United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 96-2939/96-3064

___________ United States of America, * * Appellee/Cross-Appellant, * * v. * Appeals from the United States * District Court for the District of Gregory L. Jorgensen, * South Dakota. * Appellant/Cross-Appellee. * *

------------------------------ * * National Cattlemen's Beef Association; * the CATL Fund, * * Amici Curiae. *

___________ Nos. 96-2940/96-3064

___________ United States of America, * * Appellee/Cross-Appellant, * * v. * * Martin F. Jorgensen, Jr., * * Appellant/Cross-Appellee. *------------------------------ * * National Cattlemen's Beef Association; * the CATL Fund, * * Amici Curiae. *

__________ Nos. 96-2941/96-3064

___________ United States of America, * * Appellee/Cross-Appellant, * * v. * * Deborah L. Jorgensen, * * Appellant/Cross-Appellee. * *

------------------------------ * * National Cattlemen's Beef Association; * the CATL Fund, * * Amici Curiae. *

___________ Nos. 96-2942/96-3064

___________ United States of America, * * Appellee/Cross-Appellant, * * v. *The Hon orable Charles B. Kornmann, United States District Judge for th e 1 District of South Dakota. -3- Dakota Lean, Inc., doing business as * Dakota Lean Meats, Inc., * a corporation, * * Appellant/Cross-Appellee. * *

------------------------------ * * National Cattlemen's Beef Association; * the CATL Fund, * * Amici Curiae. *

___________ Submitted: May 21, 1997 Filed: May 7, 1998

___________ Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. The defendants appeal their convictions and sentences for conspiracy, mail fraud, wire fraud, and fraud

ulent sales of misbranded meat. They make numerous claims on
a p peal, including insufficiency of the evidence, improper jury instructions, erroneous evidentiary rulings, abuse of discretion in providing the jury with a copy of th e in dictment, and improper sentencing. The government cross-appeals, claiming erro r in sentencing. We affirm the district court. 1-4- I. In the mid-1980s, Gregory Jorgensen conceive d the idea of gathering a group of South Dakota cattle producers together to market and sell the processed beef derived from their own cattle, hoping to increase the net return from their raised cattle whil e enabling them to better control their own productio n. Acting on this idea, Gregory and his fath er, Martin Jorgensen, incorporated Dakota Lean, Inc., in South Dakota an d be ganslaughtering cattle raised by them and their neighbors. Deborah Jorgense n became involved in the company after its initial organization. The company decided to concentrate on marketing an d selling “heart healthy” meat products, produced from cattle raised on the Jorgensen ranch or from Jorgensen-bred animals. When Dakota Lean sold its meat to customers, the p roduct was accompanied by brochures making various claims about the product. Included in these claims wer e statements that the cattle were “genetically selected,” that “strict quality control [was] maintained through individualized tracking and processing of each ani mal,” and that the cattle were “raised on a wholesome diet of native prairie grass and selected feed stuffs without any growth hormones or implants.” (Trial Ex. 3 at 15-16.) Other brochures sent to customers stated that the meat had “No Substitutes” and “No Additives” and
came from cattle “selectively bred for over 30 years to yield a much lower fat an d cholestero lcontent.” ( Id. at 2, 4.) Some brochures also claimed Dakota Lean mea t was p roduced from cattle which had been “raised on a carefully controlled diet o f mother's milk and prairie grasses” which was “supplemented with corn and milo, a coarse, rough-seeded sorghum, grown and milled on Dakota Lean's 16,000 acre ranch in South Dakota” as the cattle matured. ( Id. at 36-37.) Additionally, according to the br ochures, “computerized records keep track of each animal’s food, and fat an d cholesterol content levels are measured every three months.” ( Id. )

In 1989, wh en demand for their products outstripped their capacity to fill th e orders from slaughtering their own cattle and those of their neighbors having the same-5-

attribu tes as their own cattle, the Jorgensens decided to start buying commercial beef trim from outside suppliers. Beef tri m is meat purchased from packing plants which is
ordinarily used to make hamburger. None of the outside suppliers claimed their beef trimwas hor mone or antibiotic free, or that the cattle producing the meat had bee n genetically bred or fed a special diet. The Jorgensens blended this ordinary commercial outs ide beef trim with their own Dakota Lean meat product. Dakota Lean then sol d this blended product to its customers while at the same time making the representations outlined above to its customers in the accompanying brochures. The company did not tell its custo mers that it was blending outside beef trim with its own meat. All told, it purchased more than a million pou nds of outside beef trim to blend with its own meat.
Fol lowing a jury trial, the Jorgensens and the corporation were each convicted of c onspiracy in violation of 18 U.S.C. § 371 (1994), and of several counts charging the fraudulent sale of misbranded meat in violation of 21 U.S.C. §§ 610 and 676. The jury acquitted each defendant of one or more counts of the 25-count indictment

. Additionally, Gregory and Deborah Jorgensen and the corporation were each convicted of two counts of mail fraud and three counts of wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. The district court sentenced Gregory to 24 months of imprisonment, Martin to 15 months, and Deborah to 12 mo nths and one day. The court also imposed substantial fines and periods of supervised release on the individual defendants. The defendants appeal and the government cross appeals.

II. A. Sufficiency of the Evidence. The defendants first argue that there was insufficient evidence to support any of the coun ts of conviction and, therefore, that the district court erred in denying thei r motions for judgment of acquittal.-6-

We apply familiar standards in our reviewof sufficiency of the evidence claims. We con sider the evidence in the light most favorable to the verdict and grant th e government the benefit of all reasonable inferences. United States v. Berndt , 86 F.3d 803, 809 (8th Cir. 1996). The elements of the crime may be proven by either direct or circumstan tial evidence. United States v. Hankins , 931 F.2d 1256, 1258 (8th Cir.) , cert. denied , 502 U.S. 886 (1991). “We do not ju dge the credibility of witnesses.” Id. at 1258-59. We reverse a conviction only if a reasonable fact finder could not hav e found the defendant

guilty beyond a reasonable doubt. Id. at 1259. “This standard is
a strict one, and a jury verdict should not be overturned lightly.” United States v

. Sykes , 977 F.2d 1242, 1247 (8th Cir. 1992). The defendants’ misbranding convictions were for violations of the Federal Meat Inspection Act. See21 U.S.C. §§ 601-695. It is a felony under 21 U.S.C. § 676(a) for any person, firm, or corporation to violate any provisions of 21 U.S.C. § 610 with an “intent to defraud.” Section 610(c) prohibits any “person, firm or corporation” from distributing in commerce meat or meat products “capable of use as human food” which are “misbranded at the time of . . . sale, tr ansportation, offer for sale or transportation, or receipt for transportation.” Meat or meat p roduct is “misbranded” under the Act “if its labeling is false or misleading in any particular.” 21 U.S.C. § 601 (n)(1). “Labeling” is defined as “all labels and other written, printed or graph ic matter (1) upon any article
or any of its containers or wrappers, or (2) accompanying such article.” 21 U.S.C. § 601(p).
The evidence supports the jury’s verdicts in this case. First, the brochures that accompanied the Dakota Lean mea t products qualify as “labeling” within the meaning of 21 U.S.C. § 601(p). The brochures were “written matter” that was “ac companying” Dakota Lean' s meat product when it was distributed in commerce. See 21 U.S.C. § 601(p). Contrary to the defendants’ assertions, Dakota Lean c ustomers testified at trial that the literature describing the meat arrived with the product. Second, the Dakot a Lean meat products sold were “misbranded” within the meaning of 21 U.S.C. §-7-

601(n)(1). Dakota Lean's own meat had been blended with outside beef trim that did not have the qualities specified in the claims contained in the brochures. Thus, th e labeling wa s false and misleading resulting in the misbranding. Third, the defendants caused the misbranded meat to be distributed in commerce when th ey sold the products to customers in various states.
There wa s evidence that each defendant had the requisite intent to defraud

. When tours were given of the processing plant, box es of outside beef trim were hidden beh ind boxes of Dakota Lean marked product to create the illusion that it was al l Jorgensen-bred beef. Gregory Jorg ensen gave the final order to purchase outside beef trimand to blend it with Dakota Lean's own product. He told employees that th e company was mixing the outside beef trim with the company's own product b ut that this information was not to leave the plant. He also approved the continued use of the false and misleading brochures.

Ma rtinJorgensen knew of the blending of outside beef trim with the Dakot a Lean product. He told the sales manager to represent the blended product as it wa s described in the misleading brochures. He loaned the corporation $25,000 so it could buy outside beef. M artin himself also promoted the blended product by making these same representations. Deborah Jorgensen was actively involved in the daily operations of the company. This i ncluded selling the product to customers. She also knew that the company was blending its own meat with outside beef trim. She was personally involved in th e pu rchasing of some of the outside beef trim. She represented the product as it wa s described in the misleading brochures. She was also the contact person within Dakota Lean for an advertising firm that produced many of the false and misleading brochures. While her involvement with the company was interrupted, the jury convicted her o n substantive counts that occurred only after she returned to the company in September 1992, and of the conspiracy count.-8-

Gregory a nd Deborah also challenge the sufficiency of the evidence to support their convictions under the mail and wire fraud statutes. The mail fraud statute, 1 8 U.S.C. § 1341, makes it a crime to use the mails to execute “any scheme or artifice to defrau d, or for obtaining money or property by means of false or fraudulent . .

. represe ntations.” The wire fraud statute, 18 U.S.C. § 1343, makes it a crime t o “transmit[ ] or cause[] to be transmitted by means of wire, radio, or televisio n communication in interstate or foreign commerce, any wr itings, signs, signals, pictures,
or sounds for the purpose of executing” a “scheme or artifice to defraud, or fo r obtaining money or property by means of false or fraudulent . . . representations.”
The record contains sufficient evidence to support the mail and wire frau d convictions. Gregory and Deborah each had used telephones and the mails to carry out the sc heme to defraud customers by misrepresenting and misbranding Dakota Lea n meat for each count upon which they were convicted.
The de fendants also challenge their convictions for conspiracy. The federa l conspir acy statute, 18 U.S.C. § 371, makes it a crime for “two or more persons” t o “conspire to commit any offense against the United St ates” when “one or more of such persons do a ny act to effect the object of the conspiracy.” Under this section th e government must prove “that there was an agreement to achieve an illegal purpose , that the defendant knew of this agreement and that the defendant intentionally joined the conspiracy.” United States v. Agofsky , 20 F.3d 866, 870 (8th Cir.), cert. denied , 513 U.S. 909, and cert. denied , 513 U.S. 949 (1994).
The ev idence is sufficient to prove each element of conspiracy. There wa s evi dence that each defendant knowingly contributed to the furtherance of th e conspiracy to misbrand. Contrary to the defendants’ claims, our review satisfies us that there is evidence in the record from which a reasonable jury could infer that all th e defendants had voluntarily agreed to join in the conspiracy to misbrand and-9-

misrepresent their product. See United States v. Murphy , 957 F.2d 550, 552 (8th Cir. 1992) (agreement can be an informal tacit understanding between coconspirators). B. Jury Instructions.
The defendants next argue that the district court erred in failing to give thei r proposed jury instruction requiring the government to prove materiality as an element of mi sbranding. The defendants claim that without a material false or misleadin g statement in the labe ling, the meat is not “misbranded.” The defendants further argue that without such a materiality requirement the misbrandingstatutes, as applied to them in this criminal prosecution, are overly broad and vague, thus violating their du e process rights. Because this claim requires us to interpret th e misbranding statutes, we review the claim de novo. S ee United States v. Brummels , 15 F.3d 769, 771 (8th Cir. 1994).
When we interpret a statute, “the beginning point must be the language of th e statute, and when a statute speaks with clarity to an issue judicial inquiry into th e statute’s mean ing, in all but the most extraordinary circumstance, is finished.” Estate of Cowar t v. Nicklos Drilling Co , 505 U.S. 469, 475 (1992). We thus examine th e lang uage of the statute in question to resolve this claim. The relevant languag e provides t hat meat is misbranded “if its labeling is false or misleading in an y particular.” 21 U.S.C. § 601(n)(1) (emphasis adde d). The statutory language does not req uire that the false or misleading statements be “material,” and we decline t o judicially rewrite the statute to add such a requirement.
Not requ iring a materiality element is also consistent with the public polic y under lying the Federal Meat Inspection Act. Congress has determined that th e companies and people engaged in the food business have an affirmative duty to insure that the fo od they sell to the public is safe and properly labeled. See United States v. Park , 421 U.S. 658, 670-73 (1975); United States v. Cattle King Packi ng Co. , 793 F.2d-10-

232, 240 (10th Cir.), cert. denied , 479 U.S. 985 (1986) . Judicially adding a materiality requirement when none exits in the statutory text would not further congressional intent and would instead hinder it.
We also rej ect the argument that the statute, as applied in this criminal case , violates due process because it is overly broad and vague. The “in any particular ” language of 21 U.S.C. § 601(n)(1) is not overly broad or vague. It simply prohibits any false or mi sleading statements in meat labeling without limiting the prohibition to any particular types of false or misleading claims. This is not a difficult provision for those in the food b usiness to follow. They may comply simply by not including any false or misleading st atements in their meat labeling. We therefore hold that the district court did not err in rejecting the defendants’ proposed jury instruction on materiality. The defendants next argue that the district c ourt abused its discretion in refusing to g ive a proposed jury instruction concerning when a corporate officer may be hel d criminally responsible for the actions of the comp any. The proposed instruction would have informed the jury that “a person is not responsible for the acts performed by other peop le on behalf of a corporation, even if those persons are officers, employees o r other agents of the corporation.” (Appellants’ App. at 83).
“When reviewing a challenge to the jury instructions, we recognize that th e district court has wide discretion in formulating the instructions and will affirm if the entire charge to the jury, whe n read as a whole, fairly and adequately contains the law applicable to the case.” United States v. Casas , 999 F.2d 1225, 1230 (8th Cir. 1993), cert. denied , 510 U.S. 1078 (1994). A corporate officer who is in a “‘ responsible relationship’” to an activity within a company that violates provisio ns of the federal food laws, such as meat misbranding under 21 U.S.C. §§ 610 and 676, “can beheld criminally responsible even though that officer did not personally engage in that activity.” Cattle King , 793 F.2d at 240-11-

(quoting Par

k , 421 U.S. at 673-74). As previously noted, the misbranding provisions of which the corporate officers were convicted requi re the officer to act with an “intent to defraud.” 21 U.S.C. § 676(a). Thus, the jury could convict a defendant corporate officer i f it found a defendant: (1) had an intent to defraud; and (2) either personall y participated in the misbranding or was in a “responsible relationship” within th e company regarding the misbranding of meat.
We first note that the d efendants’ proposed jury instruction does not accurately state the law set out above as it applies in this case. Under the proposed instruction the jury could not have convicted a defendant based on the actions of any officers , employees, or other agents of Dakota Lean, Inc. However, a defendant can be hel d criminally responsible for the acts of other people who are officer s, employees or other agents of the company if the defendant is in a “responsible relationship.” See Cattle King , 793 F.2d. at 1230. Thus, the district court did not abuse its discretion in refusing to give the proposed instruction. We also find no error in the instructions that were given. They correctl y required the ju ry to find that each defendant had a specific intent to defraud and that each o f them had caused misbranding of meat to occur. Because the jury found the corporation guilty of six counts of misbranding with out also finding any of the Jorgensens guilty of these counts, we are convinced that the jury did not find any of the Jorgensens guilty of misbranding merely because they held positions of authority in the company. We cannot say the district court abused its discretion in giving these instructions. W e reject the defendants’ claims on this issue.
The c orporate defendant next claims that the district court erred by failing t o instruct the jury on the findings necessary to hold a cor poration criminally liable for the acts of its officers, agents, or employees. Because the corporation did not offer such
an ins truction in the district court, nor object to the court’s failure to give such a n instruction, we review this claim for plain error. There is plain error if the omitted-12-

instructions should have been given and the error affected the defendant’s “substantial rights” and “the error ‘seriously affect[s] the fairness, integrity or public reputation of judici al proceedings.’” United States v. Olano , 507 U.S. 725, 736 (1993) (quotin g United States v. Atkinson , 297 U.S. 157, 160 (1936)) (alteration in original).
A cor poration is criminally responsible for the “acts of its officers, agents, and employee s committed within the scope of their employment and for the benefit of the corporat ion.” United States v. Richmond , 700 F.2d 1183, 1195 n.7 (8th Cir. 1983 ) (citing United States v. DeMauro , 581 F. 2d 50, 53 (2d Cir. 1978)) abrogated on other grounds , United States v. Raether , 82 F.3d 192 (8th Cir. 1996).
The evidence shows that on all counts of which Dakota Lean, Inc. wa s convicted an officer, agent, or employee of the corporation was acting within the scope of his or her e mployment when the act charged against the corporation was committed. Thus, even assuming argu endo that the jury was improperly instructed on this issue, Dakota Lean suffered no prejudice from this error. The integrity and fairness of the trial was not so affected as to produce a miscarriage of justice. We therefore hold the district court did not commit plain error.
The defendants next contend that the district court erre d in failing to submit their “theory of defense” instructions regarding the government’s alleged fail ure to give them notice of their violations of the Federal Meat Inspection Act. The de fendants claim that the government wa s required to give them notice of any violation of the Federal Meat Inspec tion Act and to bring administrative proceedings against them before th e governm ent could bring criminal charges against them, citing 21 U.S.C. § 607(e) and 9 C.F.R. § 355.40(a). The proposed instructions did not state that t he government must give the defendants notice prior to bringing criminal charges, and also failed to tell the jury what to do if the jury found that the government did not give the defendants theMartin Jorgensen’s proposed jury instruction provided: 2
If the Secretary of Agriculture has reason to believe that an y markin g or labeling or the size or form of any container in use o r proposed for use with respect to any article subject to the Meat Inspection Act is false or misleading in any particular, he may direct that such use be withheld unless that marking, labeling, or container is modified in suc h manner as he many prescribe so that it will not be false or misleading. If the per son, firm, or corporation using or proposing to use the marking , labelingor container does not accept the determination of the Secretary, such person, firm, or corporation may request a hearin g, but the use of the marking, labeling, or container shall, if the Secretary so directs, b e withheld p ending hearing and final determination by the Secretary. Any such determination by the Secretary shall be conclusive unless, withi n thirty days after receipt of notice of such final determination, the person, firm, or corporation adversely affected thereby appeals. (Appellants’ App. at 60.) The defendants’ joint proposed jury instruction provided: You are instructed that the law establishing the crime of misbranding also provides that the Secretary of Agriculture does not need to report fo r pro secution cases where it is believed that the public interest will b e adequately served by a suitable written notice of warning. (Appellants’ App. at 92.) -13- notice referred to in th e instruction. ( See Appellants’ App. at 60, 92.) The proposed 2 instructions were inadequate and incomp lete. We further hold that this claimed theory of d efense, i.e., that the government failed to abide by its own regulations befor e seek ing the indictment, is not a defense submissible to the jury. Rather, it is the kind of attack o n the indictment that should be made by a motion to dismiss before tria l pursuant to Federal Rule of Criminal Procedure 12(b)(1) since it is a claimed defense or objection based on a defect “in the institution of the prosecutio n.” See United States v. Henderson-Durand , 985 F.2d 970, 973 (8th Cir.) (holding a defendant’s failure to-14-

rais e a claim of outrageous government conduct in a pretrial motio n pursuant to Rule 12(b)(2) constituted waiver of the claim), cert. denied , 510 U.S. 856 (1993). The district court properlydeclined to submit these proposed instructions.
The defendants next argue that the district court erred in failing to instruct th e jury that th ey had to be unanimous in determining which overt acts they foun d supp orted the conspiracy count conviction. The defendants did not object to th e conspiracy instruction given and they did not offer a unanimity inst ruction regarding the
over t acts. Thus, we review for plain error. We reject the argument because th e defendants suffered no prejudice from any claimed error. The jury unanimously found all the defendants guilty of several of the same substantive misbranding counts. The facts of those mi sbranding counts were alleged in the indictment as overt acts done in furtherance of the conspiracy to misbrand. Thus, in finding all the defendants guilty of these a cts when they were alleged as substantive counts, the jury also unanimousl y fou ndthat the defendants had committed these overt acts in furtherance of th e conspiracy. C. Evidentiary Rulings.
The defendants first claim the district court erred in admittin g hearsay statements of coconspirators. The defendants also clai m the court erred when it failed to make an explicit ruling of admissibility regarding these statements at the close of all th e evidence, in violation of United States v. Bell , 573 F.2d 1040, 1044 (8th Cir. 1978)

. District courts should be careful to make sure that final Bell rulings are made

. Prosecutors w ho offer coconspirator statements under the nonhearsay exception have a duty to protect their record by making sure they request final Bell rulings at the close of all the e vidence. A final Bell ruling determines whether or not the government has shown by a preponderance of the evidence: (1) that a conspiracy existed; (2) that the declarant and the defendant were members of the conspiracy; and (3) that the-15-

declarant’s statements were made du ring and in furtherance of the conspiracy, thereby satisfying Federal Rule of Evidence 801(d)(2)(E). Bell , 573 F.2d at 1043. Because the defendants have failed to specify by record references any particular
coco nspirator

statements which the court allegedly erroneously admitted, we do no t address their

contention that the court erred in initially admitting them. United States
v. England , 966 F.2d 403, 407 (8th Cir.), cert. denied , 506 U.S. 1025 (1992)

. Likewise, because no particular hearsa y statement has been called to our attention, we are unable to test whether or not th e statements were made during the course of and in furtherance of the conspiracy as required by Bell . Lac king such information (and it not being our responsibility to dig through 20 volumes of trial transcript to ferret out and examine each such statement as it may appe ar), we are unable to say that the failure of the district court

to make a final Bell ruling so affected the substantial rights of any of the defendants as to constitute reversible error.
The de fendants next claim the district court abused it discretion in admittin g ev idence of the Department of Agriculture’s Policy Memo 114. In reviewing thi s evidentiary ruling, we note the distri ct court “has broad discretion in determining what evidence to a dmit and its decision will be overturned on appeal only if there has been
an abuse of discretion.” United States v. Rogers , 939 F.2d 591, 594 (8th Cir.) cert
. denied , 502 U.S. 991 (1991). Testimony at trial indicated that Policy Memo 114 was sent to all meat producers who had obtained a grant of federal meat inspection, although the defendants denied
ever receiving it. The federal meat inspector assigned to the Dakota Lean plant said he had not seen it either. The memo advised producers that “point of purchase ” literature should only make claims that could also be made on meat wrappers or labels. The defendants argue that by admitting the memo the jur y was allowed to convict them for a violation of this policy memo, rather than for a violation of the statute. We reject this argument.-16-

First, the district court cautioned the jury prior to the admission of the polic y memo that t he memo itself did not set out the law. Also, the district court properl y instructed the jury on the elements required to be proven for misbranding, including the required intent to defraud. The court specifically set out what “intent to defraud ” meant. We are therefore confident that the jury did not use the memo for the improper purpose of using a standard different from the statute whose violation could b e punished criminally. The memo was also relevant. The government’s proffered reason for admission of Polic y Memo 114 was to show “discourse between [the] Dakota Lean Meat plant and [the] Food Safety Inspection Service regarding claims that they would put on a product that may relate to nutrition, and diet, and so forth regarding the labeling.” (Trial Tr. 144.) Thememo, dated July 1988, was relevant to show the defendants had been told the literature accompanying their meat shipments c ould be considered labeling and that it should not be false or misleading. There was testimony that the defendants had pl annedto put their claims of “no hormones” and “no antibiotics” on their mea t package labels, but the federal meat inspector “wasn’t going to allow that.” Instead, the company decided to put t he claims in the literature accompanying the meat, and in the so-call ed “point of purchase materials” distributed at meat counters. The mem o wa s relevant because it tended to show that the defendants acted with an intent t o defraud when they made the represe ntation on the accompanying literature. It was for the jury to determine whether the defend ants ever saw the memo. We hold the district court’s admission of Policy Memo 114 into evidence was not an abuse of discretion. With respect to the admission of the testim ony of the government’s witness Mel Coleman, we agree with the district court that it was of limited relevancy. Given the cautionary and limiting instruction that court gave to the jury concerning Coleman’ s testimony, we do not believe the court abused its broad discret ion in permitting the jury to hear it.-17-

The de fendants next claim the district court erred in submitting an unredacte d indictment to the jury because they claim some overt acts alleged in the indictmen t were not proven. “Submission of the indictment to the jury is a mat ter within the sound discretion of the trial court provided the jury is admonished that th e indictment does not constitute evidence of any kind.” United States v. Wagoner , 713 F.2d 1371, 1377 (8th Cir. 1983). Although the “better course” is for the trial court to redact the indictment “if the g overnment has not presented evidence supporting allegations in th e indic tment,” reversal is required only if the defendant suffered prejudice as a result

. England , 966 F.2d at 408. The district court admonished the jury that the indictment didnot constitute evidence of any kind. The district court instructed the jury at both the beginning and the end of the trial that the indictment was not evidence. Further, even assuming arguendo that no evidence was presente d for some of the overt acts alleged in the conspiracy count, we find there was no prejudice to th e defendants. Proof of one overt act in furtherance of the conspiracy is sufficient t o convict under the statute in this case. See United States v. Parker , 586 F. 2d 1253, 1258 n.2 (8th Cir. 1978). There was ample proof of at least one overt act here. We hold the district court did not abuse its discretion in submitting the indictment to the jury. D. Sentencing.
The defendants next cha

llenge the district court's sentencing order. They argue the district court erred in determining the amount of loss caused by the defendants ’ fraud. See U.S. Sentencing Guidelines Manual § 2F1.1(b) (1995). The governmen t cross appeals the sentencing order, claiming the district court calculated too low of a loss figur e. We review the district court's factual determination of the amount of loss under the clearly erroneous st andard. United States v. Strassburger , 26 F.3d 860, 862 (8th Cir. 1994).-18-

To determine the amount o f loss attributable to each defendants’ mislabeling of meat, we co nsider the actual loss suffered by the victims as provided in Applicatio n Note 7 of USSG § 2 F1.1. Id. This note states that when a fraud involves “th e misrepresentation of the v alue of an item that does have some value . . . the loss is the amount by which the [i tem] was overvalued.” USSG § 2F1.1, comment. (n. 7(a)). In other words, the loss is the amount the victim paid for the misrepresented item minus th e price the victim would have paid for the item absent the misrepresentation

. Strassburger , 26 F.3d at 862-63. However, “if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss.” USSG § 2F1.1 comment. (n.7). Thus, the proper loss amount unde r section 2F1.1 is “either the amount of loss the defendant intended to inflict or the actual loss resul ting from the fraudulent conduct, whichever is greater .” United States v

. Pendergrast , 979 F.2d 1289, 1292 (8th Cir. 1992).
The Sentenc ing Guidelines allow the court to calculate the amount of loss with a view towards practicality, providing “the loss n eed not be determined with precision. The court n eed only make a reasonable estimate of the loss, given the availabl e information. This estima

te, for example, may be based on the approximate number of victims and an estimate of the average lo ss to each victim.” USSG § 2F1.1, comment. (n.8). In this case the district court first ruled that the price the vict ims would have paid for the defendants' products if t hey had been properly labeled could not be determined from the evidence presented. The court instead calculated the loss by using an estimate of the los s to each victim. The court found that the retail profit margin on the mea t bought fr om the defendants was one percent. The court then calculated the tota l amount of misbranded meat sales attributable to each defendant by totaling th e mis branded meat sales in dollars under each count in which the jury had found th e particular defendant guilty. The court then determined that the retail profit margi n represented an estimate of the actual loss suffered by the victims who received the-19-

mislab eled meat from the defendants. The court multiplied the total dollar amount of mislabeledmeat attributed to a particular defendant by the one percent profit margin to determin e the amount of loss under section 2F1.1 attributable to that particular defendant. Although the district co urt employed a somewhat novel approach in calculating the loss value, we cannot say that it resulted in a clearly erroneous loss amount. A s explaine d above, the loss figure is only required to be an estimate; it need not b e determined with p recision. See USSG §2F1.1, comment. (n.8). We conclude that the district court calculated a reasonable estimate of the losses attributable to eac h defendant.
We also reject the government's argument on the cross appeal that the los s figures were too low. The government points to evidence in the record supporting a higher loss calculation. The district court f ound this evidence was not persuasive. We hold this finding was not clearly erroneous and affirm the district court’s sentencin g orders.

III. We have considered all other arguments rai sed by the defendants in their appeal and fi nd them to be without merit. We therefore affirm the judgments of the distric t court. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.