Petition for a Writ of Certiorari — H. B. Gregory Co. v. United States

et eee ee A ot Bd .

IN THE iy

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

H. B. GREGORY COMPANY,

JAMES H> GREGORY,

Petitioners,

vs.

| UNITED STATES OF AMERICA,

Respondents.

Petition For A Writ Of Certiorari

To the United States Court of Appeals

for the Seventh Circuit

HENRY C. FRIEND

1000 Straus Building

238 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

Attorney for Petitioners

|-BREITHAUPT -» MILWAUKEE, WIS.

Prayer .... intenesienndeniiaisicheds a

Opinions in the Courts Below .00........ccecccecssscescessseeeees... 2

i eee am ge hE enon rene n NE NUE REALE TEN 2

Questions Presented .................... nee

Section of U.S. Constitution Involved ... 3

Ce | eR ie) ROOT Ee 3

Rules and Regulations Involved ...... oe

Statement of the Case .......... ‘i

1. Proceedings in the District Court (1973) ........ 5

2. Proceedings in the U.S. Court of Appeals ........ 7

Reasons for Granting the Writ ......... 7

Conclusion . 18

Appendix 1— Opinion of the U.S. Circuit Court

of Appeals of the 7th Circuit with dissenting

opinion of Judge Campbell ... . Al-l

Appendix 2— Opinion of the District Court of

the Eastern District of Wisconsin e A2-17

Appendix 3— Reply Brief which the Petitioners

were denied leave to file in the Circuit Court

of Appeals by order of the Court dated July

3, 1974 A3-21

aeons

!

‘INDEX OF AUTHORITY

Table of Cases

Akin Distributors of Florida, Inc. v. U.S., 399 F. 2d

307 (C.A. 5, 1968) 12

Bell v. U.S., 349 U.S. 81 (1955) .... 11

V. E. Irons v. U.S., 244 F. 2d 34, 45 (1957) ............-.-- 12

Lynch v. Tilden Produce Co., 265 U.S. 315 (1923) .... 9

Willard Mack Robinson v. U.S.A., 143 F. 2d 276, 277-

278 C.C.A. 10th (1944) 11

U.S.A. v. Dotterweich, 320 U.S. 277 (1943) ..13, 14, 15, 16

U.S.A. v. Kroger Company Inc. et al, Cleveland Press

June 14, 197 12

U.S.A. v. John R. Park, Food, Drug & Cosmetics

Law Reports, par. 41,167 C.C.A. 4th, July 2,

1974 | 14, 16

U.S. v. 1500 Cases More or Less, 236 F. 2d 208, 214

(1956) . 9

U.S. v. Lazere, 56 F. Supp. 730, 733 (1944)... 9

|

| Table of Legal Articles

56 American Bar Association Journal, 1181, 1182

“Offenses defined under Proposed Federal

Criminal Code” 16

Business Lawyer, The, November, 1970

A Court of and Drug Appeals, Vincent A.

Kleinfeld .....1....... 15

33 Columbia Review 55 (1933)

Public Welfare Offenses ................ 13

10 Houston Law Review — 1039, 1047, 1052, 1057,

July, 1973

The Unconstitutionality of Criminal Liability

Without Fault, an Argument for a Constitutional

Doctrine of Mens Rea 15

19 Indiana Law Journal, 265, 268 e 14

Public Law 89-801/Established by Congress -

Final Report of the National Commission of Re

form of Federal Criminal Laws 16

United States Constitution Cited

Amendment XIV .. 3, 12

Statutes Cited

Federal Food, Drug and Cosmetic Act —2] U.S.C.

Sec. 301

Section 402 (21 U.S.C. 342) 3

21 U.S.C.A. Section 346 4, 8,9

21 U.S.C.A. Section 333 4

Proposed Statutes Cited

New Federal Criminal Code, par. 305 15

Rules and Regulations Involved

Commerce Clearing House, Food, Drug and Cos-

metic Law Reports, par. 50,075, Page 51,049 ff... 4

21 C.F.R. 128.10(c) 5,9

Tolerances for Filth or Decomposition,

Food and Drug Administration’s list of current

levels for natural or unavoidable defects in food

for human use that presents no health hazard — as

of April 10, 1973 ..................- ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

H. B. GREGORY COMPANY,

and

JAMES H. GREGORY,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondents.

Petition For A Writ Of Certiorari

To the United States Court of Appeals

for the Seventh Circuit

Petitioners H. B. Gregory Co., a corporation, and

James H. Gregory, an incividual, pray that a writ of

certiorari issue to review the judgment of the U.S. Court

of Appeals for the Seventh Circuit entered March 14,

1974, in which their motion for rehearing was denied

June 25, 1974 action #73-1744, wherein by a ‘divided

court their conviction under the Federal Drug and Cos-

1

| Laon ne

metic Act, 21 U.S.C. 331 (K) in the U.S. District Court

for the Eastern District of Wisconsin was affirmed, and

that on hearing the judgment of conviction be reversed or

modified.

OPINIONS IN THE COURTS BELOW

The opinion of the U.S. Circuit Court of Appeals is

‘reported in Food, Drug and Cosmetic Law Reports,

Commerce Clearing House, par. 41,111. Appendix 1.

_ The opinions of the U.S. District Court for the Eastern

District of Wisconsin have not been and will not be

reported. Appendix 2.

JURISDICTION

The Judgment of the Circuit Court of Appeals was

entered on March 14, 1974. Timely Motion for Rehear-

ing was filed and was denied on June 25, 1974. This

Court has jurisdiction under 28 U.S.C.A. par. 1254(1).

QUESTIONS PRESENTED

I. Are the defendants entitled to the benefit of tol-

erances under 21 U.S.C.A. par. 346 of the Food, Drug

and Cosmetic Law?

II. When during the course of a single inspection at

a single warehouse an inspector finds that food was held

under unsanitary conditions, does this constitute a single

offense for the purpose of punishing the defendants, or

does it constitute as many offenses as the prosecution

designates through counts? Were defendants overly pun-

ished ?

III. When an officer of a corporation which stores

food is not shown to be personally negligent or at fault,

2

may he be punished solely because he stands in a respon-

sible relation to the corporation?

IV. When a court pronounces sentence upon a de-

fendant in a misdemeanor case, is it proper to threaten

him with imprisonment upon his next offense? Is this

not in effect prejudging the next case?

SECTION OF U.S. CONSTITUTION INVOLVED

Amendment XIV.

“Nor shall any State... deny to any person within its

jurisdiction the equal protection of the laws.”

THE STATUTES INVOLVED

Federal Food, Drug and Cosmetic Act— 21 U.S.C.

Sec. 301

“The following acts and the causing thereof are hereby

* * #

(k) ... the doing of any ... act with respect to, a

food ... if such act is done while such article is held

for sale (whether or not the first sale) after shipment

in interstate commerce and results in such article

being adulterated...

* *# #

Section 402 (21 U.S.C. 342)

A food shall be deemed to be adulterated —

(a) ... (3) if it consists in whole or in part of any

filthy ... substance... or (4) if it has been. . . held

under insanitary conditions whereby it may have

become contaminated with filth, or whereby it may

have been rendered injurious to health.

3

21 U.S.C.A. Section 346

Tolerances for Poisonous or Deleterious substances

in food: Regulations.

When any poisonous or deleterious substance cannot

be avoided by good manufacturing practice, the sec-

retary shall promulgate regulations limiting the

quantity therein or thereon to such extent as he finds

necessary for the protection of public health, and

any quantity exceeding the limits so fixed shall also

be deemed to be unsafe for purposes of the applica-

tion of clause (2) A of Section 342(a) of the title.

* * **

21 U.S.C.A. Section 333

“Penalties — Violation of Section 333 of this title...

(a) Any person who violates Section 331 of this

title shall be imprisoned for not more than one year

or fined not more than $1,000.00 or both.”

RULES AND REGULATIONS INVOLVED

Commerce Clearing House, Food, Drug and Cosmetic

Law Reports, par. 50,075, page 51,049 ff.

“TOLERANCES FOR FILTH OR

DECOMPOSITION”

The Food and Drug Administration’s list of current

levels for natural or unavoidable defects in food

for human use that presents no health hazard, as of

April 10, 1973 is reproduced below:

Flour and Corn meals . 1 rodent hair per 25 grams.

. | rodent excreta fragment

per 50 grams.

Condimental seeds, other than fennel seeds and

sesame seeds . . . average of 3 miligrams of excreta

per pound.

‘«e

4

21 C.F.R. 128.10(c)

“Compliance with defect action levels does not ex-

cuse failure to observe either the requirements in

Section 402(a) (4) of the Federal Food Drug and

Cosmetic Act that food may not be prepared, packed

or held under insanitary conditions or the other re-

quirements in this part that food manufacturers must

observe current good manufacturing practices. Evi-

dence obtained through factory inspection indicating

such a violation renders the food unlawful, even

though the amounts of natural or unavoidable defects

are lower than the currently established levels.”

STATEMENT OF THE CASE

The information, which was dated December 8, 1972,

charged the petitioners with a misdemeanor, holding

four bags of food in a building that was accessible to

mice, and that it was held under insanitary conditions

whereby it may have become contaminated with filth.

Therefore the food was deemed to be adulterated. There

were 4 counts relating to (1) a 100 pound bag of yellow

snack meal, (2) a 110 pound bag of poppy seed, (3) a

110 pound bag of caraway seed and (4) a 100 pound bag

of corn grits. The first count alleged in addition that

mouse pellets were present in the food.

The testimony established that the H. B. Gregory Co.

is a Wisconsin corporation engaged in the sale of bakery

supplies at 225 South Second Street, Milwaukee. From

March 20, 1972 to March 24, 1972 Inspector Robert Brett

of the Food, Drug and Cosmetics Administration in-

spected the warehouse of the H. B. Gregory Co. (Tran-

script page 31)

The bakery supplies were, for the most part, packed in

four ply paper bags. This meant that there were four

5

separate layers of paper on each bag. If one or more

of the outer layers became soiled or spotted, it was pos-

sible to remove them. This is known as “scalping the bag.”

The contents would still be held securely and protected

by the remaining layers. It was also possible to remove

the contents of the bag and to repack them in another

bag which was not soiled. The Food & Drug Adminis-

tration approved these remedies, and Inspector Brett su-

pervised their application in the H. B. Gregory Co.

warehouse. (Transcript pages 75-76)

The practice of the H. B. Gregory Co. was not to

store bags of food on the floor. Instead they were stored

on pallets. The pallets were small wood structures which

had space under them so that a lift truck could be in-

serted, the bags could be lifted and transported around

the warehouse. Accordingly, mouse pellets on the flcor

would not be in the food. The pallets were approximately

4 inches high. (Transcript page 72)

The practice of the H. B. Gregory Co. was to use traps

to protect against mice. They did not use poison. It is a

violation of the Food, Drug and Cosmetic Law to con-

taminate foods with rodenticide. Even if poisons are used

carefully, there is a risk that mice might consume the

poisons and die on the premises. This is evidence against

the warehousemen. (Transcript pages 77-79)

Inspector Brett found a 100 pound sack of yellow snack

meal with a hole in it. He found two mouse pellets mixed

with the yellow snack meal in the bag and removed them

with a tea spoon. (Transcript page 48)

He found mouse pellets and urine stains on the outer

surfaces on this bag, of a bag of poppy seed, a bag of

caraway seed, and a bag of corn grits. (Transcript pages

36, 40, 44-45)

6

a

LEP OTL INS ILL LDE LENE LOLOL EEE SIFT PRELIM EPRI LEAS

He took samples of the contents of each of these bags,

and except for the corn grits, laboratory examination

showed the contemts to be wholesome and fit for human

consumption. (Transcript pages 108, 117)

The four bags in question had all been purchased by

and delivered to the H. B. Gregory Co., a corporation,

and none of them had been purchased by or delivered to

the defendant, James H. Gregory. The facts with respect

to him were that he was the President and Treasurer

of the H. B. Gregory Co., that he was in charge of the

sanitation program, and that he gave directions where to

store food and when to load trucks for customers. (Tran-

script page 68)

The parties had no previous criminal records and this

was a first offense. Judge Myron Gordon of the District

Court found each of the defendants guilty on each of the

four counts. He fined the H. B. Gregory Co. $1,000.00 on

each of the 4 counts, total $4,000.00. He fined James H.

Gregory $500.00 on each of 4 counts, total $2,000.00 and

so arrived at a grand total of $6,000.00. He said “I don’t

believe it is an appropriate case for imprisonment, but I

would suggest that further violations would unquestion-

ably provoke such imposition of imprisonment in my

judgment.” (June 11, 1973, Transcript page 6) (A2-19)

The defendants appealed to the U.S. Circuit Court

of Appeals, which affirmed Judge Gordon’s ruling. Judge

Campbell concurred in part and dissented in part. He

found that there were only two offenses, holding food

for sale in which there were mouse pellets and holding

food for sale which was held under unsanitary condi-

tions, and he would have reduced the fines from 4 to 2,

and he would have reduced the grand total of fines from

$6,000.00 to $3,000.00.

The defendant, H. B. Gregory Co., submits that there

was no proof that two mouse pellets in a 100 pound bag

in which there were over 40,000 grams exceeded the per-

missible tolerance of one rodent excreta fragment per 50

grams. Therefore it should not have been found guilty

of holding adulterated food for sale. The trial court

might properly have found H. B. Gregory Co. guilty of

holding food for sale under unsanitary conditions, a single

offense calling for a maximum fine of $1,000.00. It asks

that the fine imposed upon it be reduced from $4,000.00 to

$1,000.00.

The defendant, James H. Gregory, submits that he was

not proven to have committed any offense as an indi-

vidual and that the fine in the sum of $2,000.00, imposed

upon him be abated, or if the court should find that he

committed an offense, that the fine imposed upon him be

reduced from $2,000.00 to $500.00.

REASONS FOR GRANTING THE WRIT

I. When the Pure Food and Drug Law was adopted

in 1906, there was no provision for tolerances. The pro-

vision for tolerances was adopted by an amendment to

the Act in 1938, 21 U.S.C.A. par. 346. The concept was

that it is impossible to maintain 100% purity of food

products. The chief proponents of the amendment were

farmers and their congressmen, and in particular the ap-

ple growers in the State of Washington. They were ac-

customed to spraying their apple trees against worms. The

spraying left minute quantities of lead on the apples,

and the amendment was intended, among other things,

to require the government to certify what quantity of lead

might be tolerated, provided always that it did not con-

stitute a threat to the health of consumers.

Similarly mice are free agents which are attracted to

food, which they need in order to live. When food is

handled in bulk, it is necessary to open warehouse doors

when it comes in and when it goes out. No means has been

found to eliminate mice and so Congress has required

that a tolerance be set, and the government has set one,

namely | rodent excreta fragment per 50 grams.

The Department of Justice does not recognize the

effectiveness of Section 346 and contends that the duty

to keep food free of excreta of mice is absolute. In this

it is supported by the decision of a U.S. District Court

in Iowa, U.S. v. Lazere, 56 F. Supp. 730, 733 (1944)

“The Federal Food Drug and Cosmetics Act does

not provide that parties should avgid doing such

things if at all possible, it provides that it shall not

be done at all.” page 733.

The Department of Justice relies further upon a regu-

lation published in 21 C.F.R. 128(10) (c) which provides

that food may not be held under insanitary conditions,

even though the amounts of natural or unavoidable de-

fects are lower than the currently established action levels.

The defendants contend that this regulation contra-

venes an act of Congress, Section 346, and that for this

reason it is a nullity.

Lynch v. Tilden Produce Co., 265 U.S. 315 (1923)

Moreover, the Circuit Court of Appeals for the 7th

Circuit has recognized and applied the tolerances in

U.S. v. 1500 Cases More or Less, 236 F. 2d 208, 214

(1956). The tolerance for mould in tomato paste was

40%, and the court held that tomato paste with more than

40% mould should be condemned and that tomato paste

with less than 40% mould could not be seized.

9

The opinion of the 7th Circuit Court of Appeals in

the Gregory Case, the case at bar, does not discuss toler-

ances, and when defendants cited its previous decisiun,

Supra, in a reply brief, upon their motion for rehearing,

the court declined to accept the brief by its order dated

July 3, 1974. A copy of the brief which the Court de-

clined to receive is attached hereto as Appendix III.

(A3-21)

The prosecution further argues that if the tolerances

are effective, which it denies, the defendants exceeded the

tolerance for mice because Inspector Brett removed two

mouse pellets from a 100 pound bag of snack meal with

a teaspoon, and the conc¢z:tration in the teaspoon exceeded

the tolerance of | fragment of excreta in 50 grams.

Defendants submit that this is unfair. The proper mea-

sure is the contents of the bag, namely 100 pounds, or

if the court chooses to follow the practice of the Chicago

office of the Food, Drug and Cosmetics Administration,

a proper sample is the square root of the contents of the

bag, namely 10 pounds. The question then would be

whether two mouse pellets in a 10 pound sample ex-

ceeds the tolerance of | fragment of excreta in 50 grams.

The prosecution tried its case upon the theory that there

is no tolerance, and submitted no proof that the toler-

ance had been exceeded. If the tolerance is effective, the

prosecution did not prove its case.

II. The trial court should have looked through the

multiplication of counts to find a single offense, holding

food for sale under insanitary conditions, and should have

imposed a single penalty. The defendants were overly

punished.

In the Gregory case during the course of a single in-

spection of the Gregory warehouse in Milwaukee, Inspec-

10

tor Brett found fault with four bags of food, and the

prosecution claimed four violations of the Food, Drug

and Cosmetics Law and asked four separate fines against

the H. B. Gregory Co. and four separate fines against

James H. Gregory, its president. This multiplication

of counts was deemed ground for reversal by the Supreme

Court of the United States in Bell v. U.S., 349 U.S. 81

(1955), where the defendant was convicted of conducting

women across state lines in his automobile for the pur-

pose of prostitution. The prosecution set up a separate

count for each woman, and the court below imposed

successive sentences on each count. The Supreme Court

held that there was but a single trip in a single auto-

mobile, and but a single offense. Hence, only a single

sentence could be imposed. To the same effect is Willard

Mack Robinson v. U.S.A., 143 F. 2d 276, 277-278 C.C.A.

10th (1944), where the Court stated:

“The same transaction may constitute separate and

distinct crimes where it is susceptible of separation

into parts, each of which constitutes a completed

offense. But the same evidence must be applied with

some discrimination. Merely because one element of

a single criminal act embraces two persons or things,

a prosecution may not carve out two offenses by

charging the several elements of the single offense

in different counts and designating only one of the

persons or things in one count and designating only

the other person or thing in the other count. .... a

“We think an analogy may be drawn with larceny

at common law .. . If a person drove a vehicle to the

barn of another and unlawfully and feloniously

loaded the vehicle with 25 sacks of corn, which had

been stored in the barn by the owner, and carried it

away with the intent permanently to deprive the

owner of the possession thereof, such person would

be guilty of a single larceny, although he loaded

11

each sack into the vehicle separately and had an

unlawful intent as to each sack of corn. It would

constitute a single offense, even though the corn taken

belonged to different owners, because there would be

one single act of taking and carrying away.”

The majority of Circuit Court of Appeals in the

Gregory case distinguished these cases upon the ground

that they were not cases under the Food, Drug and Cos-

metics Law, and cited Akin Distributors of Florida Inc.

v. U.S., 399 F. 2d 307 (C. A.5, 1968) and V. E. Irons v.

U.S., 244 F. 2d 34, 45 (C.A. 1, 1957).

Judge Campbell dissented in the Gregory case and

posed the following question: “Suppose that there were

two warehouses, one belonging to a grocery chain which

handled 100 different items and one devoted to the storage

of a single item. Is it fair to bring 100 counts against the

grocer and only one against the warehouseman who

stored a single item?”

The aptness of Judge Campbell’s observation is dem-

onstrated by the case of U.S.A. v. Kroger Company, Inc.

et al, which is reported in the Cleveland Press of June

14, 1974. The Kroger Co. supplied a chain of grocery

stores from a warehouse in Solon, Ohio. A government

inspector found evidence of mice there and the Kroger

Co. and three of its officers were prosecuted on 10 counts.

There is no stopping place!

No reason is apparent why persons engaged in the food

business who are unintentional victims of mice should

be treated worse than criminals who commit crimes in-

tentionally. To thus discriminate against persons in the

food business is to deny them the equal protection of the

laws assured to them under the 14th amendment to the

Constitution of the United States.

12

III. Before the year 1943, it was necessary for the

prosecution to prove that an individual charged with a

crime or misdemeanor had a causal relation to the condi-

tion for which he was prosecuted. In his article entitled

Public Welfare Offenses — 33 Columbia Law Review 55

(1933), Francis B. Sayre gives the following example

of strict liability:

A shoots B intentionally causing injury. This was a

crime at common law. A shoots B unintentionally

causing injury. This was not a crime at common law

because criminal intent was lacking. Under strict

liability, the element of intent was removed, and

A’s unintentional shooting of B became criminal.

However, in 1933 when Professor Sayre’s article was

published, the element of cause remained. In both

instances, A had caused B’s injury.

In 1943 the Supreme Court of the United States de-

cided U.S.A. v. Dotterweich, 320 U.S. 277 (1943), a drug

case. By the vote of five Justices to four a responsible rela-

tion was substituted for a causal relation. The Buffalo

Pharmacal Co., of which Dotterweich was president,

had been found not guilty by the jury in the trial court,

and unless Dotterweich could be held, nobody could be

held. The basis for the decision was the balancing of

interests, the interest of Dotterweich in remaining free

against the interest of the public in having accurately

labeled drugs. This was judicial legislation which has

been followed in cases involving food.

Now that a generation has passed, it is time for the

Court to review Dotterweich. Through its harsh rule,

innocent people have been imprisoned, and yet the mice

which cause the problem in food cases go right on being

mice. The policy of punishing innocent people in the

hope that they will control the mice has not worked.

13

In U.S.A. v. John R. Park, Food, Drug and Cosmetics

Law Reports, par. 41,167 C.C.A. 4th, July 2, 1974, the

defendant was the President of Acme Markets, Inc., a

corporation which had mice. The jury was instructed

that Mr. Park “was a corporate officer, who, under law,

bore a relationship to the receipt and storage of food

which would subject him to liability under United States

v. Dotterweich, 320 U.S. 277 (1943).”

The jury found Park guilty, and the Circuit Court of

Appeals reversed, upon the ground that the instruction

was in error.

“As a general proposition, some act of commission

Or omission is an essential element of every crime. For

an accused to be convicted it must be proved that he was

in some way personally responsible for the act consti-

tuting the crime. . .”

“Tt is the defendant’s relation to the criminal acts, not

- merely his relation to the corporation which the jury

must consider. . .”

“In sum, the court told the jury that Park would be

guilty if it were shown that he ‘had a position of au-

thority and responsibility in the situation out of which

these charges arose.’ This instruction, taken in combina-

tion with other parts of the charge related above, might

well have left the jury with the erroneous impression

that Park could be found guilty in the absence of ‘wrong-

ful action’ on his part.”

“Upon a subsequent trial the jury should be instructed

that a finding of guilt must be predicated upon some

wrongful action by Park. That action mav be gross negli-

gence and inattention in discharging his corporate duties

14

and obligations or any of a host of other acts of commis-

sion or omission which would ‘cause’ the contamination

of food.”

Footnote 7. “It would appear that the question of causa-

tion will be a principal issue upon a retrial. The ques-

tion of causation is to be distinguished from that of in-

tent. U.S. v. Sheridan, 329 U.S. 379 (1946).”

The Dotterweich doctrine has received unfavorable

criticism by legal scholars:

“In the public interest of insuring prudence in the

conduct of the business of the Buffalo Pharmacal

Co., a majority of the Justices deemed it wise to

place a criminal stigma on the defendant, a stigma

that is predicated wholly upon chance, for it neces-

sarily follows that in the absence of fraud, participa-

tion, acquiescence or even negligence, the act of adul-

teration and misbranding was not within Dotter-

weich’s power of human control.” 19 Indiana Law

Journal, 265, 268.

Vincent A. Kleinfeld — A Court of Food and Drug

Appeals; The Business Lawyer — November, 1970.

James J. Hippard— The Unconstitutionality of

Criminal Liability Without Fault, an Argument for

a Constitutional Doctrine of Mens Rea, 10 Houston

Law Review — 1039, 1047, 1052, 1057, July, 1973.

The proposed New Federal Criminal Code, par. 305

is to give relief: 3

“Causal Relationship between Conduct and Re-

sult.’

“Causation may be found where the result would

not have occurred but for the conduct of the accused

operating either alone or concurrently with another

cause, unless the concurrent cause was clearly suffi-

15

cient to produce the result and the conduct of the

‘ accused clearly insufficient.”

Final Report of the National Commission for Re-

form of Federal Criminal Laws established by Con-

gress in Public Law 89-801. '

Louis B. Schwarz, the Director of the U.S. Govern-

ment Printing Office, 1971, page 31.

Louis B. Schwarz, the director of the National Com-

mission, mentioned Dotterweich in an article which he

wrote with Edmund G. Brown entitled “Offenses Rede-

fined under Proposed Federal Criminal Code, 56 Ameri-

can Bar Association Journal, 1181, 1182. In a footnote

he says that Dotterweich is to be sharply curtailed.

In answer to the defendants’ plea upon this point, the

Court below stated that the Dotterweich substitution

of responsible relation for causal relation was developed

by the Supreme Court of the United States, and until

remedial legislation is adopted,:only the Supreme Court

of the U.S. can change it.

Ther? is a conflict of authority between the holding of

the 7th Circuit in the case at bar and the holding of the

4th Circuit in U.S.A. v. Park, Supra.

_ IV. When the trial judge sentenced James H. Gregory

for a misdemeanor, first offense, the Court made the fol-

lowing statement:

“J don’t believe it is an appropriate case for imprison-

ment, but would suggest that further violations would

unquestionably provoke such imposition of imprisonment

in my opinion.” (A2-19) , !

16

Was this fair? The defendant, James H. Gregory, nei-

ther intended to have mice, nor had he caused the entry

of mice into the warehouse of the H. B. Gregory Co.,

nor did the prosecution prove that he was causally negli-

gent. According to an article published in The Milwau-

kee Sentinel of February 21, 1974, Dr. Alexander

Schmidt, the F. D. A. Commissioner made the following

statement during a hearing before a sub-committee of

the U.S. Senate dealing with Monopoly:

“J could go into the kitchen of the home of svery

individual in this room and shut it down as unsani-

tary,” Schmidt said.

“We could readily shut down every pharmaceutical

plant in the United States if we went in, as I would

go into your kitchens, looking for dirt,” he said.

The remarks of the trial court to Mr. Gregory were

intended to and did cause terror in a situation in which

he is virtually helpless. The Food and Drug Administra-

tion was not intended to be and should not be an engine

for the destruction of the liberties of the American peo-

ple, and the courts should not permit this situation to con-

tinue. When the next mouse enters the Gregory ware-

house, with what confidence can Mr. Gregory appear

before Judge Myron Gordon, who has already prejudged

his case?

When Mr. Gregory raised this question before the

Circuit Court of Appeals, the Court remained silent.

Anyone who reads its opinions would not know that this

issue is in the case.

CONCLUSION

For the foregoing reasons it is submitted that the peti-

tion for certiorari should be granted to review the judg-

ment entered June 25, 1974 by the United States Court

of Appeals for the 7th Circuit.

August 16, 1974.

Respectfully submitted,

HENRY C. FRIEND

238 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

Attorney for Petitioners

18

APPENDIX 1

Opinion of the U.S. Circuit Court of Appeals of the 7th

Circuit with dissenting opinion of Judge Campbell.

In the

Anited States Court of Ayveals

For the Seventh Circuit

Serpremser Term, 1973— Serremper Session, 1973

»)

No. 73-1744 Appeal! from the

Unirrp States or AMERICA, United States Dis-

intiff - Nee trict Court for the

. saspne sad analog Eastern District of

> Wisconsin.

H. B. Grucory Co., a corporation,

and James H. Grecory, an in- No. 72-CR-208

dividual, Myron L. Gorpoyr,

Defendants-A ppellants. ) Judge.

Arcuep December 6, 1973 — Decinep Marcu 14, 1974

Before Hastincs and Kmsy, Senior Circuit Judges, and

CampsEL., Senior District Judge®*.

Hastincs, Senior Circuit Judge. This appeal is con-

cerned with alleged violations of the Federal Food, Drug,

and Cosmetic Act, Title 21, U.S.C. § 301 et seq. (the Act),

and, specifically, of 21 U.S.C. § 331(k).

A four-count information was filed December 22, 1972,

naming as defendants, H. B. Gregory Co., a Wisconsin

corporation, and James H. Gregory, its president and

treasurer, individually. The Gregory Company operated

a bakery supply warehouse and supplied therefrom in-

gredients to bakeries throughout the Milwaukee metro-

*Senior District Judge William J. Campbell] of the Northern District

of Dlinois is sitting by designation,

Al-l

73-1744 2

politan area. Mr. Gregory had personal responsibility

for all operations of the warehouse.

The information charged defendants with violating

§ 331(k)* for having caused four lots of food, t.e., corn

meal (Count I), poppy seed (Count II), caraway seed

(Count III), and corn grits (Count IV), to become

adulterated while these foods were held for sale at the

Gregory warehouse after shipment in interstate com-

merce.

Two separate specifications of adulteration were al-

leged: (1) that the food in all four counts was adulterated

within the meaning of 21 U.S.C. § 342(a)(4),? in that it

was held under insanitary conditions whereby it may

have become contaminated with filth; and (2) that the

corn meal in Count I was adulterated within the meaning

of 21 U.S.C. § 342(a)(3),* in that it consisted in part

of a filthy substance by reason of the presence in the corn

meal of rodent excreta pellets.

The case was tried to the court, without the interven-

tion of a jury, the Honorable Myron L. Gordon, District

Judge presiding. There was little dispute about the basic

evidentiary facts. The trial court found each defendant

guilty on all four counts and entered judgment according-

y. Subsequently, the court sentenced the Gregory Com-

pany to pay a fine of $1,000 on each of the four counts,

a total of $4,000, and sentenced Mr. Gregory to pay a

1§ 331. Prohibited acts

The following ects and the causing thereof are prohibited:

(k) The alteration, mutilation, destruction, obliteration, or removal

of the whole or any part of the labeling of, or the doing of any other

act with respect to, a food, drug, device, or cosmetic, if such act is

done while such article is held for sale (whether or not the first sale)

after shipment in interstate commerce and results in such article being

adulterated or misbvended

2§ 342. Adulterated food

A food shall be deemed to be adulterated —

(a) * * * (4) if it has been prepared, paclzed, or heid under insani-

tary conditions whereby it may have become contaminated with filth, or

whereby it may have been rendered injurious to health; * * °.

§§ 542. Adulterated food

A food shall be deemed to be adulterated —

(a) * * * (3) if it consists in whole or in part of any filthy, putrid,

or decomposed substance, or if it is otherwise unfit for » Me eee

Al-2

3 73-1744

fine of $500 on each of the four counts, a total of $2,000.

There was no sentence of imprisonment as to Mr. Gregory.

Thereafter, the court denied defendants’ petitions for a

reduction and modification of these sentences. This appeal.

followed.

A concise statement of the issues raised on this appeal

follows: (1) whether the Government proved its case

against each defendant bevond a reasonable doubt; (2)

whether the trial court erred in imposing fines on each

defendant on each of the four counts; and (3) whether

the trial court abused its discretion in denying defendants’

petitions for reduction or modification of the sentences.

We have read the entire transcript ef the evidence

introduced in this trial, as well as the record of the

proceedings before Judge Gordon. It should be noted

at the outset that the trial court rejected an offer of the

corporate defendant, Gregory Company, to change its

plea from not guilty to guiliy for the reason that its co-

defendant elected not te permit any corporate officer to

waive his Fifth Amendment privilege for the purpose

of testitying that there was corporate authority to do so.

The court properly honored this privilege and as a result

was compelled to reject th> corporate ofier. The Govern-

ment pnt on its case with employees of the United. States

Fcod and Drug Administration (FDA) in one day and

rested. ‘The defendarts, having cross-exeraiticd such wit-

nesses, rested without introducing eny evidence. It is on

this state of the record that this appeal is submitted for

our consideration.

INTERSTATE SHIPMENT OF FOOD

It is beyond dispute that as to Count I the defendant

Gregory Company received a number of bags of corn

meal on or about March 14, 1972, which had been manu-

factured by Evans Milling Co., Ine. and shipped by it

in interstate commerce from Indianapolis, Indiana. The

bags were each labeled as containing 100 pounds net

EMCO degerminated yellow snack meal. They were held

for sale in the Gregory Company warehouse until at

least on or about March 22, 1972,

Al-3

eR tg

73-1744 4

Similarly, as to Count II the defendant Company re-

ceived a number of bags of poppy seed, and as to Count

III, a number of bags of caraway seed, on or about

March 8, 1972. These two shipments were products of

The Netherlands and were shipped in interstate commerce

from New York, New York, by Transit Trading Company.

The bags were each labeled as containing 109 pounds

net of the respective products, and were held for sale

~ et aaa warehouse until at least on or about March

1

,

Finally, as to Count IV the defendant Company re-

ceived a number of bags of corn grits on or about Febru-

ary 21, 1972, which had been manufactured by Evans

Milling Co., Inc., and shipped by it in interstate commerce

from Indianapolis, Indiana. The bags were each labeled

as containing 100 pounds net EMCO degerminated special

grits, and were held for sale in the Gregory Company

warehouse until at least on or about March 22, 1972.

EVIDENCE RELATING TO ADULTERATION

FDA Inspector Robert G. Brett, Jr., was assigned to

inspect the Gregory warehouse. After testifying in sup-

port of the interstate shipment of the four lots of food

in question, he testified in detail about his inspection

of the warehouse covering a five-day period of March

20-24, 1972. Without relating here this detailed step by

etep inspection and its results, it is sufficient to state

that, as to the lot of corn meal specified in Count I, in

addition to rodent excreta pellets and a rodent urine stain

on the bag material, the inspector found a rodent gnawed

hole in one of the bags, two rodent excreta pellets in the

corn meal itself inside the bag, and at least 60 rodent

excreta pellets in corn meal which had spilled from the

hole onto the warehouse floor. Inspector Brett further

stated that, as to the lots of poppy seed, caraway seed

and corn grits specified in Counts II, III and IV, he

found on the bag material surfaces numerous rodent

excreta pellets and multiple rodent urine stains, as well

as numerous rodent excreta pellets on the floor beneath

the bags. He also testified that he observed other general

insanitary conditions throughout the warehouse durin

his inspection. He found that 75 percent of the smal

Al-4

5 73-1744

rodent traps in the warchouse were unbaited. He observed

various potential rodent entryways in the areas of the

receiving and shipping dock and the boiler room. Brett

reported a rodent entry in the shelving behind the lot

of adulterated corn meal above referred to, rodent tracks

in the spilled corn meal from this lot, and a rodent burrow

in the enclosure of the warehouse syrup tank.

Inspector Brett testified that he collected samples of .

the rodent excreta pellets, urine stains and food in the

several lots. FDA Analytical Chemists Trauba, Carlson,

Melchior, Palmer and Netz each testified that their re-

spective analyses of the samples Inspector Brett collected

confirmed that they consisted of rodent excreta pellets

and rodent urine stains.

As above stated, the corn meal found in one bag was

actually shown to be unfit for human consumption. No

such showing was made as to the other lots of food.

Inspector Brett took numerous photographs of the

warehouse area and the various lots of food he inspected

depicting the conditions he found during the five-day

period. These photographs were introduced and received

in evidence.

EVIDENCE RELATING TO MR. GREGORY

Inspector Brett testified that when he first arrived

at the warehouse he inquired of the bookkeeper for Mr.

Gregory. Upon learning that he was not in, Inspector

Brett identified himself and was given permission to

enter the warchouse. He first saw Mr. Gregory on the

third day of his inspection when Mr. Gregory observed

him taking photographs and inquired what he was doing.

A brief conversation ensued concerning the bad condition

of some shelving being photographed. At the conclusion

of the fiftin day of the irspection, inspector Brett made

an appointment with Mr. Greyory and gave him a list of

the samples he had collected and the insanitary conditions

he had found during his inspection.

In the course of this conversation, Inspector Brett

stated that Mr. Gregory said he was president and

treasurer of the H. B. Gregory Company; that he was

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73-1744 6

in charge of the sanitation program and specifically the

rodent control program in the warehouse; and that he

was there on a daily basis. Further, Inspector Brett

observed during his inspection that Mr. Gregory was

giving the employees directions concerning where to

store lots of food materials and was giving directions

to load out trucks to his customers. ‘The only other

pase he observed employed at tae warehouse were the

ookkeeper and two warehouse employces. One of the two

wareliouse employees was working in the syrup area and

the other was engaged in receiving and shipping food

materials.

Inspector Brett testified that during this final confer-

ence Mr. Gregory did not question his findings which

he submitted in writing. Mr. Gregory did say that he

felt the building was too old to be made rodent proof;

he discussed two new “wind up” mouse traps he was

urchasing; and he asked for any suggestions Inspector

rett might have concerning the rodent problem within

the warehouse. The inspector declined to make any such

suggestions because of his lack of qualifications but did

propose a different manner of storing the food materials.

Mr. Gregory responded that the warehouse was too small

to make the suggested storage changes.

L

It is common knowledge, of which the court may take

judicial notice, that the four lots of food at issue are

foods within the meaning of the Act, 21 U.S.C. § 321(f).*

Cf. United Siates v. O. F. Bayer & Co., 2 Cir., 188 F.2d

555, 557 (1951). It is well established that “[{a]/! articles,

pans Arey or single, not intended for consumption by the

producer, are designed for sale, and because they are,

it is the concern of the law to have them pure.” Hzpolite

E99 Co. v. United States, 220 U.S. 45, 54 (1911) (emphasis

added). Accord, United States v. Kocmond, 7 Cir., 200

*§ 321. Definitions; | ge we

For the purposes of this chapter —

(f) The term “food” means (1) articles used for food or drink for

man or other animals, (2) chewing gum, and (3) articles used for

¢.

Al-6

components of any such

7 73-1744

F.2d 370, 372-373 (1952), cert. denied, 345 U.S. 924 (1953) ;

United States v. Cassaro, Inc., 1 Cir., 443 F.2d 153, 155-

156 (1971). It has been held that the purpose of § 331(k),

supra, is “to safeguard the consumer from the time the

food is introduced into the channels of interstate commerce

to the point that it is delivered to the ultimate consumer

¢ © ©” United States v. Wiesenfeld Warehouse Co., 376

U.S. 86, 92. (1964), citing Kocmond, supra, 200 F.2d

at 372.

These holdings should lay to rest defendants’ argument

that ‘he lots of food were not held for sale because (1)

the one lot of corn meal was so filthy it was no more

than “garbage” and would not be offered for sale under

any conditions, and (2) the contaminated onter surfaces

of the bags of the other foods would be discarded and

the otherwise wholesome contents would be repacked.

The oft cited case of Berger v. United States, 8 Cir.,

200 F.2d 818 (1952), lays down the definitive “reasonable

possibility” test now generally accepted in cases involving

adulterated food under 4 342(a)(4), supra, wherein the

court, at 821, states:

It is clear that the congressional intent is to make

it a criminal offense for a person to * * * hold food

under such insanitary conditions that it may become

contaminated. Jt is not necessary that it actually be-

come contaminated. [Emphasis added.] * * * [T]he

statute is designed to prevent adulterations “in their

incipiency” by condemning insanitary conditions which

may result in contamination. [Emphasis by the court.]

* * * The condition condemned by the statute,

which must be proved to support a conviction, is one

which would with reasonable possibility result in

contamination. [Emphasis added.]

In Wiesenfeld, supra, 376 U.S. at 91-92, the Court

explicitly declares that § 331(k) prohibits any act which

results in adulteration of the product, and that food is

adulterated if it has been held “under insanitary condi-

tions whereby it may have become contaminated with

filth.” (Emphasis added.)

Al-7

73-1744 8

It becomes readily apparent that, under the standards

' above outlined, there was sufficient evidence to warrant

the trial court in finding beyond a reasonable doubt (1)

that the insanitary conditions found in the Gregory ware-

house were such that there was a reasonable possibility

that the four lots of food might become contaminated

with rodent filth; and (2) that the corn meal in Count I

was actually contaminated with rodent filth.

We hold, therefore, that the Government proved beyond

a reasonable doubt that the defendants violated the Act

as alleged in the information.

Il.

Pursuant to the standards of criminal liability for viola-

tions of the Act set out in United States v. Dotterweich,

320 U.S. 277 (1943), the trial court held that Mr. Gregory

was a person in a position of sufficient authority and

responsibility in the conduct of the business of the

Gregory corporation to be held personally and strictly

liable for violations of the Act committed in the course

of such corporate business.

Judge Gordon expressly rejected Mr. Gregory’s con-

tention that this standard was the improper legal

criterion for measuring his personal liabilitv for the

violations. Mr. Gregory seeks to undermine the Dotter-

wetch standards and cites certain state court eases and

scholarly writings challenging the iack of a_ scienter

requirement in criminal cases, and here in particular

because the standard fails to require a causal relation

between the individual and the violation of the Act.

Dotterweich has been cited and reviewed many times.

=+ was a divided opinion (5 to 4) by the Supreme Court,

Mi. Justice Frankfurter writing for the majority and

Mr. Justice Murphy for the minority. The fact that it

was a drug case rather than a food case is not a proper

distinguishing factor. United States v. Dianovin Pharma-

ceuticals, Inc., 1 Cir.,\475 F.2d 100, 103, cert. denied, 414

U.S. 830 (1973). At this point it is sufficient to quote the

Dotterweich majority at pages 280-281:

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9 73-1744

The prosecution to which Dotterweich was subjected

is based on a now familiar type of legislation whereby

er he serve as effective means of regulation. Such

egislation dispenses with the conventional require-

ment for criminal conduct — awareness of some

wrongdoing. In the interest of the larger good it

puts the burden of acting at hazard upon a person

otherwise innocent but standing in responsible rela-

tion to a public danger. United States v. Balint, 258

| U.S. 250. And so it is clear that shipments like those

now in issue are “punished by the statute if the

article is mishranded [or adulterated], and that the

article may be misbranded [or adulterated] without

any conscious fraud at all. It was natural enongh

to throw this risk on shippers with regard to the

identity of their wares .. .” United States v. Johnson,

221 U.S. 488, 497-98.

And quoting further, at pages 284-285:

Whether an accused shares responsibility in the bnsi-

ness process resulting in unlawful distribution de-

pends on the evidence produced at the trial and -its

submission — assuming the evidence warrants it —

to the jury under appropriate guidance. The offense

is committed, unless the enterprise which they are

serving enjoys the immunity of a guaranty, by all

who do have such a responsible share in the further-

ance of the transaction which the statute outlaws,

namely, to put into the stream of interstate commerce

adulterated or misbranded drugs. Hardship there

doubtless may be under & statute which thus penalizes

| the transaction though consciousness of wrongdoing

| be totally wanting. Balancing relative hardships,

Congress has preferred to place it upon those who

have at least the opportunity of informing themselves

of the existence of conditions imposed for the pro-

tection of consumers before sharing in illicit com-

merce, rather than to throw the hazard on the innocent

public who are wholly helpless.

These standards enunciated by Mr. Chief Justice Tuft

for a unanimous Court in United States v. Balint, 258

U.S. 250, 254 (1922), and followed in Dotterweich, supra,

Al-9

13.1744 10

320 U.S. at 280-281, were expressly reaffirmed by the

Court in a unanimous opinion by Mr. Justice Stewart

in United Siates v. Wiesenfeld Warehouse Co., 376 US.

86, 91-92 (1964). Numerous: other federal cases are in

accord. See, c.g.: United States v. Cassaro, Inc., supra,

443 F.2d at 157; Lelles v. United States,.9 Cir., 241 I°.2d

21, 23-24, cert. denied, 353 U.S. 974 (1957); United States

_ v. Kaadt, 7 Cir., 171 F.2d 600, G04 (1948); United States

v. Parfait Powder Puff Co., 7 Cir., 163 F.2d 1008, 1009- :

» 1010 (1947), cert. denied, 332 U.S. 851 (1948).

If the Supreme Court standards of individual criminal

liability announced in Belint, Dotterweich and Wiesenfeld

Warehouse, supra, are to be set aside, we shall defer

to the Court’s collective wisdom in that area. We shall

not undertake to overrule the Supreme Court.

Both Dotterweich and Wiesenfeld Warehouse, supra,

state that an individual’s claim that his actions do not

factually bring him within the corporate liability stan-

dards “involves factual proof to be raised defensively

at a trial on the merits.” (Wiesenfeld Warchouse, 376

U.S. at 91.) In light of laspector Brett’s testimony and

Mr. Gregory’s admissions cf his area of responsibility

_ and actions in the operation of the warehouse business,

we find and hold that the district court did not err in

convicting him of the violations of the Act.

Ii.

Defendants contend that but one offense is involved

in this case since the four bags of food in question were

all found in the same warehouse at the same time during

the same inspection.

In a petition for reduction of sentence defendants

sought to have the multiple penalties of $4,000 assessed

against the corporation reduced to $1,000, and the multiple

penalties of $2,000 assessed against Mr. Gregory abated

or, if allowed, reduced to $500.

A petition for correction or reduction of sentence may

be filed pursuant to Rule 35, Federal Rules of Criminal

Procedure, Title 18, U.S.C. It is well established that

! | Al-10

/

11 73-1744

_ the grant or denial of such a petition is addressed to the

sound discretion of the district court. United States v.

Krueger, 9 Cir., 454 F.2d 1154, 1155 (1972); United States

v. Jones, 2 Cir., 444 F.2d 89, 90 (1971).

It has been held that a four-count indictment charging

defendant with receiving foods and allowing the same

to become adulterated under $§ 331(k), 342(a)(3,4) was

not duplicitous where each count referred to a different

food. Akin Distributors of Florida, Inc. v. United States,

5 Cir., 399 F.2d 306, 307 (1968), cert. denied, 394 U.S.

905 (1969). In Robinson v. United States, 10 Cir., 366

F.2d 575, 579 (1966), cert. denied, 385 U.S. 1009 (1967),

it was held ‘that separate sales of illegal drugs supported

separate counts in the indictment brought under § 331(k),

although they occurred at the same place and on the same

evening. See also V. ZL. Irons, Inc. v. United States, 1 Cir.,

244 F.2d 34, 45-46, cert. denied, 354 U.S. 823 (1957).

It is to be noted that United States v. Wiesenfeld Ware-

house Co., supra, although duplicity was not an issue,

reversed the dismissal of an information similar to the

one in the case at bar, where the six counts of the informa-

tion differed only with respect to the particular shipment

or product involved. 376 U.S. at 87, fn.3.

Defendants cite other cases dealing with the question

of duplicity in other areas of the criminal law. but none

in the food and drug field. Since it was established in the

. instant case that each of the four counts here involved

refers to a different food, three of which were received

on different dates, we hold that the district court did not

err in denying defendants’ petition to reduce the sentence.

Finally, defendants urge that Judge Gordon abused

his discretion in refusing to revise his decision that

they were found guilty of “holding food under insanitary

conditions,” and to state that “the food examined was

not tainted, but was wholesome and fit for human con-

sumption.” Defendants argue that this request shonld

ve been granted in the face of allegedly harmful news-

pore yp that defendants were “fined for tainted

ood.” We regard this contention as not well taken since

this relief was entirely within the discretion of the trial

court. Al-I1

73-1744 12

In light of the foregoing, we affirm the decision and

judgment of the district court in all respects.

AFFIRMED.

CampneLi, Senior District Judge, concurring in part and

dissenting in part.

I agree that defendants were properly found to have

violated Title 21 USC § 331(k) in that they “held” food

for sale after shipment in interstate commerce which

consisted in whole or in part of a filthy, putrid, or de-

composed substance (i.e., the corn meal referred to in

Count I), and held food for sale after shipment in inter-

state commerce under unsanitary conditions whereby it

may have become contaminated with filth (t.e., the corn

meal, poppy seed, caraway seed and corn grits referred

to in Counts I, II, III and IV respectively). However,

I respectfully disagree with the finding that defendants

were each guilty of four separate violations of the statute.

These defendants were charged in a four-count informa-

tion with holding adultered food for sale after the inter-

state shipment thereof in violation of Title 21 USC § 331

(k). Count I charged that corn meal was “adulterated”

as that term is defined by 21 USC § 342 (a) (3) and as

defined by § 342 (a) (4), ie, Count I charged that the

corn meal consisted in part of a “filthy, putrid or decom-

posed substance” [(a) (3)] and that it was “held under

unsanitary conditions whereby it may have become con-

taminated with filth ...”. [(a) (4)].

Counts II, III and IV charged, respectively, that poppy

seed, caraway seed and corn grits were held under un-

sanitary conditions and were “adulterated” within the

meaning of 4 342 (a) (4). The government neither charged

nor proved that these foods actually consisted of a filthy,

putrid or decomposed substance [§ 342 (a) (3)].

If the government had charged and proved adulteration

as defined by § 342 (a) (3) as to each of the four kinds

of food held for sale by the H. B. Gregory Co., I would

agree that defendants may properly be found to have

committed four tactic violations of Title 21 USC

Miz.

13 73-1744

§ 331 (k), and accordingly, I would not consider separate

sentences as to each count improper. But where the

government charges three separate offenses (Counts II,

III and IV) under § 343 (a) (4) because three different

kinds of food are being held, and proves but one un-

sanitary condition (i.e., the unsanitary condition of thie

building in which the foods are stored), I believe the

maximum sentence that should be imposed is that which

may be imposed for a single violation of the Act, a fine not

to exceed one thousand dollars and/or imprisonment for

not more than one year. 21 USC 333 (a).

To hold otherwise conditions the extent of a defendant’s

criminal liability not only on his failure to provide a

sanitary environment for the foods held for sale, but also

on whether defendant has held one, ten, twenty or one

hundred different kinds of food on the premises, irrespec-

tive of the quantity thereof. To illustrate the problem

thus presented, imagine the potential liability of a super-

market manager in charge of a mice-infested store. The

government’s proof of this single unsanitary condition

could, under the majority’s view, sustain separate con-

victions, potentially allowing consecutive one year prison

terms, for each of the hundreds of different kinds of

food held for sale on the — At the same time, the

owner of a warehouse wherein large quantities of only

one kind of food are stored could not receive a sentence

r com of one year in prison, plus a fine of one thousand

ollars,

To avoid the prospect that such fortuitous cireum-

stances could distinguish the criminal liability of one de-

fendant from that of another, I would hold that if the

coveraceat chooses to prove adulteration solely on the

asis of § 342 (a) (4), a defendant’s maintenance of an

unsanitary facility within which foods are held for sale

should be considered the conduct proscribed, regardless

of how many different kinds of foods are stored therein,

and that therefore only one sentence may be imposed.

I am not persuaded that Akin Distributors of Florida,

Inc. v. United States, 399 F.2d 306 (5th Cir. 1968); Robin-

son v. United States, 366 F.2d 575 (Toth Cir. 1966); V. EB.

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73-1744 14

Irons, Inc. vy. United States, 244 F. 2d 34 (1st Cir. 1957);

or United States v. Wiesenfeld Warehouse Co., 376 US

86 (1964), cited by the majority, are authority to the

contrary.

In both Robinson and V. FE. Irons, Inc., defendants were

charged with multiple counts of “misbranding” drugs.

Neither case involved “adulteration”; neither case im-

posed multiple penalties on the basis of a single act or

omission; neither case involved 21 USC § 342 (a) (4).

The Fifth Cireuit’s decision in Akin involved both § 342

(a) (3) and § 342 (a) (4). The brief opinion in that case

states that “appellant had received foods and allowed

same to become adulterated within the meaning of Title

21 USC § 342 (a) (3) and (a) (4) .. .”. 399 F.2d at

307. The opinion does not disclose whether or not a find-

ing of guilty was sustained as to any count in which

evidence showed adulteration only within the meaning of

§ 342 (a) (4), but a reasonable inference may be drawn

that the government proved adulteration under § 342

(a) (3) as to each of the different kinds of foods claimed

to have become contaminated. The basis for so inferring

is found in the court’s statement that “the evidence sup-

porting the alleged adulieration of the food named in

each count was different for each food.” 399 F".2d at 307.

Finally, the [Wisenfeld decision dealt solely with the

question of whether the act of “holding” food for sale

under unsanitary conditions whereby it may become con-

taminated with filth constitutes a violation of § 331 (k).

The Court answered that question in the afiirmative.

Whether a defendant could be sentenced separately on the

basis of each of the several kinds of food so held was

me an issue in Wiesenfeld and was not considered by that

ourt.

Accordingly, I would affirm the convictions under Count

I and would affirm as to Counts II, III and IV on the

basis that they constitute but one offense. Consistent

with this view, I would vacate two of the one thousand

dollar fines imposed upon the corporate defendant, and

Al-14

15 73-1744

would vacate two of the five hundred dollar fines imposed

upon Mr. Gregory.

A true Copy:

Teste:

~ Clerk of the United States Court of

Appeals for the Seventh Circuit.

APPENDIX 2

Opinion of the District Court of the Eastern District of

Wisconsin.

Opinion of the District Court

on Defendant’s Motion to Dismiss

“The Court has concluded that the motion to dismiss

may not be granted. I’m persuaded that the Government

has made out a Prima Facie case on the specific point

that Mr. Friend has raised; namely that there’s inade-

quate proof of actual contamination of the food. I think

the issue is resolved by 21 U.S.C. 342(a) (4). The statute

does not, is not phrased in terms of actual contamination;

but rather that it may become contaminated because of

insanitary conditions. That’s consistent with holdings of

the Court of Appeals for the Eighth Circuit in Berger v.

United States, 200 Fed. 818, and it’s also consistent with

United States v. An Article of Food, Pasturized Whole

Eggs decided by the District Court, reported in 339 Fed.

- Supp. page 136. So the motion for dismissal of the charges

may not be granted.”

Transcript of March 26, 1973, page 132.

Opinion of the District Court

at end of Trial

“The Court finds that each of the four counts is proved

against each of the defendants. The comments that I

previously made I think cover the principal issue of

sufficiency of the government’s case on the question of

proved adulteration. I don’t think any further comments

in that section are necessary.

The other issue raised more specifically in this argu-

ment after both sides have fully rested relates to the re-

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sponsibility of James H. Gregory, the individual, and I

think the case law is adverse to Mr. Gregory’s conten-

tion, that it imposes personal liability upon him because

of the authority and responsibility which he had, and

that the defendant Mr. Gregory’s contention that the

general law requires a specific knowledge or failure to

do the best he can is not applicable under the statutory

scheme adopted by the Congress or by the case law, par-

ticularly Dotterweich in 320 U.S.

Accordingly, the Court makes a finding of guilt as to

each of the four counts, as to each of the two defendants,

and upon such findings of guilt, enters judgments of con-

yiction as to each of the four counts as to each of the two

defendants.”

Transcript of March 26, 1973, pages 139-140.

Opinion of District Court

Imposing Sentence

(Addressing Defendant's Attorney) “I am sorry for the

plaintiff, Mr. Friend. I do not agree with your analysis

of the law on the matter and, further, I am not sympa-

thetic with your contention that the defendants are vic-

tims of a — innocent victims of an invasion by unsuspected

mice.

I think this is a shocking failure on the part of the De-

fendants to maintain clean and unadulterated circum-

stances after having been amply, fully, vigorously warned

of their deficiencies.

I find no justification for the Defendants’ inability to

maintain these food products in a safe fashion. The de-

sign for interstate shipment, the law required sanitation.

Mr. Gregory and the Gregory Company have woefully

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failed in that, and, in my judgment, they must be pun-

ished in some fashion consistent with the authorization

of law.

The law contemplates up to $1,000.00 for each offense ;

and a substantial fine, in my judgment, should be imposed.

I don’t believe it is an appropriate case for imprison-

ment, but I would suggest that further violations would

unquestionably provoke such imposition of imprisonment,

in my judgment.

I am mindful of the communications that Mr. Friend

has referred to, namely, the report of Mr. Schultz, the

gentleman who now represents that corrective sanitation

proceedings have been made, and that’s an appropriate

process; it’s just unfortunate that it wasn’t done in 1971

or 1972 when the Defendants were admonished that they

had a problem.

I will now proceed with formal sentence.

On March 26, 1973, James H. Gregory and the H. B.

Gregory Company were found guilty after court trial

as to a four count Information charging violation of Sec-

ttion 331(k), Title 21 of the Code.

The Court having asked the Defendant why judgment

should not now be pronounced and no cause to the con-

trary appearing to the Court, and the Defendant and his

attorney, that is, Defendant James H. Gregory and the

attorney for the Defendants, having made a statement in

mitigation of sentence, it is the sentence and judgment

of this Court that you, James H. Gregory, be assessed a

fine of $500.00 for the offense charged in Count 1 ; $500.00

as to Count 2; $500.00 as to Count 3, and $500.00 as to

Count 4, making a total fine of $2,000.00.

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The H. B. Gregory Company, a corporation, is assessed

a fine of $1,000.000 for the offense charged in Count 1;

$1,000.00 as to Count 2; $1,000.00 as to Count 3, and

$1,000.00 as to Count 4, making a total fine for the H. B.

Gregory Company, a corporation, in the amount of

$4,000.00: A total fine of $2,000.00 for James H. Gregory,

an individual.

It is the further order of this Court that the fine is to

be paid within a period of ten days.

Transcript of June 11, 1973, pages 5-8.

APPENDIX 3

Reply Brief which the Petitioners were denied leave to

file in the Circuit Court of Appeals by order of the Court

dated July 3, 1974.

—

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NO. 73-1744

UNITED STATES OF AMERICA

Plaintiff-Appellee

vs.

H. B. GREGORY CO., a corporation

and

JAMES H. GREGORY, an individual

Defendants-Appellants

Reply brief of Defendants-Appel-

lants on Motion for Rehearing By

The Court in Banc

I.

Are the Defendants entitled to the benefit of tolerances

under 21 U.S.C.A. par 346 of the Food Drug and Cos-

metic Law?

a) When the Pure Food and Drug Law was adopted

in 1906, no provision was made for tolerances. The stat-

ute was amended in 1938 and an express provision for

tolerances was introduced at that time, 21 U.S.C.A. par.

346. The concept was that it is impossible to maintain

100% purity of food products. On or about February 20,

1974, Dr. Alexander M. Schmidt, the Commissioner of

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\\

the Food and Drug Administration appeared before the

monopoly Subcommittee of the U.S. Senate, of which

Senator Gaylord Nelson of Wisconsin was Chairman

and made the following statement:

“I could go into the kitchen of the home of every indi-

vidual in this room and shut it down as unsanitary. We

could readily shut down every\pharmaceutical plant in

the United States if we went in as I would go into your

kitchens, looking for dirt.’”” Milwaukee Sentinel, February

21, 1974

The chief proponents of the amendment relating to tol-

erances were the farmers and their congressmen, and in

particular, the apple growers in the State of Washington.

They were accustomed to spraying their apple trees

against worms. The spraying left ininute quantities of

lead ow the apples, and the amendment was intended,

among other things, to require the government to certify

what amount of lead might be tolerated, provided always

that it did not constitute a threat to the health of con-

sumers. \

Similarly the government gag tolerance level for

mould in tomato paste, the amount of the tolerance being

40% mould.

In U.S. v. 1500 Cases more or less 236 F. 2d 208, 214

(1956) the court held that tomato paste with more than

40% mould should be condemned an that tomato paste

with less than 40% mould could not be seized. This de-

cision recognized the tolcrance and followed the statute.

In the Gregory Case, the tolerance established by the

government is one excreta fragment per 50 grams. Does

two pellets in a 100 pound bag of corn\meal exceed the

tolerance? If not, there should have been no conviction

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on the first count, which charged the defendants with

holding adulterated food for sale. There is no testimony

that two pellets in a 100 pound bag exceeds the tolerance.

When the defendants sought to elicit this information,

the government witnesses replied that they did not know

what the tolerance level was.

The prosecution suggests. that because Inspector Brett

removed the two pellets from the 100 pound bag with a°

teaspoon, the contents of the teaspoon constitute a proper

asure for determining whether the tolerance was ex-

ceeded.

This is unfair to the defendants. Inspectors in the Chicago

Office of the Food and Drug Administration would take

a 10 pound sample of 100 pound bag, 10 being the square

root of 100. The question would then be whether two

pellets in 10 pounds exceed the tolerance. The prosecu-

tion would rule Sec. 406 out of the Food Drug and Cos-

metics Law and regards the law to be as it was before

Section 406 was adopted. (Footnote 2 of Appellee’s an-

swer to motion for rehearing, page 3).

This is contrary to the holding in U.S. v. 1500 Cases more

or less 236 F. 2d 208, 214 (1956) Supra, and it also does

violence to the canons of statutory construction developed

by the courts.

“Unless a legislative intention to the contrary clearly

appears, special or particular provisions control over gen-

eral provisions, terms, or expressions.”

82 Corpus Juris Secundum — Page 720

b) The prosecution suggests that if the corn meal de-

scribed in Count | was not proven to be adulterated be-

yond the permissible tolerance levels, still it was held un-

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der unsanitary conditions. (Appellee’s Answer to motion

for Rehearing Pages 4-6). This would equate Count |

with Counts 2, 3, and 4. Under Judge Campbell’s reason-

ing the defendants would have committed a single offense,

_ not four offenses, and be subjected to a single fine. When

dealing with a first offense in an unintentional misde- —

meanor case, a single fine without multiplication should

be enough.

II

a) Can the number of counts for which an accused may

be convicted be safely left to the tender mercies of the

prosecutors?

The history of prosecutions, both in England and the

United States, tells us that it may not. Prosecutors are ad-

_ vocates who tend to ride the currents of popular feeling.

In the 17th Century when people feared witches, the

prosecutors brought multiple counts of witchcraft against

elderly women. In the 18th Century, when people feared

revolution, the prosecutors brought multiple counts of

seditious libel against the publishers of newspapers. In

the 19th Century, when people feared rape, the prosecu-

tors brought multiple counts against people accused of

raping white women, but brought a single charge of

disorderly conduct against people accused of raping black

women. In the 20th Century, the prosecutors bring multi-

ple counts against wholesalers and warehousemen who

have mice. According to the Cleveland Press of June

14, 1974 the Kroger Company and three of its executives

have been indicted on ten counts of storing food in a

warehouse in Solon, Ohio, where. it was accessible to ro-

dents. This bears out the prophecy made in Judge Camp-

bell’s dissenting opinion in the Gregory Case.

_ A3-24

The quotation from U.S.A. v. Dotterweich, 320 U.S.

277, 285 (1943), which appears on page 8 of the brief

for the prosecution, calls for the wise guidance of judges.

It is they who are to temper the advocacy of the prosecu-

tors by looking to the ultimate facts rather than the num-

ber of counts. On the ultimate facts in the Gregory Case

there was but one offense, holding food for sale under

unsanitary conditions, and there should be but one fine.

b) The case against the defendant, James H. Gregory,

does not rest on any guilty intent or actionable negligence,

but on the circumstances that he was the president of the

H. B. Gregory Co., for which he was responsible. Prior

to 1943, when U.S.A. v. Dotterweich, supra, was decided,

he would have gone free. This judicial legislation is

criticized upon constitutional grounds in James J. Hip-

pard’s article “The Unconstitutionality of Criminal Lia-

bility Without Fault, an argument for a Constitutional

Doctrine of Mens Rea”.

10 Houston Law Review 1039, 1047,

1052, 1057, July 1973 University of

Houston College of Law.

If Mr. Gregory is to be punished at all, it appears that a

single fine is enough.

, Respectfully submitted,

/s/ Henry C. Friend

Henry C. Friend

Attorney for

Defendants-Appellants

238 West Wisconsin Avenue

Milwaukee, Wisconsin

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