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UNITED STATES v. GULLA

October 30, 1993

UNITED STATES OF AMERICA,
v.
GUIDO GULLA, VITO GULLA, and GUIDO IMPORTER AND WHOLESALER, INC., Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case involves alleged use of false documents in violation of 18 USC ยงยง 371, 542 and 1001 to circumvent a retaliatory 100% duty imposed on imported tomatoes and other vegetable products to induce European nations to drop restrictions on hormone-containing meat products of the United States. An increase of duty from 13.6% to 100% on tomatoes but not tomato sauce was based on a Presidential finding, citing no sources, that hormone use was not harmful to human health. The legal background for this duty increase is discussed in my memorandum order signed September 13, 1993, *fn1" denying defendants' motion to dismiss the indictment but granting additional discovery and other relief to defendants.

 Defendants move under Fed.R.Cr.P. 12(b) and 41(f) to suppress statements made during a search pursuant to warrant of the corporate defendant's premises. After conducting an evidentiary hearing, upon which are based the factual findings summarized in this memorandum order, I deny the motion. As I must, I reserve decision as to the admissibility of any statements taken from defendants during the search until the issue may arise at trial.

 II

 During a search of defendants' business premises by more than ten (10) armed United States Customs agents, the defendant Guido Gulla ("Guido") was asked to identify the contents of a large vehicle parked outside the premises. Guido responded that whatever was indicated in the invoice was in the vehicle.

 The lead Customs agent indicated that Customs had knowledge that tomatoes entered as tomato sauce were in the vehicle. Guido then made a statement - concededly false - that there were some tomatoes there but that he had not had time to alter the paperwork because of a belated telephonic disclosure by the shipper that there was not enough tomato sauce for the shipment, so that some tomatoes had been substituted.

 The search of defendants' premises lasted for several hours, during which Customs agents told the defendants that they were looking at possible prison terms of up to fifty (50) years and fines of up to one million ($ 1,000,000.00) dollars because of false entries already discovered by Customs. The individual defendants remained in the premises during the search and defendants did not eat, although the agents ordered pizza to be delivered, and then ...


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