursuant to Fed. R. Crim. 34 made by the

B-38

defendants, Robert J. Gehl, George Jackson, Tempotech In-

dustries, Inc. and Gehl Productions, Inc., are hereby DENIED

in all respects.

IT IS SO ORDERED.

DATED: February 2, 1995

Syracuse, NY

/s/Neal P, McCurn

Neal P. McCurn

Senior U.S. District Judge