U.S. v. Slocum

Decision Date27 June 1983
Docket Number81-5581,Nos. 81-5382,s. 81-5382
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Bert R. SLOCUM and Louise V. Slocum, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Bert R. SLOCUM, Louise V. Slocum, Ray B. Slocum, Doris Fuller, Francille Miller, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Stanley Marcus, U.S. Atty., Miami, Fla., Lisa Hemmer, U.S. Dept. of Justice, Wildlife Sec., Land & Natural Resources Div., Washington, D.C., for U.S.

Paul Morris, Miami, Fla., for Slocums, Miller and Fuller.

Appeals from the United States District Court for the Southern District of Florida.

Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

I. INTRODUCTION

Defendants Bert and Louise Slocum, husband and wife, were the owners of the Quality Bird Company ("Quality"), a Florida partnership in the business of importing and selling birds. Defendants Ray Slocum (the son of Bert and Louise), Francille Miller and Doris Fuller were employees of Quality at all times relevant to this case.

The defendants were charged as follows:

1. Count I--All defendants except Louise Slocum conspired to enter a United States Department of Agriculture ("USDA") approved quarantine station and remove birds contained therein from customs custody or control in violation of 18 U.S.C. Sec. 371;

2. Count II--All defendants except Louise Slocum entered a USDA approved quarantine station and removed birds contained therein from customs custody or control in violation of 18 U.S.C. Secs. 2 and 549;

3. Count III--Bert Slocum knowingly received the birds so removed from customs custody or control in violation of 18 U.S.C. Sec. 549;

4. Count IV--All defendants except Louise Slocum knowingly removed birds from quarantine in violation of USDA regulations and 21 U.S.C. Sec. 134e and 18 U.S.C. Sec. 2;

5. Count V--Bert Slocum knowingly presented false indemnity claims to the USDA in violation of 21 U.S.C. Sec. 134a(e) and 18 U.S.C. Sec. 287; and

6. Count VI--All defendants except Ray Slocum conspired to violate 21 U.S.C. Sec. 134e and USDA regulations by hiding dead birds to avoid examination by USDA officials.

A jury found the defendants guilty on all counts with the exception of Count III, upon which the jury found Bert Slocum not guilty. 1 On appeal, the defendants contend: (1) that there is insufficient evidence to support their convictions; (2) that the birds allegedly removed from quarantine were not "in customs custody or control; " (3) that they are entitled to a new trial on the basis of prosecutorial misconduct; (4) that they are entitled to a new trial on the basis of newly discovered evidence; and (5) that the testimony of a former Quality employee should have been stricken as the fruit of an invalid search. We reject each of these contentions and affirm the convictions of the defendants.

The government brings a separate appeal challenging the trial court's suppression of business records seized during a search of Quality's offices. These documents would have provided an evidentiary basis for bringing additional counts against certain defendants. Because we find that the documents were properly seized pursuant to the plain view exception to the Fourth Amendment prohibition of warrantless searches, we reverse the trial court's suppression of those documents.

II. THE SUFFICIENCY OF THE EVIDENCE

A. General Background 2

The USDA administers a strictly-regulated program controlling the importation of birds into the United States. The primary purpose of this program is to protect American poultry from a highly contagious disease known as Viscerotropic Velogenic Newcastle's Disease ("VVND").

As part of this program, all importers of birds are required to maintain quarantine facilities. When a shipment of birds arrives in the United States, it is met by USDA officials and transported to a sanitized quarantine facility 3 for a thirty day observation period. During the first fifteen days of the quarantine period, USDA officials work within the facility performing tests. After the fifteenth day, at least one USDA employee generally remains outside the facility during working hours making sure that no birds are transported from the facility. At the end of each workday, a lock with a USDA seal is placed on the door to the facility. At no time during the quarantine period are employees of the importer allowed within the facility unless a USDA employee is present outside the facility; the USDA employee is required to remain at the facility at all times during which an employee of the importer works therein.

If VVND is discovered in the quarantine facility during the thirty day quarantine period, the birds will be denied entry and destroyed at the importer's expense unless the importer can return the birds to the country of origin. Also, any bird that dies of any cause during the quarantine period must be turned over to the USDA for a determination of the cause of death; the cost of these post-mortem examinations is charged to the importer.

However, if the thirty day period passes without incident, the birds are released from the custody of the USDA and are usually transferred to a commercial holding facility where they are eligible for sale to the public. If VVND is found in a shipment subsequent to the release of the birds from quarantine, the birds will be destroyed but the federal government will indemnify the owner for the loss.

B. The Conspiracy To Remove Birds From Quarantine

At trial, the government introduced evidence that the defendants had conspired to violate USDA quarantine regulations during the period 1978-1980. The government's proof focused on events at Quality Bird Quarantine Station No. 1 ("Quarantine # 1") and the Quality Bird Holding Facility. The government's principal witnesses were three former employees of Quality: Richard Crumb, Billy Anthony, and Charles Dittrich.

The first alleged conspiracy, a purported scheme to smuggle diseased birds out of quarantine, commenced with the receipt by Quality of a valuable shipment of birds on December 22, 1978. This shipment, of Paraguayan origin, contained 764 birds including baby blue and gold macaws, toco toucans, and hyacinth macaws. This shipment was placed in Quarantine # 1 together with another shipment which had arrived on November 30, 1978. USDA Animal Health Aide Richard Crider was given responsibility for guarding Quarantine # 1; he testified that defendant Fuller was the Quality employee in charge of Quarantine # 1.

On January 12, 1979, the USDA informed Bert Slocum that VVND had been isolated in Quarantine # 1. Slocum was given until January 24 to arrange a return shipment to Paraguay, but his efforts failed. Crumb testified that sometime prior to January 24 he was present at a meeting attended by Fuller, Miller, Ray Slocum and other employees at which Bert Slocum stated that $100,000 of his birds had to be destroyed and "he was not going to allow it."

Crumb testified that shortly after this meeting he entered Quarantine # 1 and noticed that the hyacinth macaws were missing from the facility. He also observed Fuller placing toucans and baby blue and gold macaws in boxes, each of which she marked with a red "X." When he asked Fuller what she was doing, Fuller responded that the birds were being transported to be killed. Following Fuller's orders, Crumb stacked the boxes in the rear of the facility; sometime thereafter, Crumb and Fuller were present as Ray Slocum picked up two of the boxes and placed them in a van outside the building. Later that same day, Crumb entered the Quality holding facility 4 where he saw empty boxes, each marked with a red "X", and baby blue and gold macaws that had not been there before. Crumb destroyed the boxes as part of his duties.

Billy Anthony and Charles Dittrich testified about a separate quarantine violation at Quarantine # 1. On January 23, 1979, the day prior to the scheduled extermination of the birds, Dittrich, on Bert Slocum's orders, instructed Anthony to prepare several extra cages in the holding facility. When he reported to work the next day, January 24, Anthony immediately noted an increase in the amount of noise emanating from the holding facility. Upon entering the facility, he saw several empty boxes scattered about the floor of the facility which had not been there when he departed the previous day. There was also a marked increase in the number of hyacinth macaws, toco toucans and blue and gold macaws contained in the facility. Most of the blue and gold macaws were so young that they had to be hand-fed and one of the toucans had a broken beak; Anthony testified that he recalled hand-feeding a toco toucan with an identical beak in Quarantine # 1 in the days immediately prior to the extermination. The next day, when Anthony asked Miller how the birds got into the holding facility from Quarantine # 1, she responded, "I went in through the front door." Dittrich also recalled seeing extra cages of hyacinth macaws in the holding facility on the morning of the 24th.

The government presented evidence that the screws securing the hinges of the sealed door to Quarantine # 1 were easily accessible from the outside. Furthermore, an employee of the Honeywell Protection Service testified that Quality never activated its alarm system at Quarantine # 1 the night of the 23rd.

On the morning of the 24th, Anthony became apprehensive when he observed a USDA inspector on the premises. He asked Ray Slocum how he should respond if anyone inquired about the extra birds in the holding facility. Ray Slocum told Anthony and Dittrich to reply that a new shipment had arrived from California. Dittrich, Quality's primary salesperson, testified that the company was not expecting any birds from California.

Meanwhile, the extermination had commenced in Quarantine # 1. Dr. Angel...

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