U.S. v. Vitek Supply Corp., s. 97-1254

• Decision Date: 14 May 1998
• Docket Number: Nos. 97-1254,97-1255,s. 97-1254
• Citation: 144 F.3d 476
• Parties: 49 Fed. R. Evid. Serv. 625 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. VITEK SUPPLY CORPORATION and Jannes Doppenberg, Defendants-Appellants, Cross-Appellees. & 97-1498.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 476

144 F.3d 476

49 Fed. R. Evid. Serv. 625

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. VITEK SUPPLY CORPORATION and Jannes Doppenberg,

Defendants-Appellants, Cross-Appellees.

Nos. 97-1254, 97-1255 & 97-1498.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 8, 1997.

Decided May 14, 1998.

Eric J. Klumb (argued), Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, Kenneth Jost (argued), Department of Justice, Washington, DC, for United States of America.

Williams H. Theis (argued), Robert R. Henak, Shellow, Shellow & Glynn, Milwaukee, WI, for Vitek Supply Corp.

James M. Shallow (argued), Robert R. Henak, Shellow, Shellow & Glynn, Milwaukee, WI, for Jannes Doppenberg.

Before CUDAHY, COFFEY, and EVANS, Circuit Judges.

CUDAHY, Circuit Judge.

Vitek Supply Corporation manufactured "premixes" for veal calves--that is, mixtures that feed companies and livestock growers add to animal feed. Certain premixes contained clenbuterol, avoparcine, zinc bacitracin or various nitrofurans. Some of these substances promote growth and increase meat-to-fat ratios; others treat and prevent scours (diarrhea). And they are all unapproved by the Food and Drug Administration (FDA), either for use in food-producing animals generally or veal calves specifically. Several of the drugs are carcinogens; one may lead to acute poisoning in humans; and another may increase human resistance to antibiotics.

Vitek smuggled these drugs into the United States with the help of its Dutch parent, Pricor B.V. In shipments from Pricor to Vitek, the companies either misdescribed the drugs in documents submitted to the United States Customs Service or failed to declare the substances altogether. The scheme began to collapse when an animal grower informed the government about the true content of Vitek's products and when investigators found undeclared substances concealed in a shipment from Pricor. Eventually a jury convicted Vitek and its president, Jannes Doppenberg, of conspiracy to defraud Customs and the FDA, of smuggling or receiving smuggled merchandise and of distributing adulterated or misbranded animal drugs with intent to defraud or mislead.

On appeal, Vitek and Doppenberg challenge several decisions of the district judge, beginning with his refusal to suppress the fruits of the government's search and ending with his application of the Sentencing Guidelines. The government also cross-appeals from the defendants' sentencing. We affirm in all respects.

I. Search and Seizure

The warrant authorizing the search of Vitek's premises permitted the seizure of (1) all tainted animal feed; (2) any and all misbranded drugs, to include clenbuterol and any of its derivatives; (3) any and all records from February 18, 1989, relating to the importation of merchandise and to the smuggling and illegal entry of tainted animal feed; and (4) any and all records from February 18, 1989, relating to the illegal entry and distribution of misbranded drugs in interstate commerce. The warrant further instructed that the evidence seized should indicate possible violations of 18 U.S.C. §§ 545 and 1001 and 21 U.S.C. § 331(a)--statutes prohibiting the smuggling and the distribution of misbranded drugs or adulterated food. The defendants assert the warrant lacked sufficient particularity and was not supported by probable cause. These are issues we review de novo. See United States v. Navarro, 90 F.3d 1245, 1251 (7th Cir.1996).

The Fourth Amendment requires that a warrant "particularly describ[e] the ... things to be seized." This requirement precludes the issuance of a warrant that permits a "general, exploratory rummaging in a person's belongings," Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), and thereby ensures that the scope of a search will be confined to evidence relating to a specific crime that is supported by probable cause. See United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988). To satisfy the demand for particularity, a warrant "must describe the objects of the search with reasonable specificity, but need not be elaborately detailed." United States v. Shoffner, 826 F.2d 619, 630 (7th Cir.1987) (quoting United States v. Reed, 726 F.2d 339, 342 (7th Cir.1984)).

The Vitek warrant is broad, but not impermissibly so. See United States v. Vanichromanee, 742 F.2d 340, 347 (7th Cir.1984) (warrant authorized seizure of writings related to the conspiracy to import heroin but did not specify precise documents); Shoffner, 826 F.2d at 630 (warrant authorized seizure of "stolen motor vehicles, parts of stolen motor vehicles ... and documentation concerning the purchase, sale, ownership, titling and licensing of stolen motor vehicles"); United States v. Pritchard, 745 F.2d 1112, 1121 (7th Cir.1984) (warrant authorized seizure of electronic wiretapping equipment, including electronic meter and devices resembling telephone receivers; agents executing warrant seized every portable electronic item within appellant's residence). This is not a case like United States v. Spilotro, 800 F.2d 959 (9th Cir.1986), on which the defendants rely. In Spilotro, the search warrant's only limitation was that the items seized be evidence of a violation of any one of thirteen statutes, some of exceptional scope. See id. at 965 (noting that one of the statutes was 18 U.S.C. § 371, conspiracy to commit an offense against or defraud the government). The Vitek warrant, in contrast, specified only three statutes and all are more narrowly focused than the statutes at issue in Spilotro.

The defendants argue that the warrant did not advise government agents how to distinguish between legal and illegal substances. But a warrant must explicate the items to be seized only as precisely as the circumstances and the nature of the alleged crime permit. See Shoffner, 826 F.2d at 630. With respect to the misbranded drugs and adulterated animal feed, we are unaware of any readily-discernable characteristic that would have enabled the agents to identify the illegal substances. This is not a case like United States v. Fuccillo or Montilla Records of P. R., Inc. v. Morales, in which warrants were deemed invalid because they failed to mention features that made the illegal products easily identifiable. See Fuccillo, 808 F.2d 173, 176-77 (1st Cir.1987) (stolen clothing was made by a specific manufacturer); Montilla Records, 575 F.2d 324, 325 (1st Cir.1978) (stolen records had a Motown label). Because the warrant could not have better informed the agents how to distinguish between legal and illegal substances, the instructions to seize "tainted animal feed" and "any and all misbranded drugs to include clenbuterol and any of its derivatives" were sufficiently particular.

In light of the nature of Vitek's crime, the instruction regarding the seizure of records also satisfied the requirements of the Fourth Amendment. Evidence of importing and distributing illegal substances is not likely to be confined to a single type of document. As the D.C. Circuit has noted, "specificity is even more difficult [when] evidence of the crimes can be found in almost every type of business document conceivable." United States v. Dale, 991 F.2d 819, 848 (D.C.Cir.1993). Vitek and Doppenberg seek to analogize the Vitek warrant to the one in United States v. Leary, 846 F.2d 592 (10th Cir.1988), but the warrants are distinguishable. In Leary, the warrant authorized the search of an export company and included two limitations: that any documents seized (1) "fall within a long list of business records typical of the documents kept by an export company," and (2) indicate a violation of the federal export laws. Id. at 600-01. The Tenth Circuit held that, in the context of a search of an export company, the Leary warrant placed no limitation on the government. See id. at 601. Leary, however, differs from the case at bar in at least two significant respects. First, unlike the Vitek warrant, the Leary warrant contained no date limitation. Second, and more importantly, in Leary the government had information that it could have used to particularize its description of the documents to be seized. See id at 604. As with the misbranded drugs and tainted animal feed, we are not convinced that the government could have been more precise about the records it was seeking. Vitek and Doppenberg suggest several ways the government might have tailored its warrant, such as directing agents to seize records that related to particular customers. But, as we elaborate below, the warrant here was supported by broad probable cause. All of the defendants' suggestions would have resulted in a warrant that was narrower than the probable cause supporting it. We are also skeptical of Vitek and Doppenberg's claim that, after the search, "[n]o records of any significance were left on the premises." Appellants' Br. at 25. The defendants' brief asserts that the agents seized material that filled approximately 100 banker's boxes; the record shows that agents seized approximately 20 boxes. See Tr. at 891. Indeed, Vitek had to produce additional documents in response to a grand jury subpoena. Because the warrant did not allow a dragnet seizure, and because the government could not have been more specific, the description of the records to be seized was sufficiently particular.

The warrant also was supported by probable cause. At the time the warrant was issued, the government had been informed that Vitek was importing and distributing animal feed tainted with clenbuterol. The government had also been informed that Pricor, Vitek's Dutch parent, was shipping tainted animal feed to other customers in the United States. In a shipment from Pricor to Vitek, investigators had found hidden parcels containing oxytetracycline hydrochloride, colistine sufaat [sic], furaltadone hydrochloride and liquid Baytril. Sutherland Aff. at para. 30. All the drugs were misbranded...