LEOPOLD KOPPEL AND PAUL KOPPEL, PETITIONERS V. UNITED STATES OF
AMERICA

   No. 86-792

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Question Presented
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-2a) is
   unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 31,
1986.  The petition for a writ of certiorari was filed on November 14,
1986.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court's jury charge directed a verdict on
an essential element of a violation of the Federal Meat Inspection
Act, 21 U.S.C. (& Supp. III) 601 et seq.

   2. Whether the district court erred in denying petitioners' motion
for a new trial based on allegations that the government failed to
disclose the names of two witnesses who may have provided exculpatory
testimony.

   3. Whether the indictment charged, and the evidence at trial
proved, a felony violation of the Federal Meat Inspection Act, 21
U.S.C. (& Supp. III) 601 et seq.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Northern District of New York, petitioners were each convicted on one
count of selling, offering to sell, or transporting adulterated meat,
in violation of the Federal Meat Inspection Act, 21 U.S.C. (& Supp.
III) 601 et seq. (Pet. App. 1a).  Petitioner Leopold Koppel was
sentenced to 6 months' imprisonment, to be followed by 18 months'
probation, and he was fined $10,000.  Petitioner Paul Koppel was
sentenced to two years' probation, and he was fined $10,000.  The
court of appeals affirmed in an unpublished order (Pet. App. 1a-2a).

   1. The evidence at trial showed that petitioners engaged in the
sale of adulterated meat through their operation of the Fort Plain
Packing Co., Inc., a cattle slaughter house that produced boneless
beef to be sold for processing into prepared foodstuffs for human
consumption.  Before the plant closed in November 1984, petitioners
stored, processed, and packed meat at the plant under unsanitary
conditions in which the meat may have become contaminated.
Specifically, petitioners picked meat off the floor and placed it into
containers of edible meat to be sold (C.A. App. 111-113, 485-486, 503,
521-522, 530-532, 542-543, 552-553;  see also id. at 353-354, 419,
432-433, 446, 456, 472-473, 474-475, 476-477, 519-521).  In addition,
petitioners retrieved bones from containers of inedible meat and
directed employees to retrim the bones to obtain more meat (id. at
115-117, 361-362, 421, 434-435, 450-451).  /1/ Petitioners also turned
off the sterilizers that were used to clean the meat cutting knives
and used dirty meat hooks during the processing operations (id. at
359-360, 411, 420-422, 436, 477, 496-498, 532-533, 554-555).
Petitioners sold the adulterated meat to meat plants throughout the
United States and Canada (id. at 192-195, 260-263).

   2. At a pretrial hearing on January 8, 1986, the district court
ordered the government to provide petitioners with the names of all
former employees interviewed by the government who gave "negative
statements," i.e., employees who stated that they did not observe
petitioners engaging in any unlawful activities (C.A. App. 15-16).  By
letter dated April 8, 1986, the government disclosed the names of ten
such employees to petitioners (id. at 860).

   The following day, which was approximately a week before trial, the
prosecutor spoke to two former employees, Cook and Skottke, who had
been interviewed in March 1985 during the investigative stage of the
case (C.A. App. 886-888, 891).  During their initial interviews, the
two employees had described certain activities they observed at the
plant that inculpated petitioners (id. at 883).  An investigatory from
the Department of Agriculture accompanying the prosecutor had made
written notes of those interviews (id. at 868-869).  When the
prosecutor spoke to the two employees the second time shortly before
trial, however, neither employee repeated his earlier inculpatory
statements, and both appeared reluctant to testify (id. at 890).  On
the first day of trial, the prosecutor turned over the investigator's
notes of the March 1985 interviews with Cook and Skottke to ensure
compliance with the Jencks Act, 18 U.S.C. 3500 (C.A. App. 891).
Neither Cook nor Skottke, however, testified at trial (id. at 890).

   After the trial, Cook and Skottke approached petitioners.  Each
claimed that he would have testified that he did not observe any of
the activities described by the other employees who testified for the
government (C.A. App. 917).  Petitioners subsequently filed a motion
for a new trial, supported by affidavits from Cook and Skottke (id. at
861-864).  Petitioners argued that the government had deliberately
suppressed exculpatory evidence.  Because the motion was filed more
than seven days after the judgment, the district court denied it as
untimely under Fed. R. Crim. P. 33 (C.A. App. 914-915).  Petitioners
then moved for a new trial based on newly discovered evidence (id. at
915).  At a hearing on July 1, 1986, the district court denied the
second motion.  The court ruled, first, that the new motion was
essentially the same as the first motion and therefore should
similarly be deemed time-barred.  Second, the court ruled that on the
merits of their claim petitioners had failed to satisfy the standards
for a new trial based on newly discovered evidence (id. at 915-916).

                               ARGUMENT

   1. Petitioners contend (Pet. 10, 13-15) that a jury instruction
given by the district court effectively directed a guilty verdict,
thereby depriving petitoners of their Sixth Amendment right to a trial
by jury.  The court of appeals properly rejected that contention.

   Petitioners' principal defense at trial was that the meat taken by
petitioners from the floor was reconditioned to remove contaminants
before the meat was placed in the edible meat containers (see Pet.
14).  Petitioners accordingly requested that the district court
instruct the jury that "picking meat up off the floor and placing it
in somebody's pocket is not a violation of any kind" (C.A. App. 843).
The district court gave the requested instruction as part of the jury
charge, and added:  "Taking (the meat) out of their pocket later on
and putting it in an edible meat container, that is.  The mere picking
it up is no violation" (ibid.).

   Contrary to petitioners' contention (Pet. 13-15), the additional
jury instruction did not undermine petitioners' defense by directing
the jury to find that meat picked up from the floor, even if
subsequently reconditioned, was adulterated within the meaning of the
Federal Meat Inspection Act.  As the court of appeals correctly found
(Pet. App. 2a), the district court properly instructed the jury on the
essential element of "adulteration." The district court specifically
instructed the jury that it must find that the meat was adulterated;
the court defined "adulterated meat" to mean "meat which has been
prepared, packed or held under insanitary conditions where it may have
become contaiminated with filth or where it may have been rendered
injurious to health";  and the court explained that filth meant "dirt
or contaminants of any kind in the common and ordinary sense." C.A.
App. 842.  The district court did not suggest to the jury that meat
taken from the floor could not be placed in edible meat containers
after it had been reconditioned;  /2/ the court did no more than
instruct the jury that meat picked up from the floor was filthy and
could not be placed directly (i.e., without proper reconditioning)
into an edible meat container without violating the Federal Meat
Inspection Act.  /3/ The district court's charge was therefore not a
directed verdict at all, but merely an appropriate qualification to
the charge requested by petitioners, which otherwise could have misled
the jury into believing that recovering meat from the floor could not
be part of a course of illegal conduct.  The court's instruction was
therefore not misleading, particularly when "viewed in the context of
the overall charge." United States v. Park, 421 U.S. 658, 674 (1975);
Cupp v. Naughten, 414 U.S. 141, 146-147 (1973);  Boyd v. United
States, 271 U.S. 104, 107-108 (1926).

   2. Petitioners contend (Pet. 11-12, 15-18) that the government
concealed the names of two former employees (Cook and Skottke) of the
Fort Plain Packing plant who would have provided exculpatory
testimony, and that the government's conduct denied them a fair trial.
 In particular, petitioners contend that the government violated the
district court's order requiring disclosure of exculpatory testimony
and that the district court should have applied a less stringent
standard for granting a new trial.  The government, however, did not
violate the district court's order.  Moreover, the district court
applied the correct standard of review and petitioners' claim that
they were denied a fair trial lacks merit.

   The district court found "absolutely no (merit) to (petitioners')
claim of prosecutorial misconduct by suppressing evidence" (C.A. App.
919).  As the district court found (id. at 917-918), both employees
inculpated petitioners during the March 1985 interview.  The
government therefore had no obligation to identify either employee
under the court's disclosure order. /4/ Moreover, because the district
court correctly found that the government did not violate its duty to
turn over exculpatory material to petitioners, it did not err in
denying a new trial and in applying the traditional test for reviewing
a motion for a new trial based on newly discovered evidence.

   In any event, petitioners would not be entitled to a new trial even
if the evidence withheld had been regarded as exculpatory.  Government
suppression of favorable evidence violates due process only where the
evidence is material to the determination of guilt.  United States v.
Agurs, 427 U.S. 97, 107-110 (1976);  Brady v. Maryland, 373 U.S. 83,
104 (1963).  And evidence is material "only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." United States v.
Bagley, No. 84-48 (July 2, 1985), slip op. 14.  There is no such
"reasonable probability" of a different result in this case.  The
testimony of 12 former employees supported the jury's finding that
petitioners violated the Federal Meat Inspection Act.  As the district
court found (C.A. App. 920), even if Cook and Skottke had testified
that they did not make similar observations, "it is highly unlikely,
if not impossible, that the(ir) testimony * * * would have 'probably
led to acquittal'" (ibid.).  Neither man claimed to have observed all
of petitioners' activities and, as the district court pointed out (id.
at 919), "the government could have easily impeached (Cook and
Skottke) with their prior inculpatory statements."

   3. Finally, petitioners contend (Pet. 12-13, 18-24) that the
district court improperly imposed felony sentences when petitioners
were charged with and convicted only of misdemeanor violations of the
Federal Meat Inspection Act.  The court of appeals properly rejected
that claim (Pet. App. 2a).

   The indictment charged (C.A. App. 13-14) that petitioners "did
willfully and knowingly sell, transport, or offer for sale in
commerce" adulterated meat, in violation of the Federal Meat
Inspection Act, 21 U.S.C. 610(c).  Petitioners were sentenced under 21
U.S.C. 676(a).  That section generally sets forth misdemeanor
penalties for violations of the Act, but it also provides for the
imposition of felony penalties "if such violation involves * * * any
distribution or attempted distribution of an article that is
adulterated." In this case, felony penalties were appropriate because,
as the court of appeals found (Pet. App. 2a), the language of the
indictment was "the functional equivalent of the term 'distribution'
as used in (the Act)," and the evidence at trial plainly established
that petitioners distributed adulterated meat by selling it to other
meat plants.  /5/ Indeed, the court of appeals rejected (Pet. App. 2a)
petitioners' challenge to the sufficiency of the evidence to show that
the adulterated meat entered into commerce.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   JOSEPH C. WYDERKO

      Attorney

   JANUARY 1987

   /1/ The containers of inedible meat were receptacles into which
paper, bones, abscesses, and other trash were disposed (C.A. App.
146).  Nothing placed into those containers was supposed to be removed
and used in the meat processing operation (id. at 149-150).

   /2/ Three inspectors from the Department of Agriculture testified
that meat picked up from the floor could be placed in the edible meat
containers if it was reconditioned under their supervision.  Although
petitioners now complain (Pet. 15) that the district court did not
instruct the jury that it was lawful to place reconditioned meat in
edible meat containers, petitioners never requested that the court
give such an instruction (C.A. App. 810-816).  During the objections
following the charge, defense counsel merely asked the district court
"to qualify that (instruction)" without specifying what the jury
should be told (id. at 853).

   /3/ Petitioners' contention (Pet. 15) that the district court's
additional instruction directed a verdict on the element of
transportation is similarly without merit in light of the district
court's clear instruction that the jury was required to find that
petitioners sold, transported, or offered to sell the adulterated meat
in commerce (C.A. App. 842).  In any event, petitioners failed to
raise this issue before either the district court or the court of
appeals.

   /4/ The district court further found (C.A. App. 919) that the
government could not have suppressed the names of these two employees
because, as petitioners concede (Pet. 17), they knew about the
existence of the two employees at the time of trial.

   /5/ As the district court observed (C.A. App. 930), the Federal
Meat Inspection Act, 21 U.S.C. 610, does not specifically prohibit the
distribution of adulterated meat, but it does provide that a violation
which "involves" the "distribution" of adulterated meat is a felony.
See 21 U.S.C. 676(a).  It is reasonable to presume that Congress
intended that the sale of adulterated meat, which necessarily involves
distribution, would be punished as a felony.  Contrary to petitioners'
assertion (Pet. 23), United States v. Cattle King Packing Co., 793
F.2d 232 (10th Cir. 1986), cert. denied, No. 86-365 (Dec. 1, 1986),
does not suggest a different result.  Cattle King involved a felony
prosecution under the Federal Meat Inspection Act based on defendants'
intent to defraud (id. at 240-241).  Hence, the Tenth Circuit in that
case did not address the issue raised in this case regarding the
meaning of "distribution" in the penalty provision of the Act.