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December 8, 1986


The opinion of the court was delivered by: STERN

 The defendants, four food inspectors and their supervisor, were indicted for taking, and for conspiring to take, bribes from Leo Keller Corporation, a Newark meat-packing plant. On September 15, 1986, this matter came on for trial before this Court. After the completion of opening statements, the defendants moved for a mistrial based on the insufficiency of the government's opening statement and to have the indictment dismissed for improperly charging multiple conspiracies in Count One. This Court granted the application for mistrial, and provided the parties with additional time to respond to the motion to dismiss and sever.

 Defendants argue that the government's evidence, at best, shows that the owners and managerial workers of Leo Keller Corporation may have been separately attempting to bribe individual U.S.D.A. food inspectors in order to receive preferential treatment. The indictment, they claim, improperly charges a number of individual conspiracies -- without common agreement or objectives -- within one count.

 This Court is of the opinion that Count One charges multiple conspiracies, rather than a single conspiracy. As in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), the government's proofs are at variance with the single conspiracy charged in Count One. Moreover, this Court finds that the single charge of conspiracy, in light of the dearth of evidence supporting the charge and the subtle, confusing nuances of the Kotteakos challenge, would unfairly confuse the jury and prejudice the defendants. This Court will, therefore, dismiss Count One of the indictment and grant defendants' motion for a severance. The defendants' motion to dismiss the entire indictment is denied.

 The Government's Proffer of Evidence

 In its brief in opposition to the defendants' motion to dismiss, the government presents a history of the "conspiracy" to defraud the U.S.D.A., dating back to the mid-1970's, when federal inspection of the Leo Keller plant began. According to the government, a number of different dramatis personnae have been involved in this scheme since that date. For the sake of clarity, the actors are as follows: Max Keller and Otto Gold, managerial employees of the Leo Keller Corporation; Herbert Bartsch, an employee of the corporation who supposedly prepared the samples; Patrick McHale, a U.S.D.A. meat inspector and government agent; Robert Rix, the inspectors' supervisor in Newark until September 1981; Morris Donsky, Herbert Reinfeld, Leroy Glenn, Michael Zmirich and Salvatore Vicari, U.S.D.A. meat inspectors. Keller, Gold, Vicari and Bartsch have pleaded guilty. The government also contends the existence of unindicted co-conspirators.

 Between 1981 and 1985, defendants Donsky, Reinfeld, Glenn and Zmirich, along with inspectors Vicari and McHale, each spent at least one regular six-month assignment as a daytime meat inspector for the Leo Keller Corporation. One other meat inspector, Joseph Tumminello, was given a six-month assignment at the plant during this period. The government contends Mr. Tumminello is an unindicted co-conspirator. Further, the calendar summaries provided by the government show periods in which relief duty was performed at the plant, other than the regular six-month assignments. Three inspectors, other than the defendants or McHale and Vicari, inspected the meat during these visits. Two, Mr. Tumminello and Jim Williams, are alleged by the government to be unindicted co-conspirators. The third, Laverne Beecher, had a single two-week assignment in the plant, and is not alleged to be a co-conspirator.

 The government argues that from about 1979 through 1985, prepared special samples were produced by defendant Bartsch and his subordinates, and were packaged and stored in a freezer in the corporation. Each of the defendant inspectors, between 1979 and 1985, allegedly approached Bartsch on various occasions and requested samples. Sometimes, instead of obtaining the samples directly from the Leo Keller employees, the inspectors allegedly took the samples directly from the freezer.

 The government contends that in addition to this common "method" of obtaining samples, the bribe money was delivered in a common fashion as well. As the government describes this "common method,"

Cash was given to the inspector, usually in a white envelope, wherever Keller or Gold might run into the inspector without other people present. Few words if any were spoken during the payments.

 Government's Brief at 12. According to the government, the amounts received by the inspectors were the same, gradually increasing over the life of the "conspiracy." By the fall of 1983, the payments were allegedly $ 200 per week. *fn1"

 The government contends that defendant Donsky was the "leader" of the conspiracy. As leader, he received higher payment and, according to the government, was responsible for warming up new inspectors. Max Keller, according to the government, will testify that he would ask Donsky whether it was safe to pay the next inspector scheduled, and Donsky would either say yes or tell Keller that he would talk to the new inspector.

 The "scheme" was uncovered by Inspector McHale in September 1983. After reporting being offered a bribe at the plant, McHale agreed to become an undercover agent. Much of the government's proffer consists of covert tape recordings made by McHale in September 1983, March 1984, and September through November 1984.

 The government's proffer does provide some evidence tying the defendants together. There is evidence to suggest that defendant Donsky was asked, on a number of occasions, whether future inspectors were "safe" to bribe. There is also some evidence suggesting that individual defendants were aware that others were taking bribes from the plant as well. Further, the government's proffer does point to an isolated incident of shared profits -- one defendant relieved another over a two-week period, and the absent defendant demanded half of the money received during his absence. Finally, the government's "strongest" evidence of a common scheme or enterprise is the longevity and continuity of the bribery activity at the plant.

 Noticeably absent from the government's proffer is any evidence suggesting an agreement among the defendants to commit the alleged offenses. Further, the proffer, other than in the isolated incident noted above, presents absolutely no evidence of shared profits. Finally, the government's proffer tends to support, rather than disprove, the defendants' contention that the defendants were acting as individual entrepreneurs, rather than as an organized group acting together in furtherance of a common goal. The government cites a ...

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