JSG Trading Corp. v. Department of Agriculture

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2000 Decided January 5, 2001

No. 00-1011

JSG Trading Corp.,
Petitioner

v.

Department of Agriculture and
United States of America,
Respondents

On Petition for Review of an Order of the
U.S. Department of Agriculture

Robert M. Adler argued the cause for petitioner. With him
on the briefs were Gary C. Adler and John M. Himmelberg.

M. Bradley Flynn, Attorney, U.S. Department of Agricul-
ture, argued the cause for respondents. With him on the
brief were James Michael Kelly, Associate General Counsel,
and Margaret M. Breinholt, Acting Assistant General Coun-
sel.

 Before: Sentelle, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This case returns to us after
remand on JSG Trading Corp.'s petition for review of a
Department of Agriculture order adjudging it guilty of com-
mercial bribery and revoking its license to sell produce under
the Perishable Agricultural Commodities Act. We outlined
many of the financial dealings at issue here in JSG Trading
Corp. v. United States Dep't of Agric., 176 F.3d 536 (D.C. Cir.
1999), and will assume familiarity with that opinion. This
time around JSG challenges the sufficiency of the evidence
and raises three questions: (1) did the Department apply the
wrong legal standard for commercial bribery? (2) were the
payees principals in the victim companies, thereby precluding
a finding of commercial bribery? and (3) is license revocation
excessive? We answer no to each and deny the petition.

I.

Section 2(4) of the Perishable Agricultural Commodities
Act of 1930 (PACA) forbids "any commission merchant, deal-
er or broker * * * to fail, without reasonable cause, to
perform any specification or duty, express or implied, arising
out of any undertaking in connection with any such [produce]
transaction." 7 U.S.C. s 499b(4).1 The Department has

__________
1 Title 7, U.S.C. s 499b(4) states in full:

It shall be unlawful in or in connection with any transaction in
interstate or foreign commerce [f]or any commission merchant,
dealer, or broker to make, for a fraudulent purpose, any false
or misleading statement in connection with any transaction
involving any perishable agricultural commodity which is re-
ceived in interstate or foreign commerce by such commission
merchant, or bought or sold, or contracted to be bought, sold,
or consigned, in such commerce by such dealer, or the purchase
or sale of which in such commerce is negotiated by such
broker; or to fail or refuse truly and correctly to account and
make full payment promptly in respect of any transaction in
any such commodity to the person with whom such transaction
is had; or to fail, without reasonable cause, to perform any

drawn from this language a duty of produce sellers not to
corrupt agents and employees of their buyers, and has styled
the breach of this duty "commercial bribery." In brief, this
duty is breached--and commercial bribery results--when a
seller offers consideration to a buyer's agent or employee,
without the knowledge of the principal or employer, with
intent to induce purchase of the seller's product. See In re
Sid Goodman & Co., 49 Agric. Dec. 1169 (1990), aff'd, 945
F.2d 398 (4th Cir. 1991) (table), and In re Tipco, Inc., 50
Agric. Dec. 871 (1991), aff'd, 953 F.2d 639 (4th Cir. 1992)
(table).

JSG Trading Corp. is a New Jersey-based PACA licensee
engaged in buying and selling produce. L&P and American
Banana are produce dealers at the Hunts Point Market in
New York City. L&P and American Banana purchased
tomatoes from JSG through purchasing agents--Anthony
Gentile for L&P; Albert Lomoriello for American Banana.
In early 1993, the Department began investigating whether
JSG sought to covertly influence Anthony Gentile and Albert
Lomoriello to purchase more tomatoes from JSG on behalf of
their respective principals in violation of PACA s 2(4), as
interpreted in Goodman and Tipco. The Department identi-
fied what it considered questionable transactions and account-
ing practices, several of which an Administrative Law Judge
found were commercial bribes. The ALJ ordered JSG's
license revoked. See In re JSG Trading Corp., 56 Agric. Dec.
1800 (1997). The Department's Judicial Officer affirmed the
ALJ's findings and order. See In re JSG Trading Corp., 57
Agric. Dec. 640 (1998).

__________
specification or duty, express or implied, arising out of any
undertaking in connection with any such transaction; or to fail
to maintain the trust as required under subsection 499e(c) of
this title. However, this paragraph shall not be considered to
make the good faith offer, solicitation, payment, or receipt of
collateral fees and expenses, in and of itself, unlawful under
this chapter.

 II.

A. Substantial Evidence

An agency's adjudicative orders must be supported by
"substantial evidence," 5 U.S.C. s 706(2)(E), which is "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion" when taking "into account
whatever in the record fairly detracts from its weight." See
AT&T Corp. v. FCC, 86 F.3d 242, 247 (D.C. Cir. 1996)
(quoting NLRB v. Columbian Enameling & Stamping Co.,
306 U.S. 292, 300 (1939), and Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)); McCarty Farms, Inc. v.
Surface Transp. Bd., 158 F.3d 1294, 1300-01 (D.C. Cir. 1998).
There is substantial evidence to support the Judicial Officer's
finding that JSG's payments, described below, to Anthony
Gentile, to his wife Gloria Gentile, and to Albert Lomoriello
were commercial bribes under Goodman and Tipco.

The payments at issue here consisted of: 35 checks to
Anthony Gentile totaling $62,535.60; payments to Gloria Gen-
tile, including an unjustified gain on a stock sale; a check for
$5,600 to G&T Enterprises, a company Gloria Gentile set up
for tax purposes; and seven checks to Albert Lomoriello
totaling $9,733.45.2

JSG tendered numerous "innocent" explanations for these
transactions and the bizarre accounting practices surrounding
them, none of which is persuasive. For instance, JSG insists
that the checks made out to Anthony Gentile were "circular"
because they were redeposited in JSG's accounts with no
money ever reaching the payee. According to JSG, "none of
the monies reflected by these checks ever reached Mr. Gen-
tile or [was] otherwise paid by JSG to any person (or any
entity) for his benefit." Final Brief of Petitioner at 18. The

__________
2 On remand, the Judicial Officer found that JSG's lease of a
Mercedes to Anthony Gentile, paid for in part by JSG; its sale of a
boat to Mr. Gentile for a fraction of its value; and its gift of a $3,317
Rolex watch to Mr. Gentile were not commercial bribes because
they were not intended to induce him to purchase tomatoes and
L&P was aware of the transactions. See In re JSG Trading Corp.,
58 Agric. Dec. 1041, 1061 (1999).

checks, JSG claims, functioned as "clips," a mechanism to
reconcile accounts: "these 'clips' were used ... in order to
permit L&P to pay less than JSG's invoiced prices in order to
make up for a loss on prior purchases." Id. at 20 n.19. But
writing checks payable to another company's purchasing
agent and then re-depositing them into one's own account is
hardly a recognized or plausible way to reconcile accounts
between a seller and the payee's principal, the buyer. The
normal function of checks is to move money from one account
to another, not to keep it in place. Making checks payable to
L&P's purchasing agent and then re-depositing them does
not appear, as JSG claims, to "permit L&P to pay less than
JSG's invoiced prices." The Judicial Officer had ample evi-
dence for finding JSG's explanations chimerical, particularly
in light of the inability of JSG's officers to give a coherent
explanation of this unusual accounting procedure; JSG's
treatment of the payments in its records as profit-sharing
with Mr. Gentile and as reductions in Mr. Gentile's debt to
JSG; and the apparent relationship between the amount of
each check and a per-box commission noted in JSG's records.3
See 58 Agric. Dec. at 1064-77.

The Judicial Officer was also on solid ground in rejecting
JSG's explanations for its payments to Mrs. Gentile and Mr.
Lomoriello. No evidence indicates the payments were com-
pensation for any legitimate service rendered. Much evi-
dence tends to show that the payments were secret per-box
commissions intended to induce the purchase of more toma-
toes from JSG. See 58 Agric. Dec. at 1061-64 & 1081-88.
We have doubts, however, about the $5,600 check to Mrs.
Gentile's company, G&T. In its opposition to JSG's motion to
dismiss the case on remand, the Department appeared to
concede that the payment to G&T was not a commercial
bribe, a statement inconsistent with its position in this court.
See Complainant's Response to JSG's Motion to Dismiss and
for Entry of Judgment at 5 & n.2; Joint Appendix at 389. At

__________
3 JSG stated at oral argument that it was not challenging the
Judicial Officer's finding that 16 of the 35 checks were used to
reduce Mr. Gentile's debt to JSG.

any rate, we cannot see how the $5,600 payment could affect
the outcome of this case. The remaining payments to Mr.
and Mrs. Gentile and Mr. Lomoriello amply support revoca-
tion of JSG's PACA license.

B. Legal Standard for Commercial Bribery

JSG claims the Judicial Officer misapplied the commercial
bribery standard articulated in Goodman and Tipco. In our
first opinion in this case, we held that the Judicial Officer
erred in substituting a per se test for Goodman's and Tipco's
intent-to-induce and secrecy standard. See 176 F.3d at 543-
46. Under the per se test, any payment to a purchasing
agent above a de minimis threshold constituted a commercial
bribe, regardless of intent and secrecy. We remanded for the
Judicial Officer either to justify or to abandon the per se test.
He adopted the latter course.

On remand, the Judicial Officer interpreted PACA's duty
requirement as imposing on "each commission merchant,
dealer, and broker ... an obligation ... to avoid making or
offering a payment to a purchasing agent to encourage that
agent to purchase produce from the commission merchant,
dealer, or broker on behalf of the agent's principal or employ-
er, without fully informing the purchasing agent's principal or
employer of the offer or payment." 58 Agric. Dec. at 1051.
He disaggregated this obligation into a four-part test:

Proof that: (1) a commission merchant, dealer, or broker
made a payment to or offered to pay a purchasing agent;
(2) the value of the payment or offer was more than de
minimis; (3) the payment or offer was intended to
induce the purchasing agent to purchase produce from
the commission merchant, dealer, or broker making the
payment or offer; and (4) the purchasing agent's princi-
pal or employer was not fully aware of the payment or
offer made by the commission merchant, dealer, or bro-
ker to the purchasing agent, raises the rebuttable pre-
sumption that the commission merchant, dealer, or bro-
ker making the payment or offer violated section 2(4) of
the PACA.

58 Agric. Dec. at 1051. The presumption is rebutted by the
absence of any one element. See id.

JSG perceives in this phrasing of the test three substantial
and unexplained departures from Goodman, Tipco, and our
opinion in JSG Trading Corp.: (1) failure to require a specific
corrupt intent to induce; (2) equation of secrecy with the
payee's principal's or employer's lack of full awareness of the
payment or offer; and (3) omission of a quid pro quo require-
ment. This new test, JSG insists, is the per se test redux, and
will "turn countless normal business transactions in to [sic]
bribes." Final Brief of Petitioner at 33-34.

The Judicial Officer's test is consistent with Goodman and
Tipco. Although couched as a presumption,4 the post-remand
articulation of the test is a more formalized version of the
Goodman/Tipco intent-to-induce and secrecy standard.
When the presumption language is cast aside, the test's basic
structure parallels that of many criminal statutes. There are
four elements, each of which is a necessary predicate for
liability. Failure to satisfy any one element defeats liability.
The only significant divergence from Goodman and Tipco is
the addition of a de minimis threshold as an apparent
defense to payments or offers to pay that otherwise satisfy
the intent and secrecy elements. This de minimis element is
the converse of that which we rejected in JSG Trading Corp.,
wherein a payment above the de minimis threshold was a
sufficient rather than a necessary condition for liability. The
addition of this liability-defeating element is innocuous and, in
any event, JSG does not challenge it.

__________
4 The presumption language appears not to perform any burden-
allocating function ordinarily associated with presumptions. See,
e.g., Fed. R. Evid. 301 ("In all civil actions and proceedings not
otherwise provided for by Act of Congress or by these rules, a
presumption imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet the
presumption, but does not shift to such party the burden of proof in
the sense of the risk of nonpersuasion, which remains throughout
the trial upon the party on whom it was originally cast.").

 Neither Goodman, Tipco, nor our opinion in JSG Trading
Corp. requires a specific corrupt intent, a lower secrecy
standard, or a quid pro quo for commercial bribery. In both
Goodman and Tipco, a generalized intent by the payer to
induce purchase of its product satisfied the intent element.
In Goodman, for example, the Judicial Officer referred to a
treatise definition of commercial bribery that contains no hint
of specific corrupt intent: "the 'offer of consideration to
another's employee or agent in the expectation that the latter
will, without fully informing his principal of the 'gift,' be
sufficiently influenced by the offer to favor the offeror over
other competitors'." Goodman, 49 Agric. Dec. at 1184 (quot-
ing 2 Rudolf Callmann, The Law of Unfair Competition,
Trademarks and Monopolies s 49 (3d ed. 1968)). An "expec-
tation" is far from the specific corrupt intent JSG would
require. In another place, the Judicial Officer wrote that a
"PACA licensee is obligated to refrain from offering a pay-
ment to a customer's employee to encourage the employee to
purchase produce from it on behalf of the employer." Good-
man, 49 Agric. Dec. at 1186. See also Tipco, 50 Agric. Dec.
at 883. In Tipco, the Judicial Officer concluded that "the
evidence of record is certain that licensee Tipco made surrep-
titious payments to its customer's employee to induce the
employee to buy, or continue to buy, its produce...." Tipco,
50 Agric. Dec. at 889. Goodman and Tipco say nothing of
specific corrupt intent, let alone enough to make the Judicial
Officer's formulation of the intent element in this case arbi-
trary and capricious.5

The secrecy element in Goodman and Tipco contemplates a
sufficiently high level of awareness by the payee's employer
or principal to justify the Judicial Officer's insistence on "full
awareness." The opinions contain language equating a pro-
duce seller's breach of duty to a seller's failure to inform,
which connotes an obligation to impart actual knowledge of
the payments to the payee's employer or principal. See

__________
5 The occasional references to corrupting agents or employees in
Goodman and Tipco describe the effect of commercial bribery, not
the required intent.

Goodman, 49 Agric. Dec. at 1175, 1179, 1182, & 1186; Tipco,
50 Agric. Dec. at 883. The opinions also contain language
equating secrecy with the payer's expectation that the recipi-
ent not fully disclose the payment, which connotes an obli-
gation that somebody--either the payer or payee--ensure the
recipient's principal or employer has full awareness of the
transaction. See, e.g., Goodman, 49 Agric. Dec. at 1184. Yet
other language suggests that knowledge alone is not enough,
that without an affirmative grant of consent by the payee's
principal or employer the secrecy element would be satisfied.
See Goodman, 49 Agric. Dec. at 1186 ("payments by [Good-
man] to Messrs. Crandall and Hernandes, without permission
of Magruder and Fresh Value, is a violation of section 2(4) of
the PACA"); Tipco, 50 Agric. Dec. at 883 (suggesting that a
produce seller may "only make payments with the customer's
permission"). Both cases give produce vendors ample notice
that payments intended to induce the buyer's agents or
employees to purchase produce are commercial bribes unless
the payee's principal or employer is fully aware of the trans-
action.6

Similarly, Goodman and Tipco do not require a quid pro
quo arrangement between the payer and the payee. Al-
though a quid pro quo arrangement was present in each
case--a 25per box kickback--neither case turned on that
fact.7 Perhaps recognizing this, JSG instead points to our
earlier opinion in JSG Trading Corp. for a quid pro quo
requirement. In that opinion, we criticized the per se test's
lack of an intent and secrecy element as eliding the line
between bribes and legitimate transactions and elliptically

__________
6 In both Goodman and Tipco, the victim companies had an
explicit policy forbidding employees to accept gifts from vendors,
which the recipients of the payments in each case clearly breached.
See Goodman, 49 Agric. Dec. at 1174-75; Tipco, 50 Agric. Dec. at
878. Neither case turned on the existence of such a policy.

7 Notably, the Judicial Officer found, and we agree, that JSG's
per-box payment scheme constituted a quid pro quo. See 58 Agric.
Dec. at 1090. As in Goodman and Tipco, our decision does not turn
on this fact.

suggested a quid pro quo element as one way to restore that
line. See JSG Trading Corp., 176 F.3d at 545. We did not
suggest it was the exclusive means. Indeed, the Judicial
Officer fully restored that line by resurrecting the intent and
secrecy elements. The federal cases requiring a quid pro quo
that JSG cites do not persuade us otherwise, for they inter-
pret federal criminal bribery statutes containing entirely dif-
ferent language than PACA.8 See, e.g., United States v. Sun-
Diamond Growers of California, 526 U.S. 398, 404-05 (1999)
(interpreting language in 18 U.S.C. s 201 as requiring a quid
pro quo for bribery because there must be "a specific intent
to give or receive something of value in exchange for an
official act"); see also 2 Rudolf Callmann, The Law of Unfair
Competition, Trademarks and Monopolies s 12.02 (1985)
("There need be no close relationship between the value of
the consideration and the resulting advantage to the offer-
or."). JSG's related contention that its payments had no
effect on the victim companies' purchases or prices merely
restates the quid pro quo argument. To the extent the
argument differs, nothing in PACA, Goodman, or Tipco bases
illegality on changes in the victim company's purchasing or
pricing behavior.

JSG fears that the commercial bribery test will sweep up
legitimate business transactions and ordinary social hospitali-
ty. JSG forgets that the intent and secrecy elements are
necessary, not sufficient, conditions for commercial bribery,
so both must be satisfied. Social hospitality--for example,
taking a friend who happens to be a purchasing agent to
dinner--would be protected if the host lacked the intent to

__________
8 Given the substantial ambiguity in s 499b(4), it is the Depart-
ment's function, not ours, to define offenses under that provision.
See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984); JSG Trading Corp., 176 F.3d at 545 ("Given the broad
language of [PACA] s 2(4), the agency is not necessarily bound by
traditional statutory definitions of commercial bribery."). Our re-
view is limited to ensuring that the Department's construction of
PACA is reasonable and that the Department either follows its
prior constructions of the statute or articulates a reasoned justifica-
tion for departing.

induce purchase of its products (or, if it had such intent,
informed the agent's principal). Similarly, sales incentives
offered to a purchasing agent are perfectly legal under the
Judicial Officer's test if the agent's principal is informed of
the transaction.

The secrecy element in particular also distinguishes the
transactions at issue from a category of promotional activities
recognized as legitimate by PACA. The paragraph of PACA
from which the Department drew the prohibition on commer-
cial bribery states that "this paragraph shall not be consid-
ered to make the good faith offer, solicitation, payment, or
receipt of collateral fees and expenses, in and of itself,
unlawful under this chapter." 7 U.S.C. s 499b(4). The stat-
ute defines "collateral fees and expenses" as "any promotional
allowances, rebates, service or materials fees paid or provid-
ed, directly or indirectly, in connection with the distribution
or marketing of any perishable agricultural commodity." 7
U.S.C. s 499a(b)(13). JSG's payments to Anthony and Gloria
Gentile and Albert Lomoriello do not fall within this category.
Promotional allowances, rebates, and the like are typically
given with the buyer's knowledge rather than secretly direct-
ed to the buyer's agents or employees. JSG's payments also
lack the requisite good faith, which Department regulations
define as "honesty in fact and the observance of reasonable
commercial standards of fair dealing in the trade." 7 C.F.R.
s 46.2(hh). No reasonable conception of honesty or fair
dealing includes secret payments designed to corrupt a pro-
duce buyer's agents or employees.

C. Status of the Payees

The essence of the commercial bribery offense, as defined
by Goodman and Tipco, is the corruption or attempted
corruption by the produce seller of its buyer's agent or
employee. So framed, it does not cover payments made to an
employer or a principal. Nor could it, as payments made to
the produce buyer itself, as opposed to its agents or employ-
ees, do not possess the requisite secrecy. If Mr. Gentile and

Mr. Lomoriello were principals in L&P and American Ba-
nana, then JSG did not commit commercial bribery.

We agree with the Judicial Officer that they were not
principals. They were purchasing agents. See 58 Agric. Dec.
at 1051 (characterizing Mr. Gentile and Mr. Lomoriello as
purchasing agents). Mr. Gentile's and Mr. Lomoriello's joint
account arrangements9 with L&P and American Banana do
not alter the basic fact that these companies hired them to
buy and sell tomatoes on the companies' behalf. Although
each man shared profits and losses on his tomato transac-
tions, there is no evidence that either became a full partner in
his respective firm. Mr. Gentile, for instance, shared 15
percent of the profits and losses on his tomato sales for L&P.
Nothing indicates he shared in profits and losses on any firm
activity other than that which he was specifically engaged to
perform, whereas full partners in a business typically share
profits and losses in all the firm's activities. See, e.g., Unif.
P'ship Act s 202(a) (1997) (defining partnership as "the asso-
ciation of two or more persons to carry on as co-owners a
business for profit"). Likewise, Mr. Lomoriello shared 40
percent of the profits and losses on his produce transactions
for American Banana, but nothing indicates he shared in
American Banana's overall profits and losses or otherwise
became a co-owner. Far from indicating co-ownership, the
limited profit- and loss-sharing arrangements were a perfor-
mance-based compensation mechanism fully consistent with
Mr. Gentile's and Mr. Lomoriello's status as agents or em-
ployees. See 58 Agric. Dec. at 1093-94; see also Unif. P'ship
Act s 202(c)(2) & (3) (1997) (Stating that "the sharing of
gross returns does not by itself establish a partnership," and
that "a person who receives a share of the profits of a
business is presumed to be a partner in the business, unless
the profits were received in payment ... for services as an

__________
9 The Department's regulations define a joint account transaction
as "a produce transaction in commerce in which two or more
persons participate under a limited joint venture arrangement
whereby they agree to share in a prescribed manner the costs,
profits, or losses resulting from such transaction." 7 C.F.R.
s 46.2(s).

independent contractor or of wages or other compensation to
an employee.").

JSG nonetheless contends that Mr. Gentile and Mr. Lomo-
riello were independent brokers and argues, without citation,
that "payments to independent brokers are permissible under
the PACA." See Final Brief of Petitioner at 46-48. JSG
apparently believes that independent brokers are principals
because they are subject to PACA. The statute itself belies
this claim. Brokers by definition negotiate "for or on behalf
of the vendor or the purchaser."10 7 U.S.C. s 499a(b)(7).
Agents, not principals, act on another's behalf. See Restate-
ment (Third) of Agency s 1.01 (Tentative Draft No. 1, 2000)
("Agency is the fiduciary relationship that arises when one
person (the 'principal') manifests consent to another person
(the 'agent') that the agent shall act on the principal's behalf
and subject to the principal's control, and the agent consents
so to act."). Nor does the requirement in 7 U.S.C. s 499c(a)
that brokers obtain licenses make them principals. A bro-
ker's status as a principal, an agent, or an employee depends
on its relationship to other parties in a transaction, not its
possession of a license.

D. License Revocation

Section 8(a) of PACA permits license revocation for "fla-
grant or repeated" violations of s 2 (7 U.S.C. s 499b). See 7
U.S.C. s 499h(a).11 The Judicial Officer found JSG's bribes

__________
10 PACA defines a "broker" as "any person engaged in the
business of negotiating sales and purchases of any perishable
agricultural commodity in interstate or foreign commerce for or on
behalf of the vendor or the purchaser, respectively, except that no
person shall be deemed to be a 'broker' if such person is an
independent agent negotiating sales for and on behalf of the vendor
and if the only sales of such commodities negotiated by such person
are sales of frozen fruits and vegetables having an invoice value not
in excess of $230,000 in any calendar year." 7 U.S.C. s 499a(b)(7).

11 Subsection 499h(a) states in its entirety: "Whenever (1) the
Secretary determines, as provided in section 499f of this title, that
any commission merchant, dealer, or broker has violated any of the

"willful, flagrant, and repeated violations of section 2(4) of the
PACA" (7 U.S.C. s 499b(4)) and revoked its license. See 58
Agric. Dec. at 1094. We will not lightly disturb the Depart-
ment's choice of remedy under a statute committed to its
enforcement, especially given the Department's superior
knowledge of the industry PACA regulates. See Butz v.
Glover Livestock Comm'n Co., 411 U.S. 182, 185 (1973) (Up-
holding Department of Agriculture suspension order under
the Packers and Stockyards Act and reasoning that "where
Congress has entrusted an administrative agency with the
responsibility of selecting the means of achieving the statuto-
ry policy[,] 'the relation of remedy to policy is peculiarly a
matter for administrative competence'."); County Produce,
Inc. v. United States Dep't of Agric., 103 F.3d 263, 267 (2d
Cir. 1997) (courts "must defer to the agency's judgment as to
the appropriate sanctions for PACA violations" because the
Department of Agriculture "is particularly familiar with the
problems inherent in the produce industry, and it has experi-
ence conforming the behavior of produce companies to the
requirements of PACA").

Nothing in the record persuades us that JSG's payments to
the Gentiles and Albert Lomoriello were anything but fla-
grant and repeated. The bribes in this case were as flagrant
as those in Goodman and Tipco. The Department revoked
the defendants' licenses in both cases, providing ample notice
that commercial bribes may result in revocation. The only
difference from those cases is that JSG apparently did not

__________
provisions of section 499b of this title, or (2) any commission
merchant, dealer, or broker has been found guilty in a Federal
court of having violated section 499n(b) of this title, the Secretary
may publish the facts and circumstances of such violation and/or, by
order, suspend the license of such offender for a period not to
exceed ninety days, except that, if the violation is flagrant or
repeated, the Secretary may, by order, revoke the license of the
offender." 7 U.S.C. s 499h(a). JSG appears to be a dealer. See 7
U.S.C. s 499a(b)(6) (defining "dealer" as an entity "engaged in the
business of buying or selling in wholesale or jobbing quantities, as
defined by the Secretary, any perishable agricultural commodity in
interstate or foreign commerce....").

surcharge its customers to pay for the bribes. That distinc-
tion does not diminish the wilfulness of JSG's conduct or the
corruption it worked on its buyers' purchasing agents. The
Department acted well within its discretion in revoking JSG's
license.

We also reject JSG's claim that the Department's denial of
its motion to reopen the record was arbitrary and capricious.
Some of the supplemental points JSG wished to present were
not relevant to a finding of commercial bribery under Good-
man and Tipco. JSG had ample opportunity before the
record closed to present the others.

Petition denied.