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United States v. Donsky

filed: August 5, 1987.

UNITED STATES OF AMERICA
v.
DONSKY, MORRIS; UNITED STATES OF AMERICA V. REINFELD, HERBERT; UNITED STATES OF AMERICA V. GLENN, LEROY; UNITED STATES OF AMERICA V. ZMIRICH, MICHAEL; UNITED STATES OF AMERICA V. RIX, ROBERT; UNITED STATES OF AMERICA, APPELLANT



On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal Nos. 86-00211-01, 86-00211-02, 86-00211-03, 86-00211-04, 86-00211-06.

Sloviter, Becker and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge:

This is an appeal from an order of the district court dismissing the conspiracy count from a multi-count indictment against each of several criminal defendants. We must decide whether the district court, which was presented with a valid indictment and an alleged variance between the government's evidence and the conspiracy charged in the indictment, properly granted defendants' pretrial motion to dismiss the conspiracy count at the conclusion of the government's opening statement. We conclude that the district court's dismissal of the single conspiracy count was in error.

I.

In a thirty-three count indictment filed June 9, 1986 seven defendants -- Morris Donsky, Herbert Reinfeld, Leroy Glenn, Michael Zmirich, Robert Rix, Salvatore Vicari, and Herbert Bartsch -- were charged with participating in a long-term conspiracy to pay and receive bribes in exchange for influencing the actions of public officials. Defendants Vicari and Bartsch entered pleas of guilty before trial and are not parties to this appeal. The five remaining defendants were all food inspectors employed by the United States Department of Agriculture.*fn1

As inspectors, the defendants were obliged to obtain random samples of the meat products from the production lines of the Leo Keller Meat Processing Plant, and send these samples to a government laboratory for the purpose of determining whether they complied with U.S.D.A. regulations. The indictment charged that each of the five defendants, rather than obtaining random samples of the meat products being processed at the Leo Keller plant, instead accepted bribes and submitted specially prepared samples of meat. Count One of the indictment charges the five defendants with involvement in a single conspiracy. Counts Two through Thirty-Three, not in issue on this appeal, charge the individual defendants with separate substantive bribery offenses under 18 U.S.C. § 201.

Prior to the commencement of trial before the United States District Court for the District of New Jersey, the defendants moved to dismiss the indictment or to sever the conspiracy count. The thrust of their motion was that the indictment was defective because it charged multiple conspiracies in a single count. The district court denied the motion based on its conclusion that the indictment, on its face, charged a single conspiracy. The court indicated, however, that it would "watch the proofs as they come in" to see if there was a variance between the evidence presented and the charges in the indictment. App. at 54.

On September 15, 1986, the jury trial of the five defendants commenced, and all counsel presented opening statements. The government's opening statement discussed the type of evidence it would present in support of its conspiracy charge. On the basis of this opening statement, in which the government conceded that the defendants hardly ever talked to each other and that it would not produce evidence that the defendants ever all gathered together, the five defendants renewed their motion for a dismissal of the indictment's conspiracy count, claiming an impermissible variance.

The district court expressed concern as to whether the government had sufficient evidence to demonstrate a single conspiracy, and whether this lack of evidence would unduly confuse the jury. App. at 131-32, 152-54, 408-413. Because of these concerns, the district court declared a mistrial and asked that the defendants and the government submit briefs on the motion to dismiss. Specifically, the government was required to provide a written proffer of the evidence it would present at trial.

On November 3, 1986, a hearing was held on the defendants' motion to dismiss the indictment. On the basis of the government's opening statement and its offer of proof outlining the evidence it would present at trial, the district court concluded that no reasonable jury would be able to find a single conspiracy, rather than multiple conspiracies. By order dated December 8, 1986, the district court dismissed Count One (the conspiracy count) of the indictment and granted the defendants' motion for a severance, 649 F. Supp. 631 (D.N.J. 1986).

The government filed a timely notice of appeal from the December 8, 1986 order. Appellate jurisdiction is proper under 18 U.S.C. § 3731.*fn2 Our review is plenary as to the district court's order of dismissal.

II.

We first address a preliminary matter raised by the government's April 2, 1987 motion to strike the brief submitted on behalf of the five defendant-appellees. The principal argument presented in the government's motion to strike was that the defendants' brief improperly relied on grand jury testimony which was not a part of the record before the district court.*fn3 It is elementary that this court cannot consider any material that is not a part of the record. United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248 (3d Cir. 1970).

The defendants filed a joint letter memorandum, in opposition to the government's motion to strike, and a cross-motion for costs and sanctions. The defendants argued that the grand jury testimony referenced in their brief was indeed a part of the record before the district court. On the basis of this representation, we denied the government's motion to strike, as well as the cross-motion for costs and sanctions, but required the defendants to submit a supplemental appendix which would set forth the page and date references to the record for each page of the grand jury testimony upon which their brief submitted to this court relied.*fn4

We received the defendants' supplemental appendix on May 1, 1987. The defendants' submission did not include the requested references to portions of the record. Instead the defendants noted those portions of their district court briefs which either made reference to or ...


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