# Petition for Writ of Certiorari — Jackson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1192

## Text

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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”

B-30

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.

B-32

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.

B-33

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1729%3A1. Public record. Not legal advice.