133.

Response to Motions Concerning Multiplicity and Surplusage

Comes the United States of America, by counsel, and states as follows in opposition to the three untitled and undated motions filed by defendant XXXXX X. XXXX and received by the government on March 18, 1994: I. INTRODUCTION In these motions, XXX makes three unrelated claims. First, he contends that the government violated his Sixth Amendment right to counsel by having an informant, who was wearing a tape-recording device, speak with him. Second, XXXX claims that Counts 14-21 and Counts 22-29, as well as Counts 30 and 31, and Counts 32 and 33, respectively, are multiplicitous. Finally, he alleges that the Indictment contains surplusage that must be stricken. XXXX' claims are untimely. They are also without merit. Accordingly, they should be denied. II. XXXX' CLAIMS ARE UNTIMELY XXXX was indicted on May 15, 1992. XXXX has offered no reason to justify his delay in filing these motions, which arrived almost two years after Indictment and within three weeks of trial. Two of the motions challenge the form and structure of the Indictment, and have thus been available to XXXX since the date of Indictment. The third challenges the government's evidence and has been available to XXXX for a year. In light of this unconscionable delay, this Court should deny these motions summarily. III. NO SIXTH AMENDMENT VIOLATION OCCURRED * * * IV. THE INDICTMENT IS NOT MULTIPLICITOUS XXXX contends that the Indictment impermissibly charges him with the same crimes in Counts 14-21 and Counts 22-29. Similarly, he asserts that Counts 30 and 31, and Counts 32 and 33, respectively, also impermissibly allege violations of the same offense. He concludes, therefore, that the government must elect between the various sets of counts, and that the unselected series of counts must be stricken from the Indictment. (Motion, ¶ 5). Counts 14 through 21 charge interstate shipment of adulterated food in violation of 21 U.S.C. § 331(a). Counts 30 and 32 charge adulteration of a food after shipment in interstate commerce in violation of 21 U.S.C. § 331(k). The foods are alleged to be adulterated within the meaning of two definitions in the Food, Drug, and Cosmetic Act: (1) because they contained substitute ingredients (21 U.S.C. § 342(b)(2)); and (2) because they contained added ingredients whose purpose was to make the foods appear to be better and of greater value than they actually were (21 U.S.C. § 342(b)(4)). By contrast, Counts 22 through 29 charges interstate shipment of misbranded food in violation of 21 U.S.C. § 331(a), and Counts 31 and 33 charge the misbranding of a food after shipment in interstate commerce in violation of 21 U.S.C. § 331(k). While the actual shipments and production batches charged for the misbranding and adulteration counts are the same, the foods are alleged to be misbranded within the meaning of three entirely different definitions in the Food, Drug, and Cosmetic Act from those definitions that apply to the adulteration counts. The Indictment alleges that the foods were misbranded (1) because their labeling was false and misleading (21 U.S.C. § 343(a)(1)); (2) because the food offered for sale was labeled under the name of another (21 U.S.C. § 343(b); and (3) because they failed to conform to the standard of identity promulgated by FDA for products labeled as orange juice from concentrate (21 U.S.C. § 343(g)). It is therefore clear from the face of the Indictment that proof of the adulteration counts will involve evidence of different facts from the facts that will be necessary to establish the misbranding claims. This fact is sufficient to establish that there is no multiplicity of charges. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (in evaluating a claim of multiplicity, "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not"); see also Ball v. United States, 470 U.S. 856, 861 (1985); United States v. Louisville Edible Oil Products, Inc., 926 F.2d 584, 588 (6th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 177 (1991). Other courts when confronted with indictments charging adulteration and misbranding counts that arise out of the same shipments or production lots have agreed that such charges pose no problem of multiplicity. For example, in United States v. Beech-Nut Nutrition Corp., 659 F. Supp. 1487 (E.D.N.Y 1987) and in United States v. Flavor Fresh Foods Corporation, No. 1:93-CR-21 (W.D. Mich. August 5, 1993) (copy attached) -- both of which involved allegations of the illegal addition of sugar to juice products -- district courts were confronted with indictments that charged both an adulteration count and a misbranding count for each shipment of product. In both cases, the courts rejected claims that such charges were impermissible: A food is adulterated if it is diluted or depreciated in quality, if it fails to come to the standards set by law as to ingredients or to which any foreign substance, wholesome or unwholesome, is added. On the other hand, a food is misbranded if its label is false or misleading. These definitions clearly show that a product may be misbranded without necessarily being adulterated and vice versa.[FN1] 659 F. Supp. at 1496. FN1. Additionally, the Beech-Nut court found that the legislative history supported the bringing of separate charges to allege that a particular shipment was misbranded and adulterated: The food legislation was meant to protect the people (i) against unwholesome foods and (ii) against deception in the sale of commodities. S.Rep. No. 301, 58th Cong., 2d Sess. 11, 14, 21, 22 (1906). The legislative history of 21 U.S.C. § 331(a) indicates that a single shipment of "misbranded AND adulterated" food may constitute separate offenses. See Flavor Fresh Foods, slip op. at 4 (quoting Beech-Nut Nutrition Corp., 659 F. Supp. at 1496). Other courts have reached a similar conclusion. See, e.g., United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 546 & n.26 (8th Cir. 1981) ("separate prosecutions for misbranding drugs and adulterating drugs are consistent with the intent of Congress and are within the language of the statute"), cert. denied, 455 U.S. 1016 (1982); see also United States v. Torigian Laboratories, Inc., 577 F. Supp. 1514, 1518-19 (E.D.N.Y.) (applying the Blockburger test to permit multiple counts of adulteration and misbranding charges with respect to the same lots of devices), aff'd mem., 751 F.2d 373 (2d Cir. 1984).[FN2] FN2. This conclusion is consistent with United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964), in which the Supreme Court stated that: The language of [§ 331k] unambiguously defines two distinct offenses with respect to food held for sale after interstate shipment . . . . For the most part, acts resulting in misbranding and acts resulting in adulteration are wholly distinct. Id. at 89. The Indictment here is not multiplicitous, and XXXX' claim to the contrary should be denied.[FN3] FN3. Even if the various counts were multiplicitous, the proper time for remedying such a deficiency would be after conviction rather than before. "The principal danger in multiplicity is that the defendant will be given multiple sentences for the same offense." 1 C. Wright, Federal Practice and Procedure § 145 at 524-26 (1982). That can be remedied post-trial by merging the convictions and permitting only a single sentence for each merged count. See Ball, 470 U.S. at 865 ("If, upon trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the as to the elements of each offense. Should the jury return guilty verdicts, however, the district judge should enter judgment on only one of the statutory offenses."); cf. United States v. Barrett, 933 F.2d 355, 361 n.4 (6th Cir. 1991) (noting that, with the advent of the Sentencing Guidelines, the dangers of multiple sentences has been largely obviated). V. THE INDICTMENT CONTAINS NO SURPLUSAGE XXXX claims in his third motion that the last two sentences of paragraph 12, as well as paragraphs 18 and 19 of Count 1 of the Indictment should be stricken as impermissible surplusage. A motion to strike allegations in an indictment as surplusage should be granted only where it is clear that the allegations are not relevant to the charge made and contain inflammatory and prejudicial matter. See United States v. Davis, 714 F. Supp. 853, 866 (S.D. Ohio 1988). "'[I]f the language in the indictment is information which the government hopes to properly prove at trial, it cannot be considered surplusage no matter how prejudicial it may be (provided, of course, it is legally relevant).'" United States v. Thomas, 875 F.2d 559, 563 (6th Cir. 1989) (quoting United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), aff'd sub nom. United States v. Reliable Sheet Metal Works, Inc., 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134 (1983)), cert. denied, 493 U.S. 867 (1989). The standard for striking language in the indictment "has been strictly construed against striking surplusage," United States v. Kemper, 503 F.2d 327, 329 (6th Cir. 1974), cert. denied, 419 U.S. 1124 (1975), and "only rarely has surplusage been ordered stricken." Davis, 714 F. Supp. at 866 (quoting 1 Wright, Federal Practice and Procedure § 127, at 426 (2d ed. 982)). One need go no further than review the last paragraph that XXXX seeks to strike to assess the paucity of XXXX' assertions. Paragraph 19 of the Indictment lists 20 overt acts that were taken in furtherance of the conspiracy. An essential element of a conspiracy in violation of 18 U.S.C. § 371 is the allegation and proof of at least one overt act in furtherance of that conspiracy. See, e.g., United States v. Carr, 5 F.3d 986, 990 (6th Cir. 1993); United States v. Meyers, 646 F.2d 1142, 1143-44 (6th Cir. 1981). As such, there can be no question that inclusion of this paragraph is proper. See Thomas, 875 F.2d at 562 n.2 (affirming district court's refusal to strike overt act allegations). XXXX' other objections fare no better. He complains that paragraph 18 of the Indictment, entitled "Means and Manners," is unnecessary because it goes into "great detail" as to issues previously discussed by "generalized statements." (Motion, at ¶ 3). Inclusion of a "Means and Manners" section in an indictment is an entirely permissible method of explaining the structure of the conspiracy and the roles of each defendant within the organization. United States v. Jiminez, 824 F. Supp. 351, 370 (S.D.N.Y. 1993) (refusing to strike "Means and Methods" portion of conspiracy charge). As courts have recognized: The determinative question in a motion to strike surplusage is not the potential prejudice, but rather the relevance of the allegation to the crime charged in the indictment. If the evidence of the allegation is admissible and relevant to the charge, then despite prejudice, the language will not be stricken. Id. (quoting United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982). XXXX specifically objects to the allegation in paragraph 18 that alleges that XXXX and his co-conspirators "caused Moon Down and related entities acquire over 20,000,000 pounds of sugar (including liquid sugar), the vast majority of which was mixed with, and thereafter sold as though it were in fact, orange concentrate, thereby defrauding Moon Down's customers, others, and the consuming public of in excess of $20,000,000." (Indictment, ¶ 18(a)). XXXX complains that this allegation is improper because it "infers to the jurors that the Defendants must explain what happened to the 20 million pounds of sugar." (Motion, ¶ 5). In making this argument, XXXX ignores the fact that it is the government that must bear the burden of proving the indictment's allegations. The government is more than prepared to do so. While XXXX might prefer that the jury not be apprised as to the magnitude of his fraudulent activities, that information is clearly admissible and relevant. See United States v. Charles Pfizer & Co., 217 F. Supp. 199, 201 (S.D.N.Y. 1963) ("if evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language, it may not be stricken"); see also United States v. Krasnoff, 480 F. Supp. 723, 730 (S.D.N.Y. 1979) (refusing to strike allegation of "massive amounts" of prescriptions, noting that it is indicative that prescriptions were for other than legitimate medical purposes). Accordingly, this allegation should not be stricken. XXXX further objects to the use of the phrase "secret room" in paragraph 18(f) of the Indictment. Use of the word "secret" aptly describes the defendants' use of hidden area to store sugar that was later surreptitiously added to concentrated orange juice products. As described in an overt act, one of these rooms "was hidden from view and accessible only through a fake electrical control panel . . . ." (Indictment, ¶ 19(g)). Moreover, as will be shown at trial, the defendants' purpose for concealing the rooms where sugar was stored was to keep their usage of sugar a secret from government regulators. Under the circumstances, use of the adjective "secret" to describe the room can hardly be deemed unfairly prejudicial. See, e.g., United States v. Gressett, 773 F. Supp. 270, 275 (D. Kan. 1991) (references to "concealed" and "concealment" permissible where government's proof will be that defendants accomplished fraud through concealment of transactions); United States v. Napolitano, 552 F. Supp. at 480 (reference to "the Bonanno Family of La Cosa Nostra" proper because explanatory of structure of criminal association); United States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y. 1985) (permitting references to "organized crime," "anti-bugging" equipment, and the use of such aliases as "the Beast" and "the Snake"); United States v. Richter, 610 F. Supp. 480, 496 n.25-26 (N.D.Ill. 1985) (permitting references to "laundering," which the indictment defined as "illegally secreting" cash), aff'd mem. sub nom., United States v. Mangovski, 785 F.2d 312 (7th Cir.), aff'd mem. sub nom., United States v. Konstantinov, 793 F.2d 1296 (7th Cir.), cert. denied, 479 U.S. 855 (1986). Similarly, the allegation that the defendants caused "Moon Down to do business with various entities to provide a plausible basis for false explanations in the event defendants were ever questioned about sugar that Moon Down was acquiring and in fact mixing with products later sold by Moon Down as unsweetened orange concentrate products," (Indictment ¶ 18(i)), is neither unfairly prejudicial nor inflammatory. Rather, this paragraph will assist the jury in understanding nature of the defendants' fraudulent scheme, and should therefore not be stricken. See, e.g., United States v. Sciandra, 529 F. Supp. 320, 322 (E.D.N.Y. 1982) (permitting allegations of "false, fictitious and fraudulent" invoices and "sham" transactions); United States v. Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D. Ill. 1987) (indictment properly gave background information concerning defendant's incarceration for narcotics offenses to prevent parts of the indictment from being "unintelligible to a jury"); United States v. Bucey, 691 F. Supp. 1077, 1081-82 (N.D. Ill. 1988) (refusing to strike allegations that the funding for narcotics transactions came from illicit sources because it was relevant to the charges in the indictment), aff'd in part, 876 F.2d 1297 (7th Cir. 1989); see also United States v. Wecker, 620 F. Supp. 1002, 1006 (D.Del. 1985) (refusing to strike allegations that "while not essential to the charges, are certainly in a general sense relevant to the overall scheme . . . charged"). XXXX' last challenge is directed at the last two sentences in paragraph 12 of the Indictment which "consists of a recitation of the success of Moon Down in increasing its sales." (Motion at ¶ 3). He argues that "these recitations may infer to jurors that in order to have success, criminality is a necessary accompaniment." (Motion at ¶ 3). This contention is nonsensical. It can hardly be said that most individuals believe that success in business can only be realized through criminal behavior. Nor is that the point of paragraph 12 of the Indictment. Paragraph 12 discusses that an "object and goal of the conspiracy [was] to increase the sales and profits of Moon Down . . . by concealing the fact that substantially less expensive sugar and other ingredients were substituted for some of the orange concentrate in products defendants were falsely representing to be unsweetened concentrated orange juice products." Through this activity, the Indictment alleges, "defendants were able to sell products at fraudulently inflated prices," and that, "[a]s a direct consequence of defendants' misrepresentations and unlawful acts," Moon Down's sales were increased substantially. These allegations are relevant and will assist the jury in understanding the defendants' motives, as well as the conduct charged in this case. See United States v. Fishbach & Moore, Inc., 576 F. Supp. 1384, 1398 (W.D. Pa. 1983) (refusing to strike allegations relating to defendant corporations' size and amounts of sales); Charles Pfizer & Co., 217 F. Supp. at 210 (refusing to strike charge that the conspiracy sought to exact "unreasonably high profits"), rev'd on other grounds, 426 F.2d 32 (2d Cir. 1970); Climatemp, Inc., 482 F. Supp. at 391-92 (refusing to strike allegations that "give background about the sheet metal industry in general and in Chicago in particular" because such matters "are relevant to forming an understanding about the nature of this action"); see also Persico, 621 F. Supp. at 860 ("An indictment may properly set forth background information relevant to a defendant's motive and intent"). VI. CONCLUSION XXXX' claims are all without merit. Accordingly, his various motions to dismiss should be denied. Dated: March __, 1994 Respectfully submitted, MICHAEL TROOP United States Attorney ________________________________ William F. Campbell Assistant United States Attorney 510 West Broadway, 10th Floor Louisville, Kentucky 40202 (502) 582-5911 ________________________________ Kenneth L. Jost Assistant Director ________________________________ James E. Arnold Attorney Office of Consumer Litigation U.S. Department of Justice P.O. Box 386 Washington, D.C. 20044 (202) 307-0048/(202) 307-00488 [cited in USAM 4-8.240]