U.S. v. Cattle King Packing Co., Inc.

Decision Date06 June 1986
Docket Number84-2454,Nos. 84-2435,85-2533 and 85-2534,84-2436,85-2532,s. 84-2435
Citation793 F.2d 232
Parties21 Fed. R. Evid. Serv. 59 UNITED STATES of America, Plaintiff-Appellee, v. CATTLE KING PACKING CO., INC., Rudolph G. "Butch" Stanko, and Gary Waderich, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Mark Wielga (Kevin Michael Shea of Roath & Brega, P.C., Denver, Colo., and Roger C. Elletson, Cheyenne, Wyo., with him on brief), Denver, Colo., for Cattle King Packing Co., Inc., and Rudolph G. "Butch" Stanko, defendants-appellants.

Robert T. McAllister of Dill, Dill & McAllister, Denver, Colo., for Gary Waderich, defendant-appellant.

Charles H. Torres, Sp. Asst. U.S. Atty. Robert N. Miller, U.S. Atty. and Douglas W. Curless, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Before BARRETT, ANDERSON, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a fifteen count indictment, Cattle King Packing Co., Inc., a Colorado corporation, Rudolph G. "Butch" Stanko, Gary Waderich, and others were charged with various violations of the Federal Meat Inspection Act, 21 U.S.C. Secs. 601-624, 661-680. Eight of the fifteen counts were dismissed prior to trial. In a joint trial, Stanko, Waderich, and Cattle King were convicted by a jury on all seven of the remaining counts. All three were sentenced and now appeal their respective convictions.

By way of general background, "Butch" Stanko, a resident of Scottsbluff, Nebraska, on or about June 1, 1981, started a packing plant in Adams County, Colorado, under the corporate name of Cattle King Packing Company, a Colorado corporation. Stanko was an officer and shareholder of the corporation. The operation continued until its closing on or about December 31, 1983. Gary Waderich, one of the three defendants, was a general sales manager of Cattle King and was primarily responsible for commercial sales of meat food products, as well as also being responsible for the daily operation of Cattle King.

The six substantive counts against the three defendants fall into three main categories: (1) the fraudulent distribution of adulterated meat products; (2) the intentional circumvention of federal law requiring an inspection by a federal meat inspector of all shipments returned to Cattle King by dissatisfied purchasers; and (3) the fraudulent misbranding of meat shipments by stamping on the shipment a false production date. The defendants were also charged in a separate count, count 1, with conspiring to do, inter alia, the acts described in the six counts charging the substantive offenses.

It was the government's theory of the case that at the time Butch Stanko founded Cattle King, it was his intent to circumvent the provisions of the Federal Meat Inspection Act wherever possible, and that before returning to his home in Scottsbluff, Nebraska, in February, 1982, he set company policies and practices designed to violate federal law. These policies and practices he then passed on to his employees, including Gary Waderich, with instructions that such be followed. Although defense counsel would make much of the fact that Stanko returned to Scottsbluff, Nebraska, in February, 1982, and was not thereafter in the Adams County plant on a regular basis, it is nonetheless the government's position, in this regard, that Stanko, from Nebraska, monitored the packing operation by phone calls and occasional visits to the plant to make certain that the policies and practices which he had installed were in fact being followed. In support of its theory of the case, the government called some forty witnesses, including federal meat inspectors and several former employees of Cattle King.

In this court, Cattle King and Stanko are represented by the same counsel, and Waderich is represented by separate and different counsel. However, certain matters are urged by all three defendants. We will deal with these issues first.

I.

All defendants argue that the district court erred in refusing to grant a change of venue under Fed.R.Crim.P. 21 based on massive pretrial publicity which precluded a fair trial. In support of a pretrial motion for a change of venue, defendants offered a survey indicating that a high percentage of the people interviewed had heard about the case and that most believed the defendants to be guilty. We will concede that there was considerable pretrial media publicity concerning the case. Such, however, does not in and of itself dictate a change of venue. The critical issue is whether such publicity resulted in actual prejudice. See United States v It appears that eight of the fourteen jurors who heard the case had not previously heard or read about the case. As concerns the other six, the trial judge carefully explored, in each instance, the possible impact the pretrial publicity had on the jurors' ability to serve impartially. He concluded that each would decide the case on the basis of what he or she heard in the courtroom, and not what he or she had read in the paper or heard on TV. The grant, or refusal to grant, a motion for a change of venue in a criminal case rests within the sound discretion of the trial court, and an appellate court should not reverse a trial court's ruling on the matter unless an abuse of discretion plainly appears. United States v. Neal, 718 F.2d 1505, 1510-11 (10th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 87, 83 L.Ed.2d 34 (1984); United States v. Hueftle, 687 F.2d 1305, 1310-11 (10th Cir.1982). We find no abuse of discretion.

Hueftle, 687 F.2d 1305, 1310-11 (10th Cir.1982). Our study of the record made upon voir dire of the jury convinces us that there was no actual prejudice.

II.

All three defendants claim that the evidence is legally insufficient to support their convictions on any of the seven counts. The standard of review for determining whether there is sufficient evidence to sustain a criminal conviction is as follows: The evidence at trial must be enough to convince a reviewing court that a rational fact finder could conclude that all necessary elements of the crime have been proven beyond a reasonable doubt. United States v. Powell, 469 U.S. 57, ----, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984); United States v. Austin, 786 F.2d 986, 988 (10th Cir.1986) (petition for rehearing pending). In determining whether the evidence is sufficient, it must be viewed in the light most favorable to the government. Austin, 786 F.2d at 988. Thus, in determining whether there is sufficient evidence to sustain the defendants' convictions, we only need look to see whether there is enough evidence in the record which, if believed, could lead to a rational conclusion that each element of each count had been proven beyond a reasonable doubt. We shall consider each count separately.

A.

Count 1 charges Cattle King, Stanko, and Waderich with conspiring with themselves and others to violate the Federal Meat Inspection Act. A description of what constitutes a conspiracy is found in our opinion in United States v. Kendall, 766 F.2d 1426 (10th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986), to wit:

A conspiracy is a combination of two or more persons acting in concert to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. The evidence must show circumstances to warrant a jury finding that the conspirators had a unity of purpose or a common design and understanding.... In a conspiracy prosecution, the critical inquiry is whether the circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.... The conspiracy is complete "when one or more of the conspirators knowingly commit an act in furtherance of the object of the agreement." ... The agreement need not be shown to have been explicit. It may be inferred from the facts and circumstances of the case.

Id. at 1431 (citations omitted) (dealing with whether there was sufficient evidence to sustain a conspiracy conviction). See also United States v. Buchanan, 787 F.2d 477, 487-88 (10th Cir.1986) (also dealing with whether there was sufficient evidence to sustain a conspiracy conviction). Our study of the record convinces us that there is ample evidence to support the conviction of the three defendants on the conspiracy charge.

First, with respect to defendant Stanko, there is substantial evidence that he initiated the conspiracy. Illustrative thereof Larry Andrews, another former employee testified that when Stanko was still running the day-to-day operation of the plant, Stanko gave him directions, which he followed, on how, when the "inspector wasn't around," to mix "inedible scrap" with edible meat and thereby enhance the poundage of the salable meat. Andrews also testified that he had discussions with Stanko regarding ways to get returned meat into the plant without federal inspection.

                and by way of example only, is the testimony of three former employees regarding instructions given them by Stanko at a time when Stanko was in charge of the day-to-day operation of the plant.  Bruce Ryan testified that on one occasion when the packing plant was just getting started, a shipment of meat was rejected by an east coast consignee and returned to Cattle King "without the benefit of federal inspection."    On this occasion, according to Ryan, Stanko instructed Ryan and a fellow employee to come down on Sunday and "rework" the meat, but "don't let anybody else know about it."    Ryan testified the shipment was "reworked" on a Sunday morning and readied for resale
                

Similarly, Gary Tuck, another former employee, testified that in August or September 1981, Stanko established a firm policy that no federal meat inspector was to be allowed to inspect returned meat without Stanko or some other Cattle King official authorizing it. 1 Clearly such testimony is evidence of a conspiracy involving Stanko, Ryan, Andrews, and Tuck.

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