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126.

Sample Brief -- Evidence of Scientific Testing in Food Fraud Cases

PRACTICE TIP: FDA chemists commonly analyze or have analyzed samples of food that is alleged to be economically adulterated. In various cases, OCL has introduced such testimony, and sometimes not introduced it. This is because scientific testing may or may not be helpful. Testing alone does not indicate who added the ingredient. Moreover, sophisticated cheaters may keep ahead of the technology of detection, using chemistry to conceal their fraud. See United States v. Mays, 69 F.3d 116, 119 (6th Cir. 1995), cert. denied, 116 S.Ct. 2504 (1996); United States v. Kohlbach, 38 F.3d 832, 834 (6th Cir. 1994), vacated in part on other grounds, 117 S.Ct. 39 (1996).

In the "Moon Down" prosecution, the defendants had gone to great lengths to avoid scientific detection. They had also attacked testing methodology in conversations with customers and others who had accused the defendants of adding sugar based on a test result. The conversations about these matters were highly incriminating, while the test results themselves were of little substantive value.

At trial, the government introduced testimony about what defendants did to avoid detection, and to frustrate the efforts of scientists who accused them of fraud. Defendants objected that the evidence was scientific evidence coming in through the "back door" without a Daubert hearing, and unduly prejudicial. The government successfully defeated these efforts, as reported in the Sixth Circuit opinion (69 F.3d 116) cited above. Below is the government's brief on this point.

VI.THE DISTRICT COURT DID NOT IMPROPERLY ADMIT HEARSAY STATEMENTS BY WITNESSES CONCERNING SCIENTIFIC TESTING.

XXXXXX and XXXXX XXXX challenge the admission of testimony which they contend impermissibly mentioned scientific testing of orange juice. They argue that this testimony was inadmissible hearsay, that its admission violated their constitutional right to confront witnesses, and that the district court's admonishments to the jury were insufficient to protect their rights (SMOB at 24-38).[FN1]

FN1. Both defendants arguments are the same. For simplicity, all cites will be to XXXXXX XXXX' Opening Brief.
Standard of Review: Whether evidence is inadmissible hearsay is reviewed de novo. United States v. Fountain, 2 F.3d 656, 668 (6th Cir.), cert. denied, 114 S. Ct. 608 (1993). Any error by the district court in admitting hearsay evidence is further reviewed to determine whether its admission was harmless in light of other, properly admitted evidence. Id. at 669.

Hearsay consists of "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Evidence admitted not to establish the truth of the matter asserted, but instead for some other legitimate purpose, is not hearsay. See, e.g., United States v. Moss, 9 F.3d 543, 549 (6th Cir. 1993); United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. denied, 459 U.S. 972 (1982). As this Court has explained:

[W]hen a statement is offered to prove neither the truth nor falsity, there is no need to assess the credibility of the declarant. The significance lies entirely in the fact that the words were spoken. Thus, the statement does not fall within the Rule 801(c) definition of hearsay nor would the purposes of the hearsay rule be served by treating it as hearsay.
United States v. Hathaway, 798 F.2d 902, 905 (6th Cir. 1986).

Thus, for example, "[t]he hearsay rule does not apply to statements offered merely to show that they were made or had some effect on the hearer." United States v. Martin, 897 F.2d 1368, 1370 (6th Cir. 1990); accord United States v. Williams, 952 F.2d 1504, 1517 (6th Cir. 1991) (statements offered to show effect on victim not hearsay); United States v. Horton, 847 F.2d 313, 323 (6th Cir. 1988) (same). Similarly, because they are not offered to establish the truth of the matter asserted, none of the following are hearsay: (1) a third party's out-of-court statements offered to explain a witness's understanding of why she was told to act in a particular way, United States v. Ellzey, 874 F.2d 324, 329 (6th Cir. 1989); (2) statements offered to explain the sequence of events leading up to a witness's involvement in a transaction with a defendant, United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989); and (3) statements offered to establish a witness's state of mind, United States v. Bartle, 835 F.2d 646, 651-52 (6th Cir. 1987), cert. denied, 485 U.S. 969 (1988).

Here, the Indictment alleged that, in order to evade detection, the conspirators tried to learn about scientific tests used to detect fruit juice adulteration (R. 1: Indictment at 8-9). The Indictment also alleged that the defendants falsely assured customers and others that Moon Down's products were not adulterated with sugar (id. at 11-13).

The challenged testimony set forth various aspects of the defendants' conspiracy to defraud, which included the giving of false assurances that Moon Down's product was 100 percent pure. The challenged evidence was admitted to prove the Indictment's allegations; it was not admitted to prove the validity of any scientific assessment.[FN2]

FN2. XXXX' suggestion that scientific analysis was always understood by the parties and the court to be a "central issue at trial" (SMOB at 25-26) is incorrect. For example, in a pretrial order, the court informed defendants after reviewing grand jury transcripts that "[i]t strains the imagination to suggest that the scientific evidence was an important, let alone essential, foundation supporting the indictment" and that "[o]n the whole, the scientific evidence did not appear important compared to the voluminous testimony of former employees and business partners." (R. 488: Memorandum and Order at 5; see also id. at 2-4). At trial, the government relied on the testimony of numerous co-conspirators and employees, as well as documentary and physical evidence, to prove adulteration and misbranding--not scientific evidence. Given the evidence regarding testing or test results that was presented and its limited use, the government violated no court order, as defendants allege (SMOB at 25 n.6).
Specifically, the challenged references to testing or test results made by former employees or co-conspirators (e.g., XXXXX XXXXXXX XXXX, XXXXX XXXX, XXXXX XXXXXX) were offered to show the development of the fraudulent scheme and the steps that the defendants and their co-conspirators took to evade detection (X. XXXX, V. 7 at 119-24, 146-50, 152-53, 163-74; XXXXXX, V. 11 at 135-38; Hare, V. 15 at 127-32). The testimony from the defendants' customers (e.g., XXXXXXX XXXXXX and XXXXXXX XXXXXXX) was offered to establish that the customers confronted defendants with test results, how the defendants and their co-conspirators reacted to the test results, and how the defendants and their co-conspirators gave false assurances to their customers in an attempt to lull their suspicions (XXXXX, V. 9 at 7-10, 11-12, 15-20; XXXXXX, V. 9, at 81-82, 87-95).[FN3]

FN3. Although XXXX objects to XXXXX XXXXX's testimony (SMOB at 29), no one objected to the testimony at trial, and, in any event, XXXX's testimony did not relate to scientific test results (XXXXX, V. 9 at 111, 116, 120).
For example, XXXXXXX testified that, after informing the defendants that his company had received a test result indicating the presence of sugar, he received a letter (GX 81) dated August 18, 1988, from XXXXXX XXXX (XXXXXXX, V. 9, at 90-92). This letter disparaged the test results and reaffirmed that Moon Down's product was authentic. (GX 81). After receiving these assurances, XXXXXXX's company resumed buying Moon Down's product (XXXXXXX, V. 9 at 92). As XXXXXXX XXXX admitted, however, this letter, which was specifically identified in the Indictment (R. 1: Indictment, at 11-12 (Overt Act (k)), was false (X. XXXX, V. 7 at 170-71).

The district court recognized that the challenged testimony was being offered to show part of the defendants' conspiracy, explaining when scientific testing was first discussed that "it's just . . . part of the conspiracy to attempt to conceal it" (V. 7 at 117). Balancing prejudice against probative value under Fed. R. Evid. 403, the court found, "It's clearly relevant. . . . This is highly relevant. . . . It's part of the guts of what they were trying to conceal and how they concealed it. . . . It's clearly not being introduced to show the truth or veracity of any of the tests that were conducted." (Id. at 116-18; see also R. 596: [Post-trial] Memorandum and Order at 2).

In short, testimony concerning scientific evidence was offered to show the defendants' or their customers' reactions to the reports, not the reports' accuracy. If anything, the government's evidence established that scientific test results were viewed as being unreliable (e.g. X. XXXX, V. 7 at 119, 134, 139-40, 150-51, 163-67, 173-74; XXXXXXX, V. 9 at 92; XXXXXX, V. 9 at 15). The government's proof of adulteration and misbranding came from numerous other sources. Because the evidence was not hearsay, the defendants' constitutional right to confront witnesses is not implicated. See Tennessee v. Street, 471 U.S. 409, 413-14 (1985); Williams, 952 F.2d at 1518.

Furthermore, there was no significant risk that the jury misunderstood the purpose for which this evidence was admitted. The district court took great care to admonish the jury each time testing was mentioned. In light of the court's admonishments during testimony, which frequently included instructions to the jury to assume that scientific testing was not reliable (e.g., X. XXXX, V. 7 at 164; Utterback, V. 8 at 13-14; XXXXXX, V. 9 at 7-8; XXXXXXX V. 9, at 88; XXXXXX, V. 11 at 115-16), as well as the court's closing instruction to the same effect (Instructions, V. 18 at 138-39), there can be no question as to the jury's understanding that this evidence was being offered only for a limited purpose.[FN4]

FN4. XXXX relies upon Randolph v. Parker, 575 F.2d 1178 (6th Cir. 1978), and Marsh v. Richardson, 781 F.2d 1201 (6th Cir. 1986), to argue that the admonishments were insufficient (SMOB at 38 & n.17). This reliance is misplaced, as both cases were reversed by the Supreme Court. See Richardson v. Marsh, 481 U.S. 200 (1987), rev'g 781 F.2d 1201 (6th Cir. 1986); Parker v. Randolph, 442 U.S. 62 (1979), rev'g 575 F.2d 1178 (6th Cir. 1978). In reversing, the Supreme Court emphasized that proper limiting instructions were given and that the general presumption that jurors follow their instructions was applicable. See Richardson, 481 U.S. at 206-11; Parker, 442 U.S. at 73-75.
Finally, in light of the overwhelming evidence against the defendants, any theoretical error in admitting this testimony was, as the district court determined (R. 564: Mem. Op. at 25), harmless beyond a reasonable doubt. See, e.g., Fountain, 2 F.3d at 669......

[updated May 1998] [cited in USAM 4-8.235]