Sample Brief -- Evidence of Scientific Testing in Food Fraud Cases
PRACTICE TIP: FDA chemists commonly analyze or have
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
detection, using chemistry to conceal their fraud. See
States v. Mays, 69 F.3d 116, 119 (6th Cir. 1995), cert.
denied, 116 S.Ct. 2504 (1996); United States v.
F.3d 832, 834 (6th Cir. 1994), vacated in part on other
117 S.Ct. 39 (1996).|
In the "Moon Down" prosecution, the defendants had gone to
lengths to avoid scientific detection. They had also attacked
methodology in conversations with customers and others who had
the defendants of adding sugar based on a test result. The
about these matters were highly incriminating, while the test
themselves were of little substantive value.
At trial, the government introduced testimony about what
did to avoid detection, and to frustrate the efforts of scientists
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
opinion (69 F.3d 116) cited above. Below is the government's brief
VI.THE DISTRICT COURT DID NOT IMPROPERLY ADMIT HEARSAY
STATEMENTS BY WITNESSES CONCERNING SCIENTIFIC TESTING.
XXXXXX and XXXXX XXXX challenge the admission of testimony
they contend impermissibly mentioned scientific testing of orange
They argue that this testimony was inadmissible hearsay, that its
admission violated their constitutional right to confront
that the district court's admonishments to the jury were
protect their rights (SMOB at 24-38).[FN1]
FN1. Both defendants arguments are the same. For
all cites will be to XXXXXX XXXX' Opening Brief.
Standard of Review: Whether evidence is inadmissible
is reviewed de novo. United States v.
F.3d 656, 668 (6th Cir.), cert. denied, 114 S. Ct.
(1993). Any error by the district court in admitting hearsay
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
to prove the truth of the matter asserted." Fed. R. Evid. 801(c).
Evidence admitted not to establish the truth of the matter
instead for some other legitimate purpose, is not hearsay.
e.g., United States v. Moss, 9 F.3d 543, 549 (6th
1993); United States v. Gibson, 675 F.2d 825, 833-34 (6th
cert. denied, 459 U.S. 972 (1982). As this Court has
[W]hen a statement is offered to prove neither the
falsity, there is no need to assess the credibility of the
The significance lies entirely in the fact that the words were
Thus, the statement does not fall within the Rule 801(c) definition
hearsay nor would the purposes of the hearsay rule be served by
it as hearsay.
United States v. Hathaway, 798 F.2d 902, 905 (6th Cir.
Thus, for example, "[t]he hearsay rule does not apply to
offered merely to show that they were made or had some effect on
hearer." United States v. Martin, 897 F.2d 1368, 1370 (6th
1990); accord United States v. Williams, 952 F.2d
1517 (6th Cir. 1991) (statements offered to show effect on victim
hearsay); United States v. Horton, 847 F.2d 313, 323 (6th
1988) (same). Similarly, because they are not offered to establish
truth of the matter asserted, none of the following are hearsay:
third party's out-of-court statements offered to explain a
understanding of why she was told to act in a particular way,
States v. Ellzey, 874 F.2d 324, 329 (6th Cir. 1989); (2)
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
to establish a witness's state of mind, United States v.
835 F.2d 646, 651-52 (6th Cir. 1987), cert. denied,
U.S. 969 (1988).
Here, the Indictment alleged that, in order to evade
conspirators tried to learn about scientific tests used to detect
juice adulteration (R. 1: Indictment at 8-9). The Indictment also
alleged that the defendants falsely assured customers and others
Moon Down's products were not adulterated with sugar (id. at
The challenged testimony set forth various aspects of the
defendants' conspiracy to defraud, which included the giving of
assurances that Moon Down's product was 100 percent pure. The
evidence was admitted to prove the Indictment's allegations; it was
admitted to prove the validity of any scientific
FN2. XXXX' suggestion that scientific analysis was
understood by the parties and the court to be a "central issue at
(SMOB at 25-26) is incorrect. For example, in a pretrial order, the
court informed defendants after reviewing grand jury transcripts
"[i]t strains the imagination to suggest that the scientific
was an important, let alone essential, foundation supporting the
indictment" and that "[o]n the whole, the scientific evidence did
appear important compared to the voluminous testimony of former
employees and business partners." (R. 488: Memorandum and Order at
see also id. at 2-4). At trial, the government
relied on the testimony of numerous co-conspirators and employees,
well as documentary and physical evidence, to prove adulteration
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
Specifically, the challenged references to testing or test
made by former employees or co-conspirators (e.g., XXXXX
XXXX, XXXXX XXXX, XXXXX XXXXXX) were offered to show the
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
The testimony from the defendants' customers (e.g., XXXXXXX
XXXXXX and XXXXXXX XXXXXXX) was offered to establish that the
confronted defendants with test results, how the defendants and
co-conspirators reacted to the test results, and how the defendants
their co-conspirators gave false assurances to their customers in
attempt to lull their suspicions (XXXXX, V. 9 at 7-10, 11-12,
XXXXXX, V. 9, at 81-82, 87-95).[FN3]
FN3. Although XXXX objects to XXXXX XXXXX's testimony
at 29), no one objected to the testimony at trial, and, in any
XXXX's testimony did not relate to scientific test results (XXXXX,
at 111, 116, 120).
For example, XXXXXXX testified that, after informing the
that his company had received a test result indicating the presence
sugar, he received a letter (GX 81) dated August 18, 1988, from
XXXX (XXXXXXX, V. 9, at 90-92). This letter disparaged the test
and reaffirmed that Moon Down's product was authentic. (GX 81).
receiving these assurances, XXXXXXX's company resumed buying Moon
product (XXXXXXX, V. 9 at 92). As XXXXXXX XXXX admitted, however,
letter, which was specifically identified in the Indictment (R. 1:
Indictment, at 11-12 (Overt Act (k)), was false (X. XXXX, V. 7 at
The district court recognized that the challenged testimony
being offered to show part of the defendants' conspiracy,
when scientific testing was first discussed that "it's just . . .
of the conspiracy to attempt to conceal it" (V. 7 at 117).
prejudice against probative value under Fed. R. Evid. 403, the
found, "It's clearly relevant. . . . This is highly relevant. . .
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
or veracity of any of the tests that were conducted." (Id.
116-18; see also R. 596: [Post-trial] Memorandum and
In short, testimony concerning scientific evidence was offered
show the defendants' or their customers' reactions to the reports,
the reports' accuracy. If anything, the government's evidence
established that scientific test results were viewed as being
(e.g. X. XXXX, V. 7 at 119, 134, 139-40, 150-51, 163-67,
XXXXXXX, V. 9 at 92; XXXXXX, V. 9 at 15). The government's proof of
adulteration and misbranding came from numerous other sources.
the evidence was not hearsay, the defendants' constitutional right
confront witnesses is not implicated. See Tennessee v.
Street, 471 U.S. 409, 413-14 (1985); Williams, 952 F.2d
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
was mentioned. In light of the court's admonishments during
which frequently included instructions to the jury to assume that
scientific testing was not reliable (e.g., X. XXXX,
at 164; Utterback, V. 8 at 13-14; XXXXXX, V. 9 at 7-8; XXXXXXX V.
88; XXXXXX, V. 11 at 115-16), as well as the court's closing
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
offered only for a limited purpose.[FN4]
FN4. XXXX relies upon Randolph v. Parker, 575
1178 (6th Cir. 1978), and Marsh v. Richardson, 781 F.2d 1201
Cir. 1986), to argue that the admonishments were insufficient (SMOB
38 & n.17). This reliance is misplaced, as both cases were reversed
the Supreme Court. See Richardson v. Marsh, 481 U.S.
(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
1978). In reversing, the Supreme Court emphasized that proper
instructions were given and that the general presumption that
follow their instructions was applicable. See
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,
the district court determined (R. 564: Mem. Op. at 25), harmless
a reasonable doubt. See, e.g., Fountain, 2
[updated May 1998]
[cited in USAM 4-8.235]