IV. LEGAL ISSUES|
A. Specific Statutes Involved
1. Title 18, United States Code, Section 371 (conspiracy)
If two or more persons conspire . . . to commit any offense
against the United States . . . or any agency thereof in any manner
for any purpose, and one or more of such persons do any act to
the object of the conspiracy, each shall be fined not more than
or imprisoned not more than five years, or both.[FN26]
FN26. Pursuant to Title 18, United States Code, Section
3571(b)(3), an individual found guilty of a felony offense as
under Counts 1 through 6 may be fined as much as $250,000 per
2. Title 21, United States Code, Section 331 (prohibited
in pertinent part:
The following acts and the causing thereof are
(a) The introduction or delivery for introduction into
interstate commerce of any . . . drug . . . that is adulterated or
. . .
(c) The receipt in interstate commerce of any . . . drug . .
. that is adulterated or misbranded, and the delivery or proffered
delivery thereof for pay or otherwise.
. . .
3. Title 21, United States Code, Section 333(b) (penalties
for violations of Section 331)[FN27] states in pertinent
Notwithstanding the provisions of subsection (a) of this
section, if any person . . . commits such a violation [a violation
section 331] with the intent to defraud or mislead, such person
imprisoned for not more than three years or fined not more than
FN27. Effective July 22, 1988, 21 U.S.C. § 333(b)
recodified as 21 U.S.C. § 333(a)(2).
FN28. See footnote 27,
4. Title 21, United States Code, Section 321 (definitions)
states in pertinent part:
For the purposes of this chapter--
(g)(1) The term "drug" means . . . (B) articles intended for
use in the diagnosis, cure, mitigation, treatment, or prevention of
disease in man or other animals; . . .
. . .
(w) The term "new animal drug" means any drug intended
use for animals other than man . . .
(1) the composition of which is such that such drug
generally recognized, among experts qualified by scientific
experience to evaluate the safety and effectiveness of animal
safe and effective for use under the conditions prescribed,
or suggested in the labeling thereof; . . . .
5. Title 21, United States Code, Section 351 (adulterated
states in pertinent part:
A drug . . . shall be deemed to be
(a) . . . (5) if it is a new animal drug which is
within the meaning of section 360b of this title . . .
6. Title 21, United States Code, Section 360b (unsafe new
drugs) states in pertinent part:
(a)(1) A new animal drug shall, with respect to any
particular use or intended use of such drug, be deemed unsafe for
purposes of section 351(a)(5) . . . of this title unless--
(A) there is in effect an approval of an application
pursuant to subsection (b) of this section with respect to such use
intended use of such drug . . . .
7. Title 21, United States Code, Section 352 (misbranded
drugs) states in pertinent part:
A drug . . . shall be deemed to be misbranded--
. . .
(b) If in package form unless it bears a label containing
(1) the name and place of business of the manufacturer, packer, or
distributor . . . .
. . .
(f) Unless its labeling bears (1) adequate directions for
use . . . .
B. Elements of the Offense
1. Count One
The crime of conspiracy as charged under Count 1 of the
has four essential elements, which are:
One, in or about December 1985, two or more persons
and willfully reached an agreement or came to an understanding to
violate, with intent to defraud or mislead, the Food and Drug Act
least one of the ways described in the Indictment.
Two, the defendant voluntarily and intentionally joined
the agreement or understanding, either at the time it was first
or at some later time while it was still in effect;
Three, at the time the defendant joined in the agreement
understanding, he knew the purpose of the agreement or
Four, while the agreement or understanding was in
after September 16, 1987,[FN29] person who had joined in the
knowingly did at least one of the "overt acts" described in the
Indictment in furtherance of the agreement or understanding.
FN29. To not be barred by the statute of limitations,
government must prove that one or more overt act occurred within
years of the date of indictment, which in this case would be after
September 16, 1987. See United States v.
535 F.2d 1362 (2d Cir. 1976).
2. Counts 2-6
The crimes charged in Counts 2 through 6 of the Indictment, the
introduction or delivery for introduction into interstate commerce
animal drugs that were misbranded, each have three essential
One, on or about the date given, the defendant
caused to be introduced into interstate commerce an animal
drug;Two, the drug was "misbranded" in that its labeling
to bear adequate directions for use; and
Three, the defendant acted with the intent to defraud or
C.XXXXXXX's Liability Under These Principles
XXXXXXXX's liability for the conspiracy is plain. Two of his
market sources for the bulk drugs, both of whom have pleaded guilty
charges in connection with their own distribution of bulk animal
will testify that the defendant was a knowing and willing
a scheme to: (1) with the intent to defraud and mislead, acquire
distribute new animal drug products that had not been approved for
by the FDA (and were therefore adulterated, see 21 U.S.C.
351(a)(5)); and (2) with the intent to defraud and mislead, acquire
distribute bulk animal drugs that did not bear proper labeling
adequate directions for use (and were therefore misbranded,
21 U.S.C. §§ 352(b)(1), 352(f)(1)). Similarly, the
customers will testify as to the defendant's role in the sale of
The proof is equally compelling as to the defendant's
to Counts 2-6. In support of each count, the defendant's customer,
veterinarian in Viborg, South Dakota, and the veterinarian's
will testify as to the nature of the receipt of each identified
animal drug from the defendant. This testimony will include a
description of the product received, including its general
and the fact that none of the drugs bore adequate directions for
This testimony will be corroborated by, among other things, the
invoices supplied by the defendant along with the associated
checks from the customer to the defendant.
Moreover, the defendant's furtive conduct designed as it were
evade FDA scrutiny is more than ample to establish his felonious
to defraud or mislead. The defendant's conduct, as described above,
rises easily to the level found to support felony convictions in
United States v. Arlen, supra, and United States
Bradshaw, supra. In Arlen, the Fifth Circuit held
a defendant who took "active steps to avoid detection and
the FDA" had the requisite intent to defraud or mislead to support
felony conviction.[FN30] Arlen, 947 F.2d at 144. Similarly,
Bradshaw, the Eleventh Circuit upheld a defendant's felony
convictions where the government's proof of intent to defraud or
consisted of acts of deception directed to evade FDA and state
enforcement authorities. Bradshaw, 840 F.2d at 873-75.
Recognizing that the overriding purpose of the FDCA is "consumer
protection -- the protection of the public against any misbranded
adulterated food, drug, device, or cosmetic," the Eleventh Circuit
concluded that a defendant who "misled . . . governmental agencies,
thereby frustrating their efforts to protect the public," was
convicted.[FN31] Id. at 874.
FN30. In Arlen, the defendant was careful not to
generate or maintain any records of his steroid dealings, stopped
accepting blank money orders because they would create a record,
a private postal box under a fictitious name, and used fake names
addresses when mailing steroid packages. Id., 947 F.2d at
FN31. Among other things, the defendant in
engaged in the following acts: he moved from state to state
used mail drops rather than his home address when mailing drugs to
customers, used false names, mislabeled packages as vitamins, and
discussed "methods of avoiding detection with . . . customers."
Id. at 873.
The government does not anticipate that XXXXXXXX will contest
government's proof that he sold the various specified products on
dates alleged. Nor does the government believe that XXXXXXXX will
seriously contend that the products were labelled properly under
law. Nor does the government believe that XXXXXXXX will raise a
challenge to the evidence establishing that he bought products from
black market sources and that he subsequently distributed those
to his customers.
Rather, the government anticipates that the defendant may make
arguments as to the substantive counts. First, the defendant may
that the products he acquired and distributed were bulk chemicals,
drugs. Second, the defendant may assert that the distribution of
bulk drugs to veterinarians was lawful. And third, the defendant
concede that he illegally distributed bulk new animal drugs
confessing misdemeanor liability), but contend that he did not have
requisite intent to defraud or mislead to support a felony
None of these defenses are valid.
1.The bulk products were drugs
The first anticipated defense fails in light of the facts and
applicable law. A "drug" is defined as any "articles intended for
the diagnosis, cure, mitigation, treatment, or prevention of
man or other animals . . . ."[FN32] "Intended use" may be derived
inferred from labeling, promotional material, advertising, oral
statements, or any other relevant source. E.g., United
v. Storage Spaces Designated Nos. 8 & 49, 777 F.2d 1363, 1366
Cir. 1985), cert. denied, 479 U.S. 1086 (1987);
States v. Article . . . Consist. of 216 Carton Bottles . . .
Change", 409 F.2d 734, 739 (2d Cir. 1969) (citing cases);
Irons v. United States, 244 F.2d 34, 44 (1st Cir.),
denied, 354 U.S. 923 (1957); Alberty Food Products v.
States, 194 F.2d 463 (9th Cir. 1952). A product intended for
a drug may be regulated as a drug regardless of its composition.
"Sudden Change", 409 F.2d at 739 (citing cases in which
peppermint tea leaves, honey, mineral water, and animal hearts have
found to be "drugs"). The determination of whether a product is a
is conducted on an objective basis, taking into consideration all
relevant sources. Id.; Kellogg Co. v. Mattox, 763 F.
1369, 1383 (N.D. Tex. 1991), aff'd mem., 940 F.2d
(5th Cir. 1991) (and cases cited therein).
FN32. 21 U.S.C. § 321(g)(1)(B).
By any objective criteria, the intended use of the products
and distributed by XXXXXXXX must be considered drugs. The defendant
represented the substances to be (and the purchasers believed the
substances to be) antibiotics for veterinary use. Moreover, his
customers were veterinarians who sought and used the products in
treatment of animals. Any contention to the contrary has no basis
2. The FDCA applies to deliveries of
bulk drugs to veterinarians
Appellate courts have uniformly upheld the view that the FDCA
applies to veterinarians receiving and distributing bulk drugs.
See generally Algon, supra; 9/1 Kg.
3.Requisite intent to defraud or mislead
The defendant appears poised to make two separate arguments why
conduct did not involve the requisite intent to defraud or mislead
necessary to support felony convictions. First, the government
anticipates that the defendant will renew the claim, made in his
motion to dismiss the Indictment (dkt. 31), that he relied in good
upon two district court decisions that were subsequently overturned
appeal.[FN33] Second, the defendant will contend that evidence
sufficient to establish an "intent to defraud or mislead" must
evidence of intent to cause a monetary fraud.
FN33. United States v. 9/1 Kg. Containers, 674
Supp. 1344 (C.D. Ill. 1987); rev'd, 854 F.2d 173 (7th Cir.
cert. denied, 489 U.S. 1010 (1989); United States
Algon Chemical, Inc, 689 F. Supp. 394 (D.N.J. 1988),
879 F.2d 1154 (3d Cir. 1989).
As discussed at pages 13-18 of the government's March 8, 1993,
Opposition to Defendant's Second Motion to Dismiss (dkt. 38),
defendant's "mistake of law" of defense has no colorable basis in
FN34. Rather than repeat arguments previously made, the
government incorporates by reference its discussion at pages 13
18 of this response.
Of particular note is that (1) the sequence of events
any claim of good-faith reliance on the erroneous district court
decisions (the first decision was handed down in December 1987, two
years after the start of the conspiracy and more than a year after
defendant acknowledged the government's position that the sale of
animal drugs without a proper NADA was illegal); (2) the legal
the two cases did not even purport to cover conduct engaged in by
defendant -- namely, the sale and distribution of
drugs (i.e., drugs that were not covered by an approved NADA
at their source) and of drugs having no labeling at all);
the defendant's claim of good-faith reliance is wholly inconsistent
with his misrepresentations to the FDA and with his clandestine
activities designed to evade detection.
Equally devoid of merit is defendant's claim that "intent to
or mislead" requires proof of intent to cause a monetary loss. As
be discussed at greater length in the government's opposition to
defendant's motion in limine concerning this issue, the defendant's
argument is wholly misguided. For one thing, it completely ignores
fact that the government can meet its burden of proof by
either an "intent to defraud" or an "intent to mislead." No
explanation has been offered by the defendant why an intent to
requires proof of monetary loss nor can the government fathom one.
Moreover, as recognized by the Supreme Court in McNally v.
States, 483 U.S. 350, 359 n.3 (1987), the term "defraud" by
does not require evidence of a monetary loss. Rather, the term
must be construed in light of the specific statute and statutory
Thus, while the Supreme Court concluded that "intent to defraud" as
in the mail fraud statute, 18 U.S.C. § 1341, requires loss of
or property, decisions subsequent to McNally have made clear
no proof of monetary loss is required to prove an "intent to
the context of other statutory schemes -- be it the FDCA,[FN35] or
another statutory framework.[FN36]
FN35. See Bradshaw, 840 F.2d at 875 n.8
(McNally inapplicable to the FDCA); Arlen, 947 F.2d
142-43 (following Bradshaw); Mitcheltree, 940 F.2d at
1347, 1352 (same); Cambra, 933 F.2d at 755
FN36. E.g., United States v. Murphy, 957
550, 553 (8th Cir. 1992) (affirming conviction of conspiring to
the government under 18 U.S.C. § 371 in connection with the
of information about an FBI investigation); United States v.
Elkins, 885 F.2d 775, 781 (11th Cir. 1989) (conspiracy to
the government of its right to implement foreign policy), cert.
denied, 494 U.S. 1005 (1990); United States v. Kato, 878
267, 270 (9th Cir. 1989) ("[C]onspiracy to defraud the United
under 18 U.S.C. § 371 does not require an agreement to defraud
government of money or property").
E.Admissibility of Unalleged Conspiratorial Conduct
An issue as to the admissibility of unalleged overt acts in
of the conspiracy may arise. Such evidence is properly admissible.
See, e.g., United States v. Lewis, 759 F.2d 1316,
(8th Cir.), cert. denied, 474 U.S. 994 (1985); United
v. Ruiz-Altschiller, 694 F.2d 1104, 1109 (8th Cir. 1982),
denied, 462 U.S. 1134 (1983); Culp v. United States, 131
93, 100 (8th Cir. 1942).
F. Admissibility of Co-Conspirator Statements
Statements made "by a coconspirator of a party during the
in furtherance of the conspiracy" are not hearsay. Fed. R. Evid.
801(d)(2)(E); United States v. Edwards, 994 F.2d 417, 421
Cir. 1993), cert. denied, 114 S. Ct. 701 (1994). To
the requirements under this rule, the government must demonstrate
elements by a preponderance of the evidence: "(1) that a conspiracy
existed; (2) that the defendant and the declarant were part of the
conspiracy; and (3) that the declaration was during the course and
furtherance of the conspiracy." United States v. Sileven,
F.2d 962, 966-67 (8th Cir. 1993).
In determining whether a statement is in "furtherance" of a
conspiracy, the court should interpret the term "furtherance"
Edwards, 994 F.2d at 433. So long as the overall effect of
conversation is to facilitate the conspiracy, this prong is
In United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.
1978), the Eighth Circuit set forth the procedure for handling
coconspirator statements. Under this procedure, coconspirator
may be admitted conditionally, and the court may determine at the
of the government's evidence whether the government had established
existence of the conspiracy at the time of the statements in
Id.; see Edwards, 994 F.2d at 421. The
in question is properly considered in determining the existence of
three elements set forth above. Bourjaily v. United States,
U.S. 171, 180-81 (1987); United States v. Hoey, 983 F.2d
(8th Cir. 1993).
G. Evidence of Plea Agreements with Government
The government will call certain witnesses who have entered
plea agreements requiring their cooperation with the government's
investigation of the illegal distribution and/or receipt of bulk
drugs. These witnesses have already pled guilty and served their
In its direct examination of each such witness, the government
entitled to elicit testimony concerning the fact that the witness
guilty to particular charges, the details of those charges, and the
nature of the cooperation agreement with the government. The
can properly include testimony concerning the requirement in the
agreement that the witness provide only truthful testimony and can
prosecuted if he commits perjury. The plea agreement itself is
admissible. United States v. Drews, 877 F.2d 10, 12 (8th
1989) (confederate's plea agreement is admissible on direct
as evidence of the witness' credibility or acknowledgement of
participation in the offense).
H. Admissibility of Audio Tape Evidence
The government's evidence will include tapes of telephone
conversations between XXXXXXXX and cooperating witnesses, which
made by the cooperating witnesses. Introduction of such evidence
not implicate any fourth amendment rights when, as here, an
simultaneously records his conversation with the defendant with
electronic equipment and has consented to the taping and monitoring
that conversation. United States v. White, 401 U.S. 745,
(1971); United States v. McMillan, 508 F.2d 101, 104 (8th
1974), cert. denied, 421 U.S. 916 (1975).
The standard for admitting taped conversations is set forth in
McMillan. Introduction of taped conversations is appropriate
the following requirements are satisfied:
(1) That the recording device was capable of taking the
conversation being offered into evidence;
(2) That the operator of the device was competent to operate
(3) That the recording is authentic and correct;
(4) That changes, additions or deletions have not been made in
(5) That the recording was preserved in a manner that is shown
(6) That the speakers are identified;
(7) That the conversation elicited was made voluntarily and in
faith, without any kind of inducement.
Id. at 104.
When, as here, the tapes were made by an individual acting at
government's behest, many of these elements -- such as the
and correctness of the recording, the tapes having not been
the identity of the speakers, and the conversation being made
voluntarily and in good faith -- will be satisfied by that
Moreover, the first element (capability of the recording
be established by the very existence of the taped conversation:
very fact that the tape recording exist[s] establishes that the
recording device was capable of picking up sounds and taking the
conversation offered.'" United States v. Risken, 788 F.2d
1370 (8th Cir.) (quoting United States v. McCowan, 706 F.2d
865 (8th Cir. 1983) (per curiam)), cert. denied, 479
923 (1986). Similarly, the fact that the witness successfully
the conversation is proof of his competency to use the recording
Because the tapes in this case are of conversations in which
defendant was a participant, their contents are admissible as
of a party opponent under Fed. R. Evid. 801(d)(2)(A). See
United States v. Coco, 926 F.2d 759, 760 (8th Cir. 1991).
Although at the time of the conversations, the individuals with
defendant was speaking were no longer members of the conspiracy,
fact, in and of itself, does not render the substance of the
conversations admissible only pursuant to Fed. R. Evid. 404(b).
See United States v. Nunn, 940 F.2d 1128, 1131 (8th
1991). Given the contents of the taped conversations in which the
defendant discusses his activities relating to the purchase of bulk
animal drugs, the defendant's statements are relevant evidence of
defendant's knowledge and participation in the ongoing conspiracy
which the defendant still belonged. Thus, the tapes constitute
evidence of the defendant's participation in the charged
Id. (taped statements of defendant to cooperating witness
implying threats of harm should individual cooperate are admissible
evidence of defendant's participation in the conspiracy).
I. Use of Transcripts
McMillan also sets forth the proper procedure for
introduction of transcripts of taped conversations.
F.2d at 105-06. Allowing the government to use transcripts to
jury in following taped conversations is left to the court's
"[i]t may be appropriate, in the sound discretion of the trial
furnish the jurors with copies of a transcript to assist them in
listening to tapes. In the ordinary case this will not be
cumulative . . ." Id. at 105.
Should the court admit the transcript as evidence, a limiting
instruction governing the use and weight of the transcript should
given. United States v. Foster, 815 F.2d 1200, 1203 (8th
J. Use of Summary Exhibits
The government may offer summary exhibits in its case-in-chief
lieu of introducing supporting underlying documents, such as
tolls, checks, and invoices. Pursuant to Fed. R. Evid. 1006:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation. The
originals, or duplicates, shall be made available for examination
copying, or both, by other parties at reasonable and place. The
may order that they be produced in court.
With the adoption of Rule 1006, courts have held that summary
themselves may be introduced into evidence and sent to the jury at
judge's discretion. United States v. Possick, 849 F.2d 332,
(8th Cir. 1988); United States v. Robinson, 774 F.2d 261,
(8th Cir. 1985). The evidence underlying the summary chart need not
so voluminous that it would literally be impossible to examine all
underlying documents. Possick, 849 F.2d at 339. Rather,
of summary charts is appropriate where in-court examination would
inconvenience. Id. (upholding district court's admission of
summarizing telephone tolls).
"[W]here charts which fairly summarize the evidence are used as
aid in understanding the testimony already introduced and the
who prepares the charts is subject to cross-examination with all
documents used to prepare the summary, the use of the chart is
United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir.
(internal quotation omitted), cert. denied, 482 U.S.
(1987). Should the government offer summary exhibits, the
prepared the charts will testify as to the manner in which the
were prepared and the underlying basis for the information
the charts, as well as attest to their completeness and accuracy.
Moreover, the government will not seek to admit any such charts
after it has established a basis for the admissibility of all of
underlying documents.[FN37] Under such circumstances, the
whether to admit the charts will lie within the court's
discretion. See Orlowski, 808 F.2d at 1289;
Robinson, 774 F.2d at 275.
FN37. A literal reading of Rule 1006 would suggest that
underlying documents need not themselves be introduced at trial,
Fourth Circuit has so held. United States v. Strissell, 920
1162, 1164 (4th Cir. 1990) (Rule 1006 only requires that underlying
evidence for a summary be admissible and available to the opponent
cross-examination); see also Eighth Circuit Model
Instruction No. 4.12 (1992) ("You may use those
[schedules][summaries][charts] as evidence, even though the
documents are not here."); United States v. Clements, 588
1030, 1039 (5th Cir.), cert. denied, 440 U.S. 982
When summary exhibits are sent to the jury, the Eighth Circuit
endorsed the giving of a limiting instruction concerning those
Possick, 849 F.2d at 339.
K. Admission of Various Documentary Records
The government anticipates introducing several forms of
including, among other things, invoices pertaining to the
illegal sale of bulk drugs, cancelled checks used as payment to the
defendant for the bulk drugs, cancelled checks used as payment from
defendant to his suppliers for the bulk drugs, and laboratory
of drugs illegally sold by the defendant.
The government anticipates that the invoices will be admissible
pursuant to, among others, Fed. R. Evid. 803(6) as business
proper foundation for business records does not require testimony
witness who physically prepared the record in question. United
v. Gregg, 829 F.2d 1430, 1440 (8th Cir. 1987), cert.
denied, 486 U.S. 1022 (1988); United States v.
539 F.2d 668, 671 n.2 (8th Cir. 1976). Rather, the admitting
need only be sufficiently familiar with the records and the manner
which they were regularly received and maintained in the ordinary
of business. Pfeiffer, 539 F.2d at 671; see
United States v. Keplinger, 776 F.2d 678, 693-94 (7th Cir.
cert. denied, 476 U.S. 1183 (1986); United States
Parker, 749 F.2d 628, 633 (11th Cir. 1984); United States v.
Flom, 558 F.2d 1179, 1182 (5th Cir. 1977).
The government anticipates that the witnesses who provided
the defendant or who received checks from the defendant as payment
bulk drugs will testify as to the authenticity of those checks.
Evid. 901(b)(1). Moreover, the checks are self-authenticating under
R. Evid. 902(9). See United States v. Little, 567
346, 349 n.1 (8th Cir. 1977), cert. denied, 435 U.S.
Similarly, laboratory analyses of drugs conducted on a routine
are admissible as business records under Fed. R. Evid. 803(6).
States v. Baker, 855 F.2d 1353, 1359-60 (8th Cir. 1988),
cert. denied, 490 U.S. 1069 (1989). The government
only establish that the records were made in the ordinary course of
business, and the witness through which it seeks to admit the
can testify that the governmental body kept the records under its
custody, and control. Id. at 1560.
L. Admissibility of Physical Exhibits
The government intends to offer in evidence several physical
of animal drugs distributed in interstate commerce by the
So long as the government can establish that there is a
probability that the physical evidence has not been changed or
the district court may admit the evidence. United States v.
Miller, 994 F.2d 441, 443 (8th Cir. 1993); United States v.
Pazzanese, 982 F.2d 251, 252 (8th Cir. 1992). Factors to be
considered in making a determination of the admissibility of an
include the nature of the object, the circumstances surrounding its
preservation and custody, and the likelihood that others tampered
it. United States v. Mays, 822 F.2d 793, 796 (8th Cir.
government need not introduce the testimony of every individual who
handled the evidence or whose initials appear on the evidence.
Miller, 994 F.2d at 443. "The integrity of evidence is
to be preserved unless there is a showing of bad faith, ill will,
proof that the evidence has been tampered with." Id.
M. Self-Authenticating Records
The government will introduce certain documents for which no
testimony from a document custodian will be necessary. Among other
things, these documents will show that the defendant never received
the FDA an NADA covering any new animal drug from the FDA, and that
NADAs for the new animal drug dimetridazole were withdrawn in July
The information in these documents is admissible pursuant to Fed.
Evid. 902(4), 902(1), and 803(10); Fed. R. Crim. P. 27; and Fed. R.
The government also anticipates introducing certified records
the Iowa Secretary of State pertaining to the defendant's
Cigar. These records are self-authenticating and may be introduced
pursuant to Fed. R. Evid. 902(4), 902(1), and 803(8); Fed. R. Crim.
27; and Fed. R. Civ. P. 44.
V. ADDITIONAL SUBMISSIONS
The government respectfully requests leave to file supplemental
memoranda as may become necessary before or during trial.
Dated: February __, 1994 Respectfully submitted,
STEPHEN JOHN RAPP
United States Attorney
GREGORY T. EVERTS
JAMES E. ARNOLD
Office of Consumer Litigation
U.S. Department of Justice
P.O. Box 386
Washington, D.C. 20044
[cited in USAM 4-8.205]