USCA1 Opinion
April 15, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1489
No. 95-1768
UNITED STATES OF AMERICA,
Appellee,
v.
G. ROBERT RANDAZZO,
Defendant, Appellant.
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on April 8, 1996, is amended as
follows:
On page 17, line 2, add the word "for" after the word "forth."
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1489
No. 95-1768
UNITED STATES OF AMERICA,
Appellee,
v.
G. ROBERT RANDAZZO,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Morris M. Goldings with whom Sally A. Morris and Mahoney, Hawkes
__________________ ________________ ________________
& Goldings were on consolidated briefs for appellant.
__________
Carolyn Stafford Stein with whom Jonathan Chiel, Acting United
_______________________ _______________
States Attorney, and James B. Farmer, Acting United States Attorney,
_______________
were on consolidated briefs for the United States.
____________________
April 8, 1996
____________________
BOUDIN, Circuit Judge. Robert Randazzo was president
_____________
and majority shareholder of New England Shrimp Company ("the
Company"), a Massachusetts corporation that imported,
processed, and distributed shrimp. In February 1994, a
federal grand jury returned a 101-count indictment, charging
Randazzo--and in most counts the Company as well--with an
array of offenses. The offenses fell into two different
categories: 97 "shrimp" charges and four "tax" charges.
The shrimp charges, counts 1 through 97, alleged that
Randazzo and the Company used certain substances in producing
shrimp that were prohibited or at least needed to be
disclosed on labels. The substances increased profits by
altering the weight or color of the shrimp, which was sold to
the Department of Defense and various commercial purchasers.
These allegations underpinned four charges of conspiracy, 18
U.S.C. 371, and 93 substantive counts of making false
statements to and claims against the United States, 18 U.S.C.
287, and introducing misbranded or adulterated food into
interstate commerce, 21 U.S.C. 331(a), (k) and 333(a)(2).
The tax charges, counts 98 through 101, were brought
against Randazzo alone and alleged that he had caused the
Company to file false corporate tax returns. 26 U.S.C.
7206(1). Specifically, the government claimed Randazzo
misreported as sales expenses cash sums that he was taking
weekly from the Company for personal use and that the Company
-2-
-2-
returns listed as corporate expenses the wages of a person
who worked exclusively for the Randazzo family on personal
matters. After a 10-day jury trial in October 1994,
Randazzo was convicted on all counts. He was sentenced to 36
months in prison, reflecting a significant downward departure
from the Sentencing Guidelines range. He now appeals from
his conviction but not his sentence, contending that the
trial court erred as to joinder, alleged multiplicity of
charges, and instructions. The pertinent facts are set forth
as necessary in discussing the separate claims of error.
I. JOINDER OF COUNTS
Randazzo claims that joining the 97 shrimp counts with
the four tax counts was improper. Fed. R. Crim. P. 8(a)
permits joinder of counts against a single defendant only if
the offenses "are of the same or similar character," or "are
based on the same act or transaction or on two or more acts
or transactions connected together or constituting parts of a
common scheme or plan." The district court rejected
Randazzo's motion to sever based on Rule 8(a), and, as the
issue turns on a construction of the rule, we review the
decision de novo. United States v. Yefsky, 994 F.2d 885, 895
__ ____ _____________ ______
(1st Cir. 1993).
Rule 8(a)'s joinder provision is generously construed in
favor of joinder, United States v. Robichaux, 995 F.2d 565,
_____________ _________
569 (5th Cir.), cert. denied, 114 S. Ct. 322 (1993), in part
____________
-3-
-3-
because Fed. R. Crim. P. 14 provides a separate layer of
protection where it is most needed. Under Rule 14, the trial
judge has discretion to order severance of counts, even if
properly joined under Rule 8(a), to avoid undue prejudice.
Here, the district court denied Randazzo's motion for
severance under Rule 14 and he has not appealed that ruling.
Nevertheless, Rule 8(a) does forbid joinder unless the counts
meet one of the conditions already quoted, and those
conditions, although phrased in general terms, are not
infinitely elastic.
One basis for joinder, invoked by the government here,
is where the counts involve acts comprising parts of "a
common scheme or plan." As the government points out, this
rubric is often used to join false statement claims with tax
fraud charges where the tax fraud involves failure to report
specific income obtained by the false statements. E.g.,
____
United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir.
______________ _________
1988), cert. denied, 489 U.S. 1084 (1989). Indeed, the
_____ ______
failure to report may help conceal the fraud.
The present case is quite different and offers no such
connection between the shrimp and tax counts. Randazzo
reduced the Company's reportable income by overstating
corporate expenses. But it was pure happenstance whether the
overstated expenses happened to reduce legal income or
illegal income of the Company. The misconduct underlying the
-4-
-4-
shrimp counts and the improper claiming of expenses on the
returns were not part of the same "scheme or plan" in any
sense of the phrase. Accord United States v. Halper, 590
______ _____________ ______
F.2d 422, 429-30 (2d Cir. 1978) (rejecting a similar argument
by the government).
Alternatively, the government says that the shrimp and
tax charges are of the "same or similar character" because
(ignoring sales to commercial buyers) both sets of offenses
involved the use of falsehoods or omissions to profit at the
expense of the federal government. Further, it notes that
many facts are common to both sets of charges: for example,
they occurred during overlapping time frames; Randazzo's
control over the Company was a common element; and the
Company's sagging financial condition provided a common
motive.
It is obvious why Congress provided for joinder of
counts that grow out of related transactions--ones that are
"connected" or "part of a common scheme or plan"; the reason
for allowing joinder of offenses having "the same or similar
character" is less clear.1 But whatever the rationale, we
____________________
1The "same or similar" language was drawn from earlier
law without explanation. 1 C. Wright, Federal Practice and
_____________________
Procedure: Criminal 141 (2d ed. 1982). About the best one
___________________
can say is that in such cases the evidence of one crime is
more likely to be independently admissible, on theories
reflected in Fed. R. Evid. 404(b), in proving the other,
"similar" crime. E.g., United States v. Shue, 766 F.2d 1122,
____ _____________ ____
1134 (7th Cir. 1985), cert. denied, 484 U.S. 956 (1987). See
____________ ___
also McElroy v. United States, 164 U.S. 76 (1896)(discussing
____ _______ ______________
-5-
-5-
think that it is very hard to describe adulterating or
mislabeling shrimp as offenses "similar" to tax fraud--except
at a level of generality so high as to drain the term of any
real content. Even the government's best case does not
stretch as far as the present facts. United States v.
______________
Levine, 983 F.2d 165, 167-68 (10th Cir. 1992) (bank fraud and
______
mail fraud).
As to the presence of evidence common to both sets of
counts, we agree that the extent of common evidence plays a
role in implementing Rule 8(a). United States v. Taylor, 54
_____________ ______
F.3d 967, 973 (1st Cir. 1995). But Congress did not provide
for joinder for unrelated transactions and dissimilar crimes
merely because some evidence might be common to all of the
counts. Indeed, looking to the important evidence, the
_________
shrimp and tax counts in this case seem to revolve around
quite different facts.
But all this is largely for the benefit of district
courts in future cases, because the misjoinder here was
patently harmless. United States v. Lane, 474 U.S. 438, 449
_____________ ____
(1986). The evidence against Randazzo on the tax counts was
overwhelming. Randazzo does not seriously claim otherwise
but argues that the evidence on the shrimp counts was thin
and that the jury was, or may well have been, swayed on those
____________________
"same class of crime" provision).
-6-
-6-
counts by the evidence (inadmissible save for the joinder)
that Randazzo was cheating on taxes.
We disagree, concluding that the government has amply
carried its burden to show that the error did not
"substantially influence[] the jury's decision." O'Neal v.
______
McAninch, 115 S. Ct. 992, 995 (1995). As to each of the four
________
conspiracies charged in the shrimp counts, at least one high-
ranking Company official testified that he had discussed with
Randazzo the fact that the given ingredient was prohibited or
had to be disclosed, and each testified that Randazzo had
nevertheless ordered that the ingredient be added, making
clear in several cases the aim was higher profits.
Other evidence showed that Randazzo kept close watch
over production and had the final say over the mix of
ingredients. In one instance Randazzo learned that another
producer had been told to stop using an ingredient and, on
investigating the report, Randazzo discovered that the
ingredient could be used to change the color of the shrimp to
resemble a more expensive variety; he then ordered its use in
his own shrimp. Randazzo also played a major role in
arranging for the destruction of evidence. The tax counts
simply did not matter.
II. MULTIPLICITY
Randazzo's second claim of error, relating both to the
indictment and to the jury instructions, is that the four
-7-
-7-
alleged conspiracies should have been charged as one. He
argues that, when coupled with the misjoinder, this
multiplicity contributed to the impression that he was
criminally disposed. Briefly, these were the four alleged
conspiracies:
1. Count 1 charged that Randazzo conspired to make
false statements to, and claims against, the government by
selling the Department of Defense shrimp containing the
chemical sodium tripolyphosphate ("STP"), in violation of
contract obligations. STP causes shrimp to absorb and retain
moisture, which in turn boosts profits because the shrimp was
sold by weight.
2. Count 52 charged that Randazzo conspired to sell to
the public shrimp that had been adulterated by adding
saccharin, an additive prohibited by federal regulations.
The government alleged that the Company added saccharin to
mask the taste of the STP.
3. Count 65 charged that Randazzo conspired to add the
chemical sodium hydroxide to certain types of shrimp in order
to give them a pinkish color. Randazzo then passed off the
altered shrimp to customers as naturally pink shrimp, which
is rarer than other varieties and commands higher prices.
4. Count 79 charged that Randazzo added STP to the
Company's line of frozen raw breaded shrimp, sold to
wholesalers and the public, contrary to federal regulations.
-8-
-8-
It is a recurring question in conspiracy cases whether
related illegal agreements comprise one conspiracy or
several. Because the agreements are often not explicit and
are regularly inferred from conduct, the courts ordinarily
treat the issue as one of fact and offer various criteria
that might help the factfinder distinguish: these include
commonality vel non of the nature, motive, design,
___ ___
implementation, and logistics of the illegal activities, as
well as the scope of co-conspirator involvement. E.g.,
____
United States v. Boylan, 898 F.2d 230, 241 (1st Cir.), cert.
______________ ______ _____
denied, 498 U.S. 849 (1990).
______
Each of the conspiracies in this case had a different
specific purpose; each involved different conduct; and the
time periods covered were different. Randazzo makes no
effort whatever to dispute these differences in his brief.
Rather, he says that all of the agreements concerned the
Company's production of shrimp and alleged fraudulent
concealment, and he points to some common elements (e.g.,
____
that two of the conspiracies related to use of STP--one on
military sales and the other on sales to the public).
We will assume arguendo that a jury might have found
________
that there was an overarching conspiracy to sell shrimp
through various deceptive practices that were altered from
time to time. But on the evidence presented, the jury was
not compelled to so find, and that is enough. As it happens,
-9-
-9-
such an overarching conspiracy, if it existed, might not
preclude the conviction of Randazzo for the individual
subsumed conspiracies if they were also proved--an
interesting problem that need not be decided here. See
___
United States v. Broce, 488 U.S. 563, 580-81 (1989) (Stevens,
_____________ _____
J., concurring).
Randazzo continues by arguing that the four charged
"overlapping conspiracies" worked special prejudice in this
case. He points out that each conspiracy count alleged
several different illegal purposes (e.g., count 1 alleged
____
violations of 18 U.S.C. 287, 1001, and 1516). And, he
concludes, the conspiracy counts together involved
instructions on 17 different offenses. The result, says
Randazzo, was "a lengthy and confusing [set of]
instruction[s] that the jury could not reasonably be expected
to apply."
Jury confusion is a legitimate concern in this case, but
it cannot be proved by simply noting the number of offenses.
There is no automatic ban on multiple counts in an
indictment, or on charging a conspiratorial agreement having
multiple unlawful purposes. Braverman v. United States, 317
_________ _____________
U.S. 49, 54 (1942). Randazzo had a chance to show us how
specific language or organization of the instructions misled
the jury; but his brief points to nothing specific, let alone
-10-
-10-
to any properly preserved objection or request concerning
this issue.
III. "OTHER CRIMES" EVIDENCE
At trial the prosecution introduced some evidence
suggesting Randazzo's involvement in previous, uncharged
misbranding, adulteration and tax fraud offenses. On appeal
Randazzo does not challenge the admission of this evidence.
But he claims that the trial court should have given a
requested standard instruction that evidence of uncharged
crimes may not be considered as evidence of his propensity to
commit crimes. Fed. R. Evid. 105, 404; see 3 L. Sand, et
___
al., Modern Federal Jury Instructions 74.03 (1994).
________________________________
The government's response is that most of the evidence
characterized by Randazzo as "other uncharged conduct" was
"direct evidence of the crimes charged, not Rule 404(b)
evidence at all, and thus did not require the limiting
instruction defendant proposed." The government includes in
this "direct evidence" category the Company's use of sugar
and STP in shrimp in years prior to the indictment and
evidence of Randazzo's failure to report income (e.g., the
____
cash he took from the Company) on his personal tax returns.
________
In an appendix to this opinion, we set forth the episodes
that are arguably in dispute.
Our case law does contain such a distinction between
"direct evidence" and "other crimes" or "Rule 404(b)"
-11-
-11-
evidence. E.g., United States v. Santagata, 924 F.2d 391,
____ _____________ _________
393-95 (1st Cir. 1991). Although its soundness has been
questioned, E. Imwinkelried, Uncharged Misconduct Evidence
_____________________________
9.62 (1995), we are not free to disregard circuit precedent.
But in reality "direct evidence" and "Rule 404(b) evidence"
are not mutually exclusive categories, but loose labels that
can sometimes plausibly be applied to the same conduct. And,
____
as usual, below the surface there are problems of policy and
of degree.
The general rule is that evidence of the defendant's bad
acts or crimes, other than those charged in the indictment,
is admissible, subject to conditions, if relevant in some way
apart from the forbidden inference that the defendant is
criminally inclined. Rule 404; see People v. Zackowitz, 172
___ ______ _________
N.E. 466, 468 (1930) (Cardozo, J.). The standard conditions
include the usual balancing of relevance against prejudice,
Fed. R. Evid. 403, and use of a limiting instruction telling
the jury not to draw the forbidden inference, Fed. R. Evid.
105. See Huddleston v. United States, 485 U.S. 681, 691-92
___ __________ _____________
(1988).
The general rule, and the conditions, may be easily
applied where the "other" crimes are reasonably distinct
(e.g., in time and place) from the crime charged in the
____
indictment. But where the "other" crimes are more closely
entangled with the events that comprise the charged offense,
-12-
-12-
a number of courts have declined to apply the label "other"
or to require the limiting instruction. E.g., Santagata, 924
____ _________
F.2d at 395, (evidence that those charged with drug dealing
had been carrying guns).
The argument for the distinction made by cases like
Santagata is that where the "other" (i.e., uncharged) crimes
_________ ____
are closely entangled with the crimes charged, the strength
of the permitted inference--e.g., that guns are often used to
____
protect drugs--may effectively submerge the forbidden one.
See Rossetti v. Curran, No. 95-1978, slip op. at 13 (1st Cir.
___ ________ ______
March 21, 1996). The argument against the distinction is
that sometimes the forbidden "bad character" inference
_________
remains a potential menace even in cases like Santagata.
_________
Obviously much depends on the crimes involved and on the
facts of the individual case.
In the present case, at least one or two categories of
the "other" crimes described in the appendix were distinct
enough from the crimes actually charged that it would have
made sense to include a single general limiting instruction
in the final charge to the jury.2 Nothing more was sought
in this case. Perhaps the safe course for a district court,
____________________
2The proof of personal income tax violations is the
clearest case. The use of sugar, to the extent it appeared
to be a separate wrong, could also be regarded as distinct.
The other categories of alleged "other" crimes listed in the
appendix are more debatable since they primarily involve
aspects of the same charged crime that happened to fall
outside the limitations period.
-13-
-13-
wherever the matter is in doubt, is (where asked) to give a
closing general instruction that bad character is not a
permissible inference.
But here a limiting instruction could not have altered
the result and omitting it was at worst harmless error.
United States v. King, 897 F.2d 911, 915 (7th Cir. 1990).
_____________ ____
The most potent "other crimes" evidence related to Randazzo's
personal tax offenses; but the evidence against Randazzo on
the corporate tax offenses was overwhelming. Conversely, the
arguable "other crimes" evidence bearing on the shrimp counts
was either very mild or so similar and closely connected to
the actual crimes charged as largely to rob it of the
independent "bad character" sting which the instruction means
to forestall.
IV. MATERIALITY
Randazzo claims that on six counts, each involving some
form of false representation or omission, the trial judge
erred in deciding that the statements or omissions were
"material" instead of submitting the materiality issue to the
jury. Two counts (counts 1 and 65) charged Randazzo with
conspiring inter alia to make false statements to the
___________
government in violation of 18 U.S.C. 1001; and the four tax
counts (counts 98-101) alleged that Randazzo willfully
overstated expenses on the corporate tax returns in violation
of 26 U.S.C. 7601(1).
-14-
-14-
At the pre-charge conference Randazzo said that the
materiality issue in count 1 was an issue for the jury. But,
as was then common in most circuits, e.g., United States v.
____ ______________
Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994), the trial judge
__________
ruled that materiality was for the court and held that the
materiality requirement was satisfied as to count 1. We
think that she also decided the materiality issue on the four
tax counts. As to count 65, the judge did (for unexplained
reasons) submit the issue of materiality to the jury.
Following Randazzo's conviction in October 1994, the
Supreme Court in June 1995 decided United States v. Gaudin,
_____________ ______
115 S. Ct. 2310 (1995), and held that where materiality is an
element of a crime, it must be submitted to the jury. In
this circuit, both of the offenses in question have been read
to include a materiality requirement.3 Accordingly, as
Randazzo is entitled to the benefit of the law prevailing at
the time of his appeal, Griffith v. Kentucky, 479 U.S. 314,
________ ________
328 (1987), it was "error" as to five of the six counts in
question (counts 1 and 98-101) not to submit the materiality
issue to the jury.
If the harmless error test were applied, Randazzo would
arguably be entitled to a new trial on these counts, even
____________________
3Arcadipane, 41 F.3d at 7 (section 1001); United States
__________ _____________
v. DiRico, No. 94-1471, slip op. at 7 (1st Cir. March 11,
______
1996) (section 7206(1)).
-15-
-15-
though the error did not affect the outcome. This court has
held that the failure to submit an entire element to the
jury, when a properly preserved request is made, is treated
as "structural" and is reversible error without regard to
harm. United States v. Lopez, 71 F.3d 954, 960 (1st Cir.
_____________ _____
1995) (reading Supreme Court precedent to point in this
direction). Accord, DiRico, slip op. at 12.
______ ______
At the same time, this court observed in Lopez that a
_____
Gaudin error would not require automatic reversal if the
______
defendant had failed to preserve the objection at trial.
Rather, we said that the test on review would be the
customary "plain error" standard under United States v.
______________
Olano, 113 S. Ct. 1770 (1993); Lopez, 71 F.3d at 960.
_____ _____
Significantly, every post-Gaudin case we can find in other
______
circuits does apply the plain error test, not the harmless
error test, to a failure to submit materiality to the jury
(assuming that the objection was not properly preserved).4
Here, Randazzo did not preserve the objection because he
failed to object to the instructions on this point after they
were given and before the jury retired. See Fed. R. Crim. P.
___
30. Randazzo says that it was reasonable not to object since
____________________
4United States v. Jobe, 1996 WL 101744 (5th Cir. 1996);
_____________ ____
United Sates v. DiDomenico, 1996 WL 88431 (7th Cir. 1996);
____________ __________
United States v. Kramer, 73 F.3d 1067 (11th Cir. 1996);
______________ ______
United States v. Keys, 67 F.3d 801 (9th Cir. 1995), reh'g en
_____________ ____ ________
banc granted, 1996 WL 111572 (Mar. 11, 1996). But cf. United
____________ ___ ___ ______
States v. Viola, 35 F.3d 37 (2d Cir. 1994), cert. denied, 115
______ _____ ____________
S. Ct. 1270 (1995) (not involving Gaudin).
______
-16-
-16-
First Circuit precedent was dead against him and Gaudin was
______
unexpected. This is so; but the question is whether these
circumstances make any difference. In United States v.
_____________
Collins, 60 F.3d 4 (1st Cir. 1995), this court squarely held
_______
that it does not make any difference, and the post-Gaudin
______
cases in other circuits imply the same view.
This result might at first be surprising, but we are
dealing with an accommodation of conflicting concerns.
Randazzo is not charged with a deliberate waiver of the
objection, which might preclude its consideration under any
standard. E.g., United States v. Marder, 48 F.3d 564 (1st
____ _____________ ______
Cir.), cert. denied, 115 S. Ct. 1441 (1995); see also Olano,
____________ ___ ____ _____
113 S. Ct. at 1777. And, although the trial judge in this
case acted properly under then prevailing law, Randazzo is
given the benefit on direct review of a later change in law--
if he can meet the customary plain error tests that Olano
_____
sets forth for unpreserved error. In any event, Collins
_______
controls.5
In this case, even assuming the error was "plain" and
"affected substantial rights," Fed. R. Crim. P. 52(b), it did
not cause a "miscarriage of justice" or seriously affect the
integrity or impair "public confidence" in the proceedings.
____________________
5Any contrary implication that might be drawn from
United States v. London, 66 F.3d 1227, 1239-40 (1st Cir.
______________ ______
1995), petition for cert. filed, 64 USLW 3511 (U.S., Jan. 18,
________________________
1996), is at most dictum since the court held that no error
had been committed.
-17-
-17-
Olano, 113 S. Ct. at 1779; Keys, 67 F.3d at 811. On the tax
_____ ____
counts, the convictions were inevitable. Although Randazzo's
brief struggles imaginatively to find a doubt based on the
amount of the misreported expenses in comparison with
corporate income, the amount (between $45,000 and $60,000
each year) was not trivial or immaterial, even assuming
dubitante that amount matters in the case of a deliberate
_________
falsification. Compare United States v. Greenberg, 735 F.2d
_______ ______________ _________
29, 31 (2d Cir. 1984).
As for the use of STP in shrimp--forbidden by the
Company's government contracts--the prosecution offered
evidence that STP increased the weight of the shrimp
(apparently by more than five percent) and therefore the cost
to the government. In fact, the prosecution showed that in
one instance where the presence of STP was revealed, the
government rejected the Company's shipment. Given the
contract ban and the increased cost, the failure to reveal
the use of STP was patently material.
V. PROCESSING AID
The last issue concerns Randazzo's claim that the court
misinstructed the jury on the definition of "processing aid,"
a term pertinent to the misbranding offense in this case.
Count 65 charged Randazzo with conspiring to sell, and counts
66-78 with selling, shrimp that was misbranded; and one of
the three forms of misbranding charged (any one sufficed for
-18-
-18-
conviction) was that the label inaccurately failed to list
sodium hydroxide as an ingredient. The statute, 21 U.S.C.
343(i)(2), provides that failure to list an ingredient
constitutes misbranding unless the omission is exempted by
regulation.
Sodium hydroxide had clearly been added to the shrimp in
question, but it was Randazzo's position that this ingredient
did no more than bring out or restore the allegedly natural
pink color of the shrimp and that the ingredient was exempted
from listing as a "processing aid." The regulation exempting
"processing aids" defines them to include the following:
Substances that are added to a food for
their technical or functional effect in
the processing but are present in the
finished food at insignificant levels and
do not have any technical or functional
effect in that food.
21 C.F.R. 101.100(a)(3)(ii)(c).
_
In charging the jury, the trial court did not read this
quoted language verbatim, although Randazzo had asked for
such an instruction. Instead, the court told the jury that
the jury could find misbranding if the label failed to list
each ingredient but, "if an ingredient is merely a processing
aid, it does not have to be listed. However, if the
ingredient has a functional or technical effect on the
product, such as changing its color, it is not a processing
aid and it must be listed as an ingredient."
-19-
-19-
Following the charge, the court invited objections.
Randazzo did not object to the failure to read the verbatim
definition of processing aid, and the omission was not plain
error. See Fed. R. Crim. P. 30. But his counsel did say: "I
___
object to the use of the phrase `changing its color' in
connection with the standard of identity." Despite the
garble (the "standard of identity" concept related to a
different set of counts not involving color), we think that
the district court likely understood the thrust of the
objection.
This takes us to the question whether the district court
was right in glossing the regulation to exclude from the
definition of "processing aid" an ingredient that "change[s]
[the food's] color." However, Randazzo offers nothing--by
way of textual analysis, precedent, administrative
interpretation, policy argument, or anything else--to support
his underlying position, namely, that an ingredient that
merely brings out a supposedly natural color is a processing
aid.
The government's reading of the regulations is not self-
evidently wrong; indeed, the government now suggests that the
"change of color" instruction was actually too favorable to
the defense (but the government proposed the language).6 In
____________________
6The government relies for its new contention upon
another regulation describing "the physical or technical
functional effects" for which "ingredients may be added to
-20-
-20-
all events, it is the appellant's responsibility to make some
showing that an error has been committed. United States v.
______________
Hurley, 63 F.3d 1, 11 (1st Cir. 1995), cert. denied, 64 USLW
______ _____ ______
3604 (U.S., Mar. 25, 1996). We have no basis here for
finding that the instruction was error and that is enough to
decide this case.
Affirmed.
________
____________________
foods," which includes among them "[s]ubstances used to
impart, preserve, or enhance the color or shading of a food .
. . ." 21 C.F.R. 170.3(o)(4).
-21-
-21-
APPENDIX
The following briefly describes the evidence of
uncharged wrongs admitted at trial:
1. There was evidence that the Company used sugar in
processing shrimp for an unspecified period before it was
discontinued in favor of saccharin in 1989. No one testified
expressly that this use of sugar was illegal, but this was a
likely inference, given that the evidence showed the sugar
was not identified on the product label and that sugar was
among the ingredients concealed by falsified brine charts.
2. Testimony showed that STP was used in the Company's
frozen breaded shrimp from the 1970s, in violation of federal
regulations and government contract provisions. This conduct
clearly preceded the indictment period for count 1, which
began in 1989, although the government argues that it was
within the scope of the allegations in count 79, which stated
that the additive had been used in commercially sold shrimp
"from a time not known to the grand jury but at least June
1983."
3. There was evidence that, during the years alleged in
the tax counts, Randazzo failed to report as income on his
personal tax returns both the cash sums he allegedly took
from the Company's retail store and the personal services
provided by an assistant at Company expense.
4. Testimony by a Company accountant tended to show
that Randazzo engaged in the corporate tax count offenses
prior to the indictment period. Specifically, the accountant
told Randazzo in a 1985 conversation that something was
suspect about the bookkeeping for the cash retail sales of
shrimp, and also inquired as to what Company services were
being performed by the Randazzo family assistant. Randazzo
allegedly told him it was none of his business.