U.S. v. Jorgensen, s. 96-2939

• Decision Date: 07 May 1998
• Docket Number: Nos. 96-2939,96-2942 and 96-3064,96-2941,96-2940,s. 96-2939
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Gregory L. JORGENSEN, Appellant/Cross-Appellee. National Cattlemen's Beef Association; the CATL Fund, Amici Curiae. UNITED STATES of America, Appellee/Cross-Appellant, v. Martin F. JORGENSEN, Jr., Appellant/Cross-Appellee. National Cattlemen's Beef Association; the CATL Fund, Amici Curiae. UNITED STATES of America, Appellee/Cross-Appellant, v. Deborah L. JORGENSEN, Appellant/Cross-Appellee. National Cattlemen's Beef Association; the CATL Fund, Amici Curiae. UNITED STATES of America, Appellee/Cross-Appellant, v. DAKOTA LEAN, INC., doing business as Dakota Lean Meats, Inc., a corporation, Appellant/Cross-Appellee. National Cattlemen's Beef Association; the CATL Fund, Amici Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 550

144 F.3d 550

UNITED STATES of America, Appellee/Cross-Appellant, v. Gregory L. JORGENSEN, Appellant/Cross-Appellee.

National Cattlemen's Beef Association; the CATL Fund, Amici Curiae.

UNITED STATES of America, Appellee/Cross-Appellant, v. Martin F. JORGENSEN, Jr., Appellant/Cross-Appellee.

National Cattlemen's Beef Association; the CATL Fund, Amici Curiae.

UNITED STATES of America, Appellee/Cross-Appellant, v. Deborah L. JORGENSEN, Appellant/Cross-Appellee.

National Cattlemen's Beef Association; the CATL Fund, Amici Curiae.

UNITED STATES of America, Appellee/Cross-Appellant, v. DAKOTA LEAN, INC., doing business as Dakota Lean Meats, Inc., a corporation, Appellant/Cross-Appellee.

National Cattlemen's Beef Association; the CATL Fund, Amici Curiae.

Nos. 96-2939, 96-2940, 96-2941, 96-2942 and 96-3064.

United States Court of Appeals Eighth Circuit.

Submitted May 21, 1997.

Decided May 7, 1998.

James R. Wyrsch, Kansas City, MO, argued (David R. Gienapp, Rick Johnson, and W. Brian Gaddy, on the brief), for Appellants/Cross-Appellees.

John Seiler, Assistant United States Attorney, Pierre, SD, argued (Robert A. Mandel and John Ulrich, on the brief), for Appellee/Cross-Appellant.

Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

The defendants appeal their convictions and sentences for conspiracy, mail fraud, wire fraud, and fraudulent sales of misbranded meat. They make numerous claims on appeal, including insufficiency of the evidence, improper jury instructions, erroneous evidentiary rulings, abuse of discretion in providing the jury with a copy of the indictment, and improper sentencing. The government cross-appeals, claiming error in sentencing. We affirm the district court. ¹

I.

In the mid-1980s, Gregory Jorgensen conceived the idea of gathering a group of South Dakota cattle producers together to market and sell the processed beef derived from their own cattle, hoping to increase the net return from their raised cattle while enabling them to better control their own production. Acting on this idea, Gregory and his father, Martin Jorgensen, incorporated Dakota Lean, Inc., in South Dakota and began slaughtering cattle raised by them and their neighbors. Deborah Jorgensen became involved in the company after its initial organization. The company decided to concentrate on marketing and selling "heart healthy" meat products, produced from cattle raised on the Jorgensen ranch or from Jorgensen-bred animals.

When Dakota Lean sold its meat to customers, the product was accompanied by brochures making various claims about the product. Included in these claims were statements that the cattle were "genetically selected," that "strict quality control [was] maintained through individualized tracking and processing of each animal," and that the cattle were "raised on a wholesome diet of native prairie grass and selected feed stuffs without any growth hormones or implants." (Trial Ex. 3 at 15-16.) Other brochures sent to customers stated that the meat had "No Substitutes" and "No Additives" and came from cattle "selectively bred for over 30 years to yield a much lower fat and cholesterol content." (Id. at 2, 4.) Some brochures also claimed Dakota Lean meat was produced from cattle which had been "raised on a carefully controlled diet of mother's milk and prairie grasses" which was "supplemented with corn and milo, a coarse, rough-seeded sorghum, grown and milled on Dakota Lean's 16,000 acre ranch in South Dakota" as the cattle matured. (Id. at 36-37.) Additionally, according to the brochures, "computerized records keep track of each animal's food, and fat and cholesterol content levels are measured every three months." (Id.)

In 1989, when demand for their products outstripped their capacity to fill the orders from slaughtering their own cattle and those of their neighbors having the same attributes as their own cattle, the Jorgensens decided to start buying commercial beef trim from outside suppliers. Beef trim is meat purchased from packing plants which is ordinarily used to make hamburger. None of the outside suppliers claimed their beef trim was hormone or antibiotic free, or that the cattle producing the meat had been genetically bred or fed a special diet. The Jorgensens blended this ordinary commercial outside beef trim with their own Dakota Lean meat product. Dakota Lean then sold this blended product to its customers while at the same time making the representations outlined above to its customers in the accompanying brochures. The company did not tell its customers that it was blending outside beef trim with its own meat. All told, it purchased more than a million pounds of outside beef trim to blend with its own meat.

Following a jury trial, the Jorgensens and the corporation were each convicted of conspiracy in violation of 18 U.S.C. § 371 (1994), and of several counts charging the fraudulent sale of misbranded meat in violation of 21 U.S.C. §§ 610 and 676. The jury acquitted each defendant of one or more counts of the 25-count indictment. Additionally, Gregory and Deborah Jorgensen and the corporation were each convicted of two counts of mail fraud and three counts of wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. The district court sentenced Gregory to 24 months of imprisonment, Martin to 15 months, and Deborah to 12 months and one day. The court also imposed substantial fines and periods of supervised release on the individual defendants. The defendants appeal and the government cross appeals.

II.

A. Sufficiency of the Evidence.

The defendants first argue that there was insufficient evidence to support any of the counts of conviction and, therefore, that the district court erred in denying their motions for judgment of acquittal.

We apply familiar standards in our review of sufficiency of the evidence claims. We consider the evidence in the light most favorable to the verdict and grant the government the benefit of all reasonable inferences. United States v. Berndt, 86 F.3d 803, 809 (8th Cir.1996). The elements of the crime may be proven by either direct or circumstantial evidence. United States v. Hankins, 931 F.2d 1256, 1258 (8th Cir.), cert. denied, 502 U.S. 886, 112 S.Ct. 243, 116 L.Ed.2d 198 (1991). "We do not judge the credibility of witnesses." Id. at 1258-59. We reverse a conviction only if a reasonable fact finder could not have found the defendant guilty beyond a reasonable doubt. Id. at 1259. "This standard is a strict one, and a jury verdict should not be overturned lightly." United States v. Sykes, 977 F.2d 1242, 1247 (8th Cir.1992).

The defendants' misbranding convictions were for violations of the Federal Meat Inspection Act. See 21 U.S.C. §§ 601-695. It is a felony under 21 U.S.C. § 676(a) for any person, firm, or corporation to violate any provisions of 21 U.S.C. § 610 with an "intent to defraud." Section 610(c) prohibits any "person, firm or corporation" from distributing in commerce meat or meat products "capable of use as human food" which are "misbranded at the time of ... sale, transportation, offer for sale or transportation, or receipt for transportation." Meat or meat product is "misbranded" under the Act "if its labeling is false or misleading in any particular." 21 U.S.C. § 601(n)(1). "Labeling" is defined as "all labels and other written, printed or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article." 21 U.S.C. § 601(p).

The evidence supports the jury's verdicts in this case. First, the brochures that accompanied the Dakota Lean meat products qualify as "labeling" within the meaning of 21 U.S.C. § 601(p). The brochures were "written matter" that was "accompanying" Dakota Lean's meat product when it was distributed in commerce. See 21 U.S.C. § 601(p). Contrary to the defendants' assertions, Dakota Lean customers testified at trial that the literature describing the meat arrived with the product. Second, the Dakota Lean meat products sold were "misbranded" within the meaning of 21 U.S.C. § 601(n)(1). Dakota Lean's own meat had been blended with outside beef trim that did not have the qualities specified in the claims contained in the brochures. Thus, the labeling was false and misleading resulting in the misbranding. Third, the defendants caused the misbranded meat to be distributed in commerce when they sold the products to customers in various states.

There was evidence that each defendant had the requisite intent to defraud. When tours were given of the processing plant, boxes of outside beef trim were hidden behind boxes of Dakota Lean marked product to create the illusion that it was all Jorgensen-bred beef. Gregory Jorgensen gave the final order to purchase outside beef trim and to blend it with Dakota Lean's own product. He told employees that the company was mixing the outside beef trim with the company's own product but that this information was not to leave the plant. He also approved the continued use of the false and misleading brochures.

Martin Jorgensen knew of the blending of outside beef trim with the Dakota Lean product. He told the sales manager to represent the blended product as it was described in the misleading brochures. He loaned the corporation $25,000 so it could buy outside beef. Martin himself also promoted the blended product by making these same representations.

Deborah Jorgensen was actively involved in the daily operations of the company. This included selling the product to customers. She also knew that the company was blending its own meat with outside beef trim. She was personally involved in the purchasing of some of the outside beef trim. She represented the product as it was described in the misleading brochures. She was also the contact person within Dakota Lean for an advertising firm that produced many of the false and misleading brochures. While her involvement with the company was interrupted, the jury convicted her on...