United States v. Seuss, No. 72-1226

• Citation: 474 F.2d 385
• Decision Date: 16 February 1973
• Docket Number: No. 72-1226,72-1227.
• Parties: UNITED STATES of America, Appellee, v. Harry F. SEUSS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

474 F.2d 385 (1973)

UNITED STATES of America, Appellee, v. Harry F. SEUSS, Defendant, Appellant.

Nos. 72-1226, 72-1227.

United States Court of Appeals, First Circuit.

Heard December 11, 1972.

Decided February 16, 1973.

Certiorari Denied June 4, 1973.

A. David Mazzone, Boston, Mass., with whom Donahue & Donahue, Richard K. Donahue, Lowell, Mass., Moulton, Looney, Mazzone, Falk & Markham and Robert D. City, Boston, Mass., were on brief, 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.

Certiorari Denied June 4, 1973. See 93 S.Ct. 2751.

COFFIN, Chief Judge.

Defendant, a meat inspector for the United States Department of Agriculture, was convicted on two counts of accepting a gift, money, or other thing of value from a person, firm, or corporation engaged in interstate commerce, under 21 U.S.C. § 90, now 21 U.S.C. § 622,¹ and one count of conspiring to defraud the government of the honest, conscientious, and valuable performance of meat inspection functions, under 18 U.S.C. § 371. He attacks the statute as vague, the conviction as invalid for lack of proof that he accepted a thing of value from a statutorily defined offeror, and the admission of evidence with regard to the conspiracy count of 49 acts which occurred before the five-year period prior to indictment subject to scrutiny under the statute of limitations, 18 U.S. C. § 3282.

The evidence revealed a practice on the part of Colonial Provision Co., Inc., a meat processing company engaged in interstate commerce, to give meat inspectors, including defendant, meat products and other things of value on request. A quality control analyst of Colonial testified that on the two occasions made the subject of the substantive counts he personally prepared an inventory document with defendant's initials on it and ordered and delivered food to defendant. He also stated that he and defendant violated federal sampling procedures on several occasions. Both the plant superintendent and the executive vice-president testified to the existence of the company policy and their authorization and personal approval, respectively, of the particular transactions involved. After defense motions to dismiss and for acquittal were denied, the case went to the jury which convicted defendant on two of the three substantive counts submitted to it and on the conspiracy count. The defendant appeals from the convictions and the concurrent sentences of two years imprisonment and suspended fines of $1,000 imposed by the court.

Appellant raises a sophisticated vagueness claim. He admits that the words of the statute are perfectly clear — receiving a thing of value from a person, firm, or corporation engaged in interstate commerce. But he claims that they are so broad — e. g., covering birthday gifts hand-delivered by a mother who lives in New Hampshire to her son living in Massachusetts and promotional mailings that include free pencils, calendars or the like — that Congress could not have intended to prohibit all matters literally covered. Thus, he concludes, an inspector has no way of knowing exactly which receipts are banned and which permissible. The government counters that the statute is generally clear, that there can be no doubt that it covers one who, like defendant, is a meat inspector who accepts meat products from a meat processing company, and that even if the gift-bearing interstate-travelling mother is arguably covered, one as to whom the statute clearly applies may not challenge the statute's vagueness as to other, marginal cases.²

Though the defendant challenges the statute for vagueness, see Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972), we find that a reasonable, if not obvious, construction of the statute avoids any possible vagueness problems which are alleged to inhere in its overbreath. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

Part 3 of the statute,³ under which defendant was convicted, provides:

"Any 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 now subchapter I of Chapter 12 (Meat Inspection) of Title 21 . . . who shall receive or accept from any person, firm, or corporation engaged in interstate or foreign commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever, shall be deemed guilty of a felony . . . ." 21 U.S.C. § 90, now 21 U.S.C. § 622.

We have found no judicial construction of this provision, which has been on the books for over half a century, but we draw support for our interpretation from the legislative purpose, the regulations promulgated by the Department of Agriculture to govern "employee responsibilities and conduct," 7 C.F.R. §§ 0.735-1 et seq., and the general bribery statute for federal officials, 18 U.S.C. § 201.

First, and most significantly, we think it clear that the statute prohibits the officials authorized to perform the prescribed inspection duties from accepting things of value in connection with or arising out of the performance of their official duties.⁴ This common sense interpretation stems first from consideration of the legislative purpose. The Meat Inspection Act of 1907, 34 Stat. 1264, passed in response to the unsanitary conditions in the meat packing industry, revealed in Upton Sinclair's expose, "The Jungle", was designed to insure that meat products sold to the consumer be clean and safe. 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. The statute's amendment in 1967, which expanded the scope and severity of federal regulation, did not affect, except for two minor, technical changes,⁵ the instant criminal provision, or its purpose of preventing corruption of the regulators. P.L. 90-201, 81 Stat. 584, 1967 U.S.Code Cong. & Admin. News, pp. 636-658, 2188-2213. Although food purity statutes must be read broadly to protect the public from adulterated food, United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed.2d 536 (1964); United States v. Cassaro, Inc., 443 F.2d 153 (1st Cir. 1971), and to insure public confidence in governmental regulation, they need not be stretched to cover more than their obvious purpose. Congress could not have thought that inspectors would be less rigorous in their scrutiny, nor the public less certain of their diligence, because they received birthday gifts from members of their family.

This self-evident construction of Congressional intent is reflected in the Department's personnel regulation regarding "Gifts, entertainment and favors", 7 C.F.R. § 0.735-12. The regulation first proscribes broadly the receipt by an employee of any thing of monetary value from one who (1) "has, or is seeking to obtain, contractual or other . . . financial relations with the Department", (2) "conducts operations or activities that are regulated by the Department" or (3) "has interests that may be substantially affected by the performance or nonperformance of the employee's duty." Subsection (b) of the regulation then explains that this broad prophylactic rule shall not be interpreted to prohibit:

"(1) Acceptance of any of the usual courtesies in an obvious family or personal relationship (such as those between the employee and his parents, spouse, children, or close personal friends) when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors."

or

"(4) The exchange of usual social courtesies which are wholly free of any embarrassing or improper implications."

This regulation, and others concerning conflict of interest and relations to those regulated (§§ 0.735-13, 14, 21), thus recognize that meat inspectors are normal social beings — with family and friends — and that while some of their intimates may be persons engaged in commerce (a phrase discussed below), the exchange of gifts is a function of their personal rather than business lives. Although the regulations specifically direct each employee's attention to all the statutory provisions, including the instant one, relevant to their duties, § 0.735-24, we need not rest on these regulations, which are part of an internal personnel manual designed primarily as the basis for departmental disciplinary proceedings, see § 0.735-5, as the definitive construction of this criminal statute. See Champlin Refining Co. v. Corporation Comm'n of Okl., 286 U.S. 210, 242-243, 52 S.Ct. 559, 76 L.Ed. 1062 (1932).⁶ It is enough to note that the Department has already drawn the basic distinction which we find in the statute.⁷

Our interpretation is also supported by 18 U.S.C. § 201, the general federal bribery statute and its construction in United States v. Irwin, 354 F.2d 192 (2d Cir. 1965), to which defendant refers us to pinpoint what he claims is the inadequacy of the statute before us. In Irwin, the court considered §§ 201(f) and (g) which prohibit, respectively, the giving to or accepting by a public official of anything of value "for or because of any official act performed or to be performed by such public official". As the court there properly noted, those words, indicating a causal relationship to specific acts, could well be read as requiring a specific intent to alter official conduct. 354 F.2d at 197. Use of such words in § 622, which defendant suggests would provide adequate warning, would, however, destroy the explicit Congressional purpose not to require any intent in Part 3. Although words such as those we suggest above, requiring an objective jury determination that the gifts are in connection with or arising out of the performance of...