# Opposition Brief — Andreadis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0077%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1967 - **Citation:** 385 U.S. 1001 ## Text Le. jp taste: QO INDEX " “i \ Opinion ROW nccewdes wap tienen iebign nae Ace ln Gee | COI oa nh duis gg sc eghicwtegiciventntn td. ax _ . Questions presented-__........2..---.-.- Ree ee * Statement__.----- Sait wees ew ae wield Alin be ARNE ii an ac enncnnwacien ~ Hupiomadmiels | Conclusion. losd es ihe celeipc ct eather waicecaleo MED co ilalieias th | : CITATIONS - Cases: _ Adjmi v. United States, 346 F. 2d 654, certiorari * ened, 8 Oe ee ee > Dunn v. United States, 284. US. WG noe se _ Pereira v. United States, 347 U.S. 1_---..--_ : Reilly-v. Pinkus, 338 U.S. 269_---------.-- United States v. Baren; 305 F. 2d 527_-___- oo U: nited States v. Press, 386 F. 2d 1003, certiorari ,¢ denied, 379 U.S; 965..::---.4....----2. pounds on a starvation diet (R. 803-804, 936, 950). She also used a drug called Diruil, suggested by peti- tioners’ physician,. to lose body fluids (R. 792-793). ‘While on the diet she made regular television appear- | ances during which she stated she was losing weight without dieting: (R., 774, 952-959). Similar tortipony was elicited from other hired eneentttae °° Y 3 ¥ 5 Dae er ve : | Se GS. ° en 6 Petitioners’ advertising’ copy regularly included as- sertions that the “new wonder drug” had been sub- - jected to clinical tests (referred to as “clinicals”’).” Petitioners purported to engage physicians to test the - - drug’s efficacy and to substantiate their advertising claims (R. 3341, 3342, 3373); in order to obtain ac- ceptance of the claims: s by advertising media (R. 3341- 3344). - However, Dr. Grollman, appearing as an expert for the government, ‘testified that he had re-| viewed the alleged. clinical tests and concluded that . they were meaningless and did not establish the efficacy of “‘Regimen Tablets” (R. 4464-4478). He and-Dr. Mayer, another expert, were in complete agreement that ‘‘Regimen Tablets’? were totally in- effective as an aid in losing weight (R. 350, 4441- 4443) and that their opinions reflected the views of the - scientific literature and community (R. 4460, 355-357, - 406). Both testified that the Fazekes test, a well- controlled ‘scientific experiment which had been per- ‘formed on ‘““PPA,” the primary ingredient in “Regi-| _ men,” had established that, even at double the dosage level in “Regimen,’’ the drug was ineffective in curb- — ing appetite, and that its effect was essentially identi- — cal to, that of a placebo used i in the test a 584-601, | _ 4478-4480). . Complaints and criticisms about petitioners’ ‘adver- eee tising claims for ‘Regimen Tablets” (including the ~ so-called - “elinicals’””) were expressed, beginning — around 1957; by the Food and Drug Administration, thd/Kansas State Board of Health (R. -4650), the National Better Business Bureau, the American Med- _ : ical AssoGiation, and the New “York Academy of ee: ah Madieine (R. 4659 et. seq.). The agency and: tone es organizations asserted that the claims regarding loss. - of weight without dieting were unsubstantiated and ‘that the clinical tests were worthless: These views © were communicated to petitioners by Kenneth-Wilson, : President of the National Better Business Bureau (R. _ 4675 et seq.),° by the Kansas. State Board .of Health (R. 4655), by officials of “Life” magazine. (R. 3820), the: National Broadcasting Company (R. 3332), and - other publishers and broadcasters (R. 3195, 3198). Executives of Kastor-Hilton discussed news of the Fazekes test and the numerous criticisms ‘with peti- tioner Andreadis (¢.g., R. 3195, 3202, 3272-3283) ; be- lieving the preduct could not be sold without the rep-" _ resentations (R. 3051, 3195), Andreadis rejected. the - complaints and ordered Kastor-Hilton to continue the campaign unchanged (e.g., R. 3284-32858). In 1964, petitioners pleaded guilty to'a State charge of falsely advertising “Regimen Tablets’’ as a no-diet clinically-proven reducing drug (R. 4840-4842). In | admitting evidence 9 these pleas, the court instructed the jury that the State statute requiréd no proof of intent, to falsify or defraud (R. 4845). After trial, the court. heard evidence (R. 5492. et seq.) on petitioners’ complaint that the prosecutor, Martin Pollner, had improperly collaborated, with ° ®Mr. Wilson sumed petitioner Andreadis a ‘letter from Dr. Brown, one of the physicians hired by petitioners to perform. clinical evaluations of “Regimen,” in which Brown stated that no scientific conclusions céuld be drawn from his clinicals and . that he did not believe they established that “Regimen” was a “no-diet” reducing drug (R. 4706-4709, Exh. 172). Petitioners continued to use the clinicals (R. 3341-3363)... a2 ’ ee: writer Peter Wyden in the latter’s researching of oe highly derogatory chapter on “Regimen” for his book “Overweight Society”’ published on March 22, 1965, © - during the trial (R.5529). The chapter was later con- . _ densed and published. on May 1, 1965, in on V- Guide” magazine (R. 5606). During the trial the court twice asked the jurors if they had read either publication and received negative: responses (R. 5308, 5495-5497). “And throughout the trial, the court repeatedly ad- monished the jurors that they must not read any pub-— licity about the case . 6-7, 642, 815, 2721, 3109, 3290, TY 2 OS RR | The evidence at. the pies chanel that Peter _ Wyden approached Mr. Pollner after having read the ‘extensive N ational Better Business Bureau. file and — the- -transeript of a Congressional hearing, both re-- garding “Regimen,” and after having conferred with ~ Food and Drug Administration officials and with the — " prosecutor in the prior. State case CR. 5009, 5560, . 5584, 5592). He had learned that Mr. Pollner hadin — ‘his office a set of the depositions given in 1964 in a civil. case brought against “Regimen’’: by the Food. and Drug Administration. .These depositions were part of the public record on file in the United States District Court (R. 5548-5550). . Although Mr. Pollner "allowed Wyden to read the depositions in his office —- on several occasions, he volunteered no information | | -(R. 5561-5562, 5540, 5548). Wyden characterized . . Poliner’s . attitude. as one of apprehension, saying “* * * THe did everything but throw me out of the office”? (R. 5578-5579). Pollner expressed concern ~ _ that the book (and later the article) would be: pub- Te os toy lished before the trial ended (R. 5514), and: sought - to delay both so that neither would interfere with the trial (R. 5579, 5588). The court found that nothing in the conduct of Mr. Pollner had affected the trial, — ‘and that the jurors had read neither the book nor the article Phong: jibes ae ; S a iA 1 The évidence was clear and uncontradicted that petitioners’ advertised product was incapable of doing what petitioners said it could do: cause loss of weight without | dieting. Nevertheless, petitioners contend . (Pet, 22-32) that the mail and wire fraud convictions should have been reversed. because the indictment did . not allege, and the judge did not instruct the j jury that it must find, that someone was in fact defrauded.* ‘Petitioriers recognize’ that it has long been the estab- — lished rule in mail and wire fraud cases that the gov- "ernment need not prove that the fraudulent scheme was actually successful in ‘defrauding anyone. Pereira v. United States, 347 U.S.1; Adjmi v..United - States, 346 F. 2d 654 (C.A.-5), certiorari denied, 382 ‘US. 823; United States v. Rowe, 56 F. 24 747 (C.A. _ 2), certiorari denied, 286 U.S. 554. Petitioners read — United States v. Baren, 305 F. 2d 527 (C.A. 2) and. United States v. Rabinowitz, 327 F. 2d 62 (C.A. 6), as changing this settled principle. The eourt below, which decided the Baren case, viewed it as fonfined to sThere was in fact. ‘evidence that persons ‘were Chadd At trial the government produced purchasers who testified that. = “Regimen”: failed: to help them Jose weight, that some had " actually. gained weight, that. when a refund was made it was . _ Tess than ‘amount due, and that | Some got no piney back * “(R. 4875-4922). | , ° \ ee Pe gery aie Nee : : the situation where the product was in faet siplabla i of doing. what its promoters said it-could do, the'fraud | arising out of sales misrepresentations unrelated to the. quality. ‘of the product itself. See. 366 F. 2d at - 431. For the same reason, the Rabinowitz case.is also inapposite. The court stated in Rabinowitz: that “the Snherent: utility’. of the [product] oa'% removes this ecdse from the ordinary of mail fraud prosecutions.” 327 F. 2d at 66. ‘neither case — supports petitioners, . whose product was a fake,’ and _ neither purports to change the established rule that the government need not offer proof that persons - whom a defendant intended to defraud were Neotually deceived. saat : Petitioners decry the admission of dividend: re-. garding complaints made by the National Better _ Business Bureau and others to petitioners about the. — -_ falsity of their advertising claims of no-diet. reducing » and clinical tests (Pet. 36-39). The court admitted the evidence ‘with repeated instructions (e.g. R. 4669-. » 4670: and 3279) that it was received /only ‘upon the issue of whether the defendants. had knowledge that_- _ their claims as to ‘the efficacy of “Regimen Tablets” were falsé--easential to the issue of intent to de- fraud—and not for the truth of the matter asserted in ®The court below pointed out, 366 F. 2d at 431, that when - _ the product was capable of performing as advertised, it may be advisable—in order to protect innocent sellers—to require proof that purchasers: were. in some way deceived. We think such protection is adequately afforded by the requirement of proof of intent to defraud—precisely. the element on which the Rabinowite case was decided, petitioners’ assertions to the con- - - trary notwithstanding. See 327 F. 2d at 80-81. The Baren and ~ . Rabinowitz cases involved, incidentally, the sale of similar prod- ucts, namely knitting machines. dies 10. ee the complaints.. The court further instructed the jury that the truth or falsity of petitioners’ promo: tional claims for ‘Regimen Tablets” would have to be established ,by independent evidence and not by the ~ - complaints. The admission of such evidence with the te : limiting instructions was proper. United States v. Press, 336 F. 2d 1003. (Pa, 2); certiorari denied; 379 U.S: 965. 3. The inquiry ‘into the conduet of the acuihen in relation to the publication of Peter Wyden’ s book and a magazine ‘article demonstrated that petitioners’ com-. -plaint was baseless (see Pet. 40-44). The prosecutor did not engage in “collaboration with the author” (Pet. 40) nor participate “in a sensationalized.attack on Regimen tablets” (Pet. 3) ; indeed, he attempted to , discourage and delay publication until after the trial. The court of appeals found nothing improper | in his - conduct (366 F. 2d at 432).. Moreover, the court throughout the trial repeatedly. admonished the jurors not to read any publicity about ' the case, and on two separate occasions each juror . "denied that he had read the publications. Petitioners ~ do not claim that the jurors were untruthful. . 7 - 4. Petitioners’ complaints as to the sufficiency of : the evidence are.also without merit, a. Petitioners’ ce’ (Pet. 32-36) upon. Reilly = 4 Pinkus, 338 US. 269,. is misplaced, because the evi- © dence of Doé¢tors Grollman and. Mayer, which peti- tioners say: was insufficient on the issue of intent to defraud, was in fact admitted to. show that petition- ‘ ers’ representations about their product were scien- ~ phd. =e : rendered a, verdict on only one of the twelve misbrand- : sd a “tifically false. amy merely implies that, if, some- thing ‘less than universality * of scientific belief is shown, an intent to deceive might not be: inferrable.. : . Here, however, there: was ample additional and inde- - : pendent evidence of petitioners’ intent. In addition, *° the’ court’s instructions regarding’ these expert wit- . nesses, to. which pettiohtre raised no objection, were proper.’ 3 ‘ . ®. There was ainple evidurine to pase the con- spiracy charge (compare Pet. 45-46). The evidence showed agreements between petitioners and their ad- » : . vertising agency, among other things, to submit ‘ad- vertising to media knowing the copy to be false, to . submit false clinical test reports to media, to.puten- dorsers on television knowing they were not telling the truth, to. falsify the entire endorser program, and - — _ to ignore the criticism and objections leveled at their advertisements. The court of appeals properly char-. acterized petitioners’ bald claim of the “manifest de- . ficiencies of the trial proofs’ (Pet. 46) on. the con-* spiracy eel as “without a shred ‘of evidentiary — pigcnee tore support,” “conclusory,” and “wholly without merit”? ' (366 F: 2d at, 434). | c. Petitioners conclude from the fact that the jury ing counts that the jury was confused, that the verdict ~. | “was a ‘compromise, and. that the evidence was insuffi- ©. ecient to support the charge. (Ret. 47-50). Even as- ‘suming the verdict was logically inconsistent, that is nota on for reversal. Dunn v. United States, 284 “U.S. 390.’ nh sae oh: ieee ae r 7 ve é ‘e. ee . | ds eae ; , Aa > . leg j s « oo '4 7 we > “\ \ etl oe A, mk ee oy V ‘ , . ‘ iy t« 7% BY . Ne? Vers ° . - ’ - « ¢ “¢ “ °, . o~ ~ A : . > « e * - * ° roe A . 7 . e r be - ~~ o eo ~e: . \ e . > a .- ‘ > . s eel . £ pws ‘ig eee teh iG * - is . oy, ow ~ t z s . —— ea oY eS Bey . . is © pe i! 3 ° gant % é n . cS * * - - . . @-=.6 . c . ° . A . x . -t 4 ba =: i . 2 6 . oe * S 3 . ‘ ‘ . Tv 4 : : ee ’ Es °o Ded 12. Haas * { = L° . ~ oe . . : 7 _ For thé dendana;stited, it is respectfully ‘submitted “that the petition for a writ of certiorari should be... ~ N ‘ a Ais ay denied... ae a 4 mh ie A FET) As —_) ° a Eee Ss 2 ““Terongoop’ ‘Manswati, Hey i" Beas cae isa ‘Solicitor General. beech Fe ‘ o* ase r © eater eae de ete Pan M, Vimo, Tey reiki egy Re Pe ss eg =". Assistant Atto te ean Sees arate -Bearmon Rosenzera, | his ae fi \..sawrgony P, “Nuns, ws. covennueer PRINTiNG sofia. ate - , : ‘ ae . vs ~ . " ¥ ° 2 r “+8 a ° e ; aes : ° \e ° . ¢ 5 a 4 ee a s ‘ s~ ‘ > ee asian ‘ ’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0077%3A2. Public record. Not legal advice.