Sample Trial Brief re Admissibility of Summaries, Foreign Records, Plea
Agreements, Scientific Evidence, and Chain of Custody
II. STATEMENT OF FACTS|
Between 1985 and the Spring of 1991, defendants XXXX X. XXXX,
XXXX, and XX XXXX defrauded customers throughout the United States
selling products as "100 percent orange concentrate," when in fact,
products were adulterated with sugar, orange syrup, citric acid,
other things. (This substitution allowed the defendants to
product they sold, substituting substantially cheaper adulterants
orange concentrate. While orange "solids" cost $1.00 to $2.20 per
sugar typically cost less than 35 cents per pound.) To make their
work, the defendants and coconspirators created phony invoices,
records, used shell companies, created "secret" storage rooms,
their employees to use code words for sugar, and so on. As a
defendants' company, Moon Down Foods, Inc., went from zero sales in
to, in the defendants words, "the largest bulk blender of orange
in North America and one of the largest in the world." [NOTE: names
places changed from original.]
At all times, XXXXX X. XXXX and his wife, XXXXX XXXX, were
officers, directors and owners of Moon Down Foods, Inc. XXXXX X.
was the president, while XXXXX XXXX was the Secretary/ Treasurer.
XXXX (XXXXX X. XXXX' brother) was the Vice President and Operations
Manager. All of the company's important decisions were made by
three defendants. They openly discussed ways to hide their activity
among themselves, and plotted ways to evade detection.
XXXXX XXXX kept tight control over the company's
finances--particularly those transactions involving the clandestine
purchase of sugar. XXXXX X. XXXX and XXXXXX XXXX controlled
decisions, such as how much sugar to add to their "100 percent"
From 1985 to 1989, the Moon Down plant was on Blueberry Lane
Louisville, Kentucky. Early in the conspiracy, the defendants used
granulated sugar, mixed in water, to adulterate orange concentrate.
defendants kept 100 pound bags of this sugar in a room at the
which outsiders were told belonged to another company. Problems
however, because the sugar did not mix well with orange
kept settling in the bottom of the mixing tank.
To solve this problem, XXXXX X. XXXX worked out an arrangement
the Haywood Dairy, in Louisville. Haywood Dairy had the equipment
blend sugar with juice to keep the sugar from settling. The
became dissatisfied with this arrangement, however, for a variety
reasons. XXXXX X. XXXX then bought a farm in Jefferson County,
to allow Moon Down employees to mix sugar and water outside of and
from the Moon Down plant, safe from government regulatory visits
secure from any potential search of Moon Down's plant.
At the plant on Blueberry Lane, Moon Down employees, acting at
direction of and with the authority of XXXXX X. XXXX and XXX XXXX,
installed a system of pipes to allow liquid sugar to be secretly
to the orange concentrate. A 6" pvc pipe was placed around one
of the stainless steel sugar line, to make it look like a sewer
rather than a line for pumping sugar into the orange concentrate.
sugar line was connected to the sugar tank so that it could quickly
taken apart, and a plug screwed onto the pvc pipe to make it look
it had nothing to do with the sugar tank. Another part of the sugar
was wrapped in insulation, to make it look like a steam pipe.
XXXXX XXXX oversaw Moon Down's books and records. She directed
Down's clerical personnel. Under XXXXX XXXX' direction, they
sugar and sugar syrup that Moon Down was acquiring for illegal
"stretching" of orange concentrates into Moon Down's books as
sugar itself was orange concentrate. XXXXX XXXX saw to it that the
reaching those employees did not even mention "sugar" or "syrup."
also took steps to ensure that outside auditors did not learn that
Down purchased massive amounts of sugar.
On occasion, when Moon Down ran out of sugar, XXXXX X. XXXX
XXXX shut down the plant, rather than producing truly "100 pure"
concentrate. The XXXes would then run the plant on the week-end
sugar was delivered, so the adulteration could go on as usual.
Each of the defendants directed employees at the plant not to
the word "sugar." Instead, the defendants told employees to use
words such as "solids," "liquid," or "preblend." Truckers were
told not to bring sugar to the plant until after dark, or until the
inspector was gone.
In 1989, the conspirators built and opened a new plant in
Kentucky. At the heart of the new plant was a secret room. XXXXXX
helped design the room, but told people to forget about the room
it was made. This room contained two tanks which held over 7,000
each. These tanks stored the liquid sugar Moon Down used to
its orange concentrate. The only access to the room was through an
electrical control panel several feet above the floor. To get into
room, Moon Down's blenders had to step on a five gallon bucket and
themselves through the panel after they opened it up.
The conspirators went to great lengths to hide the pipes which
brought sugar from the secret room to the orange concentrate. Phony
support clamps were used to hide pipe connections, to prevent
from tracing the lines back to the sugar. The "secret" room was so
hidden that Moon Down employees could not on their own locate the
without being told where it was.
The defendants used other methods of avoiding detection. They
directed employees to use only beet sugar, which is the most
type of sugar to detect through scientific tests. They used a firm
as "Sugar Base Company" or "S.B.C." to disguise their purchases of
of sugar. The defendants, particularly XXXXX XXXX, also hid the
by altering or destroying records on a routine basis as part of the
conspiracy, and by destroying scores of business records after the
investigation of this matter began.
III. SUBSTANTIVE ISSUES OF LAW
The United States is unaware of any substantive issues of law
have not already been briefed.
IV. EVIDENTIARY ISSUES
A. Summary Exhibits.
The United States intends to offer summary exhibits into
pursuant to Fed. R. Evid. 1006. Under Rule 1006, summary charts may
admitted into evidence. See United States v.
F.2d 1374, 1381 (6th Cir.), cert. denied, 488 U.S. 908
United States v. Scales, 594 F.2d 558, 562-65 (6th Cir.),
cert. denied, 441 U.S. 946 (1979); Hackett v. Housing
Authority of San Antonio, 750 F.2d 1308, 1312 (5th Cir.),
denied, 474 U.S. 850 (1985); United States v. Foley, 598
1323, 1338 (4th Cir. 1979), cert. denied, 444 U.S. 1043
Rule 1006 itself indicates that the summary charts need only be
admissible evidence previously made available to the defendant at
reasonable place and time. Rule 1006, therefore, does not require
the underlying documents themselves be introduced at trial.
United States v. Clements, 588 F.2d 1030, 1039 (5th Cir.),
cert. denied, 440 U.S. 982 (1979). Rule 1006 requires only
the underlying evidence for a summary chart be admissible and
to the opponent for cross-examination. United States v.
920 F.2d 1162, 1164 (4th Cir. 1990).
B. Foreign Records.
The United States intends to offer foreign records of
conducted activity, pursuant to 18 U.S.C. § 3505. (U.S.
and 922). These records (one volume from Future Fastfreight, Inc.,
the other from Cit-Ray International, Inc.) were produced under the
Treaty between the Government of Canada and the Government of the
States of America on Mutual Legal Assistance. Both sets of records
accompanied by foreign certifications attesting that:
(a) such records were made, at or near the time of the
occurrence of the matters set forth, by (or from information
by) a person with knowledge of those matters;
(b) such records were kept in the course of a regularly
conducted business activity;
(c) the business activity made such a record as a
(d) the records are duplicates of the originals.
These records have also been copied and provided to the defense.
Therefore, the records are authentic and satisfy the requirements
hearsay rule under 18 U.S.C. § 3505.
C. Evidence of Plea Agreements with Government
United States will call certain witnesses who have entered plea
agreements requiring their cooperation. In its direct examination
each such witness, the United States is entitled to elicit
concerning the fact that the witness pled guilty to particular
the details of those charges, and the nature of the cooperation
agreement. The testimony can properly include testimony concerning
requirements in the plea agreement that the witness provide only
truthful testimony and that the witness could be prosecuted if he
commits perjury. United States v. Townsend, 796 F.2d 158
Cir. 1989). The plea agreement itself is admissible. United
Walker, 871 F.2d 1298 (6th Cir. 1989) (confederate's plea
is admissible on direct examination as evidence of the witness'
credibility or acknowledgement of participation in the offense).
D. Scientific Evidence.
The United States may offer the results of scientific tests.
tests results establish that product sold by defendants represented
be "unsweetened" concentrated orange juice for manufacturing in
contained added sugar.
Admissibility of expert scientific testimony is governed by
test set forth in Daubert v. Merrell Dow Pharmaceuticals,
U.S. ___, 113 S. Ct. 2786 (1993). In Daubert, the Court held
the "general acceptance" test set out in Frye v. United
293 F.2d 1013 (D.C. Cir. 1923), was superseded by Fed. R. Evid.
Id. at 2794. Rule 702 provides:
If scientific, technical or other specialized knowledge
assist the trier of fact to understand the evidence or to determine
fact in issue, a witness qualified as an expert by knowledge,
experience training, or education, may testify thereto in the form
opinion or otherwise.
This rule envisions a "flexible," more lenient inquiry than under
Frye test, and favors the admission of any scientifically
expert testimony. United States v. Bonds, 12 F.3d 540, 565
Under Rule 702, scientific evidence is admissible if it is
relevant and reliable. Daubert, 113 S. Ct. at 2795;
12 F.3d at 555. This determination in turn relies upon "'whether
expert is proposing to testify to (1) scientific knowledge that (2)
assist the trier of fact to understand or determine a fact in
Bonds, 12 F.3d at 555 (quoting Daubert, 113 S.
at 2796). In conducting this inquiry, the court must make a
assessment of whether the reasoning or methodology underlying the
is scientifically valid and of whether that reasoning can be
the facts in issue." Daubert, 113 S. Ct. at 2796. Under this
inquiry, it is scientific validity, and not scientific precision,
is the touchstone. Bonds, 12 F.3d at 558.
Scientific evidence satisfies the relevance prong of the
Daubert inquiry if it will assist the trier of fact in
understanding the evidence or determine a fact in issue. Id.
557. To establish the reliability of the testimony, the principles
methodology of the technique must be scrutinized. Daubert,
Ct. 2797. Reliability of a testing technique concerns the
validity of the test's methodology, and not the accuracy of the
results. Id. ("[t]he focus . . . must be solely on
methodology, not on the conclusions they generate"); Bonds,
F.3d at 563 ("questions about the accuracy of results are matters
weight, not admissibility").
The reliability prong is determined by examining, among other
things, the following four considerations: (1) whether the
be or has been tested; (2) whether the technique has been subjected
peer review and publication; (3) the known or potential rate of
using the particular scientific technique and the standards
the operation of the technique; and (4) whether the technique has
generally accepted in the particular scientific field.
F.3d at 555; see id. at 558-65 (applying test);
generally Daubert, 113 S. Ct. 2796-97.
E. Chain of Custody.
The United States will offer evidence (such as samples, seized
records and physical evidence) which has been under the custody and
control of more than one person. "[C]hallenges to the chain of
go to weight of the evidence, not its admissibility." United
v. Levy, 904 F.2d 1026, 1030 (6th Cir. 1990), cert.
denied, 488 U.S. 1091 (1991). For such evidence to be
the United States need only establish a reasonable probability that
physical evidence has not been changed or altered. United States
Miller, 994 F.2d 441, 443 (8th Cir. 1993). Factors affecting
determination include the nature of the object, the circumstances
surrounding its preservation and custody, and the likelihood that
tampered with it. United States X. XXXX, 822 F.2d 793, 796
Cir. 1987). The United States need not introduce the testimony of
individual who handled the evidence or whose initials appear on the
evidence. Miller, 994 F.2d at 443. "The integrity of
presumed to be preserved unless there is a showing of bad faith,
will, or proof that the evidence has been tampered with."
see also United States v. McFadden, 458 U.S.
441 (6th Cir. 1972), cert. denied, 410 U.S. 911
Pasedena Research Laboratories v. United States, 169 F.2d
381-82 (9 Cir.), cert. denied, 335 U.S. 853 (1948);
United States v. Wood, 695 F.2d 459, 462 (10th Cir.
V. OTHER TRIAL ISSUES
The United States is unaware of any other trial issues.
Dated: March , 1994 Respectfully submitted,
United States Attorney
William F. Campbell
Assistant United States Attorney
510 West Broadway, 10th Floor
Louisville, Kentucky 40202
Kenneth L. Jost
James E. Arnold
Office of Consumer Litigation
U.S. Department of Justice
P.O. Box 386
Washington, D.C. 20044
(202) 307-0048/(202) 307-01744
[cited in USAM 4-8.240]