United States v. Menon

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-18-1994
United States of America v. Menon
Precedential or Non-Precedential:
Docket 93-5399
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 93-5399
_______________
UNITED STATES OF AMERICA
v.
THEKKEDAJH PEETHAMB MENON,
Appellant
__________________________________________________
On Appeal From the United States District Court
for the District of New Jersey
(D.C. Crim. No. 92-00354-01)
__________________________________________________
Argued: February 15, 1994
Before: BECKER, HUTCHINSON and COWEN, Circuit Judges.
(Filed May 18, 1994)
JAMES D. CRAWFORD (Argued)
THEODORE J. PICCONE
Schnader, Harrison, Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Attorneys for Appellant
MICHAEL CHERTOFF
United States Attorney
LESLIE FAYE SCHWARTZ (Argued)
Assistant U.S. Attorney
Office of United States Attorney
970 Broad Street
Newark, NJ 07102
Attorneys for Appellee
_______________________________
OPINION OF THE COURT
_______________________________
BECKER, Circuit Judge.
Thekkedajh Menon appeals from a judgment in a criminal
case in which he was convicted by a jury of violating 18 U.S.C.
§§ 20 and 5450 by knowingly and willfully, with intent to defraud
the United States, making out and passing through the customhouse
false and fraudulent invoices and other documents in order to
conceal the identity of the exporters of certain products, and of
violating those same sections by reimporting shrimp that had
previously been rejected as contaminated by the Food and Drug
Administration ("FDA").
0
18 U.S.C. § 2(a) states that, "[w]hoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a
principal."
0
Paragraphs 1, 2 and 3 of § 545 state:
Whoever knowingly and willfully, with intent
to defraud the United States, . . . makes out
or passes, or attempts to pass, through the
customhouse any false, forged, or fraudulent
invoice, or other document or paper; . . .
Whoever fraudulently or knowingly imports or
brings into the United States, any
merchandise contrary to law . . .
[s]hall be fined not more than $10,000 or
imprisoned not more than five years, or both.
Menon's first contention on appeal, a contention he
failed to raise in the district court and hence one that we
review for plain error, is that to obtain a conviction for
passing false invoices under § 545, the government must prove
that he intended to deprive the United States of revenue, not
just that he intended to evade federal regulations. Menon's
second argument is that the evidence was insufficient to show
that he reimported previously rejected shrimp, a point which
ultimately turns on whether a search of Menon's office which
exceeded the scope of a search warrant was nonetheless valid
under the "plain view" doctrine even though the agent who
happened upon the documents at issue did not appreciate their
significance until she brought them to a more knowledgable agent.
Agreeing with Menon's construction of the the first
paragraph of § 545 and holding that the district court's
construction constituted plain error, we reverse his convictions
for passing false invoices through the customhouse. The meaning
of "defraud" varies from statute to statute, see McNally v.
United States, 483 U.S. 350, 359, 107 S. Ct. 2875, 2881 (1987),
and here the evidence supports Menon's interpretation of
"defraud." When Congress codified the criminal code, it changed
the language of § 545 (then § 1593 of title 19 (U.S.C. 1940 ed.))
from "defraud the revenues of the United States" to "defraud the
United States" but it did not mean to change the substance of the
statute; it meant to continue the previous requirement of an
intent to defraud the revenues of the United States. Thus, we
continue to give the statute its former meaning, and, finding
plain error on the basis that the district court's
misinterpretation went to the existence vel non of criminal
responsibility, we reverse Menon's convictions for passing false
invoices. However, we affirm Menon's conviction for reimporting
previously rejected shrimp, disagreeing with his contention
regarding the illegality of the search, and his less significant
assignments of error.
Because we have overturned Menon's convictions on most
counts, we must remand for resentencing. On remand, the district
court should not apply the enhancement for importation of seafood
worth more than $2,000. Although Menon's conviction on Count 140
easily puts him over the $2,000 minimum for the enhancement,
application of the enhancement is impermissible because it would
violate the Ex Post Facto Clause of the Constitution. Although
the enhancement was in effect at the time of Menon's sentencing,
it was not in effect at the time of his conduct.
I. FACTS AND PROCEDURAL HISTORY
The FDA is responsible for ensuring the safety of
seafood entering the United States. In performing this function,
the agency analyzes data to see if it establishes a pattern
demonstrating that seafood which importers have bought from
particular exporters is likely to be unsafe. Foreign exporters
which have a history of shipping contaminated goods are placed on
a block list; shipments from these exporters are automatically
detained, and the importer must obtain a private laboratory
report demonstrating that the seafood is free of contamination
before the FDA will release it. Other exporters are placed in an
intermediate category, which means the FDA is more likely to
sample their products before admitting them into the country than
it is to sample those of other exporters.
Menon was President and two thirds owner of Flag
Imports, Inc. ("Flag"), a business that purchased seafood both
overseas and domestically for resale to distributors. On
numerous occasions, Menon directed his employees to list falsely
on invoices a different exporter of seafood than the one from
which Flag had actually purchased the seafood. By listing
exporters with no history of contamination rather than the actual
exporters, who were either on the block list or subject to an
increased risk of surveillance sampling by the FDA, Menon
intended to deceive the FDA so that Flag's imports entered the
United States more readily.
Nonetheless, the FDA discovered that one of Flag's
shipments, a March 22, 1991 shipment of 1200 cases of shrimp,
contained salmonella. It thereupon issued a Notice of Refusal of
Admission for this shipment, and ordered that the cases be either
exported or destroyed within 90 days. On May 25, 1991, Flag
shipped the shrimp to Jabeco Transport ("Jabeco") in Rotterdam,
Holland. The ultimate fate of that shrimp is a question of much
moment in this case; the government contends that Menon illegally
reimported it into the United States whereas Menon claims that
there is insufficient evidence to prove reimportation beyond a
reasonable doubt.
On January 19, 1993, a federal grand jury returned a
142-count indictment against Menon. Counts 1 through 110 charged
that, in violation of 18 U.S.C. §§ 2 and 545, see supra nn. 1 &
2, Menon did knowingly and willfully, with intent to defraud the
United States, make out and pass through the customhouse, false
and fraudulent invoices and other documents in order to conceal
that the exporter of these products had been block-listed by the
FDA. Counts 111 through 139 charged Menon with similar conduct
with respect to seafood obtained from exporters in the
intermediate category. Count 140 charged Menon with
reimportation of shrimp that had previously been rejected as
contaminated by the FDA, also in violation of 18 U.S.C. §§ 2 and
545. Finally, Counts 141 and 142 charged that, in violation of
16 U.S.C. § 3372(d) and 18 U.S.C. § 2, Menon knowingly made and
used false invoices and decoy packaging to conceal that shipments
identified as shrimp from Bangladesh were largely composed of
frog legs subject to automatic detention and special permit
requirements.
During the course of the jury trial, the government
voluntarily dismissed counts 16 and 33 of the indictment. At the
close of the evidence, the district court granted a judgment of
acquittal on Counts 141 and 142 (the frog legs counts). On March
10, 1993, the jury found Menon guilty of all of the remaining
counts. Menon filed a motion for a judgment of acquittal on
Count 140 alleging that the government had presented insufficient
evidence of his guilt. Menon also moved for a new trial,
asserting that 1) the district court had improperly barred him
from presenting evidence that no one had ever reported being sick
as a result of Flag seafood;0 2) Count 140, alleging
reimportation of contaminated shrimp "contrary to law," was
deficient for failing to specify the law to which the
reimportation was contrary; and 3) evidence seized during a
search of Flag's property should have been suppressed. The
district court denied these motions.
The district court held a sentencing hearing after
which it imposed concurrent sentences of 20 months on each of
Counts 1 through 15, 17 through 32, and 34 through 140. The court
also imposed concurrent terms of two years supervised release on
each count of conviction, a total special assessment of $6,900,
and a fine of $50,000. The adjusted offense level of 22, when
combined with a Criminal History Category of I, resulted in a
guideline range of 41-51 months. The district court then
departed downward from this range based on the severe mental
problems of Menon's wife.
Menon appeals the denial of his motions for judgment of
acquittal and for a new trial as described on p.6 supra. On
appeal, Menon presses two additional arguments. First, he
asserts that his convictions for making out false invoices should
be reversed because he did not intend to defeat the customs laws
nor to defraud the United States government of money. Second, he
submits that the district court's fourteen level increase to his
0
Because Menon only argues that this evidentiary decision related
to his convictions for employment of false invoices and we are
reversing those convictions, we do not reach the evidentiary
issue on appeal.
sentence violates the Ex Post Facto Clause of the Constitution.
After considering the many difficult issues, we hold that
paragraph 1 of § 545 does require an intent to deprive the United
States of revenue and that Menon's convictions on counts 1-15,
17-32, and 34-139 should therefore be reversed. While we will
uphold Menon's conviction on count 140 for reimportation of
previously rejected shrimp, we agree with Menon that application
of the sentencing enhancement for importation of valuable seafood
violates the Ex Post Facto Clause and thus should not be repeated
in his resentencing.
II. THE MEANING OF 18 U.S.C. § 545
The jury convicted Menon of 137 counts of violating the
first paragraph of 18 U.S.C. § 545. As we have noted supra at 2
n.2, this paragraph makes it illegal to "knowingly and willfully,
with intent to defraud the United States, . . . make[] out or
pass[], or attempt to pass through the customhouse any false,
forged, or fraudulent invoice." The jury concluded that Menon,
in his position as President of Flag, violated this provision by
writing invoices that misrepresented the name of the seafood
exporter from which Flag had bought the seafood it was importing.
Menon contends that the district court misread § 545, because "an
intent to defraud the United States" by passing false invoices
"through the customhouse" requires 1) an intent to defeat the
customs laws and 2) an intent to deprive the United States of
revenue.
Menon's argument that § 545 requires an intent to
deprive the United States of revenue would place a new gloss on a
45-year-old statutory provision that has been interpreted to the
contrary by two courts of appeals, see United States v. Borello,
766 F.2d 46, 51 (2d Cir. 1985); United States v. McKee, 220 F.2d
266, 269 (2d Cir. 1955); United States v. Kurfess, 426 F.2d 1017,
1019 (7th Cir. 1970), cert. denied, 400 U.S. 830 (1970).
Moreover, because Menon failed to argue in the district court
that § 545 requires an intent to deprive the government of
revenue, we review Menon's contention on appeal for plain error.
See Fed.R.Crim.P. 30, 52(b).
Rule 52(b) provides that "plain errors or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court." We find plain error
"sparingly, solely in those circumstances in which a miscarriage
of justice would otherwise result." United States v. Frady, 456
U.S. 152, 163 n.14, 102 S. Ct. 1584, 1592 n.14 (1982)). See also
Government of Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir.
1991). We
look on a case-by-case basis to such factors
as the obviousness of the error, the
significance of the interest protected by the
rule that was violated, the seriousness of
the error in the particular case, and the
reputation of judicial proceedings if the
error stands uncorrected -- all with an eye
toward avoiding manifest injustice.
United States v. Thame, 846 F.2d 200, 205 (3d Cir. 1988). Here,
because "the challenge to the construction of the statute goes to
the existence vel non of criminal responsibility, we think that
the error, if such it was, would affect [Menon's] due process
rights and would constitute plain error." United States v.
Cusumano, 943 F.2d 305, 309 (3d Cir. 1991).
In a very similar case, in which the plaintiff argued
that the district court had improperly instructed the jury that
the mail fraud statute did not require an intent to deprive
another of money or property, we indicated that if the district
court had given such an improper instruction, it would have
constituted plain error. See United States v. Piccolo, 835 F.2d
517, 519 (3d Cir. 1987), cert. denied, 486 U.S. 1032, 108 S. Ct.
2014 (1988). As in that case, we think that, assuming Menon's
interpretation of the statute is correct, the district court's
failure to instruct the jury that § 545 requires an intent to
deprive the government of money or property constituted manifest
injustice and thus constituted plain error. And, despite the
contrary decisions of two courts of appeals, we hold that Menon's
interpretation of § 545 is correct.0
While the meaning of "defraud the United States"
generally extends beyond defrauding the government of revenue,
the history of § 545 demonstrates that Congress did not intend
such a broad reading here. We first note that until recently,
the Supreme Court generally interpreted "defraud" to extend to
actions preventing the government from carrying out its lawful
functions even when the government did not lose any revenue. This
0
Because we agree with Menon that the first paragraph of § 545
requires an intent to deprive the government of revenue, we do
not reach his contention that it requires an intent to defeat the
customs laws.
interpretation took root in Hammerschmidt v. United States which
analyzed the statutory predecessor of 18 U.S.C. § 37, a statute
making it illegal to "conspire to . . . defraud the United States
in any manner or for any purpose." See 265 U.S. 182, 185, 44 S.
Ct. 511, 511 (1924) (interpreting Comp. St. §10201). In
Hammerschmidt, the Supreme Court concluded that
[t]o conspire to defraud the United States
means primarily to cheat the Government out
of property or money, but it also means to
interfere with or obstruct one of its lawful
governmental functions by deceit, craft or
trickery, or at least by means that are
dishonest. It is not necessary that the
Government shall be subjected to property or
pecuniary loss by the fraud, but only that
its legitimate official action and purpose
shall be defeated by misrepresentation,
chicane, or the overreaching of those charged
with carrying out the governmental intention.
Id. at 188, 44 S. Ct. at 512.0
Recently, however, the Supreme Court has significantly
narrowed the category of statutes in which the meaning of
"defraud" extends beyond a deprivation of property rights. In
McNally v. United States, 483 U.S. 350, 359, 107 S. Ct. 2875,
2881 (1987), the Court interpreted the mail fraud statute, which
made it illegal "to defraud" or to "obtain[] money by means of
0
See also United States v. Barnow, 239 U.S. 74, 75, 36 S. Ct. 19,
20 (1915) (holding that 35 Stat. 1088, 1095 (1913), prohibiting
individuals from "falsely assuming or pretending to be an officer
or employe[e] acting under the authority of the United States"
"[w]ith intent to defraud either the United States or any person"
applied even when an individual did not demand or obtain anything
of value); United States v. Plyler, 222 U.S. 15, 32 S. Ct. 6
(1911) (holding that § 5418 Rev, Rev. Stat., which prohibited the
forging of any public record "for the purpose of defrauding the
United States," applied regardless of pecuniary gain).
false or fraudulent pretenses," to require a finding that the
defendant intended to deprive others of property or money. 18
U.S.C. § 1341.0 In so doing, the Court rejected "a long line of
court of appeals decisions that had interpreted the statute as
proscribing schemes by government officials to defraud citizens
of their intangible rights to honest and impartial government."
United States v. Asher, 854 F.2d 1483, 1488 (3d Cir. 1988)
(emphasis in original). In justifying its decision, the Court
quoted Hammerschmidt, 265 U.S. at 188, 44 S. Ct. at 512, for the
proposition that, "the words to defraud `commonly refer to
wronging one in his property rights by dishonest methods or
schemes.'" McNally, 483 U.S. at 359, 107 S. Ct. at 2881. The
Court concluded that this common understanding combined with the
rule of lenity meant that the mail fraud statute required an
intent to deprive someone of money or property. See id.
The Court distinguished the actual ruling of
Hammerschmidt on the basis that the mail fraud statute aimed to
prevent fraud against any member of the public, while the statute
discussed in Hammerschmidt aimed to protect the United States
against fraud. A statute that has for its "`object the
protection and welfare of the government alone'" aims to prevent
fraud in a broader sense than deprivation of property rights, but
a statute aiming to prevent fraud against members of the public
0
Congress responded to McNally by adopting Pub.L. 100-690, Title
VII, § 7603(a), Nov. 18, 1988 which states that, "[f]or the
purposes of this chapter, the term, `scheme or artifice to
defraud' includes scheme or artifice to deprive another of the
intangible right of honest services." 18 U.S.C. § 1346.
is likely using fraud in its usual, narrower sense. Id. at 358,
107 S. Ct. at 2881 n. 8 (quoting Curley v. United States, 130 F.
1, 7 (1st Cir. 1904)).0
Another case distinguishing Hammerschmidt is United
States v. Cohn, 270 U.S. 339, 343, 46 S. Ct. 251, 252 (1926).
There the Supreme Court was faced with interpreting the meaning
of Section 35 of the Penal Code, 40 Stat. 1015 (1918), which
provided that actions "`for the purpose of obtaining or aiding to
obtain the payment or approval of' any `claim upon or against the
United States . . . for the purpose and with the intent of
cheating and swindling or defrauding the Government of the United
States' . . . shall be punishable." The Court construed section
35 as requiring the defendant to cheat the government out of
0
But cf. United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989).
Tuohey noted that
despite the Court's dictum regarding section
371 in McNally, the McNally decision appears
to leave the broad construction of "defraud"
in section 371 in some doubt. In McNally,
the Court overruled virtually unanimous case
law that had broadly defined "defraud" in the
mail fraud context to extend to non-property
"good government" frauds. The similarities
between section 371 and section 1341 are
striking. Both date from the same period in
our history . . . . Both have long been read
to extend to non-property frauds. Both have
been criticized as broad vague bases for
criminal liability.
Id. at 536-37. Nonetheless, as the Ninth Circuit ultimately
held, although the reasoning of McNally with respect to § 1341 is
in tension with that of Hammerschmidt with respect to § 371,
McNally did not overturn Hammerschmidt and in fact suggested that
Hammerschmidt applies to most statutes that contain the language
"defraud the United States."
property or money. The Court distinguished Hammerschmidt on the
grounds that the term defraud within section 35 "is used in
connection with the words `cheating or swindling,' indicating
that it is to be construed in the manner in which those words are
ordinarily used, as relating to the fraudulent causing of
pecuniary or property loss." Id. at 346-47, 46 S. Ct. at 253.
The message we derive from this potpourri of Supreme
Court cases is twofold. First, the meaning of "defraud" must be
interpreted in the context of the particular statute that uses
the term. In each case in which the Court has evaluated the
meaning of "defraud," it has determined the intent of Congress
based on the purpose of the particular statute and on the
surrounding statutory language. Second, an intent to defraud
generally requires an intent to deprive someone of property or
money but does not generally require such an intent in the
context of statutes making it illegal to defraud "the United
States." It seems appropriate therefore to construe § 545 as
prohibiting acts that prevent the United States from carrying out
its statutory duties unless there is countervailing evidence on
the meaning of the statute.
Here, strong countervailing evidence exists. Menon
points out that § 1593 of title 19 (U.S.C. 1940 ed.), the
predecessor statute to 18 U.S.C. § 545, required that the
defendant intended "to defraud the revenues of the United States"
(emphasis added). Although Congress left out the language "the
revenues" when it recodified the federal criminal code in 1948,
Menon contends that Congress made it clear that it did not not
intend to make any substantive change in the statute by making
this deletion. Thus, he concludes that the concept "defraud the
revenues" is still a part of the statute.
As support for his view that Congress intended no
substantive change, Menon cites the House Report which states
that, "[r]evision [of the Criminal Code], as distinguished from
codification, mean[s] the substitution of plain language for
awkward terms, reconciliation of conflicting laws, omission of
superseded sections, and consolidation of similar provisions."
H.R. Rep. No. 304, 80th Cong., 1st Sess. (1947), reprinted in 18
U.S.C.A. 439, 440. The House Report does not indicate that
substantive changes were included as part of the revision. See
id. The House Report concludes that, "[t]he reviser's notes are
keyed to sections of this bill and explain in detail every change
made in text," id. at 448, and W.W. Barron, chief reviser of the
code, testified to the House Committee on Revision of the Laws
that "[e]very substantive change, no matter how minor, is fully
explained [in the reviser's notes].". Id. at 460 (emphasis
added).0 Because the reviser's notes for § 545 say only that
0
Similarly, Charles Zinn, the Law Revision Counsel for the House
Committee on the Judiciary, testified that:
In the work of revision, principally
codification, . . . keeping revision to a
minimum, I believe the rule of statutory
construction is that a mere change of wording
will not effect a change in meaning unless a
clear intent to change the meaning is
evidenced . . . . It is clearly indicated in
each of those revisers' notes whether any
change was intended so that . . . a mere
change in language will not be interpreted as
"[c]hanges were made in phraseology," H.R. Rep. No. 304, 80th
Cong., 1st Sess. at A46, and do not specify that any substantive
changes were intended, Menon concludes that the current statute,
like its predecessor, requires that the defendant have intended
to deprive the United States of revenues to which it was
entitled.0
We agree. Although we might ordinarily discount
legislative history, we are unwilling to do so where that history
consists of committee reports and statements by the chief reviser
and where the statutory change we are interpreting occurred in
an intent to change the law unless there is
some other clear evidence of an intent to
change the law.
Hearing before Subcommittee No. 1 of the House Judiciary
Committee on H.R. 1600 and H.R. 2055, 80th Cong., 1st Sess.
(1947) (statement of Charles J. Zinn), reprinted in 18 U.S.C.A.
417, 515.
0
Menon makes one additional argument. He asserts that if we
interpret § 545 as not requiring an intent to deprive the
government of money, that section will become duplicative of
§542, which makes it illegal to introduce "into the commerce of
the United States any imported merchandise by means of any
fraudulent or false invoice." 18 U.S.C. § 542 (1988).
However, §§ 542 and 545 overlap regardless of how we
interpret § 545. Because § 542 extends to any use of a
fraudulent invoice for the purpose of importing goods into the
United States, it will prohibit all conduct prohibited by § 545,
i.e., every use of false invoices that pass through the
customshouse, whether we interpret § 545 broadly or narrowly.
This means that even if we interpret § 545 narrowly, the
government will not be left without a remedy in future cases --it
can choose to prosecute conduct such as Menon's under § 542
rather than under § 545.
The converse is not true, however: section 542 applies
to some conduct not covered by § 545 even if we interpret § 545
broadly. That is because § 542 applies regardless of whom an
actor is attempting to defraud, see 18 U.S.C. § 542, while § 545
requires a specific intent to defraud the United States.
the context of codification of the entire criminal code. In that
context, Congress was unlikely to have been able to carefully
consider every change made to prior statutes. We think it was
reasonable for Congress to rely on representations made to it by
the chief reviser, among others, that all substantive changes
were explicitly set forth in the revisers' notes and for Congress
to indicate that it intended no other substantive changes. Absent
a compelling need, we should not read as substantive a change
initiated by the revisers and probably not considered by
Congress.
At a minimum, we think that the legislative history
makes the meaning of "defraud the United States" in § 545
ambiguous given that, as we have seen, the meaning of defraud
varies from statute to statute. As the Court did in McNally, we
rely on the rule of lenity to hold that because the meaning of
defraud is ambiguous in the context of § 545, that section
requires an intent to cause a deprivation of property or money.
As Menon points out, and the government does not deny, the
government made no showing that he had such an intent. Thus, we
must reverse his conviction on Counts 1-15, 17-31, and 33-139.
III. COUNT 140
Count 140 of the indictment charged Menon with
violating the second paragraph of § 545. That paragraph makes it
illegal to "fraudulently or knowingly import[] or bring[] into
the United States, any merchandise contrary to law." 18 U.S.C.
§545. The government contends that after it ordered Menon to
export or destroy a certain shipment of contaminated shrimp under
the authority of 21 U.S.C. § 381 (granting the FDA the authority
to refuse to admit adulterated food into the United States),
Menon exported the shrimp but then reimported it into the United
States in violation of the order and of 21 U.S.C. § 331(a), which
prohibits the introduction of any adulterated food into
interstate commerce. Menon argues that 1) the indictment lacked
the requisite specificity; 2) much of the evidence the government
used to prove Menon's guilt was the fruit of an illegal search
and hence should have been suppressed, and 3) there was
insufficient evidence to convict. We reject all of these
contentions.
A. Specificity of the Indictment
Count 140 of the indictment charges that Menon did:
knowingly and willfully import merchandise
into the United States contrary to law, in
that the defendant did unlawfully reimport
approximately 696 cartons of shrimp which had
previously been rejected by the FDA because
they were found to be contaminated by
salmonella when they were originally imported
by the defendant.
Menon argues that the indictment was defective because it
indicated that he imported merchandise contrary to law but failed
to specify which law. He asserts that, as a result, the
indictment failed to provide him with adequate notice of the
charge against which he had to defend himself.
Menon is correct that the indictment did not specify
the statute he had violated; however, it did specify the actions
Menon took in enough detail that proof by the government that he
had taken these actions would have sufficed to prove that he had
violated a particular law. The indictment clearly charged that
Menon had reimported rejected and contaminated shrimp; such
reimportation is illegal under 21 U.S.C. § 331, which prohibits
introduction of adulterated food into interstate commerce. Thus,
the factual specificity of the indictment was sufficient to put
Menon on notice of the law he had allegedly offended. See United
States v. Bowe, 360 F.2d 1, 8 (2d Cir.), cert. denied, 385 U.S.
961, 87 S. Ct. 401 (1966) (holding sufficient an indictment which
did not cite the statute violated but which "advised the
appellants of the essential elements of the offenses with which
they were charged and stated facts showing the illegal aspects of
the importation." The court explained that the claim of
insufficiency was "`made in a mood of technicalism appropriate
only to an era now fortunately past.'" Id. (citations omitted).)
As we explain in the margin, the cases upon which Menon
relies are distinguishable, because all involved indictments that
failed to specify facts sufficient to constitute a violation of
any law.0 In contrast, in this case, the indictment specified
which of Menon's actions were contrary to law.
0
In Keck v. United States, 172 U.S. 434, 19 S. Ct. 254 (1899),
the Supreme Court held that an indictment charging the defendant
with the importation of diamonds contrary to law was
insufficient. The Court wrote:
B. Legality of the Search
1) Background
On April 15, 1992, government agents searched Menon's
office and the desk of his secretary Cathy Carroll pursuant to a
valid search warrant. The warrant authorized a search of these
areas for "[o]riginals and copies of blank invoices bearing the
name of Abad Fisheries," the company Menon often falsely listed
as the exporter of seafood Flag was importing. (Search Warrant,
The allegations of the count were obviously
too general, and did not sufficiently inform
the defendant of the nature of the accusation
against him. The words, "contrary to law,"
contained in the statute, clearly relate to
legal provisions not found in section 3082
itself; but we look in vain in the count for
any indication of what was relied on as
violative of the statutory regulations
concerning the importation of merchandise.
The generic expression "import and bring into
the United States," did not convey the
necessary information, because importing
merchandise is not per se contrary to law,
and could only become so when done in
violation of specific statutory requirements.
Id. at 437, 19 S. Ct. at 455. See also Steiner v. United
States, 229 F.2d 745, 748 (9th Cir. 1956) (holding indictments to
be defective, because they "failed to state what law . . . the
importation [of psittacine birds] was contary to, or in what
respect such importation was contrary to law"); Babb v. United
States, 218 F.2d 538, 541 (5th Cir. 1955) (holding that the
"indictment should have alleged some fact or facts showing that
the cattle in question were imported or brought in contary to
some law; and that it is not enough to say that they were
imported or brought in `contrary to law'"). In none of these
cases did the indictment specify the statute defendant's actions
were contrary to, or the actions defendant had taken that were
sufficient to constitute a violation of law.
dated April 15, 1992). In addition to the documents covered by
the warrant, Michael I. Scott, Senior Special Agent with the
United States Customs Service, who oversaw the search, instructed
the agents to look for any other blank invoices and for documents
regarding Jabeco, the company to which Flag had shipped the
shrimp rejected by the FDA and from which he had allegedly
reimported these shrimp (leading to his indictment in Count 140
for importing seafood contrary to law).
Scott assigned Ida Almeida to search Carroll's desk
while Scott and other agents searched Menon's office. When
searching Carroll's desk, Almeida discovered a file marked Abad
Fisheries which she brought to Scott, who was in the adjacent
office. She continued her search of the desk and found four
documents with Jabeco's name on them which she also brought to
Scott.0 Scott testified that when he glanced at one of the
Jabeco documents, he noticed the words "Jabeco" and
"reprocessing." Because his prior investigation of Menon had
revealed that Flag and Jabeco had collaborated on three prior
illegal shipments of irradiated food, these words on the document
signalled Scott that it evidenced criminal activity. Scott then
read the entire document and decided to seize it. Because he
assumed that the other documents were likely to be interrelated
with the first one, he decided to seize them as well.0
0
The government only introduced three of these documents into
evidence; thus, the admissibility of the fourth document is not
at issue. MNT 6.
0
As Scott was departing with these documents as well as others,
Flag's controller, John Guerriero objected to the seizure of any
documents other than those specified in the warrant. JA 890.
Menon moved to suppress some of the evidence obtained
in the April 15 search including the Jabeco documents, arguing
that the agents had exceeded the scope of the warrant. The
district court denied his motion, holding that the documents fell
within the plain view doctrine because Scott only had to glance
at the first Jabeco document in order to ascertain the probable
incriminating nature of that document and because Scott had
probable cause to conclude that the other documents were
interrelated with that one. We agree.
2) Analysis
The Supreme Court has allowed officers to seize
incriminating evidence in plain view during the course of a
lawful search because such a seizure "does not involve an
intrusion on privacy. If the interest in privacy has been
invaded, the violation must have occurred before the object came
into plain view." Horton v. California, 496 U.S. 128, 141, 110
S. Ct. 2301, 2310 (1990). In Horton, the Supreme Court set forth
three requirements for valid seizures of evidence in plain view.
First, the officer must not have violated the Fourth Amendment in
"arriving at the place from which the evidence could be plainly
After a conversation with Scott which may or may not have
involved some pressure from Scott, Guerriero agreed to allow
Scott to copy the documents. JA 882, 826. The district court
concluded that, given the totality of the circumstances,
Guerriero had consented to the seizure without any governmental
coercion. Because we find that the documents were in plain view,
we need not reach the question of consent.
viewed." Id. at 136, 110 S. Ct. at 2308. Second, the
incriminating character of the evidence must be "immediately
apparent." Id. Third, the officer must have "a lawful right of
access to the object itself." Id.
We first note that the deliberate decision by the
agents to search for Jabeco documents does not in and of itself
make the seizure of such documents illegal. The Supreme Court
has specifically rejected the requirement, proposed by the
plurality in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.
2022 (1971), that the discovery of the evidence be inadvertent:
The fact that an officer is interested in an
item of evidence and fully expects to find it
in the course of a search should not
invalidate its seizure if the search is
confined in area and duration by the terms of
a warrant or a valid exception to the warrant
requirement. If the officer has knowledge
approaching certainty that the item will be
found, we see no reason why he or she would
deliberately omit a particular description of
the item to be seized from the application
for a search warrant.
Id. at 138, 110 S. Ct. at 2309. Nonetheless, even though an
officer can keep his or her eye out for particular objects while
conducting a lawful search, the Court has made quite clear that
the "plain view" doctrine cannot be used to expand the scope of a
legal search -- there must be "scrupulous adherence" to the
requirement that the search be limited to the time and place
necessary to find the items listed on the warrant. Id.
Menon argues that Scott's statement to his agents that
he was "interested in documents related to . . . Jabeco"
essentially told these agents to search beyond the scope
authorized by the warrant in violation of the first Horton prong.
Menon then asserts that Almeida proceeded to do just that when
she continued to search Carroll's desk after finding the Abad
file. The government responds that Almeida continued the search
because she hoped to find more Abad documents and thus found the
Jabeco documents in the course of a permissible search.
It is possible that Almeida interpreted Scott's
instructions to give her the authority to search for Jabeco
documents even after her search for Abad documents was complete.
And it is possible that Almeida continued her search of the desk
even after she was fairly confident that she had obtained all of
the Abad documents. We think, however, that a subjective inquiry
into her state of mind is unnecessary. Given the fact that a
subjective inquiry would almost certainly yield the same result
as an objective inquiry and that "evenhanded law enforcement is
best achieved by the application of objective standards of
conduct, rather than standards that depend upon the subjective
state of mind of the officer," Horton, 496 U.S. at 138, 110 S.
Ct. at 2308-09, we hold that a government agent has discovered
evidence within the scope of the search allowed by the warrant if
the agent's search fits within the literal terms of the warrant
and is a reasonable means of obtaining the objects described in
the warrant.
Almeida's discovery of the Jabeco documents meets that
requirement. Almeida's search fell within the scope of the
warrant; the warrant gave the government the authority to search
the desk for Abad documents and it was reasonable for Almeida to
continue to do so even after finding the Abad file. Any
reasonable agent looking for evidence in a clearly circumscribed
area would continue the search until she was certain that no more
evidence existed which could not happen until the entire desk was
searched.
Menon next argues that it was not immediately apparent
that the Jabeco documents constituted evidence of criminality,
and hence that the search violated the second Horton prong. This
argument divides into two sub-parts. First, Menon avers that it
was not immediately apparent to Almeida that the Jabeco documents
constituted evidence of criminality. According to Menon, as soon
as she saw that the documents were not Abad documents, she should
have replaced them rather than bringing them to Scott. She did
not, he continues, bring them to Scott because she thought that
he might determine they were Abad documents. In Menon's
submission, Almeida's movement of the documents constituted an
impermissible seizure, and Scott's glance at the documents
constituted an impermissible search, i.e. it constituted an
invasion of privacy not in any way helpful in conducting the
search authorized by the warrant.
We can dismiss Menon's argument that Almeida's movement
of the documents constituted a seizure with relative ease,
because it did not "meaningfully interfere with [his] possessory
interest" in the documents to any extent greater than if Almeida
had brought Scott to the documents. See Arizona v. Hicks, 480
U.S. 321, 324; 107 S. Ct. 1149, 1152 (1987). However, Menon's
argument that Scott's glance at the documents constituted a new
search which required probable cause is a forceful one given the
Supreme Court's emphasis on the particularity of the warrant
requirement, the further requirement of immediate apparency, and
the goal of preventing officials from enlarging a specific
warrant "into the equivalent of a general warrant to rummage and
seize at will." Texas v. Brown, 460 U.S. 730, 748, 103 S. Ct.
1535, 1547 (1983) (Stevens, J., concurring).
Menon's contention receives a boost from Hicks, in
which the Supreme Court upheld the exclusion of stereo serial
numbers obtained by moving some stereo equipment. See 480 U.S.
at 325, 107 S. Ct. at 1152-53. The move was not justified by the
exigent circumstances which had justified the entrance of
officers into the apartment in the first place and hence
constituted an invalid search: "[T]aking action, unrelated to the
objectives of the authorized intrusion, which exposed to view
concealed portions of the apartment or its contents, did produce
a new invasion of respondent's privacy." Id.
This case is potentially distinguishable from Hicks on
the ground that movement of the stereo in Hicks revealed to the
officers private objects and information that no governmental
agent had seen previously; in contrast, Almeida brought documents
to Scott at which she had already glanced. Thus, Scott's view of
the documents did not constitute either a new search or a new
seizure -- Menon had no more privacy interest in the documents
after Almeida had glanced at them.
In Hicks, the Court indicated that the movement of the
stereo was dispositive; "the mere recording of the serial numbers
[on the stereo] did not constitute a seizure" (emphasis added).
See Hicks, 480 U.S. at 324, 107 S. Ct. at 1152. By ruling that
the officer's movement of the stereo constituted an illegal
search, the Court implied that, just as the mere recording of the
serial numbers did not constitute a new seizure, it did not
constitute a new search either. This was true even though the
police on the scene revealed the serial numbers to outside
officers who checked those numbers for information unrelated to
the exigent circumstances that had brought the police into the
apartment. Indeed, the Court explicitly stated that "a truly
cursory inspection -- one that involves merely looking at what is
already exposed to view, without disturbing it -- is not a
`search' for Fourth Amendment purposes, and therefore does not
even require reasonable suspicion." See id. at 328, 107 S. Ct.
at 1154; cf. United States v. Jacobsen, 466 U.S. 109, 119-23, 104
S. Ct. 1652, 1659-61 (1984) (where Federal Express employees had
opened package and seen bags of white powder and then replaced
the bags, government removal of these bags did not constitute a
new search, since it "enabled the agent to learn nothing that had
not previously been learned during the private search"); Illinois
v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983) ("The
plain-view doctrine is grounded on the proposition that once
police are lawfully in a position to observe an item firsthand,
its owner's privacy interest in that item is lost.").
Not only did Almeida's glance at the documents
potentially destroy any privacy interest in preventing others
from taking a similar look, but it is also important that here,
unlike in Hicks, the officials unquestionably could have legally
obtained all of the information they did obtain. In Hicks, no
police officer had legitimate plain view access to the serial
numbers on the stereo. Here, the Jabeco documents came into
plain view in the course of a search within the scope of the
warrant. If Scott had searched Carroll's desk himself initially,
or had done so after Almeida's search to make sure that she had
found all of the Abad documents, he would legitimately have been
able to glance at the Jabeco documents as part of his search for
Abad documents.
Based on just such potential access by all officials in
the house to the discovered materials, many courts have held that
government officials other than the one who legitimately
discovers materials can look at them (at least if the officials
are already in the house). As the First Circuit explained, the
police "may be limited by the shared knowledge and experience of
the officers otherwise lawfully on the premises," but "[t]he
executing officers are not limited by the fortuity of which
officer first happened upon the evidence." United States v.
Johnston, 784 F.2d 416, 420 (1st Cir. 1986). See Crowder v.
Sinyard, 884 F.2d 804, 821 (5th Cir. 1989); United States v.
Newton, 788 F.2d 1392, 1395 (8th Cir. 1986); but cf. United
States v. Syzmkowiak, 727 F.2d 95, 99 (6th Cir. 1984) (where
officer who saw gun in plain view had to call in serial numbers
to determine whether possession of the gun was illegal, the
incriminating nature of the weapon was not immediately apparent).
Nonetheless, Menon has a strong counter-argument in
addition to his reliance on Syzmkowiak, supra. The very reason
Almeida brought the documents to Scott is that he was better
equipped to understand their contents than she was -- thus, his
glance was likely to reveal private information that had not been
revealed to Almeida when she glanced at the documents. Imagine
for example that the police are conducting a lawful search for
cocaine. In the course of his search, an officer sees a document
written in French lying face up on a table in plain view. His
glance at the document reveals nothing to him about its contents
because he does not understand French and he calls over another
officer who speaks French. The second officer glances at the
document and thereby obtains a cursory understanding of the
meaning of the document. This understanding might not reveal
information helpful to the police, but it might instead reveal
information about the fully legal, private love affairs of the
resident of the house. Surely the glance of the second policeman
constitutes at least an incremental invasion of privacy beyond
that caused by the glance of the first officer.
Quite arguably Almeida caused such an incremental
invasion of privacy here by exceeding the scope of the search
warrant. Unlike Almeida's actions in continuing to search the
desk after finding a file marked "Abad," her actions in bringing
the documents to Scott would not seem to be part of a reasonable
effort to carry out the search for Abad documents, for it is
apparent that her actions led to an additional glance at the
document beyond that reasonably needed to fulfill the purpose of
the intitial warrant. Moreover, the original rationale for the
plain view doctrine does not apply under this analysis: the
invasion of privacy involved in Scott's looking at the documents
had not already taken place when Almeida brought the documents to
him, nor was it certain that it was going to take place. Scott
may well not have conducted a search of the desk himself. Thus,
Almeida's actions were part of an effort to give Scott access to
information that he had not been authorized by a search warrant
to receive and that he would not inevitably have seen in
conducting his own search.
When analyzing an analogous situation to the one here,
a leading treatise on search and seizure questions sets forth
precisely the type of argument Menon is making. In evaluating
whether a policeman who crosses a room to copy down an exposed
stereo serial number after he has already found the gun for which
he had a search warrant violates the Fourth Amendment, the
treatise notes that:
[t]rue, it is no search to see `what is
already exposed to view,' but . . . the
serial number was exposed in an abstract
sense but was not exposed to this officer
until he crossed the room, an activity on his
part which was (to again use the Hicks
majority's language) `unrelated to the
objectives of the authorized intrusion' and
thus not permitted under the Fourth
Amendment. This means that even in those
cases where an identifying characteristic is
discovered without moving the object, a
troublesome scope-of-warrant execution issue
may be presented concerning why the officer
was within reading distance of the serial
number.
Wayne R. LaFave, Search and Seizure, § 4.11 at 105 (2d ed. 1987)
(Sup. 1994).
Nonetheless, we decline to hold that Almeida's actions
in bringing the documents to Scott were impermissible.
Ultimately, we agree with the courts of appeals that have decided
that the immediate apparency of criminality should be measured,
at a minimum, by the collective knowledge of the officers on the
scene. See supra at 28. First, we think this holding is
supported by the weight of Supreme Court precedent, which
suggests that once an object has come into plain view in the
course of a legitimate search, any privacy interest in preventing
a cursory inspection of that object has been destroyed. Second,
we think that the case law is correct to strike the balance in
this way. The French letter example presents a rare case; in
most cases, once one officer has glanced at an object, any
private information that can be revealed at a glance, will have
been revealed -- except for evidence of illegal activity
unprotected by the Fourth Amendment. See Jacobsen, 466 U.S. at
123-24, 104 S. Ct. at 1661-62 (holding that a test that merely
disclosed whether or not a particular substance was cocaine did
not compromise any reasonable expectation of privacy and
therefore did not constitute a search). The typical case will be
the revelation of serial numbers on a gun which require a
database to identify but which reveal no information beyond
whether the gun is legal or illegal.
Moreover, if we were to require the officer who came
across an object in the course of his or her own permissible
search to understand the relationship of the object to
criminality, the police would probably respond by assigning the
most knowledgable officers to conduct searches or by having
multiple officers search the same area. The invasion of privacy
would end up being as great; all that we would have accomplished
is that the police search would cost more and be less efficient.
Finally, we note that we could hardly prevent the officer who
first saw an object from remembering what he or she saw and
probably even testifying about it, which means that any
additional invasion of privacy from revelation of the information
to others is likely to occur anyway. Cf. Jacobsen, 466 U.S. at
119, 104 S. Ct. at 1659 ("Respondents do not dispute that the
Government could utilize the Federal Express employees' testimony
concerning the contents of the package. If that is the case, it
hardly infringed respondents' privacy for the agents to re-
examine the contents of the open package.") Thus, we hold that
Almeida's actions in bringing the Jabeco documents to Scott did
not violate the Fourth Amendment.
Menon then argues that Scott's own glance at the Jabeco
documents was too searching to meet the "immediately apparent"
requirement. But we have explained, Scott was entitled to glance
at the documents to the same extent that Almeida was. Almeida
was entitled to look at them carefully enough to determine that
they were not blank Abad invoices. See United States v.
Santarelli, 778 F.2d 609, 615-16 (11th Cir. 1985) ("Given the
fact that the search warrant entitled the agents to search for
documents . . ., it is clear that the agents were entitled to
examine each document . . . to determine whether it constituted
evidence they were entitled to seize under the warrant."). The
district court found that upon his brief glance at the first
Jabeco document, Scott noticed the words "Jabeco" and "for
reprocessing purposes"; the court also found that these words
provided him with probable cause to read the entire document
because Scott had strong reason to believe that Flag was
illegally importing irradiated food from Jabeco and Scott knew
that "reprocessing" was a euphemism for irradiation. We have no
reason to hold that these findings were clearly erroneous.
As to the other two Jabeco documents, Scott testified
that "the thing that was significant to me was that they were
interrelated" to the first document because they all said Jabeco
and were all from the same file. The district court found that
Scott's interrelationship conclusion was warranted and that this
provided him with probable cause to read the two documents
carefully. Again, we decline to disturb these findings.
In sum, because 1) the Jabeco documents came into plain
view in the course of Almeida's search of the desk; 2) Almeida's
search of the desk was reasonable under the terms of the warrant
which entitled her to search that desk until she found all of the
blank Abad invoices that the desk contained, and 3) in glancing
at these documents long enough to determine that they were not
blank Abad invoices, it was immediately apparent, using the
collective knowledge of the officers on the premises, that the
documents were evidence of criminal activity, we hold that the
search and seizure of these documents did not violate the Fourth
Amendment.
C. Sufficiency of the Evidence on Count 140
Finally, Menon contends that, even if we affirm the
district court's decision to admit all of the evidence found in
the search, the government did not adduce sufficient evidence
that he "fraudulently or knowingly import[ed] or br[ought] into
the United States, any merchandise contrary to law" by
reimporting the shrimp that had been rejected by the FDA. He
argues that all of the government's evidence on shrimp travelling
from Jabeco to the United States relates to shrimp with different
specifications (hence different shrimp) from the shrimp initially
rejected by the FDA. As a result, importation of this shrimp was
not "contrary to law."
The shipment rejected by the FDA consisted of 1,200
cases of shrimp ranging in size from 15/20 per pound to 21/40 per
pound, with a total weight of 42,864 pounds. These
specifications come from a bill of lading within the file of
Sperduto, Spector, & Company ("Sperduto"), the firm Flag had
engaged to conduct an annual audit of its books. The bill of
lading for the shrimp shipped from Jabeco to the United States,
however, indicated there were 696 cases at 11,681 pounds, and the
invoice stated that the size of the shrimp was 300/500 per pound
(much smaller than the rejected shrimp). Thus, it does appear
that the shipment of shrimp sent to the United States was not the
same as the one rejected by the FDA. However, the government
argues that the documents related to the shipment from Jabeco to
the United States were falsified and that the shipment did in
fact consist of the same shrimp. By finding Menon guilty, the
jury agreed with the government. The district court denied
Menon's motion for judgment of acquittal.
The standard in deciding whether to grant "a post-
verdict judgment of acquittal is the same as that which the trial
court applied. We must view the evidence in the light most
favorable to the jury verdict and presume that the jury properly
evaluated credibility of the witnesses, found the facts, and drew
rational inferences." United States v. Iafelice, 978 F.2d 92, 94
(3d Cir. 1992) (citation omitted). The court may overturn a
guilty verdict only if no reasonable jury could find the
defendant guilty beyond a reasonable doubt. See United States v.
Coleman, 811 F.2d 804, 807 (3d Cir. 1987). Although the question
is a close one, we think that a reasonable jury could have found
Menon guilty beyond a reasonable doubt.
First, the government presented evidence that a Flag
employee told its auditor Sperduto that some of the shrimp was
the same. Jay Rosner, a CPA who worked for Sperduto on the Flag
audit, testified that, while attempting to trace the whereabouts
of the 1,200 cases of shrimp, he took notes based on statements
made by someone at Flag:
Flag sent 1,200 cases of shrimp to be IQF'd
at Rotterdam . . . [A]ttached is the copy of
the bill of lading from the shipment from
Flag to Rotterdam. Also attached is the
invoice . . . for processing the shrimp and
the bill of lading from Rotterdam to New
York. 696 cases were stored in Union
Warehouse Terminal on 8/20/91.
Although Rosner testified that no auditor ever verified that the
696 cartons were connected to the 1,200, he made it clear that
"[t]hose were Flag's assertions." JA 457, 475.
Rosner's testimony is backed up by the fact that in
Sperduto's files relating to the 1,200 rejected cases of shrimp
was a bill of lading and a storage document pertaining to the 696
cases of shrimp. Joseph Sperduto, another CPA with the Sperduto
firm, testified that the reason the documents would be in that
file is that the client or the person conducting the audit had
provided them and had indicated they were connected. JA 442-44.
Although this evidence does not explain who at Flag
said that the two shipments were related or why the
specifications of the two shipments were different, it evidences
a connection, especially given that the original source was Flag
itself. Of course, it may be that someone at Flag or at Sperduto
simply erred in relating the two shipments,0 but it was
reasonable for the jury to conclude otherwise, at least when this
evidence was considered in light of additional government
evidence.
0
For example, John Guerriero, the comptroller at Flag who
maintained its books and records, indicated that, when asked to
provide backup documents to the auditors about the 1,200 cartons
of shrimp, he probably took the documents related to the 696
cartons of shrimp from the payment files (A 93), JA 146. He did
not explain why he took these particular documents from the
payment files. Perhaps Guerriero had no explanation and simply
made a mistake.
Because Menon knew that Sperduto was attempting to
verify the location of the 1,200 cases of shrimp, Menon wrote
Jabeco requesting that Jabeco inform Sperduto that it possessed
the 1,200 cases of shrimp as of June 30, 1991. Jabeco then wrote
Menon and Sperduto acknowledging such possession. The letter
continued, "[t]his lot has been shipped back to New York on or
about 6th July, 1991 for estimated arrival at New York, July
17th, 1991." While this evidence alone does not definitively
prove that Flag directed that the original shrimp be sent back to
the United States or that the 1,200 cases actually arrived in the
United States, it does tend to prove that the original 1,200
cases of shrimp were shipped back from Jabeco to New York. When
this evidence is combined with the fact that Flag connected the
696 cases with the 1,200 cases and the 696 cases actually arrived
in New York, it makes it much more likely that the two shipments
were actually the same.
Finally, upon receiving his copy of the letter Jabeco
had written to Sperduto, Menon crossed out the statement that the
shrimp had been sent back to New York and wrote at the bottom of
the letter, "Bert! Please omit in second." Menon then sent a fax
to Bert Cornelisse at Jabeco which said, "[w]ith regards to the
letter you faxed to me, if you have not sent this to Sperduto,
Spector & Co., please do not do so until you telephone me." A
jury could reasonably conclude that by taking these actions,
Menon was attempting to prevent Sperduto from discovering that
the rejected shrimp had been sent back to New York.0 Given this
evidence of consciousness of guilt and an attempt to cover up
that guilt, and the fact that the jury simultaneously found Menon
guilty of 137 counts of falsification, the jury might well have
resolved the fact that the specifications of the shrimp that
arrived in New York differed from those of the shrimp rejected by
the FDA by concluding that Menon had falsified the specifications
on the shipment to New York.
In sum, viewing the evidence in the light most
favorable to the government, see Iafelice, 978 F.2d at 94, we
hold that the evidence was sufficient to sustain the verdict on
count 140.0
0
There are other possible explanations for Menon's letter with
respect to the Jabeco letter, but they are far less plausible.
For example, Menon may have wanted Jabeco to delete the sentence
about re-shipment of the shrimp because these shrimp had not in
fact been sent back to the United States and he wanted to ensure
the information provided to the auditors was correct. But if this
were the explanation, he would have wanted Jabeco to correct the
information provided to the auditors even if the original letter
had already been sent to them; he would not have told Jabeco to
correct the letter only if Jabeco had not yet sent the letter to
the auditors. Moreover, this explanation does not signify a
reason why Jabeco would have made a mistake as to the destination
of the shrimp. At all events, the exclamation point in the line
"Bert! Please omit in second" conveys a sense of urgency unlikely
to have been present had Menon simply desired to correct a
mistake.
0
The defendant presented evidence from an independent
warehouseman, Robert McLaughlin, that the shrimp which returned
to the United States did not meet the specifications of the
shrimp rejected by the FDA. JA 629-30. However, the government
impeached McLaughlin's testimony by showing that it was based on
business records rather than personal knowledge and that it was
possible that the specifications on these business records
resulted from a transfer of information from the allegedly
falsified specifications on the materials accompanying the shrimp
to the United States. JA 617, 625, 630. In viewing the evidence
in the light most favorable to the government, we assume that the
IV. THE SENTENCING ISSUES
The district court sentenced Menon under Sentencing
Guideline § 2Q2.1. U.S.S.G. § 2Q2.1 (1992). Under this section,
his base offense level was six. U.S.S.G. § 2Q2.1(a). His
offense level was increased by two because he had a commercial
purpose. U.S.S.G. § 2Q2.1(b)(2). It was further increased by
fourteen under subsection (b)(3)(A), which provides for an
enhancement according to the table in § 2F1.1, "if the market
value of the fish, wildlife, or plants exceed[s] $2,000."
U.S.S.G. § 2Q2.1(b)(3)(A).
At a minimum, we must remand for resentencing. The
market value of the seafood at issue in Count 140 ($141, 899),
although more than $2,000, is far less than the market value of
the seafood at issue when the district court sentenced Menon --
which included the value of the seafood in Menon's other 137
counts of conviction. Thus, the enhancement which would be
applicable under the table in § 2F1.1 would no longer be 14
levels. But Menon contends that the enhancement is not
applicable at all, because application of the enhancement
violates the Ex Post Facto Clause of the Constitution. We agree.
Even though such an enhancement was part of the
guidelines when Menon was sentenced, it was not part of the
jury made a reasonable credibility judgment that McLaughlin's
testimony was not helpful.
guidelines at the time of Menon's conduct. The conduct at issue
in count 140 occurred in July of 1991 when the sentencing
guidelines provided for an upward adjustment only "if the market
value of the specially protected fish, wildlife, or plants
exceeded $2,000." See U.S.S.G. § 2Q2.1(b)(3)(a) (1990). Had
Menon been sentenced for reimporting previously rejected shrimp
at that time, he would not have been subject to the upward
adjustment because shrimp are not "specially protected." But
Menon was sentenced in June 1993, when the guidelines provided
for an enhancement if the "market value of the fish, wildlife, or
plants exceeded $2,000." U.S.S.G. § 2Q2.1(b)(3)(A) (1992).
The general rule is that a sentencing court must apply
the guidelines in effect at the time of sentencing. See United
States v. Cherry, 10 F.3d 1003, 1014 (3d Cir. 1993); United
States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991); 18 U.S.C.
§3553(a)(4); U.S.S.G. § 1B1.11(a)(1993). But changes in
sentencing guidelines that enhance the penalty offend the Ex Post
Facto Clause of Article I of the United States Constitution. See
Miller v. Florida, 482 U.S. 421, 431-35, 107 S. Ct. 2446, 2451-54
(1987); Kopp, 951 F.2d at 526. In Miller, the Supreme Court
explained that a retrospective law that disadvantages the
offender violates the Ex Post Facto Clause, but that a change in
law that "does not alter `substantial personal rights,' but
merely changes `modes of procedure which do not affect matters of
substance'" does not. 482 U.S. at 430; 107 S. Ct. at 2451. Under
this framework, the enhancement utilized here is
unconstitutional.
Applying the enhancement in the 1992 guidelines which
does not contain the "specially protected" substantially
disadvantages Menon retrospectively. Menon had no notice at the
time he acted that his punishment would be so steep. The
government responds in two ways. First, it contends that
application of the 1992 guidelines did not retrospectively harm
Menon because the Sentencing Commission intended the guidelines
in effect during Menon's conduct to apply to importation of
valuable seafood regardless of whether it was specially
protected. Second, it contends that the district court actually
applied the 1990 guideline and merely interpreted it by reference
to the subsequent amendment. For analytical purposes, we
conflate these two arguments into the single proposition that the
1989 guidelines, interpreted in light of earlier guidelines and
later ones, did in fact provide an enhancement regardless of
whether the seafood was "specially protected."
The government defends this proposition by pointing out
that prior to 1989 there were two separate enhancement provisions
-- one within section 2Q2.1 for specially protected fish wildlife
and plants, see U.S.S.G. § 2Q2.1(b)(3)(A) (1988), and one within
section 2Q2.2 for fish, wildlife and plants generally, see
U.S.S.G. § 2Q2.2(b)(3)(A) (1988). Had Menon's conduct occurred
prior to November of 1989, that conduct would have been subject
to the enhancement for seafood generally. The Commission
intended the 1989 amendment to "consolidate two guidelines that
cover very similar offenses," U.S.S.G. § 2Q2.1, app. C, amend.
209 (1989), rather than to make any substantive changes. But in
consolidating sections 2Q2.1 and 2Q2.2, the Sentencing Comission
adopted the enhancement provision from § 2Q2.1 which only applied
to "specially protected" fish. The Commission explained in
1991, that the language "specially protected" had been
"inadvertently retained" when the sections were consolidated. See
U.S.S.G. § 2Q2.1, app. C, amend. 407 (1991). Thus, the
government argues that the intent of the Commission was always to
apply the enhancement to importation of seafood worth more than
$2,000, regardless of whether it was specially protected or not.
The government asserts that the 1991 amendment deleting
the "specially protected" language combined with its reference to
that language as having been "inadvertently retained" in the 1989
consolidation means that the 1991 amendment was merely intended
to clarify the meaning of the already exiting guideline. The
government points out that when an amendment to a guideline is
intended to clarify the meaning of the existing guideline, the
court must give it substantial weight in interpreting that
guideline. See United States v. Joshua, 976 F.2d 844, 853 (3d
Cir. 1992); United States v. Ofchinick, 877 F.2d 251, 257 n.9 (3d
Cir. 1989). In fact, the Ninth Circuit relied on precisely such
reasoning to hold that "section 2Q2.1(b)(3)(A) was never intended
to apply solely to `specially protected' wildlife after its
consolidation." United States v. Atkinson, 966 F.2d 1270, 1276
(9th Cir. 1992). But the Ninth Circuit did not reach this
conclusion in the context of an ex post facto challenge and, in
any case, we disagree.
First, we have never held that a "clarifying" amendment
can be used to interpret an earlier guideline when applying the
amendment would punish the defendant more harshly than he would
have been punished under the court's independent interpretation
of the pre-amendment language. Second, the amendment here was
not a clarification. It indicated that the language "specially
protected" had been inadvertently retained when the guidelines
were amended in 1989; it did not state that the 1989 guideline
applied to seafood that was not "specially protected." Third,
[w]here the Commission adopts an interpretive
commentary amendment that the text of the
guideline cannot reasonably support, the
Commission circumvents the process Congress
has established for amending the guidelines.
When this happens, we should decline to
follow its lead.
Joshua, 976 F.2d at 854. No interpretive amendment can excise
key words ("specially protected") from a guideline. And no
individual who read the guidelines before 1989 while
contemplating his likely fate if he imported valuable shrimp
would have understood that he was subject to an enhanced sentence
under the guidelines. Thus, when resentencing Menon for
reimporting previously rejected shrimp, the district court cannot
apply the enhancement for importation of seafood worth more than
$2,000.
V. CONCLUSION
For the foregoing reasons, we will reverse Menon's
convictions on Counts 1 through 15, 17 through 32, and 34 through
139. We will affirm Menon's conviction on Count 140, and remand
the case to the district court for resentencing on that Count
under the 1990 guidelines.