1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-18-1994

United States of America v. Menon

Precedential or Non-Precedential:

Docket 93-5399

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"United States of America v. Menon" (1994). 1994 Decisions. Paper 21.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_______________ 

No. 93-5399 

_______________ 

UNITED STATES OF AMERICA 

v. 

THEKKEDAJH PEETHAMB MENON, 

 Appellant

__________________________________________________ 

On Appeal From the United States District Court 

for the District of New Jersey 

(D.C. Crim. No. 92-00354-01) 

__________________________________________________ 

Argued: February 15, 1994 

Before: BECKER, HUTCHINSON and COWEN, Circuit Judges. 

(Filed May 18, 1994) 

 JAMES D. CRAWFORD (Argued) 

 THEODORE J. PICCONE 

 Schnader, Harrison, Segal & Lewis 

 1600 Market Street 

 Suite 3600 

 Philadelphia, PA 19103 

 Attorneys for Appellant

 MICHAEL CHERTOFF 

 United States Attorney 

 LESLIE FAYE SCHWARTZ (Argued) 

 Assistant U.S. Attorney 

 Office of United States Attorney 

 970 Broad Street 

 Newark, NJ 07102 
 Attorneys for Appellee

_______________________________ 

OPINION OF THE COURT

_______________________________ 

BECKER, Circuit Judge. 

 Thekkedajh Menon appeals from a judgment in a criminal 

case in which he was convicted by a jury of violating 18 U.S.C. 

§§ 20 and 5450 by knowingly and willfully, with intent to defraud 

the United States, making out and passing through the customhouse 

false and fraudulent invoices and other documents in order to 

conceal the identity of the exporters of certain products, and of 

violating those same sections by reimporting shrimp that had 

previously been rejected as contaminated by the Food and Drug 

Administration ("FDA"). 

 

018 U.S.C. § 2(a) states that, "[w]hoever commits an offense 

against the United States or aids, abets, counsels, commands, 

induces or procures its commission, is punishable as a 

principal." 

0Paragraphs 1, 2 and 3 of § 545 state: 

Whoever knowingly and willfully, with intent 

to defraud the United States, . . . makes out 

or passes, or attempts to pass, through the 

customhouse any false, forged, or fraudulent 

invoice, or other document or paper; . . . 

Whoever fraudulently or knowingly imports or 

brings into the United States, any 

merchandise contrary to law . . . 

[s]hall be fined not more than $10,000 or 

imprisoned not more than five years, or both. 
 Menon's first contention on appeal, a contention he 

failed to raise in the district court and hence one that we 

review for plain error, is that to obtain a conviction for 

passing false invoices under § 545, the government must prove 

that he intended to deprive the United States of revenue, not 

just that he intended to evade federal regulations. Menon's 

second argument is that the evidence was insufficient to show 

that he reimported previously rejected shrimp, a point which 

ultimately turns on whether a search of Menon's office which 

exceeded the scope of a search warrant was nonetheless valid 

under the "plain view" doctrine even though the agent who 

happened upon the documents at issue did not appreciate their 

significance until she brought them to a more knowledgable agent. 

 Agreeing with Menon's construction of the the first 

paragraph of § 545 and holding that the district court's 

construction constituted plain error, we reverse his convictions 

for passing false invoices through the customhouse. The meaning 

of "defraud" varies from statute to statute, see McNally v. 

United States, 483 U.S. 350, 359, 107 S. Ct. 2875, 2881 (1987), 

and here the evidence supports Menon's interpretation of 

"defraud." When Congress codified the criminal code, it changed 

the language of § 545 (then § 1593 of title 19 (U.S.C. 1940 ed.)) 

from "defraud the revenues of the United States" to "defraud the 

United States" but it did not mean to change the substance of the 

statute; it meant to continue the previous requirement of an 

intent to defraud the revenues of the United States. Thus, we 

continue to give the statute its former meaning, and, finding 
plain error on the basis that the district court's 

misinterpretation went to the existence vel non of criminal 

responsibility, we reverse Menon's convictions for passing false 

invoices. However, we affirm Menon's conviction for reimporting 

previously rejected shrimp, disagreeing with his contention 

regarding the illegality of the search, and his less significant 

assignments of error. 

 Because we have overturned Menon's convictions on most 

counts, we must remand for resentencing. On remand, the district 

court should not apply the enhancement for importation of seafood 

worth more than $2,000. Although Menon's conviction on Count 140 

easily puts him over the $2,000 minimum for the enhancement, 

application of the enhancement is impermissible because it would 

violate the Ex Post Facto Clause of the Constitution. Although 

the enhancement was in effect at the time of Menon's sentencing, 

it was not in effect at the time of his conduct. 

I. FACTS AND PROCEDURAL HISTORY 

 The FDA is responsible for ensuring the safety of 

seafood entering the United States. In performing this function, 

the agency analyzes data to see if it establishes a pattern 

demonstrating that seafood which importers have bought from 

particular exporters is likely to be unsafe. Foreign exporters 

which have a history of shipping contaminated goods are placed on 

a block list; shipments from these exporters are automatically 

detained, and the importer must obtain a private laboratory 
report demonstrating that the seafood is free of contamination 

before the FDA will release it. Other exporters are placed in an 

intermediate category, which means the FDA is more likely to 

sample their products before admitting them into the country than 

it is to sample those of other exporters. 

 Menon was President and two thirds owner of Flag 

Imports, Inc. ("Flag"), a business that purchased seafood both 

overseas and domestically for resale to distributors. On 

numerous occasions, Menon directed his employees to list falsely 

on invoices a different exporter of seafood than the one from 

which Flag had actually purchased the seafood. By listing 

exporters with no history of contamination rather than the actual 

exporters, who were either on the block list or subject to an 

increased risk of surveillance sampling by the FDA, Menon 

intended to deceive the FDA so that Flag's imports entered the 

United States more readily. 

 Nonetheless, the FDA discovered that one of Flag's 

shipments, a March 22, 1991 shipment of 1200 cases of shrimp, 

contained salmonella. It thereupon issued a Notice of Refusal of 

Admission for this shipment, and ordered that the cases be either 

exported or destroyed within 90 days. On May 25, 1991, Flag 

shipped the shrimp to Jabeco Transport ("Jabeco") in Rotterdam, 

Holland. The ultimate fate of that shrimp is a question of much 

moment in this case; the government contends that Menon illegally 

reimported it into the United States whereas Menon claims that 

there is insufficient evidence to prove reimportation beyond a 

reasonable doubt. 
 On January 19, 1993, a federal grand jury returned a 

142-count indictment against Menon. Counts 1 through 110 charged 

that, in violation of 18 U.S.C. §§ 2 and 545, see supra nn. 1 & 

2, Menon did knowingly and willfully, with intent to defraud the 

United States, make out and pass through the customhouse, false 

and fraudulent invoices and other documents in order to conceal 

that the exporter of these products had been block-listed by the 

FDA. Counts 111 through 139 charged Menon with similar conduct 

with respect to seafood obtained from exporters in the 

intermediate category. Count 140 charged Menon with 

reimportation of shrimp that had previously been rejected as 

contaminated by the FDA, also in violation of 18 U.S.C. §§ 2 and 

545. Finally, Counts 141 and 142 charged that, in violation of 

16 U.S.C. § 3372(d) and 18 U.S.C. § 2, Menon knowingly made and 

used false invoices and decoy packaging to conceal that shipments 

identified as shrimp from Bangladesh were largely composed of 

frog legs subject to automatic detention and special permit 

requirements. 

 During the course of the jury trial, the government 

voluntarily dismissed counts 16 and 33 of the indictment. At the 

close of the evidence, the district court granted a judgment of 

acquittal on Counts 141 and 142 (the frog legs counts). On March 

10, 1993, the jury found Menon guilty of all of the remaining 

counts. Menon filed a motion for a judgment of acquittal on 

Count 140 alleging that the government had presented insufficient 

evidence of his guilt. Menon also moved for a new trial, 

asserting that 1) the district court had improperly barred him 
from presenting evidence that no one had ever reported being sick 

as a result of Flag seafood;0 2) Count 140, alleging 

reimportation of contaminated shrimp "contrary to law," was 

deficient for failing to specify the law to which the 

reimportation was contrary; and 3) evidence seized during a 

search of Flag's property should have been suppressed. The 

district court denied these motions. 

 The district court held a sentencing hearing after 

which it imposed concurrent sentences of 20 months on each of 

Counts 1 through 15, 17 through 32, and 34 through 140. The court 

also imposed concurrent terms of two years supervised release on 

each count of conviction, a total special assessment of $6,900, 

and a fine of $50,000. The adjusted offense level of 22, when 

combined with a Criminal History Category of I, resulted in a 

guideline range of 41-51 months. The district court then 

departed downward from this range based on the severe mental 

problems of Menon's wife. 

 Menon appeals the denial of his motions for judgment of 

acquittal and for a new trial as described on p.6 supra. On 

appeal, Menon presses two additional arguments. First, he 

asserts that his convictions for making out false invoices should 

be reversed because he did not intend to defeat the customs laws 

nor to defraud the United States government of money. Second, he 

submits that the district court's fourteen level increase to his 

 

0Because Menon only argues that this evidentiary decision related 

to his convictions for employment of false invoices and we are 

reversing those convictions, we do not reach the evidentiary 

issue on appeal. 
sentence violates the Ex Post Facto Clause of the Constitution. 

After considering the many difficult issues, we hold that 

paragraph 1 of § 545 does require an intent to deprive the United 

States of revenue and that Menon's convictions on counts 1-15, 

17-32, and 34-139 should therefore be reversed. While we will 

uphold Menon's conviction on count 140 for reimportation of 

previously rejected shrimp, we agree with Menon that application 

of the sentencing enhancement for importation of valuable seafood 

violates the Ex Post Facto Clause and thus should not be repeated 

in his resentencing. 

II. THE MEANING OF 18 U.S.C. § 545 

 The jury convicted Menon of 137 counts of violating the 

first paragraph of 18 U.S.C. § 545. As we have noted supra at 2 

n.2, this paragraph makes it illegal to "knowingly and willfully, 

with intent to defraud the United States, . . . make[] out or 

pass[], or attempt to pass through the customhouse any false, 

forged, or fraudulent invoice." The jury concluded that Menon, 

in his position as President of Flag, violated this provision by 

writing invoices that misrepresented the name of the seafood 

exporter from which Flag had bought the seafood it was importing. 

Menon contends that the district court misread § 545, because "an 

intent to defraud the United States" by passing false invoices 

"through the customhouse" requires 1) an intent to defeat the 

customs laws and 2) an intent to deprive the United States of 

revenue. 
 Menon's argument that § 545 requires an intent to 

deprive the United States of revenue would place a new gloss on a 

45-year-old statutory provision that has been interpreted to the 

contrary by two courts of appeals, see United States v. Borello, 

766 F.2d 46, 51 (2d Cir. 1985); United States v. McKee, 220 F.2d 

266, 269 (2d Cir. 1955); United States v. Kurfess, 426 F.2d 1017, 

1019 (7th Cir. 1970), cert. denied, 400 U.S. 830 (1970). 

Moreover, because Menon failed to argue in the district court 

that § 545 requires an intent to deprive the government of 

revenue, we review Menon's contention on appeal for plain error. 

See Fed.R.Crim.P. 30, 52(b). 

 Rule 52(b) provides that "plain errors or defects 

affecting substantial rights may be noticed although they were 

not brought to the attention of the court." We find plain error 

"sparingly, solely in those circumstances in which a miscarriage 

of justice would otherwise result." United States v. Frady, 456 

U.S. 152, 163 n.14, 102 S. Ct. 1584, 1592 n.14 (1982)). See also

Government of Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir. 

1991). We 

look on a case-by-case basis to such factors 

as the obviousness of the error, the 

significance of the interest protected by the 

rule that was violated, the seriousness of 

the error in the particular case, and the 

reputation of judicial proceedings if the 

error stands uncorrected -- all with an eye 

toward avoiding manifest injustice. 

United States v. Thame, 846 F.2d 200, 205 (3d Cir. 1988). Here, 

because "the challenge to the construction of the statute goes to 

the existence vel non of criminal responsibility, we think that 
the error, if such it was, would affect [Menon's] due process 

rights and would constitute plain error." United States v. 

Cusumano, 943 F.2d 305, 309 (3d Cir. 1991). 

 In a very similar case, in which the plaintiff argued 

that the district court had improperly instructed the jury that 

the mail fraud statute did not require an intent to deprive 

another of money or property, we indicated that if the district 

court had given such an improper instruction, it would have 

constituted plain error. See United States v. Piccolo, 835 F.2d 

517, 519 (3d Cir. 1987), cert. denied, 486 U.S. 1032, 108 S. Ct. 

2014 (1988). As in that case, we think that, assuming Menon's 

interpretation of the statute is correct, the district court's 

failure to instruct the jury that § 545 requires an intent to 

deprive the government of money or property constituted manifest 

injustice and thus constituted plain error. And, despite the 

contrary decisions of two courts of appeals, we hold that Menon's 

interpretation of § 545 is correct.0 

 While the meaning of "defraud the United States" 

generally extends beyond defrauding the government of revenue, 

the history of § 545 demonstrates that Congress did not intend 

such a broad reading here. We first note that until recently, 

the Supreme Court generally interpreted "defraud" to extend to 

actions preventing the government from carrying out its lawful 

functions even when the government did not lose any revenue. This 

 

0Because we agree with Menon that the first paragraph of § 545 

requires an intent to deprive the government of revenue, we do 

not reach his contention that it requires an intent to defeat the 

customs laws. 
interpretation took root in Hammerschmidt v. United States which 

analyzed the statutory predecessor of 18 U.S.C. § 37, a statute 

making it illegal to "conspire to . . . defraud the United States 

in any manner or for any purpose." See 265 U.S. 182, 185, 44 S. 

Ct. 511, 511 (1924) (interpreting Comp. St. §10201). In 

Hammerschmidt, the Supreme Court concluded that 

[t]o conspire to defraud the United States 

means primarily to cheat the Government out 

of property or money, but it also means to 

interfere with or obstruct one of its lawful 

governmental functions by deceit, craft or 

trickery, or at least by means that are 

dishonest. It is not necessary that the 

Government shall be subjected to property or 

pecuniary loss by the fraud, but only that 

its legitimate official action and purpose 

shall be defeated by misrepresentation, 

chicane, or the overreaching of those charged 

with carrying out the governmental intention. 

Id. at 188, 44 S. Ct. at 512.0

 Recently, however, the Supreme Court has significantly 

narrowed the category of statutes in which the meaning of 

"defraud" extends beyond a deprivation of property rights. In 

McNally v. United States, 483 U.S. 350, 359, 107 S. Ct. 2875, 

2881 (1987), the Court interpreted the mail fraud statute, which 

made it illegal "to defraud" or to "obtain[] money by means of 

 

0See also United States v. Barnow, 239 U.S. 74, 75, 36 S. Ct. 19, 

20 (1915) (holding that 35 Stat. 1088, 1095 (1913), prohibiting 

individuals from "falsely assuming or pretending to be an officer 

or employe[e] acting under the authority of the United States" 

"[w]ith intent to defraud either the United States or any person" 

applied even when an individual did not demand or obtain anything 

of value); United States v. Plyler, 222 U.S. 15, 32 S. Ct. 6 

(1911) (holding that § 5418 Rev, Rev. Stat., which prohibited the 

forging of any public record "for the purpose of defrauding the 

United States," applied regardless of pecuniary gain). 
false or fraudulent pretenses," to require a finding that the 

defendant intended to deprive others of property or money. 18 

U.S.C. § 1341.0 In so doing, the Court rejected "a long line of 

court of appeals decisions that had interpreted the statute as 

proscribing schemes by government officials to defraud citizens 

of their intangible rights to honest and impartial government." 

United States v. Asher, 854 F.2d 1483, 1488 (3d Cir. 1988) 

(emphasis in original). In justifying its decision, the Court 

quoted Hammerschmidt, 265 U.S. at 188, 44 S. Ct. at 512, for the 

proposition that, "the words to defraud `commonly refer to 

wronging one in his property rights by dishonest methods or 

schemes.'" McNally, 483 U.S. at 359, 107 S. Ct. at 2881. The 

Court concluded that this common understanding combined with the 

rule of lenity meant that the mail fraud statute required an 

intent to deprive someone of money or property. See id.

 The Court distinguished the actual ruling of 

Hammerschmidt on the basis that the mail fraud statute aimed to 

prevent fraud against any member of the public, while the statute 

discussed in Hammerschmidt aimed to protect the United States

against fraud. A statute that has for its "`object the 

protection and welfare of the government alone'" aims to prevent 

fraud in a broader sense than deprivation of property rights, but 

a statute aiming to prevent fraud against members of the public 

 

0Congress responded to McNally by adopting Pub.L. 100-690, Title 

VII, § 7603(a), Nov. 18, 1988 which states that, "[f]or the 

purposes of this chapter, the term, `scheme or artifice to 

defraud' includes scheme or artifice to deprive another of the 

intangible right of honest services." 18 U.S.C. § 1346. 
is likely using fraud in its usual, narrower sense. Id. at 358, 

107 S. Ct. at 2881 n. 8 (quoting Curley v. United States, 130 F. 

1, 7 (1st Cir. 1904)).0

 Another case distinguishing Hammerschmidt is United 

States v. Cohn, 270 U.S. 339, 343, 46 S. Ct. 251, 252 (1926). 

There the Supreme Court was faced with interpreting the meaning 

of Section 35 of the Penal Code, 40 Stat. 1015 (1918), which 

provided that actions "`for the purpose of obtaining or aiding to 

obtain the payment or approval of' any `claim upon or against the 

United States . . . for the purpose and with the intent of 

cheating and swindling or defrauding the Government of the United 

States' . . . shall be punishable." The Court construed section 

35 as requiring the defendant to cheat the government out of 

 

0But cf. United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989). 

Tuohey noted that 

despite the Court's dictum regarding section 

371 in McNally, the McNally decision appears 

to leave the broad construction of "defraud" 

in section 371 in some doubt. In McNally, 

the Court overruled virtually unanimous case 

law that had broadly defined "defraud" in the 

mail fraud context to extend to non-property 

"good government" frauds. The similarities 

between section 371 and section 1341 are 

striking. Both date from the same period in 

our history . . . . Both have long been read 

to extend to non-property frauds. Both have 

been criticized as broad vague bases for 

criminal liability. 

Id. at 536-37. Nonetheless, as the Ninth Circuit ultimately 

held, although the reasoning of McNally with respect to § 1341 is 

in tension with that of Hammerschmidt with respect to § 371, 

McNally did not overturn Hammerschmidt and in fact suggested that 

Hammerschmidt applies to most statutes that contain the language 

"defraud the United States." 
property or money. The Court distinguished Hammerschmidt on the 

grounds that the term defraud within section 35 "is used in 

connection with the words `cheating or swindling,' indicating 

that it is to be construed in the manner in which those words are 

ordinarily used, as relating to the fraudulent causing of 

pecuniary or property loss." Id. at 346-47, 46 S. Ct. at 253. 

 The message we derive from this potpourri of Supreme 

Court cases is twofold. First, the meaning of "defraud" must be 

interpreted in the context of the particular statute that uses 

the term. In each case in which the Court has evaluated the 

meaning of "defraud," it has determined the intent of Congress 

based on the purpose of the particular statute and on the 

surrounding statutory language. Second, an intent to defraud 

generally requires an intent to deprive someone of property or 

money but does not generally require such an intent in the 

context of statutes making it illegal to defraud "the United 

States." It seems appropriate therefore to construe § 545 as 

prohibiting acts that prevent the United States from carrying out 

its statutory duties unless there is countervailing evidence on 

the meaning of the statute. 

 Here, strong countervailing evidence exists. Menon 

points out that § 1593 of title 19 (U.S.C. 1940 ed.), the 

predecessor statute to 18 U.S.C. § 545, required that the 

defendant intended "to defraud the revenues of the United States" 

(emphasis added). Although Congress left out the language "the 

revenues" when it recodified the federal criminal code in 1948, 

Menon contends that Congress made it clear that it did not not 
intend to make any substantive change in the statute by making 

this deletion. Thus, he concludes that the concept "defraud the 

revenues" is still a part of the statute. 

 As support for his view that Congress intended no 

substantive change, Menon cites the House Report which states 

that, "[r]evision [of the Criminal Code], as distinguished from 

codification, mean[s] the substitution of plain language for 

awkward terms, reconciliation of conflicting laws, omission of 

superseded sections, and consolidation of similar provisions." 

H.R. Rep. No. 304, 80th Cong., 1st Sess. (1947), reprinted in 18 

U.S.C.A. 439, 440. The House Report does not indicate that 

substantive changes were included as part of the revision. See

id. The House Report concludes that, "[t]he reviser's notes are 

keyed to sections of this bill and explain in detail every change 

made in text," id. at 448, and W.W. Barron, chief reviser of the 

code, testified to the House Committee on Revision of the Laws 

that "[e]very substantive change, no matter how minor, is fully 

explained [in the reviser's notes].". Id. at 460 (emphasis 

added).0 Because the reviser's notes for § 545 say only that 

 

0Similarly, Charles Zinn, the Law Revision Counsel for the House 

Committee on the Judiciary, testified that: 

In the work of revision, principally 

codification, . . . keeping revision to a 

minimum, I believe the rule of statutory 

construction is that a mere change of wording 

will not effect a change in meaning unless a 

clear intent to change the meaning is 

evidenced . . . . It is clearly indicated in 

each of those revisers' notes whether any 

change was intended so that . . . a mere 

change in language will not be interpreted as 
"[c]hanges were made in phraseology," H.R. Rep. No. 304, 80th 

Cong., 1st Sess. at A46, and do not specify that any substantive 

changes were intended, Menon concludes that the current statute, 

like its predecessor, requires that the defendant have intended 

to deprive the United States of revenues to which it was 

entitled.0

 We agree. Although we might ordinarily discount 

legislative history, we are unwilling to do so where that history 

consists of committee reports and statements by the chief reviser 

and where the statutory change we are interpreting occurred in 

 

an intent to change the law unless there is 

some other clear evidence of an intent to 

change the law. 

Hearing before Subcommittee No. 1 of the House Judiciary 

Committee on H.R. 1600 and H.R. 2055, 80th Cong., 1st Sess. 

(1947) (statement of Charles J. Zinn), reprinted in 18 U.S.C.A. 

417, 515. 

0Menon makes one additional argument. He asserts that if we 

interpret § 545 as not requiring an intent to deprive the 

government of money, that section will become duplicative of 

§542, which makes it illegal to introduce "into the commerce of 

the United States any imported merchandise by means of any 

fraudulent or false invoice." 18 U.S.C. § 542 (1988). 

 However, §§ 542 and 545 overlap regardless of how we 

interpret § 545. Because § 542 extends to any use of a 

fraudulent invoice for the purpose of importing goods into the 

United States, it will prohibit all conduct prohibited by § 545, 

i.e., every use of false invoices that pass through the 

customshouse, whether we interpret § 545 broadly or narrowly. 

This means that even if we interpret § 545 narrowly, the 

government will not be left without a remedy in future cases --it 

can choose to prosecute conduct such as Menon's under § 542 

rather than under § 545. 

 The converse is not true, however: section 542 applies 

to some conduct not covered by § 545 even if we interpret § 545 

broadly. That is because § 542 applies regardless of whom an 

actor is attempting to defraud, see 18 U.S.C. § 542, while § 545 

requires a specific intent to defraud the United States. 
the context of codification of the entire criminal code. In that 

context, Congress was unlikely to have been able to carefully 

consider every change made to prior statutes. We think it was 

reasonable for Congress to rely on representations made to it by 

the chief reviser, among others, that all substantive changes 

were explicitly set forth in the revisers' notes and for Congress 

to indicate that it intended no other substantive changes. Absent 

a compelling need, we should not read as substantive a change 

initiated by the revisers and probably not considered by 

Congress. 

 At a minimum, we think that the legislative history 

makes the meaning of "defraud the United States" in § 545 

ambiguous given that, as we have seen, the meaning of defraud 

varies from statute to statute. As the Court did in McNally, we 

rely on the rule of lenity to hold that because the meaning of 

defraud is ambiguous in the context of § 545, that section 

requires an intent to cause a deprivation of property or money. 

As Menon points out, and the government does not deny, the 

government made no showing that he had such an intent. Thus, we 

must reverse his conviction on Counts 1-15, 17-31, and 33-139. 

III. COUNT 140 

 Count 140 of the indictment charged Menon with 

violating the second paragraph of § 545. That paragraph makes it 

illegal to "fraudulently or knowingly import[] or bring[] into 

the United States, any merchandise contrary to law." 18 U.S.C. 
§545. The government contends that after it ordered Menon to 

export or destroy a certain shipment of contaminated shrimp under 

the authority of 21 U.S.C. § 381 (granting the FDA the authority 

to refuse to admit adulterated food into the United States), 

Menon exported the shrimp but then reimported it into the United 

States in violation of the order and of 21 U.S.C. § 331(a), which 

prohibits the introduction of any adulterated food into 

interstate commerce. Menon argues that 1) the indictment lacked 

the requisite specificity; 2) much of the evidence the government 

used to prove Menon's guilt was the fruit of an illegal search 

and hence should have been suppressed, and 3) there was 

insufficient evidence to convict. We reject all of these 

contentions. 

 A. Specificity of the Indictment

 Count 140 of the indictment charges that Menon did: 

knowingly and willfully import merchandise 

into the United States contrary to law, in 

that the defendant did unlawfully reimport 

approximately 696 cartons of shrimp which had 

previously been rejected by the FDA because 

they were found to be contaminated by 

salmonella when they were originally imported 

by the defendant. 

Menon argues that the indictment was defective because it 

indicated that he imported merchandise contrary to law but failed 

to specify which law. He asserts that, as a result, the 

indictment failed to provide him with adequate notice of the 

charge against which he had to defend himself. 
 Menon is correct that the indictment did not specify 

the statute he had violated; however, it did specify the actions 

Menon took in enough detail that proof by the government that he 

had taken these actions would have sufficed to prove that he had 

violated a particular law. The indictment clearly charged that 

Menon had reimported rejected and contaminated shrimp; such 

reimportation is illegal under 21 U.S.C. § 331, which prohibits 

introduction of adulterated food into interstate commerce. Thus, 

the factual specificity of the indictment was sufficient to put 

Menon on notice of the law he had allegedly offended. See United 

States v. Bowe, 360 F.2d 1, 8 (2d Cir.), cert. denied, 385 U.S. 

961, 87 S. Ct. 401 (1966) (holding sufficient an indictment which 

did not cite the statute violated but which "advised the 

appellants of the essential elements of the offenses with which 

they were charged and stated facts showing the illegal aspects of 

the importation." The court explained that the claim of 

insufficiency was "`made in a mood of technicalism appropriate 

only to an era now fortunately past.'" Id. (citations omitted).) 

 As we explain in the margin, the cases upon which Menon 

relies are distinguishable, because all involved indictments that 

failed to specify facts sufficient to constitute a violation of 

any law.0 In contrast, in this case, the indictment specified 

which of Menon's actions were contrary to law. 

 

0In Keck v. United States, 172 U.S. 434, 19 S. Ct. 254 (1899), 

the Supreme Court held that an indictment charging the defendant 

with the importation of diamonds contrary to law was 

insufficient. The Court wrote: 
B. Legality of the Search

 1) Background 

 On April 15, 1992, government agents searched Menon's 

office and the desk of his secretary Cathy Carroll pursuant to a 

valid search warrant. The warrant authorized a search of these 

areas for "[o]riginals and copies of blank invoices bearing the 

name of Abad Fisheries," the company Menon often falsely listed 

as the exporter of seafood Flag was importing. (Search Warrant, 

 

The allegations of the count were obviously 

too general, and did not sufficiently inform 

the defendant of the nature of the accusation 

against him. The words, "contrary to law," 

contained in the statute, clearly relate to 

legal provisions not found in section 3082 

itself; but we look in vain in the count for 

any indication of what was relied on as 

violative of the statutory regulations 

concerning the importation of merchandise. 

The generic expression "import and bring into 

the United States," did not convey the 

necessary information, because importing 

merchandise is not per se contrary to law, 

and could only become so when done in 

violation of specific statutory requirements. 

Id. at 437, 19 S. Ct. at 455. See also Steiner v. United 

States, 229 F.2d 745, 748 (9th Cir. 1956) (holding indictments to 

be defective, because they "failed to state what law . . . the 

importation [of psittacine birds] was contary to, or in what 

respect such importation was contrary to law"); Babb v. United 

States, 218 F.2d 538, 541 (5th Cir. 1955) (holding that the 

"indictment should have alleged some fact or facts showing that 

the cattle in question were imported or brought in contary to 

some law; and that it is not enough to say that they were 

imported or brought in `contrary to law'"). In none of these 

cases did the indictment specify the statute defendant's actions 

were contrary to, or the actions defendant had taken that were 

sufficient to constitute a violation of law. 
dated April 15, 1992). In addition to the documents covered by 

the warrant, Michael I. Scott, Senior Special Agent with the 

United States Customs Service, who oversaw the search, instructed 

the agents to look for any other blank invoices and for documents 

regarding Jabeco, the company to which Flag had shipped the 

shrimp rejected by the FDA and from which he had allegedly 

reimported these shrimp (leading to his indictment in Count 140 

for importing seafood contrary to law). 

 Scott assigned Ida Almeida to search Carroll's desk 

while Scott and other agents searched Menon's office. When 

searching Carroll's desk, Almeida discovered a file marked Abad 

Fisheries which she brought to Scott, who was in the adjacent 

office. She continued her search of the desk and found four 

documents with Jabeco's name on them which she also brought to 

Scott.0 Scott testified that when he glanced at one of the 

Jabeco documents, he noticed the words "Jabeco" and 

"reprocessing." Because his prior investigation of Menon had 

revealed that Flag and Jabeco had collaborated on three prior 

illegal shipments of irradiated food, these words on the document 

signalled Scott that it evidenced criminal activity. Scott then 

read the entire document and decided to seize it. Because he 

assumed that the other documents were likely to be interrelated 

with the first one, he decided to seize them as well.0

 

0The government only introduced three of these documents into 

evidence; thus, the admissibility of the fourth document is not 

at issue. MNT 6. 

0As Scott was departing with these documents as well as others, 

Flag's controller, John Guerriero objected to the seizure of any 

documents other than those specified in the warrant. JA 890. 
 Menon moved to suppress some of the evidence obtained 

in the April 15 search including the Jabeco documents, arguing 

that the agents had exceeded the scope of the warrant. The 

district court denied his motion, holding that the documents fell 

within the plain view doctrine because Scott only had to glance 

at the first Jabeco document in order to ascertain the probable 

incriminating nature of that document and because Scott had 

probable cause to conclude that the other documents were 

interrelated with that one. We agree. 

 2) Analysis 

 The Supreme Court has allowed officers to seize 

incriminating evidence in plain view during the course of a 

lawful search because such a seizure "does not involve an 

intrusion on privacy. If the interest in privacy has been 

invaded, the violation must have occurred before the object came 

into plain view." Horton v. California, 496 U.S. 128, 141, 110 

S. Ct. 2301, 2310 (1990). In Horton, the Supreme Court set forth 

three requirements for valid seizures of evidence in plain view. 

First, the officer must not have violated the Fourth Amendment in 

"arriving at the place from which the evidence could be plainly 

 

After a conversation with Scott which may or may not have 

involved some pressure from Scott, Guerriero agreed to allow 

Scott to copy the documents. JA 882, 826. The district court 

concluded that, given the totality of the circumstances, 

Guerriero had consented to the seizure without any governmental 

coercion. Because we find that the documents were in plain view, 

we need not reach the question of consent. 
viewed." Id. at 136, 110 S. Ct. at 2308. Second, the 

incriminating character of the evidence must be "immediately 

apparent." Id. Third, the officer must have "a lawful right of 

access to the object itself." Id.

 We first note that the deliberate decision by the 

agents to search for Jabeco documents does not in and of itself 

make the seizure of such documents illegal. The Supreme Court 

has specifically rejected the requirement, proposed by the 

plurality in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 

2022 (1971), that the discovery of the evidence be inadvertent: 

The fact that an officer is interested in an 

item of evidence and fully expects to find it 

in the course of a search should not 

invalidate its seizure if the search is 

confined in area and duration by the terms of 

a warrant or a valid exception to the warrant 

requirement. If the officer has knowledge 

approaching certainty that the item will be 

found, we see no reason why he or she would 

deliberately omit a particular description of 

the item to be seized from the application 

for a search warrant. 

Id. at 138, 110 S. Ct. at 2309. Nonetheless, even though an 

officer can keep his or her eye out for particular objects while 

conducting a lawful search, the Court has made quite clear that 

the "plain view" doctrine cannot be used to expand the scope of a 

legal search -- there must be "scrupulous adherence" to the 

requirement that the search be limited to the time and place 

necessary to find the items listed on the warrant. Id. 

 Menon argues that Scott's statement to his agents that 

he was "interested in documents related to . . . Jabeco" 

essentially told these agents to search beyond the scope 
authorized by the warrant in violation of the first Horton prong. 

Menon then asserts that Almeida proceeded to do just that when 

she continued to search Carroll's desk after finding the Abad 

file. The government responds that Almeida continued the search 

because she hoped to find more Abad documents and thus found the 

Jabeco documents in the course of a permissible search. 

 It is possible that Almeida interpreted Scott's 

instructions to give her the authority to search for Jabeco 

documents even after her search for Abad documents was complete. 

And it is possible that Almeida continued her search of the desk 

even after she was fairly confident that she had obtained all of 

the Abad documents. We think, however, that a subjective inquiry 

into her state of mind is unnecessary. Given the fact that a 

subjective inquiry would almost certainly yield the same result 

as an objective inquiry and that "evenhanded law enforcement is 

best achieved by the application of objective standards of 

conduct, rather than standards that depend upon the subjective 

state of mind of the officer," Horton, 496 U.S. at 138, 110 S. 

Ct. at 2308-09, we hold that a government agent has discovered 

evidence within the scope of the search allowed by the warrant if 

the agent's search fits within the literal terms of the warrant 

and is a reasonable means of obtaining the objects described in 

the warrant. 

 Almeida's discovery of the Jabeco documents meets that 

requirement. Almeida's search fell within the scope of the 

warrant; the warrant gave the government the authority to search 

the desk for Abad documents and it was reasonable for Almeida to 
continue to do so even after finding the Abad file. Any 

reasonable agent looking for evidence in a clearly circumscribed 

area would continue the search until she was certain that no more 

evidence existed which could not happen until the entire desk was 

searched. 

 Menon next argues that it was not immediately apparent 

that the Jabeco documents constituted evidence of criminality, 

and hence that the search violated the second Horton prong. This 

argument divides into two sub-parts. First, Menon avers that it 

was not immediately apparent to Almeida that the Jabeco documents 

constituted evidence of criminality. According to Menon, as soon 

as she saw that the documents were not Abad documents, she should 

have replaced them rather than bringing them to Scott. She did 

not, he continues, bring them to Scott because she thought that 

he might determine they were Abad documents. In Menon's 

submission, Almeida's movement of the documents constituted an 

impermissible seizure, and Scott's glance at the documents 

constituted an impermissible search, i.e. it constituted an 

invasion of privacy not in any way helpful in conducting the 

search authorized by the warrant. 

 We can dismiss Menon's argument that Almeida's movement 

of the documents constituted a seizure with relative ease, 

because it did not "meaningfully interfere with [his] possessory 

interest" in the documents to any extent greater than if Almeida 

had brought Scott to the documents. See Arizona v. Hicks, 480 

U.S. 321, 324; 107 S. Ct. 1149, 1152 (1987). However, Menon's 

argument that Scott's glance at the documents constituted a new 
search which required probable cause is a forceful one given the 

Supreme Court's emphasis on the particularity of the warrant 

requirement, the further requirement of immediate apparency, and 

the goal of preventing officials from enlarging a specific 

warrant "into the equivalent of a general warrant to rummage and 

seize at will." Texas v. Brown, 460 U.S. 730, 748, 103 S. Ct. 

1535, 1547 (1983) (Stevens, J., concurring). 

 Menon's contention receives a boost from Hicks, in 

which the Supreme Court upheld the exclusion of stereo serial 

numbers obtained by moving some stereo equipment. See 480 U.S. 

at 325, 107 S. Ct. at 1152-53. The move was not justified by the 

exigent circumstances which had justified the entrance of 

officers into the apartment in the first place and hence 

constituted an invalid search: "[T]aking action, unrelated to the 

objectives of the authorized intrusion, which exposed to view 

concealed portions of the apartment or its contents, did produce 

a new invasion of respondent's privacy." Id.

 This case is potentially distinguishable from Hicks on 

the ground that movement of the stereo in Hicks revealed to the 

officers private objects and information that no governmental 

agent had seen previously; in contrast, Almeida brought documents 

to Scott at which she had already glanced. Thus, Scott's view of 

the documents did not constitute either a new search or a new 

seizure -- Menon had no more privacy interest in the documents 

after Almeida had glanced at them. 

 In Hicks, the Court indicated that the movement of the 

stereo was dispositive; "the mere recording of the serial numbers 
[on the stereo] did not constitute a seizure" (emphasis added). 

See Hicks, 480 U.S. at 324, 107 S. Ct. at 1152. By ruling that 

the officer's movement of the stereo constituted an illegal 

search, the Court implied that, just as the mere recording of the 

serial numbers did not constitute a new seizure, it did not 

constitute a new search either. This was true even though the 

police on the scene revealed the serial numbers to outside 

officers who checked those numbers for information unrelated to 

the exigent circumstances that had brought the police into the 

apartment. Indeed, the Court explicitly stated that "a truly 

cursory inspection -- one that involves merely looking at what is 

already exposed to view, without disturbing it -- is not a 

`search' for Fourth Amendment purposes, and therefore does not 

even require reasonable suspicion." See id. at 328, 107 S. Ct. 

at 1154; cf. United States v. Jacobsen, 466 U.S. 109, 119-23, 104 

S. Ct. 1652, 1659-61 (1984) (where Federal Express employees had 

opened package and seen bags of white powder and then replaced 

the bags, government removal of these bags did not constitute a 

new search, since it "enabled the agent to learn nothing that had 

not previously been learned during the private search"); Illinois 

v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983) ("The 

plain-view doctrine is grounded on the proposition that once 

police are lawfully in a position to observe an item firsthand, 

its owner's privacy interest in that item is lost."). 

 Not only did Almeida's glance at the documents 

potentially destroy any privacy interest in preventing others 

from taking a similar look, but it is also important that here, 
unlike in Hicks, the officials unquestionably could have legally 

obtained all of the information they did obtain. In Hicks, no 

police officer had legitimate plain view access to the serial 

numbers on the stereo. Here, the Jabeco documents came into 

plain view in the course of a search within the scope of the 

warrant. If Scott had searched Carroll's desk himself initially, 

or had done so after Almeida's search to make sure that she had 

found all of the Abad documents, he would legitimately have been 

able to glance at the Jabeco documents as part of his search for 

Abad documents. 

 Based on just such potential access by all officials in 

the house to the discovered materials, many courts have held that 

government officials other than the one who legitimately 

discovers materials can look at them (at least if the officials 

are already in the house). As the First Circuit explained, the 

police "may be limited by the shared knowledge and experience of 

the officers otherwise lawfully on the premises," but "[t]he 

executing officers are not limited by the fortuity of which 

officer first happened upon the evidence." United States v. 

Johnston, 784 F.2d 416, 420 (1st Cir. 1986). See Crowder v. 

Sinyard, 884 F.2d 804, 821 (5th Cir. 1989); United States v. 

Newton, 788 F.2d 1392, 1395 (8th Cir. 1986); but cf. United 

States v. Syzmkowiak, 727 F.2d 95, 99 (6th Cir. 1984) (where 

officer who saw gun in plain view had to call in serial numbers 

to determine whether possession of the gun was illegal, the 

incriminating nature of the weapon was not immediately apparent). 
 Nonetheless, Menon has a strong counter-argument in 

addition to his reliance on Syzmkowiak, supra. The very reason 

Almeida brought the documents to Scott is that he was better 

equipped to understand their contents than she was -- thus, his 

glance was likely to reveal private information that had not been 

revealed to Almeida when she glanced at the documents. Imagine 

for example that the police are conducting a lawful search for 

cocaine. In the course of his search, an officer sees a document 

written in French lying face up on a table in plain view. His 

glance at the document reveals nothing to him about its contents 

because he does not understand French and he calls over another 

officer who speaks French. The second officer glances at the 

document and thereby obtains a cursory understanding of the 

meaning of the document. This understanding might not reveal 

information helpful to the police, but it might instead reveal 

information about the fully legal, private love affairs of the 

resident of the house. Surely the glance of the second policeman 

constitutes at least an incremental invasion of privacy beyond 

that caused by the glance of the first officer. 

 Quite arguably Almeida caused such an incremental 

invasion of privacy here by exceeding the scope of the search 

warrant. Unlike Almeida's actions in continuing to search the 

desk after finding a file marked "Abad," her actions in bringing 

the documents to Scott would not seem to be part of a reasonable 

effort to carry out the search for Abad documents, for it is 

apparent that her actions led to an additional glance at the 

document beyond that reasonably needed to fulfill the purpose of 
the intitial warrant. Moreover, the original rationale for the 

plain view doctrine does not apply under this analysis: the 

invasion of privacy involved in Scott's looking at the documents 

had not already taken place when Almeida brought the documents to 

him, nor was it certain that it was going to take place. Scott 

may well not have conducted a search of the desk himself. Thus, 

Almeida's actions were part of an effort to give Scott access to 

information that he had not been authorized by a search warrant 

to receive and that he would not inevitably have seen in 

conducting his own search. 

 When analyzing an analogous situation to the one here, 

a leading treatise on search and seizure questions sets forth 

precisely the type of argument Menon is making. In evaluating 

whether a policeman who crosses a room to copy down an exposed 

stereo serial number after he has already found the gun for which 

he had a search warrant violates the Fourth Amendment, the 

treatise notes that: 

[t]rue, it is no search to see `what is 

already exposed to view,' but . . . the 

serial number was exposed in an abstract 

sense but was not exposed to this officer

until he crossed the room, an activity on his 

part which was (to again use the Hicks

majority's language) `unrelated to the 

objectives of the authorized intrusion' and 

thus not permitted under the Fourth 

Amendment. This means that even in those 

cases where an identifying characteristic is 

discovered without moving the object, a 

troublesome scope-of-warrant execution issue 

may be presented concerning why the officer 

was within reading distance of the serial 

number. 
Wayne R. LaFave, Search and Seizure, § 4.11 at 105 (2d ed. 1987) 

(Sup. 1994). 

 Nonetheless, we decline to hold that Almeida's actions 

in bringing the documents to Scott were impermissible. 

Ultimately, we agree with the courts of appeals that have decided 

that the immediate apparency of criminality should be measured, 

at a minimum, by the collective knowledge of the officers on the 

scene. See supra at 28. First, we think this holding is 

supported by the weight of Supreme Court precedent, which 

suggests that once an object has come into plain view in the 

course of a legitimate search, any privacy interest in preventing 

a cursory inspection of that object has been destroyed. Second, 

we think that the case law is correct to strike the balance in 

this way. The French letter example presents a rare case; in 

most cases, once one officer has glanced at an object, any 

private information that can be revealed at a glance, will have 

been revealed -- except for evidence of illegal activity 

unprotected by the Fourth Amendment. See Jacobsen, 466 U.S. at 

123-24, 104 S. Ct. at 1661-62 (holding that a test that merely 

disclosed whether or not a particular substance was cocaine did 

not compromise any reasonable expectation of privacy and 

therefore did not constitute a search). The typical case will be 

the revelation of serial numbers on a gun which require a 

database to identify but which reveal no information beyond 

whether the gun is legal or illegal. 

 Moreover, if we were to require the officer who came 

across an object in the course of his or her own permissible 
search to understand the relationship of the object to 

criminality, the police would probably respond by assigning the 

most knowledgable officers to conduct searches or by having 

multiple officers search the same area. The invasion of privacy 

would end up being as great; all that we would have accomplished 

is that the police search would cost more and be less efficient. 

Finally, we note that we could hardly prevent the officer who 

first saw an object from remembering what he or she saw and 

probably even testifying about it, which means that any 

additional invasion of privacy from revelation of the information 

to others is likely to occur anyway. Cf. Jacobsen, 466 U.S. at 

119, 104 S. Ct. at 1659 ("Respondents do not dispute that the 

Government could utilize the Federal Express employees' testimony 

concerning the contents of the package. If that is the case, it 

hardly infringed respondents' privacy for the agents to reexamine the contents of the open package.") Thus, we hold that 

Almeida's actions in bringing the Jabeco documents to Scott did 

not violate the Fourth Amendment. 

 Menon then argues that Scott's own glance at the Jabeco 

documents was too searching to meet the "immediately apparent" 

requirement. But we have explained, Scott was entitled to glance 

at the documents to the same extent that Almeida was. Almeida 

was entitled to look at them carefully enough to determine that 

they were not blank Abad invoices. See United States v. 

Santarelli, 778 F.2d 609, 615-16 (11th Cir. 1985) ("Given the 

fact that the search warrant entitled the agents to search for 

documents . . ., it is clear that the agents were entitled to 
examine each document . . . to determine whether it constituted 

evidence they were entitled to seize under the warrant."). The 

district court found that upon his brief glance at the first 

Jabeco document, Scott noticed the words "Jabeco" and "for 

reprocessing purposes"; the court also found that these words 

provided him with probable cause to read the entire document 

because Scott had strong reason to believe that Flag was 

illegally importing irradiated food from Jabeco and Scott knew 

that "reprocessing" was a euphemism for irradiation. We have no 

reason to hold that these findings were clearly erroneous. 

 As to the other two Jabeco documents, Scott testified 

that "the thing that was significant to me was that they were 

interrelated" to the first document because they all said Jabeco 

and were all from the same file. The district court found that 

Scott's interrelationship conclusion was warranted and that this 

provided him with probable cause to read the two documents 

carefully. Again, we decline to disturb these findings. 

 In sum, because 1) the Jabeco documents came into plain 

view in the course of Almeida's search of the desk; 2) Almeida's 

search of the desk was reasonable under the terms of the warrant 

which entitled her to search that desk until she found all of the 

blank Abad invoices that the desk contained, and 3) in glancing 

at these documents long enough to determine that they were not 

blank Abad invoices, it was immediately apparent, using the 

collective knowledge of the officers on the premises, that the 

documents were evidence of criminal activity, we hold that the 
search and seizure of these documents did not violate the Fourth 

Amendment. 

 C. Sufficiency of the Evidence on Count 140

 Finally, Menon contends that, even if we affirm the 

district court's decision to admit all of the evidence found in 

the search, the government did not adduce sufficient evidence 

that he "fraudulently or knowingly import[ed] or br[ought] into 

the United States, any merchandise contrary to law" by 

reimporting the shrimp that had been rejected by the FDA. He 

argues that all of the government's evidence on shrimp travelling 

from Jabeco to the United States relates to shrimp with different 

specifications (hence different shrimp) from the shrimp initially 

rejected by the FDA. As a result, importation of this shrimp was 

not "contrary to law." 

 The shipment rejected by the FDA consisted of 1,200 

cases of shrimp ranging in size from 15/20 per pound to 21/40 per 

pound, with a total weight of 42,864 pounds. These 

specifications come from a bill of lading within the file of 

Sperduto, Spector, & Company ("Sperduto"), the firm Flag had 

engaged to conduct an annual audit of its books. The bill of 

lading for the shrimp shipped from Jabeco to the United States, 

however, indicated there were 696 cases at 11,681 pounds, and the 

invoice stated that the size of the shrimp was 300/500 per pound 

(much smaller than the rejected shrimp). Thus, it does appear 

that the shipment of shrimp sent to the United States was not the 

same as the one rejected by the FDA. However, the government 
argues that the documents related to the shipment from Jabeco to 

the United States were falsified and that the shipment did in 

fact consist of the same shrimp. By finding Menon guilty, the 

jury agreed with the government. The district court denied 

Menon's motion for judgment of acquittal. 

 The standard in deciding whether to grant "a postverdict judgment of acquittal is the same as that which the trial 

court applied. We must view the evidence in the light most 

favorable to the jury verdict and presume that the jury properly 

evaluated credibility of the witnesses, found the facts, and drew 

rational inferences." United States v. Iafelice, 978 F.2d 92, 94 

(3d Cir. 1992) (citation omitted). The court may overturn a 

guilty verdict only if no reasonable jury could find the 

defendant guilty beyond a reasonable doubt. See United States v. 

Coleman, 811 F.2d 804, 807 (3d Cir. 1987). Although the question 

is a close one, we think that a reasonable jury could have found 

Menon guilty beyond a reasonable doubt. 

 First, the government presented evidence that a Flag 

employee told its auditor Sperduto that some of the shrimp was 

the same. Jay Rosner, a CPA who worked for Sperduto on the Flag 

audit, testified that, while attempting to trace the whereabouts 

of the 1,200 cases of shrimp, he took notes based on statements 

made by someone at Flag: 

Flag sent 1,200 cases of shrimp to be IQF'd 

at Rotterdam . . . [A]ttached is the copy of 

the bill of lading from the shipment from 

Flag to Rotterdam. Also attached is the 

invoice . . . for processing the shrimp and 

the bill of lading from Rotterdam to New 
York. 696 cases were stored in Union 

Warehouse Terminal on 8/20/91. 

Although Rosner testified that no auditor ever verified that the 

696 cartons were connected to the 1,200, he made it clear that 

"[t]hose were Flag's assertions." JA 457, 475. 

 Rosner's testimony is backed up by the fact that in 

Sperduto's files relating to the 1,200 rejected cases of shrimp 

was a bill of lading and a storage document pertaining to the 696 

cases of shrimp. Joseph Sperduto, another CPA with the Sperduto 

firm, testified that the reason the documents would be in that 

file is that the client or the person conducting the audit had 

provided them and had indicated they were connected. JA 442-44. 

 Although this evidence does not explain who at Flag 

said that the two shipments were related or why the 

specifications of the two shipments were different, it evidences 

a connection, especially given that the original source was Flag 

itself. Of course, it may be that someone at Flag or at Sperduto 

simply erred in relating the two shipments,0 but it was 

reasonable for the jury to conclude otherwise, at least when this 

evidence was considered in light of additional government 

evidence. 

 

0For example, John Guerriero, the comptroller at Flag who 

maintained its books and records, indicated that, when asked to 

provide backup documents to the auditors about the 1,200 cartons 

of shrimp, he probably took the documents related to the 696 

cartons of shrimp from the payment files (A 93), JA 146. He did 

not explain why he took these particular documents from the 

payment files. Perhaps Guerriero had no explanation and simply 

made a mistake. 
 Because Menon knew that Sperduto was attempting to 

verify the location of the 1,200 cases of shrimp, Menon wrote 

Jabeco requesting that Jabeco inform Sperduto that it possessed 

the 1,200 cases of shrimp as of June 30, 1991. Jabeco then wrote 

Menon and Sperduto acknowledging such possession. The letter 

continued, "[t]his lot has been shipped back to New York on or 

about 6th July, 1991 for estimated arrival at New York, July 

17th, 1991." While this evidence alone does not definitively 

prove that Flag directed that the original shrimp be sent back to 

the United States or that the 1,200 cases actually arrived in the 

United States, it does tend to prove that the original 1,200 

cases of shrimp were shipped back from Jabeco to New York. When 

this evidence is combined with the fact that Flag connected the 

696 cases with the 1,200 cases and the 696 cases actually arrived 

in New York, it makes it much more likely that the two shipments 

were actually the same. 

 Finally, upon receiving his copy of the letter Jabeco 

had written to Sperduto, Menon crossed out the statement that the 

shrimp had been sent back to New York and wrote at the bottom of 

the letter, "Bert! Please omit in second." Menon then sent a fax 

to Bert Cornelisse at Jabeco which said, "[w]ith regards to the 

letter you faxed to me, if you have not sent this to Sperduto, 

Spector & Co., please do not do so until you telephone me." A 

jury could reasonably conclude that by taking these actions, 

Menon was attempting to prevent Sperduto from discovering that 
the rejected shrimp had been sent back to New York.0 Given this 

evidence of consciousness of guilt and an attempt to cover up 

that guilt, and the fact that the jury simultaneously found Menon 

guilty of 137 counts of falsification, the jury might well have 

resolved the fact that the specifications of the shrimp that 

arrived in New York differed from those of the shrimp rejected by 

the FDA by concluding that Menon had falsified the specifications 

on the shipment to New York. 

 In sum, viewing the evidence in the light most 

favorable to the government, see Iafelice, 978 F.2d at 94, we 

hold that the evidence was sufficient to sustain the verdict on 

count 140.0

 

0There are other possible explanations for Menon's letter with 

respect to the Jabeco letter, but they are far less plausible. 

For example, Menon may have wanted Jabeco to delete the sentence 

about re-shipment of the shrimp because these shrimp had not in 

fact been sent back to the United States and he wanted to ensure 

the information provided to the auditors was correct. But if this 

were the explanation, he would have wanted Jabeco to correct the 

information provided to the auditors even if the original letter 

had already been sent to them; he would not have told Jabeco to 

correct the letter only if Jabeco had not yet sent the letter to 

the auditors. Moreover, this explanation does not signify a 

reason why Jabeco would have made a mistake as to the destination 

of the shrimp. At all events, the exclamation point in the line 

"Bert! Please omit in second" conveys a sense of urgency unlikely 

to have been present had Menon simply desired to correct a 

mistake. 

0The defendant presented evidence from an independent 

warehouseman, Robert McLaughlin, that the shrimp which returned 

to the United States did not meet the specifications of the 

shrimp rejected by the FDA. JA 629-30. However, the government 

impeached McLaughlin's testimony by showing that it was based on 

business records rather than personal knowledge and that it was 

possible that the specifications on these business records 

resulted from a transfer of information from the allegedly 

falsified specifications on the materials accompanying the shrimp 

to the United States. JA 617, 625, 630. In viewing the evidence 

in the light most favorable to the government, we assume that the 
IV. THE SENTENCING ISSUES 

 The district court sentenced Menon under Sentencing 

Guideline § 2Q2.1. U.S.S.G. § 2Q2.1 (1992). Under this section, 

his base offense level was six. U.S.S.G. § 2Q2.1(a). His 

offense level was increased by two because he had a commercial 

purpose. U.S.S.G. § 2Q2.1(b)(2). It was further increased by 

fourteen under subsection (b)(3)(A), which provides for an 

enhancement according to the table in § 2F1.1, "if the market 

value of the fish, wildlife, or plants exceed[s] $2,000." 

U.S.S.G. § 2Q2.1(b)(3)(A). 

 At a minimum, we must remand for resentencing. The 

market value of the seafood at issue in Count 140 ($141, 899), 

although more than $2,000, is far less than the market value of 

the seafood at issue when the district court sentenced Menon --

which included the value of the seafood in Menon's other 137 

counts of conviction. Thus, the enhancement which would be 

applicable under the table in § 2F1.1 would no longer be 14 

levels. But Menon contends that the enhancement is not 

applicable at all, because application of the enhancement 

violates the Ex Post Facto Clause of the Constitution. We agree. 

 Even though such an enhancement was part of the 

guidelines when Menon was sentenced, it was not part of the 

 

jury made a reasonable credibility judgment that McLaughlin's 

testimony was not helpful. 
guidelines at the time of Menon's conduct. The conduct at issue 

in count 140 occurred in July of 1991 when the sentencing 

guidelines provided for an upward adjustment only "if the market 

value of the specially protected fish, wildlife, or plants 

exceeded $2,000." See U.S.S.G. § 2Q2.1(b)(3)(a) (1990). Had 

Menon been sentenced for reimporting previously rejected shrimp 

at that time, he would not have been subject to the upward 

adjustment because shrimp are not "specially protected." But 

Menon was sentenced in June 1993, when the guidelines provided 

for an enhancement if the "market value of the fish, wildlife, or 

plants exceeded $2,000." U.S.S.G. § 2Q2.1(b)(3)(A) (1992). 

 The general rule is that a sentencing court must apply 

the guidelines in effect at the time of sentencing. See United 

States v. Cherry, 10 F.3d 1003, 1014 (3d Cir. 1993); United 

States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991); 18 U.S.C. 

§3553(a)(4); U.S.S.G. § 1B1.11(a)(1993). But changes in 

sentencing guidelines that enhance the penalty offend the Ex Post 

Facto Clause of Article I of the United States Constitution. See

Miller v. Florida, 482 U.S. 421, 431-35, 107 S. Ct. 2446, 2451-54 

(1987); Kopp, 951 F.2d at 526. In Miller, the Supreme Court 

explained that a retrospective law that disadvantages the 

offender violates the Ex Post Facto Clause, but that a change in 

law that "does not alter `substantial personal rights,' but 

merely changes `modes of procedure which do not affect matters of 

substance'" does not. 482 U.S. at 430; 107 S. Ct. at 2451. Under 

this framework, the enhancement utilized here is 

unconstitutional. 
 Applying the enhancement in the 1992 guidelines which 

does not contain the "specially protected" substantially 

disadvantages Menon retrospectively. Menon had no notice at the 

time he acted that his punishment would be so steep. The 

government responds in two ways. First, it contends that 

application of the 1992 guidelines did not retrospectively harm 

Menon because the Sentencing Commission intended the guidelines 

in effect during Menon's conduct to apply to importation of 

valuable seafood regardless of whether it was specially 

protected. Second, it contends that the district court actually 

applied the 1990 guideline and merely interpreted it by reference 

to the subsequent amendment. For analytical purposes, we 

conflate these two arguments into the single proposition that the 

1989 guidelines, interpreted in light of earlier guidelines and 

later ones, did in fact provide an enhancement regardless of 

whether the seafood was "specially protected." 

 The government defends this proposition by pointing out 

that prior to 1989 there were two separate enhancement provisions 

-- one within section 2Q2.1 for specially protected fish wildlife 

and plants, see U.S.S.G. § 2Q2.1(b)(3)(A) (1988), and one within 

section 2Q2.2 for fish, wildlife and plants generally, see

U.S.S.G. § 2Q2.2(b)(3)(A) (1988). Had Menon's conduct occurred 

prior to November of 1989, that conduct would have been subject 

to the enhancement for seafood generally. The Commission 

intended the 1989 amendment to "consolidate two guidelines that 

cover very similar offenses," U.S.S.G. § 2Q2.1, app. C, amend. 

209 (1989), rather than to make any substantive changes. But in 
consolidating sections 2Q2.1 and 2Q2.2, the Sentencing Comission 

adopted the enhancement provision from § 2Q2.1 which only applied 

to "specially protected" fish. The Commission explained in 

1991, that the language "specially protected" had been 

"inadvertently retained" when the sections were consolidated. See

U.S.S.G. § 2Q2.1, app. C, amend. 407 (1991). Thus, the 

government argues that the intent of the Commission was always to 

apply the enhancement to importation of seafood worth more than 

$2,000, regardless of whether it was specially protected or not. 

 The government asserts that the 1991 amendment deleting 

the "specially protected" language combined with its reference to 

that language as having been "inadvertently retained" in the 1989 

consolidation means that the 1991 amendment was merely intended 

to clarify the meaning of the already exiting guideline. The 

government points out that when an amendment to a guideline is 

intended to clarify the meaning of the existing guideline, the 

court must give it substantial weight in interpreting that 

guideline. See United States v. Joshua, 976 F.2d 844, 853 (3d 

Cir. 1992); United States v. Ofchinick, 877 F.2d 251, 257 n.9 (3d 

Cir. 1989). In fact, the Ninth Circuit relied on precisely such 

reasoning to hold that "section 2Q2.1(b)(3)(A) was never intended 

to apply solely to `specially protected' wildlife after its 

consolidation." United States v. Atkinson, 966 F.2d 1270, 1276 

(9th Cir. 1992). But the Ninth Circuit did not reach this 

conclusion in the context of an ex post facto challenge and, in 

any case, we disagree. 
 First, we have never held that a "clarifying" amendment 

can be used to interpret an earlier guideline when applying the 

amendment would punish the defendant more harshly than he would 

have been punished under the court's independent interpretation 

of the pre-amendment language. Second, the amendment here was 

not a clarification. It indicated that the language "specially 

protected" had been inadvertently retained when the guidelines 

were amended in 1989; it did not state that the 1989 guideline 

applied to seafood that was not "specially protected." Third, 

[w]here the Commission adopts an interpretive 

commentary amendment that the text of the 

guideline cannot reasonably support, the 

Commission circumvents the process Congress 

has established for amending the guidelines. 

When this happens, we should decline to 

follow its lead. 

Joshua, 976 F.2d at 854. No interpretive amendment can excise 

key words ("specially protected") from a guideline. And no 

individual who read the guidelines before 1989 while 

contemplating his likely fate if he imported valuable shrimp 

would have understood that he was subject to an enhanced sentence 

under the guidelines. Thus, when resentencing Menon for 

reimporting previously rejected shrimp, the district court cannot 

apply the enhancement for importation of seafood worth more than 

$2,000. 

 

V. CONCLUSION 
 For the foregoing reasons, we will reverse Menon's 

convictions on Counts 1 through 15, 17 through 32, and 34 through 

139. We will affirm Menon's conviction on Count 140, and remand 

the case to the district court for resentencing on that Count 

under the 1990 guidelines.