United States v. Hartley

• Decision Date: 03 April 1980
• Docket Number: No. 79-69-Cr-T-GC.,79-69-Cr-T-GC.
• Citation: 486 F. Supp. 1348
• Parties: UNITED STATES of America v. G. Cecil HARTLEY, Travis Dell, Robert L. (Pat) Paterson, Treasure Isle, Inc.
• Court: U.S. District Court — Middle District of Florida

486 F. Supp. 1348

UNITED STATES of America v. G. Cecil HARTLEY, Travis Dell, Robert L. (Pat) Paterson, Treasure Isle, Inc.

No. 79-69-Cr-T-GC.

United States District Court, M. D. Florida, Tampa Division.

April 3, 1980.

Breckinridge L. Willcox, U. S. Dept. of Justice, Washington, D. C., Lynn H. Cole, Asst. U. S. Atty., Tampa, Fla., for plaintiff U. S.

Arnold D. Levine, Tampa, Fla., for defendant Hartley.

James S. Byrd, Orlando, Fla., for defendant and Dell.

Anthony Gonzalez and Bennie Lazzara, Jr., Tampa, Fla., for defendant Paterson.

James M. Russ, I. Paul Mandelkern, Orlando, Fla., for defendant Treasure Isle.

ORDER

CARR, District Judge.

Presently before the Court are several Motions filed by the Defendants. Defendants Hartley, Paterson, and Treasure Isle, Inc. have filed Motions to Suppress, which have been adopted by Defendant Dell. Defendant Hartley has filed a Motion to Dismiss, to Suppress and In Limine to Limit the Government's Proof at Trial, which is based on the alleged violation of 18 U.S.C. § 1385, the Posse Comitatus Act. Defendant Treasure Isle, Inc. has filed a similar Motion. These Motions have been adopted by all Defendants. An evidentiary hearing was held on the Motion to Suppress on January 18 and 21, 1980, after which the parties were allowed to file supplemental memoranda. After consideration of the evidence adduced at the hearing, the argument of counsel, and the applicable law, the Court makes the following findings of fact and conclusions of law in compliance with Rule 12(e), F.R.Cr.P.

I. THE FACTS

Treasure Isle, Inc. is a Florida corporation which is engaged in the business of buying, processing, and selling shrimp and other seafood. Prior to the return of this Indictment, Treasure Isle had sold a substantial amount of its product to the United States Department of Defense. This included sale of frozen breaded shrimp, with which the Motions are concerned. Treasure Isle's contractual relationship with the United States Government included a provision that allowed Government personnel to be on the premises of the Treasure Isle plant in Dover, Florida, in order to inspect the product, and to insure that it complied with Government contract specifications. During the period of time which is pertinent to the defendants' Motions, the inspectors conducted what is known as an end-item inspection. Each day, after the shrimp had been processed and packed into boxes, each of which contained 4½ pounds of shrimp, the inspectors would randomly select a number of boxes, the number was usually 13, to be tested for compliance with contract specifications. The samples were placed inside a locked freezer which was located in a laboratory within the Treasure Isle plant. The laboratory was used exclusively by Government inspectors, who, at the time which is material to the Motions, were United States Air Force personnel. The laboratory was usually secured although Treasure Isle employees cleaned it two to three times a week after the inspectors had left for the day. The inspectors would ask that the laboratory be cleaned if such was their desire.

The shrimp samples were tested on the day after they were selected. If the shrimp met Government specifications, the entire days production was approved for sale to the Government. The randomly selected shrimp which were not consumed during the testing process were returned to the production line for use in that day's production.

The shrimp was shipped from the Treasure Isle plant in sealed cartons each of which contained ten 4½ pound boxes. At destination the shrimp was subjected to a cursory inspection by other military personnel as to general condition and temperature. If the shrimp passed the destination inspection it was accepted and then became the property of the United States Government.

In late 1977, and early 1978, Sgt. Robert O'Brien was the Air Force non-commissioned officer in charge of inspection of all shrimp processed in the Tampa Bay area for sale to the military. His immediate superior was Chief Master Sgt. Billy Summerford, who was stationed at MacDill Air Force Base. Sgt. Summerford's immediate superior was Colonel William Mohri, who was chief of veterinary services at MacDill Air Force Base. Sgt. Danny Holt was an Air Force inspector assigned to the Treasure Isle plant, as was Airman David Klopp.

The Defense Investigative Services (DIS), the investigative arm of the Department of Defense, began an investigation of Treasure Isle and possible "irregularities" with regard to the inspection of Shrimp in August, 1976. The chief of veterinary services at MacDill AFB (the predecessor to Colonel Mohri) was advised of the investigation, which was terminated in December, 1976. At the direction of DIS headquarters, however, the investigation was reopened in the spring of 1977, and Colonel Mohri was so advised. Early on during this second investigation Sgt. O'Brien was interviewed by a DIS agent concerning his knowledge of irregularities and improprieties in connection with inspection activities. The investigation was primarily concerned with bribery and attempted bribery of Air Force inspectors.

In late 1977, Airman Klopp became suspicious concerning the security of the shrimp samples which he had selected for testing. After discussing these suspicions with Sgt. O'Brien (who in turn reported this to Colonel Mohri) it was decided that Airman Klopp would initial his sample boxes in the usual manner but that he would make special note of their location so that he could more definitely determine whether the samples were being tampered with after they had been selected and locked in the freezer. After so doing, on one occasion Airman Klopp determined that the samples which he had selected on the previous day had been replaced by other shrimp which he had not selected.

After discussions between and among Airman Klopp, Sgt. Holt, Sgt. O'Brien, Chief Summerford and Col. Mohri, it was decided that special marks should be placed on the shrimp samples so that it could be conclusively determined that the samples were being switched. This decision was made just before Christmas, 1977.

On January 3, 1978, lot no. F6968, consisting of frozen breaded shrimp, was processed at Treasure Isle for sale to the Department of Defense. Airman Klopp randomly selected 13 boxes of shrimp for testing. On each he placed a one-half inch grease pencil mark along the bottom lip of the box. This was not a mark that was normally used during the inspection procedure. The Air Force personnel who made the decision to use this special mark did not consult with any criminal investigator before so deciding, nor did they seek to obtain a search warrant or other judicial authorization.

On the morning of January 4, 1978, the 13 sample boxes were examined and it was determined that the samples from lot no. F6968 had been tampered with. This determination was based on the absence of the special mark which had been placed on the boxes by Airman Klopp. Airman Klopp repeated the use of the special marks on sample boxes of shrimp selected on January 4, 1978, which were part of lot no. F7008. Again, it was determined that the samples had been switched.

On January 4, 1978, after the samples from lot no. F7008 had been marked, the inspectors at Treasure Isle, Sgt. O'Brien and Col. Mohri reported to the Quality Assurance Officer at the Defense Personnel Support Center (DPSC) in New Orleans, Louisiana, regarding the sample switching. Numerous phone calls were made between Tampa and New Orleans as result of which the Air Force inspectors were told to continue specially marking their randomly selected samples. On or about January 6, 1978, Sgt. O'Brien requested that a criminal investigator be assigned to take over the investigation. On January 9, 1978, Sgt. O'Brien met with Agent David Kirchgessner of DIS, and told him about the special marks which had been placed on the boxes and the switching of samples that had occurred. Sgt. O'Brien also informed Agent Kirchgessner that Pat Simmons, a former Treasure Isle employee, had told Sgt. Holt on January 4, 1978, that she had a key to the Air Force laboratory freezer at the Treasure Isle plant, and that sample boxes were being switched by Treasure Isle employees. On January 13, 1978, Agent Kirchgessner interviewed Ms. Simmons and learned that the boxes with the special markings had been placed back into master cartons for lots no. F6968 and F7008 and were shipped to various DPSC warehouses. Before these shipments reached their destination, however, DIS notified DPSC to be on the lookout for those specific lots. The purpose of this notification was so that the receiving officials could find the specially marked boxes and test them for compliance with specifications.

On January 18, 1978, a portion of lot F6968 arrived at the DPSC warehouse in Watertown, Massachusetts. Upon arrival agents of the DIS, along with military personnel, located the boxes with the special marks. Portions of this lot were later subjected to special testing, by both military and civilian personnel. Portions of lot F7008 were later recovered and tested at Norfolk, Virginia, and Fort Worth and San Antonio, Texas. Military personnel assisted and participated in the testing of the shrimp at these locations also. The results of these tests are the subject of the Motions to Suppress.

The Indictment in this case was returned on August 8, 1979. It charges the Defendants with conspiracy, mail fraud, interstate transportation of property taken by fraud, and racketeering.

II. THE MOTIONS TO SUPPRESS

Defendants Hartley, Paterson and Treasure Isle, Inc. have filed Motions to Suppress, all of which raise similar issues. The Motions assert that the special markings made on the sample boxes constituted a warrantless search within the meaning of the Fourth Amendment to the Constitution; that no exception to the warrant requirement was present; that the later recovery of the...