
USCA1 Opinion

	




          April 15, 1996                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1489        No. 95-1768                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 G. ROBERT RANDAZZO,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this  court issued on April  8, 1996, is amended as        follows:            On page 17, line 2, add the word "for" after the word "forth."                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1489        No. 95-1768                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 G. ROBERT RANDAZZO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Morris M. Goldings with whom Sally  A. Morris and Mahoney,  Hawkes            __________________           ________________     ________________        & Goldings were on consolidated briefs for appellant.        __________            Carolyn Stafford  Stein with  whom Jonathan  Chiel, Acting  United            _______________________            _______________        States Attorney, and  James B. Farmer, Acting  United States Attorney,                              _______________        were on consolidated briefs for the United States.                                 ____________________                                    April 8, 1996                                 ____________________                 BOUDIN, Circuit Judge.   Robert  Randazzo was  president                         _____________            and majority shareholder of  New England Shrimp Company ("the            Company"),   a   Massachusetts  corporation   that  imported,            processed,  and  distributed shrimp.    In  February 1994,  a            federal grand  jury returned a 101-count indictment, charging            Randazzo--and  in most  counts the  Company as  well--with an            array  of offenses.   The  offenses fell  into  two different            categories:  97 "shrimp" charges and four "tax" charges.                   The shrimp  charges, counts  1 through 97,  alleged that            Randazzo and the Company used certain substances in producing            shrimp  that  were  prohibited  or  at  least  needed  to  be            disclosed  on labels.   The  substances increased  profits by            altering the weight or color of the shrimp, which was sold to            the Department of Defense  and various commercial purchasers.            These allegations underpinned four charges  of conspiracy, 18            U.S.C.     371, and  93  substantive counts  of  making false            statements to and claims against the United States, 18 U.S.C.              287,  and introducing  misbranded or adulterated  food into            interstate commerce, 21 U.S.C.    331(a), (k) and 333(a)(2).                 The  tax charges,  counts 98  through 101,  were brought            against Randazzo  alone and  alleged that  he had  caused the            Company to file  false corporate  tax returns.   26 U.S.C.               7206(1).    Specifically,  the  government  claimed  Randazzo            misreported as  sales expenses cash  sums that he  was taking            weekly from the Company for personal use and that the Company                                         -2-                                         -2-            returns listed as  corporate expenses the  wages of a  person            who worked  exclusively for  the Randazzo family  on personal            matters.       After  a 10-day  jury  trial in  October 1994,            Randazzo was convicted on all counts.  He was sentenced to 36            months in prison, reflecting a significant downward departure            from the  Sentencing Guidelines range.   He now  appeals from            his  conviction but  not  his sentence,  contending that  the            trial  court erred  as  to joinder,  alleged multiplicity  of            charges, and instructions.  The pertinent facts are set forth            as necessary in discussing the separate claims of error.                              I.  JOINDER OF COUNTS                      Randazzo claims  that joining the 97  shrimp counts with            the four  tax counts  was improper.   Fed. R.  Crim. P.  8(a)            permits joinder of counts against  a single defendant only if            the  offenses "are of the same or similar character," or "are            based  on the same act or transaction  or on two or more acts            or transactions connected together or constituting parts of a            common  scheme  or  plan."     The  district  court  rejected            Randazzo's  motion to sever based  on Rule 8(a),  and, as the            issue  turns on  a construction  of the  rule, we  review the            decision de novo.  United States v. Yefsky, 994 F.2d 885, 895                     __ ____   _____________    ______            (1st Cir. 1993).                  Rule 8(a)'s joinder provision is generously construed in            favor  of joinder, United States v.  Robichaux, 995 F.2d 565,                               _____________     _________            569 (5th Cir.), cert. denied, 114  S. Ct. 322 (1993), in part                            ____________                                         -3-                                         -3-            because  Fed. R.  Crim. P.  14 provides  a separate  layer of            protection where it is most needed.  Under Rule 14, the trial            judge has  discretion to order  severance of counts,  even if            properly joined  under Rule  8(a), to avoid  undue prejudice.            Here,  the   district  court  denied  Randazzo's  motion  for            severance  under Rule 14 and he has not appealed that ruling.            Nevertheless, Rule 8(a) does forbid joinder unless the counts            meet  one  of  the   conditions  already  quoted,  and  those            conditions,  although  phrased  in  general  terms,  are  not            infinitely elastic.                 One basis  for joinder, invoked by  the government here,            is  where the  counts  involve acts  comprising  parts of  "a            common scheme or plan."   As the government points  out, this            rubric  is often used to join false statement claims with tax            fraud charges where the tax fraud involves failure  to report            specific  income obtained  by  the false  statements.   E.g.,                                                                    ____            United  States v. Whitworth,  856 F.2d  1268, 1277  (9th Cir.            ______________    _________            1988),  cert. denied,  489  U.S. 1084  (1989).   Indeed,  the                    _____ ______            failure to report may help conceal the fraud.                   The present case  is quite different and offers  no such            connection  between  the shrimp  and  tax  counts.   Randazzo            reduced   the  Company's  reportable  income  by  overstating            corporate expenses.  But it was pure happenstance whether the            overstated  expenses  happened  to  reduce  legal  income  or            illegal income of the Company.  The misconduct underlying the                                         -4-                                         -4-            shrimp counts and  the improper claiming  of expenses on  the            returns  were not  part of the  same "scheme or  plan" in any            sense of the  phrase.   Accord United States  v. Halper,  590                                    ______ _____________     ______            F.2d 422, 429-30 (2d Cir. 1978) (rejecting a similar argument            by the government).                    Alternatively, the  government says that the  shrimp and            tax charges are  of the "same  or similar character"  because            (ignoring sales  to commercial buyers) both  sets of offenses            involved  the use of falsehoods or omissions to profit at the            expense of the  federal government.   Further, it notes  that            many facts are common to both  sets of charges:  for example,            they  occurred  during  overlapping time  frames;  Randazzo's            control  over the  Company  was  a  common element;  and  the            Company's  sagging  financial  condition  provided  a  common            motive.                   It  is  obvious why  Congress  provided  for joinder  of            counts that  grow out of related  transactions--ones that are            "connected"  or "part of a common scheme or plan"; the reason            for allowing joinder of offenses having  "the same or similar            character"  is less clear.1   But whatever  the rationale, we                                            ____________________                 1The "same  or similar" language was  drawn from earlier            law without  explanation. 1  C. Wright, Federal  Practice and                                                    _____________________            Procedure: Criminal    141 (2d ed. 1982).  About the best one            ___________________            can say  is that in such  cases the evidence of  one crime is            more  likely to  be  independently  admissible,  on  theories            reflected  in  Fed. R.  Evid. 404(b),  in proving  the other,            "similar" crime.  E.g., United States v. Shue, 766 F.2d 1122,                              ____  _____________    ____            1134 (7th Cir. 1985), cert. denied, 484 U.S. 956 (1987).  See                                  ____________                        ___            also McElroy v. United  States, 164 U.S. 76 (1896)(discussing            ____ _______    ______________                                         -5-                                         -5-            think  that  it  is very  hard  to  describe adulterating  or            mislabeling shrimp as offenses "similar" to tax fraud--except            at a level of  generality so high as to drain the term of any            real  content.   Even  the  government's best  case  does not            stretch  as far  as  the present  facts.   United  States  v.                                                       ______________            Levine, 983 F.2d 165, 167-68 (10th Cir. 1992) (bank fraud and            ______            mail fraud).                 As  to the presence of  evidence common to  both sets of            counts, we agree that  the extent of common evidence  plays a            role  in implementing Rule 8(a).  United States v. Taylor, 54                                              _____________    ______            F.3d 967, 973 (1st Cir. 1995).   But Congress did not provide            for joinder  for unrelated transactions and dissimilar crimes            merely  because some evidence might  be common to  all of the            counts.    Indeed, looking  to  the  important evidence,  the                                                 _________            shrimp and tax  counts in  this case seem  to revolve  around            quite different facts.                     But all  this  is largely  for the  benefit of  district            courts  in  future cases,  because  the  misjoinder here  was            patently  harmless.  United States v. Lane, 474 U.S. 438, 449                                 _____________    ____            (1986).   The evidence against Randazzo on the tax counts was            overwhelming.   Randazzo does  not seriously  claim otherwise            but  argues that the evidence  on the shrimp  counts was thin            and that the jury was, or may well have been, swayed on those                                            ____________________            "same class of crime" provision).                                         -6-                                         -6-            counts by  the evidence  (inadmissible save for  the joinder)            that Randazzo was cheating on taxes.                   We disagree,  concluding that the  government has  amply            carried  its  burden   to  show  that   the  error  did   not            "substantially influence[] the jury's  decision."  O'Neal  v.                                                               ______            McAninch, 115 S. Ct. 992, 995 (1995).  As to each of the four            ________            conspiracies charged in the shrimp counts, at least one high-            ranking Company official testified that he had discussed with            Randazzo the fact that the given ingredient was prohibited or            had to be  disclosed, and  each testified  that Randazzo  had            nevertheless ordered  that the  ingredient  be added,  making            clear in several cases the aim was higher profits.                  Other  evidence showed  that Randazzo  kept close  watch            over  production  and  had the  final  say  over  the mix  of            ingredients.   In one instance Randazzo  learned that another            producer  had been told to  stop using an  ingredient and, on            investigating  the  report,  Randazzo  discovered   that  the            ingredient could be used to change the color of the shrimp to            resemble a more expensive variety; he then ordered its use in            his  own  shrimp.   Randazzo  also  played  a  major role  in            arranging for  the destruction of  evidence.  The  tax counts            simply did not matter.                                  II.  MULTIPLICITY                 Randazzo's second  claim of error, relating  both to the            indictment and  to the  jury instructions,  is that the  four                                         -7-                                         -7-            alleged conspiracies should  have been  charged as  one.   He            argues   that,  when  coupled   with  the   misjoinder,  this            multiplicity  contributed  to  the  impression  that  he  was            criminally disposed.   Briefly,  these were the  four alleged            conspiracies:                 1.   Count  1  charged that  Randazzo conspired  to make            false statements  to, and  claims against, the  government by            selling  the  Department  of  Defense shrimp  containing  the            chemical  sodium tripolyphosphate  ("STP"),  in violation  of            contract obligations.  STP causes shrimp to absorb and retain            moisture, which in turn boosts profits because the shrimp was            sold by weight.                   2.   Count 52 charged that Randazzo conspired to sell to            the  public  shrimp  that  had  been  adulterated  by  adding            saccharin,  an additive  prohibited  by federal  regulations.            The government  alleged that  the Company added  saccharin to            mask the taste of the STP.                  3.   Count 65 charged that Randazzo conspired to add the            chemical sodium hydroxide to certain types of shrimp in order            to give them a pinkish  color.  Randazzo then passed off  the            altered shrimp  to customers as naturally  pink shrimp, which            is rarer than other varieties and commands higher prices.                     4.   Count  79 charged  that Randazzo  added STP  to the            Company's  line  of  frozen   raw  breaded  shrimp,  sold  to            wholesalers and the public, contrary to federal regulations.                                          -8-                                         -8-                 It is  a recurring question in  conspiracy cases whether            related   illegal  agreements  comprise   one  conspiracy  or            several.  Because  the agreements are often  not explicit and            are  regularly inferred  from conduct, the  courts ordinarily            treat the issue  as one  of fact and  offer various  criteria            that might  help the  factfinder distinguish:   these include            commonality   vel  non   of  the   nature,  motive,   design,                          ___  ___            implementation, and logistics  of the illegal activities,  as            well  as  the scope  of  co-conspirator  involvement.   E.g.,                                                                    ____            United  States v. Boylan, 898 F.2d 230, 241 (1st Cir.), cert.            ______________    ______                                _____            denied, 498 U.S. 849 (1990).            ______                 Each of  the conspiracies in  this case had  a different            specific purpose;  each involved  different conduct;  and the            time  periods  covered were  different.    Randazzo makes  no            effort whatever  to dispute  these differences in  his brief.            Rather,  he says  that all  of the  agreements  concerned the            Company's   production  of  shrimp   and  alleged  fraudulent            concealment,  and he  points to  some common  elements (e.g.,                                                                    ____            that  two of the conspiracies  related to use  of STP--one on            military sales and the other on sales to the public).                   We will assume  arguendo that a jury  might have found                                   ________            that  there  was an  overarching  conspiracy  to sell  shrimp            through  various deceptive practices  that were  altered from            time to  time.  But on  the evidence presented,  the jury was            not compelled to so find, and that is enough.  As it happens,                                         -9-                                         -9-            such  an overarching  conspiracy,  if it  existed, might  not            preclude  the  conviction  of  Randazzo  for  the  individual            subsumed   conspiracies   if   they  were   also   proved--an            interesting  problem  that need  not  be decided  here.   See                                                                      ___            United States v. Broce, 488 U.S. 563, 580-81 (1989) (Stevens,            _____________    _____            J., concurring).                 Randazzo  continues by  arguing  that  the four  charged            "overlapping  conspiracies" worked special  prejudice in this            case.   He  points  out that  each  conspiracy count  alleged            several  different illegal  purposes  (e.g., count  1 alleged                                                   ____            violations of  18 U.S.C.     287, 1001,  and 1516).   And, he            concludes,   the   conspiracy   counts    together   involved            instructions  on 17  different  offenses.   The result,  says            Randazzo,   was   "a   lengthy   and   confusing   [set   of]            instruction[s] that the jury could not reasonably be expected            to apply."                  Jury confusion is a legitimate concern in this case, but            it  cannot be proved by simply noting the number of offenses.            There  is  no  automatic   ban  on  multiple  counts   in  an            indictment, or on charging  a conspiratorial agreement having            multiple unlawful purposes.   Braverman v. United States, 317                                          _________    _____________            U.S. 49, 54  (1942).  Randazzo  had a chance  to show us  how            specific language or organization of the  instructions misled            the jury; but his brief points to nothing specific, let alone                                         -10-                                         -10-            to  any  properly preserved  objection or  request concerning            this issue.                            III.  "OTHER CRIMES" EVIDENCE                 At   trial  the  prosecution  introduced  some  evidence            suggesting  Randazzo's  involvement  in  previous,  uncharged            misbranding, adulteration and tax  fraud offenses.  On appeal            Randazzo does  not challenge the admission  of this evidence.            But  he claims  that  the trial  court  should have  given  a            requested  standard instruction  that  evidence of  uncharged            crimes may not be considered as evidence of his propensity to            commit  crimes.  Fed.  R. Evid. 105,  404; see 3  L. Sand, et                                                       ___            al., Modern Federal Jury Instructions   74.03 (1994).                 ________________________________                 The government's  response is that most  of the evidence            characterized by  Randazzo as  "other uncharged  conduct" was            "direct  evidence  of the  crimes  charged,  not Rule  404(b)            evidence at  all,  and  thus did  not  require  the  limiting            instruction defendant proposed."  The government includes  in            this "direct  evidence" category  the Company's use  of sugar            and  STP in  shrimp  in years  prior  to the  indictment  and            evidence of  Randazzo's failure  to report income  (e.g., the                                                                ____            cash he took from  the Company) on his personal  tax returns.                                                   ________            In an appendix  to this  opinion, we set  forth the  episodes            that are arguably in dispute.                 Our  case law  does contain  such a  distinction between            "direct   evidence"  and  "other  crimes"  or  "Rule  404(b)"                                         -11-                                         -11-            evidence.  E.g.,  United States v.  Santagata, 924 F.2d  391,                       ____   _____________     _________            393-95  (1st Cir.  1991).   Although  its soundness  has been            questioned, E. Imwinkelried,  Uncharged Misconduct Evidence                                            _____________________________            9.62 (1995), we are not free to disregard circuit  precedent.            But in  reality "direct evidence" and  "Rule 404(b) evidence"            are not mutually exclusive  categories, but loose labels that            can sometimes plausibly be applied to the same conduct.  And,                                                      ____            as  usual, below the surface there are problems of policy and            of degree.                 The general rule is that evidence of the defendant's bad            acts or crimes,  other than those charged in  the indictment,            is admissible, subject to conditions, if relevant in some way            apart  from the  forbidden  inference that  the defendant  is            criminally inclined.  Rule 404;  see People v. Zackowitz, 172                                             ___ ______    _________            N.E. 466, 468 (1930) (Cardozo, J.).  The  standard conditions            include  the usual balancing  of relevance against prejudice,            Fed.  R. Evid. 403, and use of a limiting instruction telling            the jury not to draw the forbidden inference,  Fed. R.  Evid.            105.  See Huddleston  v. United States, 485 U.S.  681, 691-92                  ___ __________     _____________            (1988).                 The  general rule,  and  the conditions,  may be  easily            applied  where  the "other"  crimes  are  reasonably distinct            (e.g.,  in  time and  place) from  the  crime charged  in the             ____            indictment.   But where the  "other" crimes are  more closely            entangled with the events  that comprise the charged offense,                                         -12-                                         -12-            a number of courts  have declined to apply the  label "other"            or to require the limiting instruction.  E.g., Santagata, 924                                                     ____  _________            F.2d at 395,  (evidence that those charged  with drug dealing            had been carrying guns).                   The argument  for the  distinction made by  cases like            Santagata is that where  the "other" (i.e., uncharged) crimes            _________                             ____            are closely  entangled with the crimes  charged, the strength            of the permitted inference--e.g., that guns are often used to                                        ____            protect  drugs--may effectively  submerge the  forbidden one.            See Rossetti v. Curran, No. 95-1978, slip op. at 13 (1st Cir.            ___ ________    ______            March 21,  1996).   The argument against  the distinction  is            that  sometimes  the   forbidden  "bad  character"  inference                  _________            remains  a potential  menace  even in  cases like  Santagata.                                                               _________            Obviously  much depends  on the  crimes involved  and on  the            facts of the individual case.                 In the present case,  at least one or two  categories of            the "other"  crimes described  in the appendix  were distinct            enough from  the crimes actually  charged that it  would have            made sense  to include a single  general limiting instruction            in  the final charge  to the jury.2   Nothing more was sought            in  this case.  Perhaps the safe course for a district court,                                            ____________________                 2The  proof of  personal  income tax  violations is  the            clearest  case.  The use of sugar,  to the extent it appeared            to be a separate  wrong, could also be regarded  as distinct.            The other categories of alleged "other"  crimes listed in the            appendix  are more  debatable  since  they primarily  involve            aspects of  the  same charged  crime  that happened  to  fall            outside the limitations period.                                         -13-                                         -13-            wherever  the matter is in doubt,  is (where asked) to give a            closing  general  instruction that  bad  character  is not  a            permissible inference.                 But here  a limiting instruction could  not have altered            the  result and  omitting  it was  at  worst harmless  error.            United States v.  King, 897  F.2d 911, 915  (7th Cir.  1990).            _____________     ____            The most potent "other crimes" evidence related to Randazzo's            personal tax  offenses; but the evidence  against Randazzo on            the corporate tax offenses was overwhelming.  Conversely, the            arguable "other crimes" evidence bearing on the shrimp counts            was either very mild  or so similar and closely  connected to            the  actual  crimes  charged as  largely  to  rob  it of  the            independent "bad character" sting which the instruction means            to forestall.                                   IV.  MATERIALITY                 Randazzo claims that on  six counts, each involving some            form  of false  representation or  omission, the  trial judge            erred  in  deciding that  the  statements  or omissions  were            "material" instead of submitting the materiality issue to the            jury.  Two  counts (counts  1 and 65)  charged Randazzo  with            conspiring  inter  alia  to  make  false  statements  to  the                        ___________            government in violation of 18 U.S.C.   1001; and the four tax            counts  (counts  98-101)  alleged  that   Randazzo  willfully            overstated expenses on the corporate tax returns in violation            of 26 U.S.C.   7601(1).                                             -14-                                         -14-                 At  the  pre-charge conference  Randazzo  said  that the            materiality issue in count 1 was an issue for the jury.  But,            as was then common  in most circuits, e.g., United  States v.                                                  ____  ______________            Arcadipane, 41 F.3d  1, 7  (1st Cir. 1994),  the trial  judge            __________            ruled  that materiality was for  the court and  held that the            materiality  requirement was  satisfied  as to  count 1.   We            think that she also decided the materiality issue on the four            tax  counts.  As to count 65,  the judge did (for unexplained            reasons) submit the issue of materiality to the jury.                 Following  Randazzo's  conviction in  October  1994, the            Supreme Court in  June 1995 decided United States  v. Gaudin,                                                _____________     ______            115 S. Ct. 2310 (1995), and held that where materiality is an            element of a crime,  it must be submitted to  the jury.    In            this circuit, both of the offenses in question have been read            to  include  a  materiality  requirement.3   Accordingly,  as            Randazzo  is entitled to the benefit of the law prevailing at            the time of his  appeal, Griffith v. Kentucky, 479  U.S. 314,                                     ________    ________            328 (1987),  it was "error" as  to five of the  six counts in            question (counts 1 and 98-101) not  to submit the materiality            issue to the jury.                 If the harmless error  test were applied, Randazzo would            arguably be entitled  to a  new trial on  these counts,  even                                            ____________________                 3Arcadipane, 41 F.3d at  7 (section 1001); United States                  __________                                _____________            v. DiRico, No.  94-1471, slip op.  at 7 (1st  Cir. March  11,               ______            1996) (section 7206(1)).                                           -15-                                         -15-            though the error did not affect the outcome.   This court has            held  that the  failure to  submit an  entire element  to the            jury, when a  properly preserved request is  made, is treated            as  "structural" and  is reversible  error without  regard to            harm.   United States  v. Lopez, 71  F.3d 954, 960  (1st Cir.                    _____________     _____            1995)  (reading  Supreme Court  precedent  to  point in  this            direction).  Accord, DiRico, slip op. at 12.                         ______  ______                 At  the same time, this  court observed in  Lopez that a                                                             _____            Gaudin  error would  not  require automatic  reversal if  the            ______            defendant  had failed  to  preserve the  objection at  trial.            Rather,  we said  that  the  test  on  review  would  be  the            customary  "plain error"  standard  under  United  States  v.                                                       ______________            Olano,  113  S.  Ct. 1770  (1993);  Lopez,  71  F.3d at  960.            _____                               _____            Significantly, every  post-Gaudin case  we can find  in other                                       ______            circuits does  apply the plain  error test, not  the harmless            error  test, to a failure  to submit materiality  to the jury            (assuming that the objection was not properly preserved).4                 Here, Randazzo did not preserve the objection because he            failed to object to the instructions on this point after they            were given and before the jury retired.  See Fed. R. Crim. P.                                                     ___            30.  Randazzo says that it was reasonable not to object since                                            ____________________                 4United States v. Jobe, 1996 WL 101744 (5th Cir.  1996);                  _____________    ____            United Sates  v. DiDomenico, 1996  WL 88431 (7th  Cir. 1996);            ____________     __________            United  States v.  Kramer,  73 F.3d  1067  (11th Cir.  1996);            ______________     ______            United States v. Keys, 67 F.3d 801 (9th  Cir. 1995), reh'g en            _____________    ____                                ________            banc granted, 1996 WL 111572 (Mar. 11, 1996).  But cf. United            ____________                                   ___ ___ ______            States v. Viola, 35 F.3d 37 (2d Cir. 1994), cert. denied, 115            ______    _____                             ____________            S. Ct. 1270 (1995) (not involving Gaudin).                                               ______                                         -16-                                         -16-            First Circuit precedent was  dead against him and  Gaudin was                                                               ______            unexpected.   This is so;  but the question  is whether these            circumstances  make  any difference.    In  United States  v.                                                        _____________            Collins,  60 F.3d 4 (1st Cir. 1995), this court squarely held            _______            that it  does not  make any  difference, and  the post-Gaudin                                                                   ______            cases in other circuits imply the same view.                 This result  might at  first be  surprising, but we  are            dealing  with  an  accommodation  of   conflicting  concerns.            Randazzo  is not  charged  with a  deliberate  waiver of  the            objection, which  might preclude its  consideration under any            standard.   E.g., United States  v. Marder, 48  F.3d 564 (1st                        ____  _____________     ______            Cir.),  cert. denied, 115 S. Ct. 1441 (1995); see also Olano,                    ____________                          ___ ____ _____            113 S.  Ct. at 1777.   And, although the trial  judge in this            case acted  properly under  then prevailing law,  Randazzo is            given the benefit on direct review of a later change in law--            if he can  meet the  customary plain error  tests that  Olano                                                                    _____            sets forth  for  unpreserved error.   In  any event,  Collins                                                                  _______            controls.5                 In this case,  even assuming the  error was "plain"  and            "affected substantial rights," Fed. R. Crim. P. 52(b), it did            not cause a "miscarriage of  justice" or seriously affect the            integrity or impair  "public confidence" in the  proceedings.                                            ____________________                 5Any  contrary implication  that  might  be  drawn  from            United  States  v. London,  66 F.3d  1227, 1239-40  (1st Cir.            ______________     ______            1995), petition for cert. filed, 64 USLW 3511 (U.S., Jan. 18,                   ________________________            1996), is at most  dictum since the court held  that no error            had been committed.                                         -17-                                         -17-            Olano,  113 S. Ct. at 1779; Keys, 67 F.3d at 811.  On the tax            _____                       ____            counts, the convictions were inevitable.  Although Randazzo's            brief struggles  imaginatively to find  a doubt based  on the            amount   of  the  misreported  expenses  in  comparison  with            corporate  income, the  amount (between  $45,000  and $60,000            each  year)  was not  trivial  or  immaterial, even  assuming            dubitante that  amount matters  in the  case of a  deliberate            _________            falsification.  Compare United  States v. Greenberg, 735 F.2d                            _______ ______________    _________            29, 31 (2d Cir. 1984).                 As  for  the  use of  STP  in  shrimp--forbidden by  the            Company's   government  contracts--the   prosecution  offered            evidence  that  STP  increased   the  weight  of  the  shrimp            (apparently by more than five percent) and therefore the cost            to the government.   In fact, the prosecution showed  that in            one  instance where  the  presence of  STP was  revealed, the            government  rejected  the  Company's  shipment.    Given  the            contract  ban and the  increased cost, the  failure to reveal            the use of STP was patently material.                                 V.  PROCESSING AID                   The last issue concerns  Randazzo's claim that the court            misinstructed the jury on the definition of "processing aid,"            a  term pertinent  to the misbranding  offense in  this case.            Count 65 charged Randazzo with conspiring to sell, and counts            66-78 with  selling, shrimp that  was misbranded; and  one of            the three forms  of misbranding charged (any one sufficed for                                         -18-                                         -18-            conviction) was  that the  label inaccurately failed  to list            sodium hydroxide as an ingredient.   The statute, 21 U.S.C.              343(i)(2),  provides  that  failure  to  list  an  ingredient            constitutes  misbranding unless  the omission is  exempted by            regulation.                 Sodium hydroxide had clearly been added to the shrimp in            question, but it was Randazzo's position that this ingredient            did no more than  bring out or restore the  allegedly natural            pink color of the shrimp and that the ingredient was exempted            from listing as a "processing aid."  The regulation exempting            "processing aids" defines them to include the following:                      Substances that are added  to a food  for                      their technical or  functional effect  in                      the  processing  but are  present  in the                      finished food at insignificant levels and                      do  not have any  technical or functional                      effect in that food.            21 C.F.R.   101.100(a)(3)(ii)(c).                                          _                 In  charging the jury, the trial court did not read this            quoted  language verbatim,  although Randazzo  had asked  for            such an instruction.   Instead, the court told the  jury that            the jury could find  misbranding if the label failed  to list            each ingredient but, "if an ingredient is merely a processing            aid,  it  does  not  have  to be  listed.    However,  if the            ingredient  has  a  functional  or technical  effect  on  the            product, such as changing  its color, it is not  a processing            aid and it must be listed as an ingredient."                                         -19-                                         -19-                 Following  the charge,  the  court  invited  objections.            Randazzo did not object  to the failure to read  the verbatim            definition of processing aid, and  the omission was not plain            error.  See Fed. R. Crim. P. 30.  But his counsel did say: "I                    ___            object  to  the use  of the  phrase  `changing its  color' in            connection  with  the standard  of  identity."   Despite  the            garble  (the  "standard of  identity"  concept  related to  a            different set of counts not  involving color), we think  that            the  district  court  likely  understood the  thrust  of  the            objection.                  This takes us to the question whether the district court            was  right in  glossing the  regulation to  exclude from  the            definition of "processing aid"  an ingredient that "change[s]            [the food's]  color."   However, Randazzo  offers nothing--by            way   of   textual   analysis,    precedent,   administrative            interpretation, policy argument, or anything else--to support            his  underlying position,  namely,  that an  ingredient  that            merely brings  out a supposedly natural color is a processing            aid.                 The government's reading of the regulations is not self-            evidently wrong; indeed, the government now suggests that the            "change of  color" instruction was actually  too favorable to            the defense (but the government  proposed the language).6  In                                            ____________________                 6The  government  relies  for its  new  contention  upon            another  regulation  describing  "the  physical  or technical            functional effects"  for which  "ingredients may be  added to                                         -20-                                         -20-            all events, it is the appellant's responsibility to make some            showing that an error  has been committed.  United  States v.                                                        ______________            Hurley, 63 F.3d 1, 11 (1st  Cir. 1995), cert. denied, 64 USLW            ______                                  _____ ______            3604  (U.S.,  Mar. 25,  1996).   We  have  no basis  here for            finding  that the instruction was error and that is enough to            decide this case.                 Affirmed.                 ________                                            ____________________            foods,"  which  includes  among them  "[s]ubstances  used  to            impart, preserve, or enhance the color or shading of a food .            . . ."  21 C.F.R.   170.3(o)(4).                                         -21-                                         -21-                                       APPENDIX                 The   following  briefly   describes  the   evidence  of            uncharged wrongs admitted at trial:                 1.   There was evidence  that the Company  used sugar in            processing  shrimp for  an unspecified  period before  it was            discontinued in favor of saccharin in 1989.  No one testified            expressly that this use of sugar was illegal,  but this was a            likely inference,  given that  the evidence showed  the sugar            was  not identified on the  product label and  that sugar was            among the ingredients concealed by falsified brine charts.                    2.   Testimony showed that STP was used in the Company's            frozen breaded shrimp from the 1970s, in violation of federal            regulations and government contract provisions.  This conduct            clearly  preceded the  indictment period  for count  1, which            began  in 1989, although  the government  argues that  it was            within the scope of the allegations in count 79, which stated            that the additive had  been used in commercially  sold shrimp            "from a  time not known to  the grand jury but  at least June            1983."                   3.  There was evidence that, during the years alleged in            the  tax counts, Randazzo failed  to report as  income on his            personal tax  returns both the  cash sums  he allegedly  took            from  the Company's  retail store  and the  personal services            provided by an assistant at Company expense.                  4.  Testimony  by a  Company accountant  tended to  show            that  Randazzo engaged  in the  corporate tax  count offenses            prior to the indictment period.  Specifically, the accountant            told  Randazzo  in a  1985  conversation  that something  was            suspect about  the bookkeeping for  the cash retail  sales of            shrimp, and  also inquired as  to what Company  services were            being performed  by the Randazzo family  assistant.  Randazzo            allegedly told him it was none of his business.
