United States v. Murphy

• Decision Date: 13 June 1973
• Docket Number: No. 72-1182.,72-1182.
• Citation: 480 F.2d 256
• Parties: UNITED STATES of America, Appellee, v. Richard H. MURPHY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

480 F.2d 256 (1973)

UNITED STATES of America, Appellee, v. Richard H. MURPHY, Defendant, Appellant.

No. 72-1182.

United States Court of Appeals, First Circuit.

Heard May 7, 1973.

Decided June 13, 1973.

COPYRIGHT MATERIAL OMITTED

Brian T. Callahan, Medford, Mass., by appointment of the Court, for appellant.

James B. Krasnoo, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

Defendant, Richard H. Murphy, a federal meat inspector convicted on ten counts of accepting money from a person, firm, or corporation engaged in interstate commerce in violation of 21 U.S. C. § 622, challenges these convictions on thirteen grounds. We discuss only those which are either not resolved by United States v. Seuss, 474 F.2d 385 (1st Cir. 1973), cert. denied, 412 U.S. 928, 93 S. Ct. 2751, 37 L.Ed.2d 155 (1973), or are not clearly frivolous.

In July 1968 defendant, on the first day of his assignment at State Beef Company, requested payment of $25 per week in exchange for more lenient enforcement of the statutes and regulations which governed the firm's operations. State Beef's owner, Abraham Cohen, testified that he paid defendant this sum every Friday from September 11 to October 15, 1968, the period specified in the indictment. In January 1970 defendant was reassigned to Blue Star Kosher Products, Inc. Once again, on his first day in the plant, he informed Blue Star foreman George Goldrich that he expected to be paid, this time, $50 per week. When Goldrich protested that he did not possess the authority to authorize such payments, Erich Rosengarten, the plant manager of the firm that owned Blue Star, was consulted and eventually payments of $35 per week were agreed upon. Rosengarten testified that he arranged to have defendant paid this sum once each week from April 1 to May 12, 1970, the period in question.

On this background defendant first challenges part III of 21 U.S.C. § 622¹ on equal protection grounds. Specifically, he contends that this provision draws an impermissible distinction between two similarly situated groups, meat inspectors and meat packers, by making it an offense for inspectors to accept or receive any item of value, irrespective of the intent of the donor, while creating no corresponding offense covering packers. The difficulty with this argument, however, lies in its premise since it is clear that in enacting The Meat Inspection Act of 1907, 34 Stat. 1264, of which the predecessor of § 622, 21 U.S.C. § 90, was a part, Congress was justified in drawing distinctions between the group of federal employees who were to be charged with the enforcement of the Act and the other participants in the meat processing industry. As noted in Seuss, supra at 388 of 474 F.2d, the aim of Congress in enacting this legislation was "to insure that meat products sold to the consumer would be clean and safe. In implementing this policy a system of federal inspection was created and the inspectors subjected to strict regulation lest their corruption — or the appearance of it — undermine the quality of meat or the public's trust in their supervision of meat quality." It 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 do not have the final word on the produce going to the market, and who may be lowly employees with little power and perhaps are acting without corporate direction. Since the statutory configuration defendant complains of clearly bears a rational relation to the achievement of these legitimate and laudatory legislative goals, we cannot agree that the statute offends the equal protection guarantees implicit in the fifth amendment.

Defendant next contends that the trial court erred in denying in whole or in part his pre-trial motions for a list of all persons expected to testify at trial, for disclosure of any immunity awarded the witnesses who either testified before the grand jury or were expected to testify at trial, and for the production of all exculpatory material in the possession of the government. We find the trial court's disposition of each of these motions to have been appropriate.

First, with regard to defendant's request for disclosure of the government's trial witnesses, since criminal defendants are ordinarily not entitled to this information, see United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969), and cases cited, it is settled that this motion was addressed to the discretion of the trial court. Given the simple nature of the underlying factual situation in the instant case and the fact that three of the government's four witnesses were named in the indictment, this discretion was not abused in the denial of this motion.² Defendant's motion regarding transactional immunity was granted in part and denied in part, disclosure being required only at the time of trial and only as to those witnesses who actually testified. This disposition was also correct since, before trial, as defendant recognizes, he made no showing of any compelling need for this information. See Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967). Nor do his further contentions that such compelling need became apparent at trial and that he suffered prejudice and was deprived of procedural due process by the belated disclosure of this data withstand scrutiny. As a review of the record reveals, trial counsel never complained that he lacked an adequate opportunity to examine the grand jury testimony of the government's witnesses during trial and, as is abundantly clear from the transcript, full and skillful use of this testimony was made on cross-examination. Finally, the denial of defendant's motion for the production of exculpatory material on the government's representation that it did not possess any such evidence and that any that it did acquire would be made available was also proper. Again, aside from a single allegation that Rosengarten's testimony should have been turned over because it demonstrated that in making payments he was acting as an individual and not as an agent of Blue Star, a point which is clearly without merit in light of our conclusion in Seuss, supra at 390 of 474 F.2d, that no corporate policy need be established to sustain a § 622 violation,³ defendant raises no other allegation of government failure to make a required disclosure.

Defendant's next series of complaints are directed to the sufficiency of the government's proof or to events which occurred at trial. He argues first that the trial court erred in receiving evidence which indicated that he had committed a number of criminal acts, i. e., had accepted a number of illegal payments, in addition to those for which he was being...