U.S. v. Agnew

• Decision Date: 29 April 1991
• Docket Number: No. 90-1077,90-1077
• Citation: 931 F.2d 1397
• Parties: 32 Fed. R. Evid. Serv. 1151 UNITED STATES of America, Plaintiff-Appellee, v. Alan S. AGNEW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1397

931 F.2d 1397

32 Fed. R. Evid. Serv. 1151

UNITED STATES of America, Plaintiff-Appellee, v. Alan S. AGNEW, Defendant-Appellant.

No. 90-1077.

United States Court of Appeals Tenth Circuit.

April 29, 1991.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant.

Linda Kaufman, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., with her on the brief), Denver, Colo., for plaintiff-appellee.

Before McKAY and ANDERSON, Circuit Judges, and CHRISTENSEN, District Judge ^*.

CHRISTENSEN, District Judge.

Appellant Alan S. Agnew was found guilty by a jury on one count of a multi-count indictment charging sales and distribution in commerce of adulterated ground beef in violation of the Federal Meat Inspection Act, 21 U.S.C. Secs. 601(m)(3), 610 and 676(a). He appeals claiming (1) the statute on which his felony conviction was based is unconstitutionally vague as applied; (2) the district court erred in failing to instruct the jury that specific intent, as distinguished from general intent, was a necessary element of the offenses charged; (3) it erred in admitting testimony and photographs of the condition of the meat after the January 15, 1988, sale on which defendant's conviction was based, and (4) it erred in giving with reference to the dates of the alleged offenses an "on or about" instruction. We affirm.

STATEMENT OF THE CASE

The original indictment contained three counts, each alleging that Agnew on or about respective dates sold adulterated meat contrary to the statute. A superseding indictment, also in three counts, was returned by the grand jury to render clearer the government's intention to charge the commission of felonies rather than misdemeanors by referring specifically to "the distribution and attempted distribution," as well as sales in commerce, of adulterated meat. ¹ To aid in elucidating our view of The two counts submitted in the court's charge to the jury at the close of a three-day trial were identical except for times, places and vendees, the one on which conviction was had reading:

significant points at issue, we set out in the margin the pertinent provisions of the statute. ²

On or about January 15, 1988, within the State and District of Colorado, ALAN AGNEW, defendant, sold and offered for transportation in commerce meat and meat food product, specifically, ground beef, to B.W. & A., Inc., located at 6308 E. 72nd Avenue, Commerce City, Colorado, which was capable of use as human food and was adulterated, as defined in Title 21, United States Code, Section 601(m)(3) because the meat and meat food product consisted in whole and in part of putrid and decomposed substance, and was unsound, unhealthful, unwholesome, and otherwise unfit for human food, and this violation involved the distribution and attempted distribution of adulterated ground beef; all in violation of Title 21, United States Code, Section 601(m)(3), 610 and 676(a).

The defendant before trial moved the district court to dismiss the indictment as a whole on the ground that the statute upon which it was based was unconstitutionally vague on its face and as applied. After hearing, the court denied the claim of facial vagueness, and defendant does not complain of this, but reserved ruling on the contention of vagueness as applied until completion of the trial evidence. Defendant filed also a motion in limine for the suppression of photographs of meat taken by an inspector of the Department of Agriculture and testimony concerning his observations. Ruling was reserved on this motion also, but during trial the court admitted the questioned evidence.

Included in the court's charge were the following instructions to some of which defendant's counsel had interposed objections No. 7: You will note that the indictment charges that the offenses were committed "on or about" a certain date. The proof need not establish with certainty the exact date of the alleged offenses. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

during earlier conferences among court and counsel for reasons relied upon in this appeal: ³

No. 20: The crimes charged in this case require proof of intent before the defendant can be convicted. To establish intent, the Government must prove that the defendant knowingly did an act which the law forbids. Such intent may be determined from all the facts and circumstances surrounding the case.

No. 21: An act is done knowingly if the defendant is aware he is performing the act or the act is done voluntarily. An act committed with reckless disregard or indifference for the truth is committed with knowledge. An act done because of mistake or accident or other innocent reason is not done knowingly.

As stated before, with respect to an offense such as the one charged in this case, knowledge must be proved beyond a reasonable doubt under all the facts and circumstances in this case before there can be a conviction.

No. 26: The term "adulterated" as used in Counts I and II in this case shall apply to any meat or meat food product if it consists in whole or in part of any filthy, putrid or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food.

No. 27: The words "filthy," "putrid," "decomposed," "unsound," "unhealthful," "unwholesome," and "unfit for human food," as used in these instructions are used with their usual and ordinary meaning and should be applied by you.

R. Tr. Vol. VI, 475, 481-84.

The jury returned a verdict of not guilty on consolidated Count I and guilty on Count II. The district court fined the defendant $500.00 and granted him probation for a period of three years.

FACTS

The appellant does not question the sufficiency of the evidence to support the guilty verdict apart from the other points raised on this appeal. The critical evidence is largely undisputed except for the defendant's denial that he had knowledge of the adulterated condition of the meat before and at the time of its sale to B.W. & A., Inc., on January 15, 1987.

Mr. Agnew at the time was employed as meat buyer for Nash-Finch Company, a Denver wholesaler in grocery products. He had held numerous positions in the meat industry, beginning when he was twelve or thirteen years old. As meat buyer, he was responsible for purchasing for his company meat products which ordinarily he would arrange to sell to retail grocers. Most of his negotiations were done by phone. He had the authority to decide what meat to buy, and from whom and when, and to negotiate prices. He also had authority to determine to whom to sell. When meat was returned to Nash-Finch under a claim of being unfit for sale, the On November 18, Agnew learned that a shipment of coarse ground beef from Iowa Beef Processors (IBP) was available for purchase. The meat had been ordered by Albertson's but was rejected without reference to its condition because it arrived a day late. The 470 cases weighing 44,219 pounds would have cost Albertson's $.87 per pound. Agnew purchased it for $.85 per pound. The policy at Nash-Finch was to sell coarse ground beef within twelve days of its date of pack. The meat had been packed by IBP on November 13 and 14 and was so marked. It also bore the USDA inspection stamp. Agnew proceeded to distribute it.

defendant was responsible for deciding whether it should be destroyed or resold.

He received notice from retailers on December 3 and 4 that the product was discolored and gassy. He attempted to contact an IBP representative on December 4, but was unable to reach him. However, despite his concerns, he sold ten ninety-pound boxes each to two different Sax Food Stores on December 5.

On December 7, Agnew sold twelve additional boxes to Sunshine Super in La Junta, six boxes to Johnson's Super Foods in Fort Morgan, ten boxes to Sax Food Store # 101 in Lafayette, twenty boxes to Sax Food Store # 102 in Colorado Springs, ten boxes to Sax Food Store # 103 in Aurora, and six boxes to Sax Food # 104 in Arvada.

In each instance, a good portion of the meat was returned because store managers determined it was not fit to be sold for human consumption. Dale Casebolt of Sunshine Super had purchased the meat after Agnew told him that he was "long on meat" and needed help. When Casebolt, then a veteran of thirty-nine years in the business, told the defendant he was returning the meat, he indicated that his customers had complained of its bad, gassy condition. When the product was returned to Nash-Finch, the box numbers were recorded and credit memoranda indicating "N" next to each returned box were written. The "N" indicated that the meat had been returned because of its bad condition and was not to be resold without the meat buyer's approval.

On December 8, the defendant phoned Robert Vlasman, meat manager at Steele's Market in Fort Collins. He told Mr. Vlasman that he could sell him coarse beef for the sale price of $.65 per pound and that the meat had some age on it. Mr. Vlasman agreed to purchase about 105 boxes which were shipped on December 9 and 10. The meat the defendant sold Vlasman was the same meat which had just been returned by Sax # 101, # 102, # 103, # 104, and Johnson's Super Foods. Agnew did not tell Vlasman that the meat had already been returned by various stores, several of which had had customer complaints. Vlasman examined the meat and found it to be bloated, gassy and sour. He told Agnew that it was "junk" and that he would not sell it to his customers and therefore returned it for credit.

The returned meat was frozen. Agnew then sold over 9000 pounds in 106 cases at $.35 per pound on January 15, 1988, to Bob Burns Brenton who operated B.W. & A., a discount store handling "surplus" goods. The defendant told Brenton that he was selling the meat "as is" and that ...