U.S. v. Mendel

• Citation: 746 F.2d 155
• Decision Date: 16 October 1984
• Docket Number: D,No. 1406,1406
• Parties: 16 Fed. R. Evid. Serv. 771 UNITED STATES of America, Appellee, v. Ernest MENDEL and Albert Mendel & Son, Incorporated, Defendants-Appellants. Cal.ocket 84-1098.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 155

746 F.2d 155

16 Fed. R. Evid. Serv. 771

UNITED STATES of America, Appellee, v. Ernest MENDEL and Albert Mendel & Son, Incorporated Defendants-Appellants.

Cal. No. 1406, Docket 84-1098.

United States Court of Appeals Second Circuit.

Argued June 26, 1984.

Decided Oct. 16, 1984.

Deborah A. Batts, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Barry A. Bohrer, Asst. U.S. Atty., New York City, on the brief), for appellee.

Robert G. Morvillo, New York City (Andrew Tureff, Obermaier, Morvillo & Abramowitz, P.C., New York City, on the brief), for defendants-appellants.

Before KEARSE and PIERCE, Circuit Judges, and MARKEY, Chief Judge. ^*

MARKEY, Chief Judge:

Appeal from judgments of the United States District Court for the Southern District of New York convicting Ernest Mendel (Mendel) and Albert Mendel & Son, Inc. (M & S), following a bench trial before Whitman Knapp, Judge, of making and causing to be made false representations and statements to the United States Department of Agriculture (USDA), in violation of Title 18, United States Code, Secs. 1001 and 1002. ¹ We vacate that part of the judgment convicting Mendel and order a new trial. We affirm that part of the judgment convicting M & S.

BACKGROUND

M & S was engaged primarily in wholesale buying and selling of cattle and had its main farm in Patterson, New York. Mendel was vice-president and principal stockholder of the family owned and operated business.

The indictment, dated February 8, 1983, contained fifty-two counts. Counts one to forty-four charged false statements and representations that certain of M & S's cows were individually tested on specific dates in 1978 for brucellosis. Counts forty-five to fifty-two charged false representations that certain cows had been properly tested on specific dates in 1978 for tuberculosis.

Mendel and M & S ultimately stood convicted on twenty-three counts (four, five, eighteen through thirty-six, forty and fifty-one). The District Court: sentenced Mendel to concurrent terms of imprisonment of one year and one day on each of counts four, eighteen through twenty-five and forty; fined Mendel $50,000; suspended Mendel's sentence on counts five, twenty-six through thirty-six and fifty-one; placed Mendel on probation for three years; and fined M & S $100,000.

The counts of the indictment spelled out and charged falsity in specific representations appearing on particular M & S records prepared and filed during 1978 and relating to USDA required tests. Blood extracted from each cow to be shipped is forwarded in labeled vials to a diagnostic laboratory (located in this case in Storrs, Connecticut). The laboratory tests the blood to determine whether the cow is diseased and reports on the results. As part of the paperwork in obtaining permission to ship the tested cows in interstate or foreign commerce, M & S filed reports of the tests here involved in Albany, New York.

The government alleged that the blood M & S submitted to the laboratory was not that of the cows sought to be shipped, and that the test results were therefore false.

Under a proper procedure, a veterinarian hired by M & S would draw the blood and place it in the vials. While the veterinarian drew blood, an M & S employee would read the cow's eartag identification number to another employee who would write it down, so that each cow's blood sample would have a number corresponding to that cow's eartag number. The ear tag numbers were entered on charts called New York State Department of Agriculture & Markets Test Records. The veterinarian was supposed to draw the blood, sign the charts, and deliver or mail the vials and charts to the diagnostic laboratory.

It is not here contested that on numerous occasions charts were presigned in blank eartag numbers were typed in after the veterinarian had left the farm, and blood was left at the farm for delivery by M & S to the laboratory. Those sloppy practices, though clearly suspect, are not themselves charged as crimes in the indictment. The crimes charged here that particular charts M & S made in 1978 and sent to Storrs, and those delivered in 1978 to Albany (the latter called United States Origin Health Certificates) ² contained false assertions that the tested blood had been extracted from the certain cows listed in the indictment and that each listed cow had been properly tested. The gravamen of the crime (falsity of the statements made and used by M & S) being established, it would not be necessary to establish the source of blood samples accompanying those statements. Nonetheless, the government sought to prove that blood drawn from cows (if any) was discarded and blood drawn from disease-free bulls was substituted.

It is not contested that test records in evidence were filed by the Storrs laboratory with the New York Agriculture and Markets Department (NYAMD) in Albany, New York, that an employee of M & S hand delivered the Origin Health Certificates of Counts 4, 5, and 25-36 to USDA in Albany, and that USDA relied on NYAMD test records to complete Origin Health Certificates. Under a formal memorandum of understanding with NYAMD, USDA relies on information in records filed with NYAMD, and a false statement made to NYAMD would be in essence made to USDA.

Evidence was introduced of scientific tests of certain particular M & S blood samples the government obtained from the Storrs laboratory and forwarded to the National Veterinary Services Laboratories in Ames, Iowa. It was stipulated that those tests established that those samples came from no more than one or two animals and could not have come from the hundreds of cows listed on the M & S reports and set forth in the indictment.

According to Wilfred Lamb, a USDA compliance officer, blood was drawn from two bulls M & S sent for slaughter to Snider Brothers slaughterhouse. That blood was mailed to the USDA laboratory in Waltham, Massachusetts, which in turn mailed it to the Serology Laboratory at the University of California at Davis. Davis laboratory scientists tested that bulls' blood and concluded that it scientifically matched blood received from Ames and asserted by the government to have been the blood represented by M & S as having come from the cows listed in the indictment.

Having stipulated the results and validity of the government's scientific tests, M & S contends that the chain of custody of the involved blood samples was insufficiently established and that the government's proof that the matching blood had come from M & S's bulls was insufficient.

A strongly contested issue at trial was whether Mendel knew of, authorized, or was responsible for blood substitution and consequent false statements. The government relied on testimony of two witnesses--Roger Roe (Roe), an ex-employee of M & S, and Dr. Charles Frumerie (Frumerie), a veterinarian hired by M & S.

Roe testified that on several occasions in 1977 and 1978 he participated in drawing blood and that on some of those occasions Mendel was a participant. M & S contends that Roe's testimony was contradicted by that of Dr. Kay, by his own prior deposition, and by defense witness Evi Scholz.

Frumerie testified that on his return from vacation on August 21, 1978, Mendel told him that in Frumerie's absence he had drawn blood from cows and had forwarded 148 samples to the laboratory. The government asserted that its scientific evidence established that that particular blood matched the blood of the donor bulls. The defense contested Frumerie's credibility during the evidentiary stages of the trial.

Though the trial court expressly found that Mendel had not been tied to any counts and that there was no evidence directly establishing that Mendel had specific knowledge relating to any count in the indictment, it nonetheless found him guilty because of an "intimate concern with the process of putting in these test results and filing them".

Statements confusing because conflicting were made by the trial court during and after the trial. Those statements form a foundation for the appeal and reflect an abuse of discretion in the denial of Mendel's motion for mistrial.

Issues

Appellants raise these issues:

(1) Whether the trial of Mendel was fair.

(2) Whether venue was proper.

(3) Whether blood samples were properly authenticated and scientific tests were properly admitted.

(4) Whether the sentences were lawful. ³

OPINION

A. Mendel

(1) Fair Trial

The constitutional standard is fairness, not perfection. It is nonetheless, and rightfully, a high standard, for the court in a criminal case deals with the life and liberty of an individual. See generally Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States v. Wilkins, 348 F.2d 844, 867 (2d Cir.1965), cert. denied, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). Thus it matters not whether Mendel may have actually known of some unindicted practices. Absent proof at trial, the law is blind. Our laws require that a presumptively innocent citizen be proven guilty by his government in a trial on specific charges.

Nor will unsupported probability or assumption alone meet the standard. Fairness of trial requires that the judicial process be carefully conducted in accord with established roles and rules. That did not, unfortunately, happen here. Whether one may assume that a vice-president of a corporation found guilty of a criminal practice must have been aware of, participated in, or knowingly and willfully directed that practice is not the question. The constitutional fair trial standard requires proof, not mere assumption. That standard further requires that if there be error in conduct of trial, that error must not be such as to have prejudiced the accused's full opportunity to present a defense.

Mendel contends that he was deprived of a fair trial when the trial court first indicated and then at end of trial reversed its indication that it would disregard Frumerie's...