U.S. v. Alfisi

• Citation: 308 F.3d 144
• Decision Date: 08 October 2002
• Docket Number: Docket No. 01-1152.
• Parties: UNITED STATES of America, Appellee, v. Mark ALFISI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 144

308 F.3d 144

UNITED STATES of America, Appellee, v. Mark ALFISI, Defendant-Appellant.

Docket No. 01-1152.

United States Court of Appeals, Second Circuit.

Argued: October 26, 2001.

Decided: October 8, 2002.

COPYRIGHT MATERIAL OMITTED

KARL E. PFLANZ, Newman & Greenberg (Richard A. Greenberg, of counsel), New York, NY, for Appellant.

EVAN T. BARR, Assistant United States Attorney (Mary Jo White, United States Attorney, and Celeste L. Koeleveld, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Before: VAN GRAAFEILAND, WINTER, and SACK, Circuit Judges.

Judge SACK dissents in a separate opinion.

WINTER, Circuit Judge.

Mark Alfisi appeals from a conviction by a jury before Judge Hellerstein on counts of: (i) bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A); (ii) paying an unlawful gratuity to a public official in violation of 18 U.S.C. § 201(c)(1)(A); and (iii) engaging in a conspiracy to commit bribery in violation of 18 U.S.C. § 371.

The charges against Alfisi arose out of payments he made to a United States Department of Agriculture ("USDA") produce inspector at the Hunts Point Terminal Market. On appeal, Alfisi contends principally that the district court's jury instructions failed to delineate accurately the difference between the crime of bribery, which includes a quid pro quo element, and that of paying unlawful gratuities, which does not. He also claims that the instructions erroneously allowed the jury to convict him of bribery even though his payments were intended only to procure lawful action from a government official. Alfisi further argues that the jury should not have been allowed to consider the payment of an unlawful gratuity as a lesser-included offense of bribery. Alternatively, he claims that, if the payment of an unlawful gratuity was properly charged as a lesser offense, then the misdemeanor of unlawfully supplementing a federal employee's salary should also have been submitted as a lesser offense to the jury. Finally, Alfisi contends that the district court violated his Sixth Amendment right to present a defense when it interrupted and cut short his counsel's closing summation.

We reject these arguments and affirm.

BACKGROUND

We view the facts in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (noting that a criminal verdict "must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it") (superseded by statute on other grounds); see also United States v. Zichettello, 208 F.3d 72, 81 (2d Cir.2000).

This appeal involves purchases and sales of fresh produce at the Hunts Point Terminal Market, the world's largest wholesale produce market. Growers ship their produce to the Hunts Point Market where it is sold to wholesalers. The sales are consummated through purchase contracts negotiated between wholesalers and commercial brokers who act as agents for the growers. Generally, purchase contracts set a price and stipulate a particular required quality of the produce, stated by grade levels, to be met at the time of delivery. The grade level of a load of produce substantially affects the ultimate sale price, and even a slight lowering of grade can result in a sizeable drop in the value of produce. Also, if a load of produce does not meet the contractually stipulated grade level upon delivery, the price of the produce must be renegotiated downward by the parties to reflect this change.

There are two sets of widely-used standards for measuring the grade level of produce. One set is promulgated by the USDA and rates produce according to "quality" and "condition." In this context, "quality" refers to inherent defects, such as the size or shape of the produce, that are constant over time. "Condition" refers to defects, such as decay, discoloration, or bruising, that may worsen with aging. Under the USDA standards, the grade level of a load of produce is determined by the frequency, marked as a percentage, of "quality" and "condition" defects detected in the load.

The alternative set of standards is known as the "good delivery" standards and uses the same frequency-of-defects measure as the USDA standards to determine the grade level of a load of produce. The "good delivery" standards, however, are considered more lenient than the USDA standards because they discount for the almost inevitable deterioration that a load of produce will suffer while being shipped.

If commercial brokers and wholesalers disagree as to the grade level of a load of produce, they have the option of requesting an inspection by the USDA's Agricultural Marketing Service for a nominal fee. When they opt for such an inspection, a USDA produce inspector will examine random samples from the disputed load of produce to determine the frequency of "quality" and "condition" defects among the produce. The inspector will then record the percentage of defects on an official USDA inspection certificate. A USDA inspection certifies the grade level of a load of produce according to only the USDA's standards; it does not apply the unofficial "good delivery" standards. However, parties to contracts using "good delivery" standards rely on the percentage of defects indicated on the USDA inspection certificate to determine whether a load of produce meets the requirements of the particular contract.

At some point, federal officials undertook an investigation of corruption among USDA inspectors at the Hunt's Point Terminal Market. One such inspector, William Cashin, was arrested and thereafter cooperated in the investigation. Cashin and other USDA officials had routinely accepted money from wholesalers at the Hunts Point Market since about 1980. In the course of the scheme, an inspector would receive $50 in cash per inspection from wholesalers. That inspector would kick back a portion of this payoff to his or her supervisor as payment for receiving profitable assignments, i.e., assignments to bribing wholesalers. According to Cashin, the payoffs from the wholesalers were in exchange for downgrading the grade level of a load of produce by recording a higher percentage of defects than were actually observed. When applied to the unofficial "good delivery" standards, a false downgrade allowed the wholesalers to renegotiate downward the price of a load of produce.

As part of Cashin's cooperation with the government, he continued his work as a USDA inspector while also serving as an undercover agent. Cashin was assigned by his supervisor to the produce wholesaler Post & Taback. Alfisi was employed by Post & Taback, and Cashin's supervisor informed Cashin that Alfisi was prepared to make payoffs. After Cashin contacted Alfisi, Alfisi agreed to pay Cashin $50 in cash per inspection performed for the firm. Cashin and Alfisi also devised code phrases by which Alfisi was able to alert Cashin when Alfisi needed "help" with a load of produce. Cashin testified that in exchange for the $50 payments, he would falsely downgrade loads of produce except where they were already "legitimately bad." Many of Cashin's discussions with Alfisi were videotaped and audiotaped. On these recordings, Alfisi gave Cashin money and discussed Cashin's inspection of produce. As a result, Alfisi was arrested and charged with various counts of bribery, paying unlawful gratuities, and conspiracy.

The recordings, as well as Cashin's testimony, were introduced as government evidence at Alfisi's trial. Alfisi did not testify but did present evidence in support of his defense that he did not make the payoffs to obtain false inspection results. Rather, he argued that Cashin and other USDA officials at the market were operating an extortion scheme and that Alfisi was coerced into paying Cashin solely to ensure that Cashin would do his job properly. In that regard, Alfisi offered evidence from three produce brokers that some of Cashin's inspections yielded accurate grade levels. Cashin could not specify at trial whether particular certifications that caused specific loads of produce to fail "good delivery" standards had been falsely downgraded or were "legitimately bad."

After six days of trial and four days of deliberation, the jury convicted Alfisi of seven counts of bribery, six counts of paying unlawful gratuities as a lesser-included offense to bribery, and one count of conspiracy to commit bribery. The district court sentenced Alfisi to a prison term of a year and a day, two years of supervised release, and a fine of $6,000.

DISCUSSION

a) The Instructions on Bribery and Payment of Unlawful Gratuities

As noted, Alfisi's principal defense at trial was that he was coerced into paying Cashin solely to get the latter to perform accurate inspections. The jury was instructed as to Alfisi's economic coercion defense but rejected it. No claim of error is made as to that instruction, and Alfisi's principal argument on appeal is that the jury was erroneously instructed on the elements of bribery and paying unlawful gratuities.

As we understand Alfisi's argument, he claims first that the instruction given by the district court failed to explain sufficiently the difference between bribery, which requires a quid pro quo element, and paying unlawful gratuities, which does not. Second, he argues that the instruction erroneously allowed the jury to convict him for bribery even if the jury found that the payments were a quid pro quo exchange for Cashin to perform his job faithfully.

"Jury charges are reviewed de novo," United States v. Han, 230 F.3d 560, 565 (2d Cir.2000), and we will not find reversible error unless a charge either failed to inform the jury adequately of the law or misled the jury as to the correct legal rule. See United States v. Doyle, 130 F.3d 523, 535 (2d Cir.1997). We are satisfied that the district court's jury instructions, viewed in their entirety, were correct.

We begin by...