Reply Brief — Y. Hata & Co. v. United States

Supreme Court. U. &

FILED

SEP 24 1976

an the Pie uy MICHAEL RODAK, JR., RK |

OF THE —— —_—__—_—

Anited States

OctoseR TERM, 1976

No. 75-1767

Y. Hata & Company, LIMITED, a corporation,

Petitioner,

VS,

UNITED STATES OF AMERICA,

Respondent.

Mrnorv Hata,

Petitioner,

vs.

Unitep STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS IN SUPPORT

GrorRGE A. McKray,

Russ Building, Suite 850

235 Montgomery Street

San Francisco, California 94104

Telephone: (415) 781-4368

Attorney for Petitioners.

JAMES H. Kamo,

Epwin Y. SASAKI,

Of Counsel.

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA 94105

Subject Index

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1. Petitioners do contend that they were entitled to

an instruction on the “impossibility defense” re-

ferred to in United States v. Park, 421 U.S. 658,

673 and that a showing of the impossibility of cor-

recting the insanitary condition at the time of the

inspection would entitle defendants to an acquittal

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2. Petitioners hold that their constitutional rights

were violated by the government’s failure to pre-

sent the administrative hearing record containing

exculpatory evidence to the grand jury which

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Table of Authorities Cited

Cases Pages

Gardner v. United States, 516 F.2d 334 (C.A. 7, 1975) 5

Jack v. United States, 409 F.2d 522 (C.A. 9, 1969) ...... 5,7

Lorraine v. United States, 396 F.2d 335 (C.A. 9, 1968) ... 5,7

Peter v. Keff, 407 U.S. 493 (1972) .........cccccccccccs 4

United States v. Addonizio (D.N.J., 1970) 313 F.Supp.

Ge: shedadduendesSauddeasees denddeadeeeusle 5

United States v. Basurto, 497 F.2d 781 (C.A. 9, 1974) .... 6,7

United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.,

DE «exeusunesedaatcdunendatasauscuidoss meee 6,7

United States v. Dotterweich, 320 U.S. 277 (1943) ........ 9

United States v. Park (1975) 421 U.S. 658 .............. 2,9

Statutes

21 U.S.C.:

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Texts

Developments in the Law: The Federal Food, Drug and

Cosmetic Act, 67 Harvard L.R., pp. 632, 696-7 (1954) .. 9

Iu the Supreme Court

OF THE

United States

OcroBer TerM, 1976

No. 75-1767

Y. Hata & Company, LIMITED, a corporation,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Minoru Hata,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS IN SUPPORT

I, INTRODUCTION

The respondent’s counterstatement (Res. 3) neglects

to mention that during the trial the Government

amended Count Three of the Indictment, eliminating

the charge that the rice was actually contaminated

2

with bird filth in violation of 21 U.S.C. §342(a)(3)

(Tr, 966-7). The fact is that petitioners were con-

victed only on the presence of birds in the food stor-

age warehouse in violation of 21 U.S.C, §342(a) (4).

The opinion of the Court of Appeals for the Ninth

Circuit is now reported at 535 F.2d 508 and is printed

as Appendix A of the Petition. (Pages i-x).

II. REPLY ARGUMENT

1. PETITIONERS DO CONTEND THAT THEY WERE ENTITLED

TO AN INSTRUCTION ON THE “IMPOSSIBILITY DEFENSE”

REFERRED TO IN UNITED STATES v. PARK, 421 U.S. 658,

673 AND THAT A SHOWING OF THE IMPOSSIBILITY OF

CORRECTING THE INSANITARY CONDITION AT THE TIME

OF THE INSPECTION WOULD ENTITLE DEFENDANTS TO

AN ACQUITTAL (RES. 3).

The Court of Appeals ignored the evidence that

would warrant such an instruction, Before and at the

time of the inspection in May, 1972 petitioners were

taking numerous measures to prevent transient birds

from entering the warehouse, The FDA, the U.S.D.A.,

the State Health Department, State Vector Control,

the University of Hawaii and the State Department

of Agriculture were consulted and subsequently the

following installations were made at the three en-

trances to the warehouse: noise makers of various

kinds, high frequency electronic devices, beacon lights,

rubber strips, fish nets and other protective devices

(Tr, 190-3, 554, 698-703 & Tr.: Exh. D-5). The situa-

tion was complicated by the fact that Hawaiian law

prohibited the killing of birds. Although most grain

3

products in the warehouse were covered with plastic

sheets, petitioners’ attorney requested and obtained

from the State Fish and Game Division a permit to

kill the birds in an effort to try to eliminate the birds

from the premises (Pet. App. xv-xvili). Pursuant to

the permit, B-B guns for a time were used to shoot

dewn such birds. (Tr. 699-700). However this tech-

nique proved to be unsatisfactory from the standpoint

of employees working in the warehouse and harmful

to stored products and was thus terminated (Tr. 700).

Avitrol was also used but was discontinued as its use

has not yet been approved by the State of Hawaii

(Tr. 700-1).

At the time of the May, 1972 inspection preventive

devices and practices were keeping the number of

birds in the warehouse to a minimum. State and pri-

vate agencies and inspectors commented and reported

that the Y. Hata warehouse was in good compliance

with sanitation standards in Hawaii (Tr. 549; 569;

652-3; 687-8). However since the problem was not

entirely solved Y. Hata undertook still another plan,

the construction of a ceiling-high cage within the

warehouse to enclose all grain products and thus pre-

vent any birds from having access to them, At the

time oi the inspection, FDA Inspector Wharten was

informed of the plan for the cage (Tr. 200-1).

The Court of Appeals’ comment on the continuous

efforts of Y. Hata to solve a problem which stymied

six expert agencies was as follows (Pet. App. viii) :

There was no proof or offer to prove that the

wire cage system could not have been imple-

4

mented long before the FDA inspections in May

and June 1972. Nor could there have been such

proof or offer. A wire cage is scarcely a novel

preventive device, One maintaining far less than

the requisite “highest standard of foresight and

vigilance” would have recognized as early as

August 1971 that implementation of a wire cage

system would substantially, if not completely, pre-

vent access by thieving and untidy birds.

Petitioner maintains that the court has read new

meaning into precedent: the “highest standard of

foresight” has become the “highest standard of hind-

sight”. The court’s interpretation is contrary to the

principle of “objective impossibility” as a defense

and to the criterion of fairness; it should not stand.

2. PETITIONERS HOLD THAT THEIR CONSTITUTIONAL

RIGHTS WERE VIOLATED BY THE GOVERNMENT'S FAIL-

URE TO PRESENT THE ADMINISTRATIVE HEARING

RECORD CONTAINING EXCULPATORY EVIDENCE TO THE

GRAND JURY WHICH INDICTED THEM (RES. 5).

None of the cases cited by respondents (Res. 6)

argue with the principle that the prosecutor must be

fair and act with conscientiousness so that the grand

jury retains its capacity to reach an independent

judgment. Peter v. Keff, 407 U.S. 493 at 501-504

(1972), Moreover none proposes the principle that,

where a prosecutor has in hand exculpatory evidence,

he is at liberty to make a slanted presentation in order

to secure an indictment from a grand jury. Instead

each case mentioned describes a particular cireum-

5

stance where actions of the prosecutor were held not

to violate the principle of fair presentation of evi-

dence to a grand jury.

In Lorraine v. United States, 396 F.2d 339, 339

(C.A, 9, 1968), for example, the issue was limited to

whether the prosecutor was bound to present all evi-

dence tending to undermine the credibility of his wit-

nesses. In saying that he was not, the Court was not

endorsing a biased presentation before a grand jury.

In Jack v, United States, 409 F.2d 922, 523 (C.A, 9,

1969), the matter concerned only whether “the indict-

ment should be set aside because it was based solely

upon hearsay testimony.” In United States v. Addoni-

zo (D.N.J., 1970) 313 F.Supp 486, 495, the situation

was very vague; Addonizio was arguing that the grand

jury “may have failed to consider possible exeulpa-

tory evidence” (emphasis added). Lastly, in Gardner

v. United States 516 F.2d 334, 339 (C.A. 7, 1975), the

indictment was upheld by the Court because defen-

dant got his facts wrong. Gardner’s contention that

the grand jury had wanted to hear his testimony but

had been prevented from doing so by the prosecutor

Was not supported by the record. Thus the cases cited

by respondents concern a variety of special cireum-

stances. When examined none offer direct support for

the Court of Appeals’ decision that a prosecutor need

not present the grand jury with specific exculpatory

evidence in the prosecutor’s possession,

In addition to those offered by the government,

petitioners draw the attention of the Court to two

other cases. In both, indictments were dismissed on

6

the grounds that the prosecutor withheld vital infor-

mation from the grand jury.

In United States. v. Basurto, 497 F.2d 781, 785

(C.A, 9, 1974), the prosecutor was aware but did not

disclose that certain testimony before the grand jury

was perjured. The second decision, United States v.

DeMarco, 401 F.Supp 505, 513 (C.D.Cal., 1975), con-

cerned a charge brought for what was deemed “unjus-

tified purposes”. It is worth quoting from DeMarco

at 513:

There is a separate reason why it is necessary

to dismiss this indictment. Despite the defendant’s

colorable claim that the indictment was the prod-

uct of improper motives ..., the prosecutor did

not disclose to the grand jury that the charge

could be attacked as an unjustifiable exercise of

the charging power. The grand jury was entitled

to be apprised of that information so that it could

make an independent judgment as to whether it

was appropriate to return an indictment under

the circumstances.

[Here the court quoted from United States v.

Calandra, 414 U.S. 338, 342-43 (1974) on the

functions of the grand jury as “a protector of

citizens against arbitrary and oppressive govern-

mental action.” |

Thus the Court in Wood v. Georgia, 370 U.S.

375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1970)

spoke of the “necessity to society of an indepen-

dent and informed grand jury.” Moreover this

perception has been consistently expressed in

Court discussions of the role and functions of the

grand jury. See, e.g., United States v. Calandra,

7

supra; United States v. Dionisio, 410 U.S. 1, 93

S.Ct. 764, 35 L.id.2d 67 (1973); Branzburg v.

Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d

626 (1972); Costello v. United States, 350 U.S.

399, 76 S.Ct. 406, 100 L.Ed. 397 (1956) ; Hoffman

uv. United States, 341 U.S. 479, 71 S.Ct. 814, 95

L.Ed, 118 (1951); Hale v. Henkel, 201 U.S. 43,

26 S.Ct. 370, 50 L.Ed. 652 (1906); Ka Parte

Bain, 121 U.S. 1, 7 8.Ct. 781, 30 L.Ed, 849 (1887).

Clearly the grand jury cannot protect against

malicious prosecutions if it is not given informa-

tion which is material to its determination ...

As with respondent’s cases, the circumstances of

DeMarco and Basurto do not dircetly correspond to

those of Y. Hata, Nevertheless the decisions reinforce

the principle, not denied by respondent’s citations, of

the necessity of informing grand juries so that they

can do their job as independent agents, It is not neces-

sary that the prosecutor reveal every detail, pro and

con, of a case (Lorraine, supra): it is not necessary

that he be limited by standards of proof which would

apply at trial (Jack, supra). It is necessary that the

prosecutor refrain from manipulating the evidence,

withholding important facts favoring the accused,

thereby turning the grand jury into a rubber stamp

to approve the actions of his office.

Respondents argue that this case would not provide

an appropriate occasion for examining the necessity

of presenting exculpatory evidence to a grand jury on

the grounds that the exculpatory evidence, petitioners’

statement at the administrative hearing, described

actions taken after the inspection out of which the

8

prosecution grew (Res. 6). The fact is that petition-

ers’ statement for the most part concerned actions

taken before the inspection. The actions taken follow-

ing the inspection were cited to complete the picture

of ongoing efforts on the part of petitioners tu correct

the bird problem as discussed above. The prosecutor

withheld the entire “Statement of Y. Hata and Co.”

presented at the administrative hearing from the

grand jury (Pet. App. xx Stipulation of Facts).

9

Ill. CONCLUSION

The past few years have seen an erosion of a num-

ber of safeguards for individuals whose business

activities are under the jurisdiction of the federal

Food and Drug Administration, Originally Congress

intended that there be an administrative hearing

under Section 305' to determine whether a person

should be criminally prosecuted under the Act. Some-

what illogically, however, this mandatory administra-

tive step has been held not to be a condition precedent

to criminal prosecution on the ground that the defen-

dant will at some point receive a full judicial heariig.

United States v, Dotterweich, 320 U.S. 277, 279

(1943). See Developments in the Law: The Federal

Food, Drug and Cosmetic Act, 67 Harvard L.R. 632,

696-7 (1954). When the decision has been made to

prosecute, the traditional concept that a crime requires

intent and a personal wrongful act increasingly has

bowed to strict criminal lability principles. United

States v. Dotterweich, supra, 281 and United States

uv. Park (1975) 421 U.S. 658, 673-4. Now respondents

would seem to want to go the next step and relieve

the Food and Drug Administration of the burden of

proving facts necessary to justify criminal prosecu-

tion, by allowing it to withhold exculpatory evidence

from the grand jury.

1Section 305 (21 U.S.C. 335): Before any violation of this Act

is reported by the Secretary to any United States attorney for

institution of a criminal proceeding, the person against whom

such proceeding is contemplated shall be given appropriate notice

and an opportunity to present his views, either orally or in

writing, with regard to such contemplated proceeding.

10

A section 305 hearing cannot protect an individual

from the stigma of a criminal prosecution unless the

grand jury can consider the administrative record,

including the prospective defendant’s awareness of the

violation, his past record, his preventative and correc-

tive measures, and the seriousness of the offense.

For these reasons petitioners respectfully request

that they be granted a writ of certiorari.

Dated, September 22, 1976.

GrorceE A. McKray,

Attorney for Petitioners.

JAMES H. Kamo,

Epwin Y. Sasak1,

Of Counsel.