U.S. v. Levine

• Decision Date: 02 December 1994
• Docket Number: No. 93-1468,93-1468
• Citation: 41 F.3d 607
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gail M. LEVINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 607

41 F.3d 607

UNITED STATES of America, Plaintiff-Appellee, v. Gail M. LEVINE, Defendant-Appellant.

No. 93-1468.

United States Court of Appeals Tenth Circuit.

Dec. 2, 1994.

Raymond P. Moore, Asst. Federal Public Defender, Denver, CO, (Michael G. Katz, Federal Public Defender, with him on the briefs), for defendant-appellant.

Thomas M. O'Rourke, Asst. U.S. Atty., Denver, CO, (Henry L. Solano, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before EBEL, HOLLOWAY, and KELLY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Gail M. Levine was convicted pursuant to 18 U.S.C. Sec. 1365(b) of one count of tainting a consumer product with intent to cause serious injury to the business of any person where the consumer product affects interstate or foreign commerce. She appeals that conviction. Jurisdiction in the district court was conferred by 18 U.S.C. Sec. 3231. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and reverse.

I

On July 8, 1993, Levine was charged by indictment with twenty-four violations of law, including one count of tampering with a can of Diet Pepsi in violation of 18 U.S.C. Sec. 1365(b). Only the tampering count is the subject of this appeal. ¹

On the morning of June 15, 1993, Levine entered a King Soopers supermarket in Aurora, Colorado, and approached the customer service counter with a can of Diet Pepsi from a six-pack she had. Levine asked the clerk at the service counter to open the can for her. The clerk opened the can and returned it to Levine. Levine then gave the clerk a check to cash. While the clerk was cashing the check, Levine placed a syringe containing a needle into the open can of Diet Pepsi. ² Levine handed the can back to the clerk, claiming that she heard something in the can. The clerk took the can, emptied its contents into a container, and discovered the syringe. The store manager took possession of the can, the syringe, and the remaining five unopened Diet Pepsi cans. Believing that Levine had paid for the six-pack of Diet Pepsi, the manager had the clerk refund the cost to Levine.

After leaving the store, Levine contacted local television stations. Those stations interviewed her and her story ran on local news broadcasts in the Denver area. During the evening of June 15, Levine telephoned a number of individuals she knew and either asked them to watch for her on TV or asked whether they had seen her on TV. Among those persons Levine contacted was Myra Young, Levine's manicurist. Young told Levine that the news stories suggested that Levine had put the syringe in the can of Diet Pepsi. Later that same evening, Levine again contacted Young and said that she (Levine) should probably get an attorney. Levine then asked Young if she knew any attorneys and Young recommended her brother, Dale Sadler.

The following day, June 16, Levine contacted Sadler to inquire whether she had a claim in connection with the syringe in the Diet Pepsi can. Sadler referred Levine to a private investigator, Arthur Baxter. Baxter went to the Levine residence that same day and signed a contract with Levine in which he agreed to "investigate case to completion of claim and court case." Addendum to Appellee's Brief, doc. 22 (government exhibit 43). At this meeting Baxter interviewed both Levine and her husband.

Later that day, a videotape of the incident came to light. Appellant's Opening Brief at 7; see Addendum, docs. 1-15 (exhibits 4-18). The following day, June 17, an arrest warrant was issued for Levine, and she was arrested later that day.

On July 8, 1993, a grand jury returned an indictment against Levine which included a charge stemming from her placing the syringe in the can of Diet Pepsi. Count 24 of the indictment charged: "On or about June 15, 1993, in the State and District of Colorado, GAIL M. LEVINE, with intent to cause serious injury to the business of Pepsi-Cola Company, knowingly tainted a 12-ounce can of Diet Pepsi, which was a consumer product that affected interstate commerce." This count was the only count that went to trial. The trial began on September 7, 1993, in the district court. On September 9 the jury returned a guilty verdict. On November 12 Levine was sentenced to 36 months' imprisonment on this count. ³ Judgment was entered on November 18, 1993, and Levine filed a notice of appeal on November 19.

Levine raises two issues on appeal. First, she argues that as a matter of law her actions did not constitute a violation of 18 U.S.C. Sec. 1365(b). Second, she says that the district court committed reversible error by improperly instructing the jury.

II Sufficiency of the Evidence

Levine contends that as a matter of law her conduct did not violate 18 U.S.C. Sec. 1365(b), properly interpreted. Appellant's Opening Brief at 13-14. Levine argues that in order for there to be a violation of Sec. 1365(b), the tainted item must affect interstate commerce at or after the tainting. Appellant's Opening Brief at 14. She says that the interstate commerce nexus was absent for two reasons: the can of Diet Pepsi which Levine tainted did not travel in or otherwise affect interstate commerce; and even if the can is presumed at some point to have been in the stream of commerce, the can was removed from that stream before it was tainted and therefore Levine's conduct was beyond the scope of Sec. 1365(b). Id. The government argues that all it need show is that the consumer product had an effect on interstate commerce at some point, whether before, during or after the tainting. Appellee's Brief at 18.

In reviewing the sufficiency of the evidence "we examine, in the light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefrom and ask whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir.), cert. denied sub nom. DeVries v. United States, --- U.S. ----, 114 S.Ct. 616, 126 L.Ed.2d 580 (1993). We consider both direct and circumstantial evidence and accept the jury's resolution of conflicting evidence and its assessment of the credibility of witnesses. United States v. Dirden, 38 F.3d 1131, 1142 (10th Cir.1994). If we find the evidence to be insufficient, the Double Jeopardy Clause requires that we direct a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Our review of the district court's interpretation of the statute is de novo. United States v. Martinez, 890 F.2d 1088 (10th Cir.1989), cert. denied, 494 U.S. 1059, 110 S.Ct. 1532, 108 L.Ed.2d 771 (1990). In construing the scope of a statute, we must first consider its language. United States v. Cardenas, 864 F.2d 1528, 1534 (10th Cir.) (citing Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983)), cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). Criminal statutes will not be construed to include anything beyond their letter. Cardenas, 864 F.2d at 1535 (citing United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971)); however, a criminal statute should not "be construed so strictly as to defeat the obvious intention of the legislature." Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (citation omitted).

Section 1365(b) provides:

Whoever, with intent to cause serious injury to the business of any person, taints any consumer product or renders materially false or misleading the labeling of, or container for, a consumer product, if such consumer product affects interstate or foreign commerce, shall be fined not more than $10,000 or imprisoned not more than three years, or both.

We are presented with two questions of interpretation of Sec. 1365(b). First, what is meant by "consumer product" in this case. Second, what is meant here by "affects interstate commerce."

A

Consumer Product

The statute defines "consumer product" as

(A) any "food", "drug", "device", or "cosmetic", as those terms are respectively defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); or

(B) any article, product, or commodity which is customarily produced or distributed for consumption by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which is designed to be consumed or expended in the course of such consumption or use[.]

18 U.S.C. Sec. 1365(g)(1). It is clear that a soft drink falls within this definition. However, this definition does not resolve the issue before us. Here, "consumer product" could have three possible meanings: (1) all diet cola, regardless of brand name; (2) all Diet Pepsi; or (3) the specific can of Diet Pepsi which Levine tainted. We believe the language of the statute points to the third and narrowest definition.

Subsection (b) proscribes two types of wrongful conduct intended to cause serious injury to the business of any person: (1) tainting any consumer product and (2) rendering materially false or misleading the labeling of or container for a consumer product, if in either case the "consumer product" affects interstate or foreign commerce. The use of "consumer product" in the second context makes sense only if "consumer product" means a specific unit of a good. Only individual units of Diet Pepsi have labels or containers which can be rendered materially false or misleading. All Diet Pepsi and all diet cola do not. To read "consumer product" to mean all Diet Pepsi or all diet cola would render meaningless the proscription against altering the labeling of or container for a consumer product. We will not construe a statute in a way that renders words or phrases meaningless, redundant or superfluous. Bridger Coal Company/Pacific Minerals, Inc. v. Director, Office of Workers' Compensation Programs, United States Dep't of Labor, 927 F.2d 1150, 1153 (10th Cir.1991). And it...