United States v. Randazzo

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.