U.S. v. Randazzo

• Decision Date: 11 January 1996
• Docket Number: Nos. 95-1489,95-1768,s. 95-1489
• Citation: 80 F.3d 623
• Parties: 43 Fed. R. Evid. Serv. 1042 UNITED STATES of America, Appellee, v. G. Robert RANDAZZO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 623

80 F.3d 623

43 Fed. R. Evid. Serv. 1042

UNITED STATES of America, Appellee, v. G. Robert RANDAZZO, Defendant, Appellant.

Nos. 95-1489, 95-1768.

United States Court of Appeals,

First Circuit.

Heard Jan. 11, 1996.

Decided April 8, 1996.

Appeals From the United States District Court for the District of Massachusetts [Hon. Rya W. Zobel, U.S. District Judge].

Morris M. Goldings with whom Sally A. Morris and Mahoney, Hawkes & Goldings were on consolidated briefs, Boston, MA, for appellant.

Carolyn Stafford Stein with whom Jonathan Chiel, Acting United States Attorney, and James B. Farmer, Acting United States Attorney, were on consolidated briefs, Washington, DC, for the United States.

Before CYR, BOUDIN and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

Robert Randazzo was president and majority shareholder of New England Shrimp Company ("the Company"), a Massachusetts corporation that imported, processed, and distributed shrimp. In February 1994, a federal grand jury returned a 101-count indictment, charging Randazzo--and in most counts the Company as well--with an array of offenses. The offenses fell into two different categories: 97 "shrimp" charges and four "tax" charges.

The shrimp charges, counts 1 through 97, alleged that Randazzo and the Company used certain substances in producing shrimp that were prohibited or at least needed to be disclosed on labels. The substances increased profits by altering the weight or color of the shrimp, which was sold to the Department of Defense and various commercial purchasers. These allegations underpinned four charges of conspiracy, 18 U.S.C. § 371, and 93 substantive counts of making false statements to and claims against the United States, 18 U.S.C. § 287, and introducing misbranded or adulterated food into interstate commerce, 21 U.S.C. §§ 331(a), (k) and 333(a)(2).

The tax charges, counts 98 through 101, were brought against Randazzo alone and alleged that he had caused the Company to file false corporate tax returns. 26 U.S.C. § 7206(1). Specifically, the government claimed Randazzo misreported as sales expenses cash sums that he was taking weekly from the Company for personal use and that the Company returns listed as corporate expenses the wages of a person who worked exclusively for the Randazzo family on personal matters.

After a 10-day jury trial in October 1994, Randazzo was convicted on all counts. He was sentenced to 36 months in prison, reflecting a significant downward departure from the Sentencing Guidelines range. He now appeals from his conviction but not his sentence, contending that the trial court erred as to joinder, alleged multiplicity of charges, and instructions. The pertinent facts are set forth as necessary in discussing the separate claims of error.

I. JOINDER OF COUNTS

Randazzo claims that joining the 97 shrimp counts with the four tax counts was improper. Fed.R.Crim.P. 8(a) permits joinder of counts against a single defendant only if the offenses "are of the same or similar character," or "are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." The district court rejected Randazzo's motion to sever based on Rule 8(a), and, as the issue turns on a construction of the rule, we review the decision de novo. United States v. Yefsky, 994 F.2d 885, 895 (1st Cir.1993).

Rule 8(a)'s joinder provision is generously construed in favor of joinder, United States v. Robichaux, hex F.2d 565, 569 (5th Cir.), cert. denied, 510 U.S. 922, 114 S.Ct. 322, 126 L.Ed.2d 268 (1993), in part because Fed.R.Crim.P. 14 provides a separate layer of protection where it is most needed. Under Rule 14, the trial judge has discretion to order severance of counts, even if properly joined under Rule 8(a), to avoid undue prejudice. Here, the district court denied Randazzo's motion for severance under Rule 14 and he has not appealed that ruling. Nevertheless, Rule 8(a) does forbid joinder unless the counts meet one of the conditions already quoted, and those conditions, although phrased in general terms, are not infinitely elastic.

One basis for joinder, invoked by the government here, is where the counts involve acts comprising parts of "a common scheme or plan." As the government points out, this rubric is often used to join false statement claims with tax fraud charges where the tax fraud involves failure to report specific income obtained by the false statements. E.g., United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir.1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989). Indeed, the failure to report may help conceal the fraud.

The present case is quite different and offers no such connection between the shrimp and tax counts. Randazzo reduced the Company's reportable income by overstating corporate expenses. But it was pure happenstance whether the overstated expenses happened to reduce legal income or illegal income of the Company. The misconduct underlying the shrimp counts and the improper claiming of expenses on the returns were not part of the same "scheme or plan" in any sense of the phrase. Accord United States v. Halper, 590 F.2d 422, 429-30 (2d Cir.1978) (rejecting a similar argument by the government).

Alternatively, the government says that the shrimp and tax charges are of the "same or similar character" because (ignoring sales to commercial buyers) both sets of offenses involved the use of falsehoods or omissions to profit at the expense of the federal government. Further, it notes that many facts are common to both sets of charges: for example, they occurred during overlapping time frames; Randazzo's control over the Company was a common element; and the Company's sagging financial condition provided a common motive.

It is obvious why Congress provided for joinder of counts that grow out of related transactions--ones that are "connected" or "part of a common scheme or plan"; the reason for allowing joinder of offenses having "the same or similar character" is less clear. ¹ But whatever the rationale, we think that it is very hard to describe adulterating or mislabeling shrimp as offenses "similar" to tax fraud--except at a level of generality so high as to drain the term of any real content. Even the government's best case does not stretch as far as the present facts. United States v. Levine, 983 F.2d 165, 167-68 (10th Cir.1992) (bank fraud and mail fraud).

As to the presence of evidence common to both sets of counts, we agree that the extent of common evidence plays a role in implementing Rule 8(a). United States v. Taylor, 54 F.3d 967, 973 (1st Cir.1995). But Congress did not provide for joinder for unrelated transactions and dissimilar crimes merely because some evidence might be common to all of the counts. Indeed, looking to the important evidence, the shrimp and tax counts in this case seem to revolve around quite different facts.

But all this is largely for the benefit of district courts in future cases, because the misjoinder here was patently harmless. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). The evidence against Randazzo on the tax counts was overwhelming. Randazzo does not seriously claim otherwise but argues that the evidence on the shrimp counts was thin and that the jury was, or may well have been, swayed on those counts by the evidence (inadmissible save for the joinder) that Randazzo was cheating on taxes.

We disagree, concluding that the government has amply carried its burden to show that the error did not "substantially influence[ ] the jury's decision." O'Neal v. McAninch, --- U.S. ----, ----, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995). As to each of the four conspiracies charged in the shrimp counts, at least one high-ranking Company official testified that he had discussed with Randazzo the fact that the given ingredient was prohibited or had to be disclosed, and each testified that Randazzo had nevertheless ordered that the ingredient be added, making clear in several cases the aim was higher profits.

Other evidence showed that Randazzo kept close watch over production and had the final say over the mix of ingredients. In one instance Randazzo learned that another producer had been told to stop using an ingredient and, on investigating the report, Randazzo discovered that the ingredient could be used to change the color of the shrimp to resemble a more expensive variety; he then ordered its use in his own shrimp. Randazzo also played a major role in arranging for the destruction of evidence. The tax counts simply did not matter.

II. MULTIPLICITY

Randazzo's second claim of error, relating both to the indictment and to the jury instructions, is that the four alleged conspiracies should have been charged as one. He argues that, when coupled with the misjoinder, this multiplicity contributed to the impression that he was criminally disposed. Briefly, these were the four alleged conspiracies:

1. Count 1 charged that Randazzo conspired to make false statements to, and claims against, the government by selling the Department of Defense shrimp containing the chemical sodium tripolyphosphate ("STP"), in violation of contract obligations. STP causes shrimp to absorb and retain moisture, which in turn boosts profits because the shrimp was sold by weight.

2. Count 52 charged that Randazzo conspired to sell to the public shrimp that had been adulterated by adding saccharin, an additive prohibited by federal regulations. The government alleged that the Company added saccharin to mask the taste of the STP.

3. Count 65 charged that Randazzo conspired to add the chemical sodium hydroxide to certain types of shrimp in order to give them a pinkish color. Randazzo then passed off the altered shrimp to customers as naturally pink shrimp, which is rarer than other varieties and commands higher prices.

4. Count 79 charged that Randazzo added STP to the...