U.S. v. Mays, s. 94-6473

Citation69 F.3d 116
Decision Date14 November 1995
Docket NumberNos. 94-6473,94-6480,s. 94-6473
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Patsy MAYS (94-6473) and Samuel W. Mays (94-6480), Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

William F. Campbell, Asst. U.S. Attorney (briefed), Louisville, KY, Kenneth L. Jost (briefed), James E. Arnold (argued and briefed), U.S. Department of Justice, Office of Consumer Litigation, Washington, DC, for U.S.

Mark Wettle (argued and briefed), Louisville, KY, for Patsy Mays.

Before: KENNEDY and MOORE, Circuit Judges; POTTER, * District Judge.

KENNEDY, Circuit Judge.

Defendants Patsy and Samuel W. Mays were charged with one count of conspiracy to defraud the United States, 1 twelve counts of mail fraud, 2 eight counts of interstate shipment of adulterated food, 3 eight counts of interstate shipment of misbranded food, 4 two counts of adulteration of a food, 5 and two counts of misbranding of a food. 6 A jury returned guilty verdicts for both defendants for conspiracy under 18 U.S.C. Sec. 371, and twenty violations of the Federal Food, Drug, and Cosmetic Act. 21 U.S.C. Secs. 301 et seq. Patsy Mays was also convicted of five counts of mail fraud under 18 U.S.C. Secs. 1341 & 1342.

Defendants appeal (1) the failure to instruct on lesser included misdemeanor violations under 21 U.S.C. Sec. 333, (2) the District Court's failure to grant motions for severance, (3) alleged improper comments by the court within the jury's hearing, and (4) the admission of prejudicial hearsay testimony. Defendant Samuel Mays, in addition, argues that the disqualification of his counsel and the delay of nearly five months before new counsel was appointed constituted reversible error. Finally, defendants Patsy and Samuel Mays argue that the District Court's failure to grant a mistrial on the basis of prejudice caused by cumulative error is grounds for reversal of their convictions. For the following reasons, we AFFIRM both convictions.

I.

Defendant, Patsy Mays, was secretary/treasurer and co-owner with her husband of Sun Up Foods Inc., ("Sun Up") a blender and wholesaler of juice concentrate, 98% of which was orange juice concentrate. 7 Co-defendant Samuel Mays, Patsy Mays' brother-in-law, was operations manager at the plant and was in charge of day-to-day operation.

The government presented persuasive evidence that between 1985 and 1991 Sun Up sold products labeled as 100% pure orange juice concentrate which were in fact adulterated with sugar. Defendants tried to hide the adulteration by designing production facilities with secret rooms and hidden pipes, by accepting sugar deliveries under cover of night, by falsifying documents, and by tracking current scientific tests for juice adulteration so as to exploit the weaknesses of those tests.

II.
A. Failure to instruct on lesser included misdemeanor

violations under 21 U.S.C. Sec. 333

Defendants Samuel and Patsy Mays appeal the District Court's refusal to give jury instructions on the lesser included misdemeanor violations of the Federal Food, Drug, and Cosmetics Act. 21 U.S.C. Secs. 301 et seq. A felony conviction under the Act requires proof of intent to defraud or mislead; a misdemeanor violation only requires causation. 21 U.S.C. Sec. 333(a).

Four requirements must be met for a court to be obligated to include instructions regarding lesser included offenses in its jury instructions:

(1) a proper request;

(2) the elements of the lesser offense be identical to part of the elements of the greater offense;

(3) evidence that would support conviction of the lesser offense;

(4) the proof on the element or elements differentiating the two crimes is sufficiently disputed so that the jury could consistently acquit on the greater offense and convict on the lesser.

United States v. Moore, 917 F.2d 215, 228 (6th Cir.1990), cert. denied, 499 U.S. 963, 111 S.Ct. 1590, 113 L.Ed.2d 654 (1991).

We agree with the government that the District Court's refusal to give instructions for the lesser included offense was consistent with this test. The evidence was insufficient to support conviction of the lesser offense. The evidence of intent with regard to defendants was overwhelming. Samuel Mays designed a secret sugar room for the delivery of sugar into the juice concentrate; he was in charge of the plant's day-to-day operation and personally directed employees on how much sugar to add to concentrate that was marketed as 100% orange juice concentrate. Patsy Mays created a false paper trail to conceal Sun Up's purchases of sugar; she directed Sun Up employees to do likewise; she lied to outside auditors about Sun Up's sugar purchases. The District Court did not err in refusing to instruct on the lesser included offense with regard to either defendant Samuel Mays or Patsy Mays.

B. Failure to grant motions for severance

The District Court's denial of defendants Samuel and Patsy Mays' motions for severance are reviewed on an abuse of discretion standard. United States v. Critton, 43 F.3d 1089, 1098 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1987, 131 L.Ed.2d 873 (1995). Defendants must show " 'substantial,' 'undue,' or 'compelling prejudice' to obtain severance." United States v. DeFranco, 30 F.3d 664, 669-70 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 349, 130 L.Ed.2d 305 (1994).

In this case, defendants Samuel and Patsy Mays argue that a motion to sever should have been granted due to two items of prejudicial evidence. First, a witness testified to conversations with co-defendant James V. Mays probative of the issue of James Mays' intent to defraud. Defendants Samuel and Patsy Mays argue that the jury inferred Samuel and Patsy Mays' knowledge and intent from this evidence regarding James V. Mays' knowledge. That the jury drew such an inference from this evidence is speculative. The District Court's instructions emphasized individualized findings of guilt. The evidence of Samuel and Patsy Mays' intent was overwhelming. The admission of this evidence did not unduly prejudice defendants Samuel and Patsy Mays.

The second instance of allegedly prejudicial testimony was a witness' testimony that his life was threatened by codefendant James V. Mays. The testimony was adduced by the government on re-direct to rebut cross-examination on the issue of credibility. Patsy and Samuel Mays argue that this testimony inserted a "taint of violence" into their case and they were thereby prejudiced. But juries are presumed capable of following instructions regarding the sorting of evidence and the separate consideration of multiple defendants. United States v. Swift, 809 F.2d 320, 323 (6th Cir.1987). The District Court instructed the jury to consider the testimony only with regard to credibility and to consider the culpability of each defendant separately.

Mindful of the strong policy favoring joint trials, Zafiro v. United States, 506 U.S. 534, ----, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993) and the presumption of the validity of curative instructions, Id. at ----, 113 S.Ct. at 939, we hold that the District Court did not abuse its discretion by denial of the motion to sever.

C. The Sidebar Comments

The District Court at sidebar made comments which the defendants argue were improper and prejudicial. As an initial matter, because the record reflected that the sidebar conference was not within the jury's hearing, the defendants must prove that the comments were within the jury's hearing. United States v. Day, 956 F.2d 124 (6th Cir.1992). Although defendants' evidence on this issue does not appear particularly persuasive to us and defense counsel failed to move for an evidentiary hearing to prove their allegation, for the purposes of this appeal we will assume the comments were overheard. We nonetheless find that the comments do not warrant reversal.

The Court properly instructed the jury on the irrelevance of anything they may have overheard from a sidebar conference and properly instructed the jury on the burdens of proof. Evidence of guilt was overwhelming and the District Court's remarks, while somewhat critical of defense counsel, did not rise to the level of inflammatory comments that would be likely to prejudice any of the defendants. Cf., United States v. Segines, 17 F.3d 847, 852-53 (6th Cir.1994)(citing cases where hostile comments of the District Court rose to the level of reversible error).

D. The admission of prejudicial hearsay testimony

Samuel and Patsy Mays challenge the admission of testimony which they contend impermissibly mentioned scientific testing of orange juice to detect adulteration. They argue that this testimony was hearsay, that its admission violated their constitutional right to confront witnesses, and that the District Court's admonishments to the jury were insufficient to protect their rights.

The first issue is whether the introduced evidence constituted hearsay. We consider the question de novo. United States v. Fountain, 2 F.3d 656, 668 (6th Cir.) cert. denied, --- U.S. ----, 114 S.Ct. 608, 126 L.Ed.2d 573 (1993). Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." FED.R.EVID. 801(c). The government argues that the evidence was offered to show the defendants' and customers' reactions to the sugar testing reports made by customers rather than the truth of their contents. As proof of the non-hearsay purpose of the offered testimony, the government points to the District Court's repeated admonitions to the jury each time testing was mentioned. In fact, the court instructed the jury several times to assume that the testing was not reliable.

The evidence was admitted to prove the intent element of the fraud charge rather than to prove the existence of sugar in the concentrate. When defendants were confronted by purchasers about the possibility of added sugar in their product, defendants denied the accusation. Since competent evidence existed to...

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