U.S. v. Donsky
| Decision Date | 05 August 1987 |
| Docket Number | No. 87-5029,87-5029 |
| Citation | 825 F.2d 746 |
| Parties | UNITED STATES of America v. DONSKY, Morris. UNITED STATES of America v. REINFELD, Herbert. UNITED STATES of America v. GLENN, Leroy. UNITED STATES of America v. ZMIRICH, Michael. UNITED STATES of America v. RIX, Robert. Appeal of UNITED STATES of America. |
| Court | U.S. Court of Appeals — Third Circuit |
Thomas W. Greelish, U.S. Atty., Samuel P. Moulthrop, Chief, Appeals Div. Marion Percell, Asst. U.S. Atty. (argued), Newark, N.J., for appellant.
David L. Harris (argued), Stephen H. Skoller, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, N.J., Glenn B. Carey, Abromson & Carey, Newark, N.J., Jeffrey S. Feldman, Livingston, N.J., Michael Critchley, Critchley & Roche, West Orange, N.J., Elmer J. Hermann, Jr., Newark, N.J., for appellees.
Before SLOVITER, BECKER, and GARTH, Circuit Judges.
This is an appeal from an order of the district court dismissing the conspiracy count from a multi-count indictment against each of several criminal defendants. We must decide whether the district court, which was presented with a valid indictment and an alleged variance between the government's evidence and the conspiracy charged in the indictment, properly granted defendants' pretrial motion to dismiss the conspiracy count at the conclusion of the government's opening statement. We conclude that the district court's dismissal of the single conspiracy count was in error.
In a thirty-three count indictment filed June 9, 1986 seven defendants--Morris Donsky, Herbert Reinfeld, Leroy Glenn, Michael Zmirich, Robert Rix, Salvatore Vicari, and Herbert Bartsch--were charged with participating in a long-term conspiracy to pay and receive bribes in exchange for influencing the actions of public officials. Defendants Vicari and Bartsch entered pleas of guilty before trial and are not parties to this appeal. The five remaining defendants were all food inspectors employed by the United States Department of Agriculture. 1
As inspectors, the defendants were obliged to obtain random samples of the meat products from the production lines of the Leo Keller Meat Processing Plant, and send these samples to a government laboratory for the purpose of determining whether they complied with U.S.D.A. regulations. The indictment charged that each of the five defendants, rather than obtaining random samples of the meat products being processed at the Leo Keller plant, instead accepted bribes and submitted specially prepared samples of meat. Count One of the indictment charges the five defendants with involvement in a single conspiracy. Counts Two through Thirty-Three, not in issue on this appeal, charge the individual defendants with separate substantive bribery offenses under 18 U.S.C. Sec. 201.
Prior to the commencement of trial before the United States District Court for the District of New Jersey, the defendants moved to dismiss the indictment or to sever the conspiracy count. The thrust of their motion was that the indictment was defective because it charged multiple conspiracies in a single count. The district court denied the motion based on its conclusion that the indictment, on its face, charged a single conspiracy. The court indicated, however, that it would "watch the proofs as they come in" to see if there was a variance between the evidence presented and the charges in the indictment. App. at 54.
On September 15, 1986, the jury trial of the five defendants commenced, and all counsel presented opening statements. The government's opening statement discussed the type of evidence it would present in support of its conspiracy charge. On the basis of this opening statement, in which the government conceded that the defendants hardly ever talked to each other and that it would not produce evidence that the defendants ever all gathered together, the five defendants renewed their motion for a dismissal of the indictment's conspiracy count, claiming an impermissible variance.
The district court expressed concern as to whether the government had sufficient evidence to demonstrate a single conspiracy, and whether this lack of evidence would unduly confuse the jury. App. at 131-32, 152-54, 408-413. Because of these concerns, the district court declared a mistrial and asked that the defendants and the government submit briefs on the motion to dismiss. Specifically, the government was required to provide a written proffer of the evidence it would present at trial.
On November 3, 1986, a hearing was held on the defendants' motion to dismiss the indictment. On the basis of the government's opening statement and its offer of proof outlining the evidence it would present at trial, the district court concluded that no reasonable jury would be able to find a single conspiracy, rather than multiple conspiracies. By order dated December 8, 1986, the district court dismissed Count One (the conspiracy count) of the indictment and granted the defendants' motion for a severance, 649 F.Supp. 631 (D.N.J.1986).
The government filed a timely notice of appeal from the December 8, 1986 order. Appellate jurisdiction is proper under 18 U.S.C. Sec. 3731. 2 Our review is plenary as to the district court's order of dismissal.
We first address a preliminary matter raised by the government's April 2, 1987 motion to strike the brief submitted on behalf of the five defendant-appellees. The principal argument presented in the government's motion to strike was that the defendants' brief improperly relied on grand jury testimony which was not a part of the record before the district court. 3 It is elementary that this court cannot consider any material that is not a part of the record. United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248 (3d Cir.1970).
The defendants filed a joint letter memorandum, in opposition to the government's motion to strike, and a cross-motion for costs and sanctions. The defendants argued that the grand jury testimony referenced in their brief was indeed a part of the record before the district court. On the basis of this representation, we denied the government's motion to strike, as well as the cross-motion for costs and sanctions, but required the defendants to submit a supplemental appendix which would set forth the page and date references to the record for each page of the grand jury testimony upon which their brief submitted to this court relied. 4
We received the defendants' supplemental appendix on May 1, 1987. The defendants' submission did not include the requested references to portions of the record. Instead the defendants noted those portions of their district court briefs which either made reference to or reproduced the relevant transcript pages upon which they now seek to rely.
Fed.R.App.P. 10(a) reads:
Composition of the Record on Appeal. The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases.
Briefs, unless actually filed of record--which these were not--are not a part of the record on appeal. We therefore will not consider those portions of the defendants' brief which refer to the grand jury testimony that is not a part of the record.
The government argues that once an indictment that is valid on its face 5 has been returned, the question of the sufficiency of the evidence should properly be left to the jury, see Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), and the indictment cannot be dismissed until at least the close of the government's case. The defendants disagree, arguing that the dismissal of the conspiracy count following the government's opening statement was a proper exercise of the district court's power.
Both parties have directed our attention to this court's decision in United States v. Maker, 751 F.2d 614 (3d Cir.1984) (Becker, J.), cert. denied, 472 U.S. 1017, 105 S.Ct. 3479, 87 L.Ed.2d 614 (1985), and each argues that Maker provides support for its respective position. In Maker, two criminal defendants--Robert Maker and Constance Sullivan--were charged with a single scheme to defraud in connection with insurance claims arising out of two automobile accidents in which Maker was involved. A jury was impaneled and the government presented its opening statement. At this point, Maker and Sullivan made a motion to sever the joint trial into four separate ones, thereby allowing each of them to be tried separately for each of the two motor vehicle accidents. In support of their argument to sever as to each other, Maker and Sullivan argued that, as stated in the government's opening argument, the government's intention to introduce their individual statements against each other would effectively defeat their opportunity to confront each other if a joint trial were held. In support of their argument to sever as to the two underlying accidents, Maker and Sullivan argued that the two motor vehicle accidents were not sufficiently related to each other to be part of a single scheme and therefore should not be joined in a single trial.
In response to the motion to sever, the trial court reviewed the evidence that the government intended to introduce at trial. The trial court concluded: (1) that a joint trial would preclude each defendant from having an opportunity to confront the other concerning their individual statements; (2) that to be convicted of a single scheme to defraud, both parties would have had to have planned in advance both motor vehicle accidents; and (3) that the government's evidence would support only multiple conspiracies, not the single conspiracy charged. The trial court granted the motion to sever the trial as to both the defendants and the two accidents. Soon thereafter the trial court concluded that because a variance...
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