United States v. Fenster

• Decision Date: 18 April 1978
• Docket Number: Crim. No. 7-81238.
• Citation: 449 F. Supp. 435
• Parties: UNITED STATES of America, Plaintiff, v. David FENSTER, Defendant.
• Court: U.S. District Court — Western District of Michigan

449 F. Supp. 435

UNITED STATES of America, Plaintiff, v. David FENSTER, Defendant.

Crim. No. 7-81238.

United States District Court, E. D. Michigan, S. D.

April 18, 1978.

Peter J. Kelley, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Warren J. Perlove, Southfield, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

The defendant herein was charged with violations of the bribery statute, 18 U.S.C. § 201, in a four-count Indictment returned and filed on November 15, 1977. Specifically, defendant is alleged to have paid $200.00 on four separate occasions (viz., November 24, December 3, December 10, and December 17, 1976) to a U. S. Veterinarian-Inspector for the purpose of influencing that official in decisions and actions regarding inspections of meat at a meat-processing plant. On Wednesday, March 1, 1978, defendant waived his right to trial by jury. The government acquiesced in the waiver and the Court, having conducted an inquiry on the record, was satisfied that the waiver was voluntary and intelligent. Trial was begun on that day and concluded on the next. What follows is a narrative exposition of the Court's findings of fact and conclusions of law.

Prior to March, 1975, health and sanitation inspections at the Utica Packing Plant had been conducted by State officers who were, by virtue of statutory and contractual authority, supervised by federal officers and who enforced pertinent federal regulations. After March, 1975, the responsibility for inspections and enforcement devolved directly on federal authorities, and a staff of federal inspectors assumed the relevant duties. At all times pertinent here, the staff consisted of Craig A. Reed, a Doctor of Veterinary Medicine, and five or six lay inspectors, Dr. Reed having supervisory authority over the lay inspectors assigned to the plant. Dr. Reed was himself responsible to a circuit supervisor and thence to a regional supervisor. The staff worked on the plant premises and every animal was inspected at various stages by the inspectors.

Utica Packing was engaged in the slaughter and processing of hogs. The production process — killing, cleaning, eviscerating, sectioning, storing, and shipping — was controlled to a large extent by the federal inspectors, who could slow the process by requiring the correction of particular problems in individual units found to be unsatisfactory or who could stop the entire process until correction of a more pervasive unsatisfactory condition was made. For example, an inspector might tag a carcass for having hair on the skin. In that instance, the carcass would be laid aside until the condition was remedied and thereafter returned to the production line. On the other hand, if the inspector discerned a repetition of certain unsatisfactory conditions that might, for example, be attributed to a defect in the cleaning equipment, the entire line would be shut down until the defect was found and remedied. It is appropriate at this point to note that a particularly important part of the inspection process is the examination of hogs for evidence of tuberculosis because of the particular susceptibility of that animal to that disease. Depending on the type of tuberculosis involved, and on the location and extent of the involvement, a carcass may require sectioning with loss of some parts, or it may be rejected altogether or approved altogether. It is readily apparent that the shut-down of the lines, in a plant that employed approximately 100 persons, and the rejection of carcasses as diseased affect directly the efficiency and profitability of the operation.

As is perhaps inevitable in that type of situation, some friction developed between management and the inspection team. The former complained that some shutdowns were unnecessary or had been unnecessarily prolonged; that inspectors were too strict or picayune; that the inspectors were acting arbitrarily and capriciously. On the other hand, the veterinarian assigned to the plant considered that his conduct and performance were proper, that the plant needed upgrading and that the staff, in the main, was following the regulations and enforcing them fairly.

In September, 1976, an inspection of the plant was conducted by the regional office of the U. S. Department of Agriculture and resulted in a rating of 1 on a scale of 1 through 4, 4 being the best and 1 the worst rating assignable. This result was brought to the attention of David Fenster, a part-owner of the plant, by Dr. Reed on September 21, 1976. At that meeting, Fenster suggested to Reed that an arrangement be made between them which would be worth $100 to $200 a week to Reed and which would result, in return, that there be fewer stoppages of the line and a lower condemnation rate. Thereafter, Reed attempted to contact an FBI agent whom he knew as a result of a prior, unrelated investigation, but did not succeed in reaching him until November, 1976. The two of them devised a plan whereby Reed would appear to accept the offer made by Fenster. Reed was provided with a concealed body transmitter and recorder and, so equipped, met with Fenster on the four dates delineated in the Indictment. On each such occasion Reed received the sum of $200 from Fenster. The conversations between Reed and Fenster were recorded and subsequently transcribed; the transcripts were received in evidence as Exhibits 1B, 2B, 3B, and 4B.

There is no doubt that David Fenster paid over the funds to the federal officer and that it was his intent to influence the officer in the performance of his official duties. The issue remains, however, as to the nature of Fenster's intentions, since that issue will determine whether he is guilty of a violation contemplated in 18 U.S.C. § 201(b) or of one described in § 201(f), the former carrying a much higher potential penalty than the latter.

Section 201(b) of Title 18 of the United States Code provides for the imposition of penalties on

"whoever, directly or indirectly, corruptly gives, offers, or promises anything of value to any public official * * * with intent—

"(1) to influence any official act; or

"(2) to influence such public official * * * to commit or aid in committing, or collude in or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or "(3) to induce such public official * * to do or omit to do any act in violation of his lawful duty, . . ."

Subsection (f), on the other hand, is directed against

"whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official, * * * for or because of any official act performed or to be performed by such public official * *; . . ."¹

Subsection (f) sets forth a lesser offense included in the offense described in subsection (b), the difference consisting in the higher degree of criminal knowledge and purpose betokened by the adverb "corruptly." See U. S. v. Umans, 368 F.2d 725 (2d Cir. 1966), cert. dismissed 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255; U. S. v. Brewster, 165 U.S.App.D.C. 1, 506 F.2d 62 (1974) construing the analogous provisions of § 201(c) and (g) applicable to recipients of bribes.

In Brewster, the court was squarely faced with the problem of dividing the subtle gradations of the respective intent requirements prescribed in subsection (c), which it termed the bribery section, and subsection (g), which it called the gratuity section. It concluded, as to this question:

"The bribery section makes necessary an explicit quid pro quo which need not exist if only an illegal gratuity is involved; the briber is the mover or producer of the official act, but the official act for which the gratuity is given might have been done without the gratuity, although the gratuity was produced because of the official act."

Id. 165 U.S.App.D.C. at 11, at 72.

The thrust of the two sections and the functions they were designed to serve are radically different, and it is from the perspective of that difference that they are to be construed and applied. Section 201(f) is a gratuity section.

"It is apparent from the language of the subsection that what Congress had in mind was to prohibit an individual, dealing with a Government employee in the course of his official duties, from giving the employee additional compensation or a tip or gratuity for or because of an official act already done or about to be done."

U. S. v. Irwin, 354 F.2d 192 at 196 (2d Cir. 1965), cert. denied 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308.

Section 201(b), on the other hand, is directed against impairment of the actual and apparent integrity of public life.

"The evil sought to be prevented by the deterrent effect of 18 U.S.C. § 201(b) is the aftermath suffered by the public when an official is corrupted and thereby perfidiously fails to perform his public service and duty. Thus the purpose of the statute is to discourage one from seeking an advantage by attempting to influence a public official to depart from conduct deemed essential to the public interest."

U. S. v. Jacobs, 431 F.2d 754 at 759 (2d Cir. 1970), cert. denied 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120.

In light of these standards, the Court is satisfied that the facts established at trial bespeak beyond a reasonable doubt a violation of § 201(b). It is clear that in offering the payments and later in making them David Fenster had a more focused purpose in mind than merely to build a reserve of good will toward his company on the part of influential officials. It was Dr. Reed's understanding that in return for the money he was to alleviate Fenster's problems, specifically by reducing the number of line stoppages and by giving the company the benefit of the doubt with regard to hogs of questionable soundness. This understanding is borne out by the transcripts of the recorded conversations between Reed and Fenster. They reveal that while...