U.S.A. v. Lea

• Decision Date: 02 May 2001
• Docket Number: No. 00-3146,00-3146
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Brian W. Lea, a/k/a "Skip," Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 632

249 F.3d 632 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Brian W. Lea, a/k/a "Skip," Defendant-Appellant.

No. 00-3146

In the United States Court of Appeals For the Seventh Circuit

Argued March 26, 2001

Decided May 2, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 CR 178--Charles N. Clevert, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Bauer and Rovner, Circuit Judges.

Flaum, Chief Judge.

After a business relationship between Brian Lea and National By-Products ("NBP") went bad, pesticides from Lea's strawberry business were dumped onto NBP's dead farm animals ("deadstock"). When an anonymous letter informed NBP that its deadstock, which had been rendered and sold as animal food, had been contaminated, the company was forced to shut down its Berlin, Wisconsin plant and engage in a massive recall. On September 14, 1999, Lea was indicted and charged as the saboteur. At trial, Lea claimed innocence, contending that Barry Werch, a former NBP employee, was the actual culprit. To that end, Lea sought to introduce evidence of a polygraph examination which Werch had "failed," as well as "incriminating" statements made by Werch to his wife. The district court did not allow these pieces of evidence to be admitted. On April 13, 2000, the jury found Lea guilty of dumping the pesticides. Lea was sentenced to 36 months imprisonment, a year of supervised release, and ordered to pay $2.2 million in restitution. Lea now appeals, arguing that the district court erred in excluding evidence of Werch's polygraph examination and marital communications. He further asserts that these errors of exclusion operated to violate his Sixth Amendment right to present a defense. For the reasons stated herein, we affirm the decisions of the district court.

I. BACKGROUND

Up until the time of his conviction, Brian Lea was an entrepreneur dealing in animal remains. Lea owned and operated a mink ranch, an enterprise that sold meat to alligator farms and greyhound kennels, a deadstock pickup and removal business, an animal hide business, and a trucking business to transport his products. Lea also had concerns unrelated to animal carcasses, including a strawberry business. From 1991 through 1996, Lea had various dealings with NBP, a national corporation involved in the rendering business. NBP produced animal food and feed additives in the form of liquid fat and dry meat meal by processing otherwise wasted materials such as used restaurant grease, deadstock, and unused material from meat packing plants ("offal"). Lea and NBP developed a symbiotic relationship, whereby Lea sold his deadstock to NBP's Berlin, Wisconsin plant, and in return was leased space at that location to process his chicken offal into mink food.

The relationship between Lea and NBP began to deteriorate in August of 1996, when NBP stopped leasing Lea space in its Berlin plant to process his chicken offal. In response, Lea ceased to vend his offal and collected deadstock to NBP, and instead marketed his products to a competitor of NBP. In order to recoup the raw materials lost by Lea's actions, NBP created its own deadstock collection business. NBP aggressively competed with Lea for deadstock, hiring Lea's drivers, conducting promotions to attract business, and paying for deadstock--a frowned-upon tactic in the deadstock removal field. The competition upset Lea and took a heavy toll on him financially, eventually resulting in his filing for bankruptcy.

In the early winter of 1996, Lea informed his employee, Jason Haynes, that he had dumped pesticides from his strawberry business into a NBP offal and deadstock trailer in Eau Claire, Wisconsin. Lea stated that his "only mistake" was that he had dropped his flashlight between the loading dock and the trailer and could not retrieve it. That flashlight, which was eventually recovered by NBP employees, was identified as the model of flashlight that had been purchased by Lea's company in November of 1996. Lea also showed Haynes a letter he intended to send to the Berlin Police Department, detailing the act of contamination.

On December 28, 1996, the Berlin Police Department received an anonymous letter from a supposed former NBP employee recounting an act of sabotage against the NBP Berlin plant. Enclosed with the letter was a sample of the contaminant used by the perpetrator. Upon notification of the contamination, NBP stopped delivery of its products. When testing of those products revealed that pesticide contamination had in fact occurred, NBP shut down its plant and began a massive recall. According to NBP's chief financial officer, the shutdown and recall cost NBP and its insurer over $2.5 million.

For obvious reasons, the investigation into the contamination initially focused on former NBP employees. On January 15, 1997, one such individual, Barry Werch was questioned by the United States Food and Drug Administration ("FDA") agent handling the matter. In that interview, Werch described the working conditions at NBP, relating that maggots crawled from the ceiling of the NBP plant. According to the agent, during the course of that interview Werch provided contradictory statements regarding his knowledge of when the tampering had taken place and his feelings towards NBP. The following day, Werch agreed to take a polygraph examination. Special Agent Robert West conducted the test, wherein Werch was asked whether he had put pesticides into NBP's raw materials and whether he had mailed the aforementioned letter to the Berlin Police Department. Based on Werch's responses, West classified Werch as "deception indicated," meaning that Werch had scored a minus three on at least one of the questions.¹ Under normal circumstances, West conducts a post-examination interview with the testee in order to ascertain the basis for the deception. However, an angered Werch did not allow the post-instrument phase of the test to proceed, as he stormed out of the testing room.

On May 14, 1997, a second letter was received by the Berlin Police Department in which the author claimed responsibility for an additional contamination of NBP materials. That message warned that "a very major finished product contamination will occur on July or August so the world can see the putrid conditions that exist there at that time when the maggots crawl the walls and ceilings and the stench is so bad that you can cut it with a knife." Because Werch had mentioned maggots crawling on the walls during his first interview with the FDA agent, and because of similar statements which Werch had made to his then spouse, the agents considered him as a possible author of the letter.

Nonetheless, as the investigation proceeded, the authorities began to focus on Lea as a suspect. The pesticides used in the contamination were tied to Lea (via his strawberry business), as were the letters claiming responsibility for the acts. On September 14, 1999, Lea was indicted by a grand jury in the Eastern District of Wisconsin and charged with two counts of violating 18 U.S.C. sec. 1365(b). Count One of the indictment alleged that in December of 1996, Lea had caused serious injury to NBP by tainting "animal by-products, which were intended as a component of animal food and which affected interstate commerce." Count Two charged that in mid-1997, Lea had caused serious injury to NBP by tainting restaurant grease, which was to be utilized by the company in making animal food.

At trial, Lea sought to defend himself by submitting evidence of third-party (Werch) culpability. Lea submitted a request to the court to call West to testify as to the results of Werch's polygraph examination. The district court conducted a telephone hearing with West, and thereafter, in a written order dated April 6, 2000, denied Lea's request. In its decision, the court noted that "the defense [had] failed to establish the reliability of West's opinion resulting from his polygraph examination of Werch." Specifically, the court focused on the fact that West could only speculate as to the accuracy of the polygraph examination he had performed, and could not state whether there were any known statistics on the accuracy rate of the methodology employed in examining Werch.

On April 11, Lea called Heidi Werch, Barry Werch's ex-wife, to testify. Lea sought to question Heidi regarding a conversation she had with her husband during their marriage. According to Lea, Barry Werch had complained to his wife about the working conditions at NBP and specifically about the presence of maggots in the plant. Lea had hoped to have this testimony introduced to connect Barry Werch to the May 1997 letter, and thus bolster his third-party culpability defense. However, Barry Werch invoked the marital communications privilege, and the district court did not allow Heidi Werch to answer Lea's questions.

Two days later, on April 13, 2000, the jury returned a verdict of guilty against Lea on Count One and not guilty on Count Two. Thereafter, Lea filed a motion for judgment of acquittal. On July 28, 2000, the district court orally denied Lea's motion, and sentenced him to 36 months incarceration, followed by one year of supervised release. Lea was further ordered to pay a special assessment of $100 and restitution of $2.2 million. Lea now appeals the evidentiary rulings of the district court. Besides contending that the results of the polygraph examination were incorrectly excluded and that the marital communications privilege was incorrectly applied, he propounds that these errors operated to violate his Sixth Amendment right to present a defense.

II. DISCUSSION

A. Admissibility Of Polygraph Examination Results

As stated above, Lea filed a pretrial motion seeking permission to call Agent West to testify as to the results of Werch's polygraph examination. On April 6, 2000, the district court conducted a...