U.S. v. Mullens, 78-5146

Citation583 F.2d 134
Decision Date01 November 1978
Docket NumberNo. 78-5146,78-5146
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert MULLENS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William E. Gandy, Paris, Tex., for defendant-appellant.

John H. Hannah, Jr., U. S. Atty., M. Lawrence Wells, Asst. U. S. Atty., Tyler, Tex., Breckenridge L. Willcox, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEWIN, RONEY and GEE, Circuit Judges.

RONEY, Circuit Judge:

In a case of first impression before this Court, defendant challenges the constitutionality of 21 U.S.C.A. § 622, which prohibits, among other things, the acceptance of gifts by federal meat inspectors. Convicted of 33 violations of this statute and three counts of perjury for denial of the receipt of the gifts in testimony before a Grand Jury, 18 U.S.C.A. § 1623, defendant also seeks to have his convictions set aside for insufficient evidence, failure to grant severance, erroneous evidentiary rulings and instructions, and failure to establish identification. Concluding that 21 U.S.C.A. § 622 is constitutional and that defendant's other contentions do not require reversal, we affirm.

Background

Defendant, Robert Mullens, was employed by the United States Department of Agriculture under the Meat and Poultry Inspection Program. He was assigned to inspect Stevens Foods, Inc. ("Stevens"), a Texas corporation whose principal facilities were located in Paris, Texas. Stevens was engaged in the meat processing business and served the United States Armed Services as well as commercial clients.

In May 1976, an intensive investigation was undertaken into reported irregularities involving Defense Department meat contracts with Stevens, coupled with an investigation of United States meat inspectors. In the course of this investigation, Mullens was summoned to testify before the Federal Grand Jury for the Eastern District of Texas. The Grand Jury returned a 39-count indictment against Mullens alleging illegal receipt of gratuities in connection with his duties as meat inspector and perjury in his Grand Jury testimony. The indictment charged that Mullens had received a $100.00 bribe from Steve Aaron, president of Stevens, a basket of fruit, and meat, hams, and turkeys on various occasions from April 1972 continuing intermittently into 1975. Defendant was sentenced to two years imprisonment on all counts to run concurrently with eligibility for parole after six months. 18 U.S.C.A. § 4205(b)(1). This appeal followed.

I. Constitutional Challenge

Defendant challenges the constitutionality of 21 U.S.C.A. § 622. The relevant portion under which defendant was charged provides:

Bribery of or gifts to inspectors or other officers and acceptance of gifts

(A)ny inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter . . . who shall receive or accept from any person, firm, or corporation engaged in commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever, shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office and shall be punished by a fine not less than $1,000 nor more than $10,000 and by imprisonment not less than one year nor more than three years.

Although this Court has not before had occasion to consider this provision, it has previously been upheld by both the First and Second Circuits. United States v. Gelfand, 559 F.2d 1205 (2d Cir. 1977) (district court decision upholding statute affirmed in open court); United States v. Forgione, 487 F.2d 364 (1st Cir. 1973), Cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 872 (1974); United States v. Murphy, 480 F.2d 256 (1st Cir.), Cert. denied, 414 U.S. 912, 94 S.Ct. 253, 38 L.Ed.2d 151 (1973); United States v. Tropeano, 476 F.2d 586 (1st Cir.), Cert. denied, 414 U.S. 839, 94 S.Ct. 90, 38 L.Ed.2d 75 (1973); United States v. Seuss, 474 F.2d 385 (1st Cir.), Cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). As applied to the facts of this case, we agree with these circuits that the statute is constitutional.

A. The Necessity of Specific Criminal Intent

In an interconnected argument, defendant alleges that either the statute is fatally defective for failure to require specific criminal intent or, if the statute is judicially interpreted to require such intent, the conviction must be set aside for failure of both the indictment and instructions to detail this element.

Citing Smith v. California, 361 U.S. 147, 162, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring), defendant argues that the ability of Congress to enact a statute punishing an act as Malum prohibitum without requiring proof of specific criminal intent is limited. While limits to this power certainly exist, especially in the area of obscenity and First Amendment rights with which Smith was concerned, it is well recognized that the legislature has the power to delete the requirement of scienter where the statute deals with an area related to the general public health, morals, safety or welfare. United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 66 L.Ed. 604 (1922). One example cited by the Supreme Court in both Smith and Balint where specific intent need not be required was the area of pure food laws. If Congress has the power to declare the sale of impure food a crime without proof of specific criminal intent, it surely can declare acts of impropriety by its inspectors engaged in upholding those laws Mala prohibita, as well.

An examination of the language of 21 U.S.C.A. § 622 makes it apparent that Congress did not intend to impose a requirement of specific intent. Not only is there an absence of the formal language of intent, but there is the express provision that the receipt of any thing of value "given with any purpose or intent whatsoever . . ." is prohibited.

Therefore, in this case the Government had only to establish general criminal intent which is a necessary element to be proven in a crime. United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). Specifically, it was only necessary to prove that defendant, a meat inspector, willfully or voluntarily received the alleged gifts from those he inspected. The evidence substantially supports the conclusion that receipt was voluntary. The instruction of the district court, set out below, correctly addressed these points. 1

This conclusion is supported by the judicial interpretation of analogous statutes dealing with bribery of public officials, 18 U.S.C.A. § 201, See, e. g., United States v Irwin, 354 F.2d 192 (2d Cir. 1965), Cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966), and bank examiners, 18 U.S.C.A. § 213, United States v. Bristol, 473 F.2d 439 (5th Cir. 1973). In Bristol, this Court held that "(t)he public's need for disinterested bank examiners makes acts which frustrate that need Malum prohibitum and this obviates the necessity for any specific intent." 473 F.2d at 443.

As an alternative approach, defendant suggests that if this portion of the statute is valid even though specific intent is not required, there is an impermissible classification of meat inspectors depriving him of equal protection in violation of the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

Defendant points out that the statute contains three portions, two of which expressly require specific intent. 2 While it is necessary to establish specific intent to sustain a conviction under the statute as regards a donor, for example, such intent is not necessary as regards a donee meat inspector. Thus, 21 U.S.C.A. § 622 contains a classification on its face, distinguishing meat inspectors from all others. Because this classification is based neither on an ability to exercise a fundamental right nor on "suspect" traits, such as race or national origin, See Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), it will be reviewed under the rational relationship test. See, e. g., Dandridge v. Williams, 397 U.S. 471, 484-485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Therefore, defendant's equal protection argument can succeed only if the classification bears no rational relationship to a legitimate government purpose.

The purpose of the Meat Inspection Act of 1907, as amended, of which the present section 622 is a part, is to ensure a high level of cleanliness and safety in meat products. 3 Such a purpose is certainly legitimate and within the power of the federal Government under the commerce clause. The federal meat inspector is a critical enforcement mechanism in the schema of the Act and the inspector's integrity and exercise of independent judgment is vital to its success. Congress could reasonably conclude that the role of the meat inspector was of such significance as to justify a commensurately strict standard which prohibited receipt of anything of value For any reason even though donors were not held to such a standard. This classification is rationally related to a legitimate statutory goal, safe meat products, in that it seeks to preserve the independent judgment of meat inspectors.

In concluding that the distinct classification of federal meat inspectors does not violate the equal protection guarantees implicit in the Fifth Amendment, we align ourselves with the First Circuit which so held in United States v. Murphy, supra. The Murphy court decided that

(i)t is of course entirely reasonable for Congress to decide that the federal inspector the one with ultimate power to control the products leaving the plant and the one imbued with a substantial public trust should be treated more strictly than private parties whose offers of money can be refused, who...

To continue reading

Request your trial
14 cases
  • U.S. v. Baytank (Houston), Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Junio 1991
    ...(Frankfurter, J., concurring); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922); United States v. Mullens, 583 F.2d 134, 138 (5th Cir.1978). Accordingly, failure to require specific intent in the instructions on count 27 was not error and therefore does not supp......
  • State v. Maldonado
    • United States
    • United States State Supreme Court (New Jersey)
    • 1 Agosto 1994
    ...who accepts a bribe may constitutionally face felony punishment even without proof of intent to accept the bribe. United States v. Mullens, 583 F.2d 134, 138 (5th Cir.1978). In addition, the federal criminal RICO statute has been upheld against constitutional challenge despite its failure t......
  • U.S. v. Italiano, 87-3201
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Febrero 1988
    ...in the above-discussed cases, this court has affirmed convictions where a greater variation has appeared. See United States v. Mullens, 583 F.2d 134 (5th Cir.1978). 3 In Mullens the Fifth Circuit acknowledged that the statute itself (21 U.S.C. Sec. 662) failed to include an element of the o......
  • U.S. v. Stanko
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 20 Junio 2007
    ...that meat distributed to consumers is wholesome, not adulterated, and properly marked, labeled, and packaged); United States v. Mullens, 583 F.2d 134, 139 (5th Cir.1978) ("The purpose of the Meat Inspection Act of 1907, as amended ... is to ensure a high level of cleanliness and safety in m......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT