Opposition Brief — Hohensee v. United States (No. 909)

ER DMN. ii. nk ono een enskinandekennndite

NON. dS. Gd. ee be RR abou dence

= apuestions presented _-.--.......-.-.---22 222i se seca

| Statute and regulation involved__...........-.--.---.--

I. 6» tin an xhohyiodudksnkhe weabwe cele hamNe

% Cases:

CITATIONS

Alberty Food Products Co. v. United States, 185 F. 2d

OS iG ee

es, eee Pts, 11 2 Bhai se ER

Colgrove v. United States, 176 F. 2d 614, certiorari de-

i Es ae

Delaney v. United States, 263 U.S. 586__.-.-..-----

Kann v. United States, 323 U. S. 88__...-._.----_--

United States v. Balint, 258 U.S. 250__......_..----

United States v. Behrman, 258 U. S. 280___________-

United States v. Berkowitz, 45 F. Supp. 564___.-____-

United States v. Cruez, 144 F. Supp. 229__._..-___--

United States v. Dotterweich, 320 U. 8. 277____-_-_--

United States v. El-O-Pathic Pharmacy, 192 F. 2d 62__

United States v. Johnson, 319 U. S. 503___._..-_ __-

United States v. Kaadt, 171 F. 2d 600___-_.--_---_-.

United States v. Krepper, 159 F. 2d 958, certiorari

SE a een Red: Aree

United States v. Modern Reed & Rattan Co., 159 F. 2d

656, certiorari denied, 331 U. S. 831___.-_-----.--

United States v. 150 Packages, Etc., 83 F. Supp. 875_-

United States v. Stella D’Oro Biscuit Co., 143 F. Supp.

426336—57——_1 (I)

i

onawnd = =

—

15

17

16

18

18

Cases—Continued

Page

United States v. 3 Cartons, Etc., 132 F. Supp. 569 - - -- 14

United States v. Urbuteit, 335 U.S. 355_-.-_....--.- 16

United States v. Various Quantities of Articles of Drug,

Be Giscdheniins sdusvassionacscbaucts 16

United States v. Vitamin Industries Inc., 130 F. Supp

FR ecckatbenhokelteseucesbihadnsan Deedes 16

V. E. Irons, et al. v. United States, No. 5193, C. A. 1.,

Gaekhed Ape O64, 2007... . 5 ccc ccei cc ckccck 13

Statute and regulation:

Federal Food, Drug, and Cosmetic Act:

Section 201, 52 Stat. 1040-1041, 21 U.S.C. 321. 3,12

Section 301, 52 Stat. 1042, 21 U. S. C. 331...<.. 3,14

Section 303, 52 Stat. 1043, 21 U. S. C. 333____- 3+, 16

Section 502, 52 Stat. 1050, 1051, 21 U.S.C. 352. 4, 12, 15

21 C. F. R. § 1.106

Gu the Supreme Gourt of the United States

OctoBER TERM, 1956

No. 909

ApoLPHUS HOHENSEE, AN InpIvipvaL, Ext RancHo

ApotPHus Propucts, Inc., Screntiric Livina, INnc.,

PETITIONERS

v.

UnttTep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COUKT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App.

la-10a)* is not yet reported. The opinion of the Dis-

trict Court denying petitioners’ motions for arrest of

judgment and for « new trial (App. 4la-5la) is re-

ported at 140 F. Supp. 645.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 29, 1957 (Pet. App. 2a). A petition for

"The appendix to the petition for a writ of certiorari is des-

ignated as “Pet. App.”. The appendix of the appellants im the

Court of Appeals, which forms a part of the record filed with

this Court, is designated as “App.”. The transcript of the trial

record is designated as “Tr.”.

(1)

Bae:

2

rehearing was denied on March 1, 1957 (Pet. App. |

12a). On March 22, 1957, Mr. Justice Brennan ex- —

tended the time for filing a petition for a writ of

certiorari to and including April 15, 1957, and the

petition was filed on that day. The jurisdiction of

this Court is invoked under 28 U. 8S. C. 1254 (1).

Petitioners were convicted of misbranding drugs

in violation of the Federal Food, Drug, and Cosmetic

Act, in that the drugs did not contain adequate direc-

tions for use when they were introduced into inter-

state commerce. Included in the evidence to show

that these products were drugs were representations

to that effect made by petitioner Hohensee at lectures

given very shortly after the goods were introduced

inte interstate commerce, and literature disseminated

at these lectures. The questions presented are:

1. Whether these representations and pieces of lit-

erature were relevant to show that the products were

drugs when introduced into interstate commerce.

2. Whether the indictment was properly drawn un-

der Section 301 (a) of the Act.

3. Whether Section 502 (f) (1) of the Act was

properly construed as requiring that the labels of

the drugs must enumerate the purposes, conditions,

and diseases for which the drugs are intended.

4. Whether it was prejudicial error to submit to the

jury a photostatic copy of the indictment with those

portions relating to petitioner Hohensee’s prior con-

viction blocked out.

| —

3

5. Whether criminal intent is a necessary requisite

in establishing violation of the Federal Food, Drug,

and Cosmetic Act.

6. Whether the evidence supported the convictions.

7. Whether the trial was fairly conducted.

STATUTE AND REGULATION INVOLVED

Section 201 of the Federal Food, Drug, and Cos-

metic Act, 52 Stat. 1040-1041, 21 U. S. C. 321, pro-

vides in pertinent part:

For the purposes of this Act—

* * * * 7

(g) The term ‘‘drug” means * * * (2) arti-

cles intended for use in the diagnosis, cure,

mitigation, treatment, or prevention of disease

in man or other animals; * * *

7 = = * +:

(k) The term “‘label” means a display of

written, printed, or graphic matter upon the

immediate container of any article; * * *

* oa * * .

(m) The term “labeling” means all labels

and other written, printed, or graphic matter

(1) upon any article or any of its containers

- or wrappers, or (2) accompanying such article.

Section 301, 52.Stat. 1042, 21 U. S. C. 331, provides

in pertinent part:

The following acts and the causing thereof

are prohibited :

(a) The introduction or delivery for intro-

duction into interstate commerce of any * * *

drug * * * that is * * * misbranded.

Section 303 (a), 52 Stat. 1043, 21 U. S. C. 333 (a)

provides:

4

Any person who violates any of the pro-

visions of section 301 shall be guilty of a mis-

demeanor and shall on conviction thereof be

subject to imprisonment for not more than

one year, or a fine of not more than $1,000,

or both such imprisonment and fine; but if the

violation is committed after a conviction of

such person under this section has become final

such person shall be subject to imprisonment

for not more than three years, or a fine of not

more than $10,000, or both such imprisonment

and fine.

Section 502, 52 Stat. 1050, 1051, 21 U. S. C. 352,

provides in pertinent part:

A drug * * * shall be deemed to be mis-

branded—

oa + * * *

(f) Unless its labeling bears (1) adequate di-

rections for use; * * *.

21 C. F. R. § 1.106 provides in pertinent part:

Drugs and devices; directions for use—

(a) Adequate directions for wuse.—‘Ade-

quate directions for use” means directions

under which the layman can use a drug or de-

vice safely and for the purposes for which it

is intended. Directions for use may be inade-

quate because (among other reasons) of omis-

sion, in whole or in part, or incorrect specifica-

tion of:

(1) Statements of all conditions, purposes,

or uses for which such drug or device is in-

tended, including conditions, purposes, or uses

for which it is prescribed, recommended, or

suggested in its oral, written, printed, or

graphic advertising, and conditions, purposes,

— :

5

or uses for which the drug or device is com-

monly used; * * *.

STATEMENT

Following a jury trial held in the United States

District Court for the Middle District of Pennsyl-

yania, petitioners were convicted under a seven-count

indictment * charging that they introduced certain

misbranded drugs into interstate commerce, in vio-

lation of the Federal Food, Drug, and Cosmetic Act,

52 Stat. 1040, as amended, 21 U. S. C. 301, et seq., in

that the labels of these drugs failed “to state the

purposes, conditions, and diseases for which [they

were] intended’’ (App. 4a-15a). Each count of this

indictment referred to petitioner Hohensee’s previous

conviction in the United States District Court for the

District of Arizona, on or about March 8, 1948, for

violation of the Federal Food, Drug, and Cosmetic

Act (App. 6a, 8a, 9a, lla, 12a, 13a, 15a). To prevent

any prejudice to the petitioners, the trial judge sent to

the jury room a photostatic copy of the indictment

with the portions relating to the prior conviction

blocked out (Tr. 893-895, 1114-1115), and charged

the jury that the ‘“‘* * * indictment and the charges

found therein are not evidence” (Tr. 1192). No men-

tion of the prior conviction was made during the

trial. After the jury found petitioners guilty as

charged, the prior conviction was stipulated to by the

parties and evidence on that issue was never pre-

sented to the jury (Tr. 1198-1200; App. 2a-3a). Pe-

* The indictment originally contained 9 counts. The gov-

ernment withdrew counts 8 and 9 during the trial and before

the case was submitted to the jury (Tr. 601).

6

titioners’ motion in arrest of judgment and for a new

trial were denied (App. 36a-5la).

On May 25, 1956, petitioner Hohensee was sen-

tenced to imprisonment for one year and one day on

each of the seven counts, to run concurrently (App.

4a). Scientific Living, Inc., and El Rancho Adolphus

Products, Ine., were sentenced to pay fines of $100

each, on each of the 7 counts of the indictment.

The Court of Appeals for the Third Circuit unani-

mously affirmed the conviction (Pet. App. 2a—10a).

The evidence adduced at the trial deals with two

parallel sets of circumstances, and may be sum-

marized as follows:

Counts I-III

Petitioner Hohensee, who is the president of peti-

tioner Scientific Living, Inc., and empowered to draw

checks on the bank account of petitioner El] Rancho

Adolphus Products, Inc., without counter signature

(Tr. 698-699, 722-725), personally visited the Eichen-

auer Health Food Store in Phoenix, Arizona, some

time late in 1951 or early 1952. According to Eichen-

auer, Hohensee advised him of a series of health lec-

tures he had arranged to deliver in Phoenix, and

solicited Eichenauer’s assistance in advertising these

lectures. Hohensee provided him with leaflets and

advertising copy and arranged for Ejichenauer to

stock El Rancho Adolphus products. These prod-

ucts began to arrive at the Eichenauer store in the

latter part of January 1952 (Tr. 13-24, 33-36), and

were invoiced from either E] Rancho Adolphus Prod-

uets, Inc., or Scientifie Living, Inc. The products

7

were shipped from Scranton, Pennsylvania (Tr. 43-

45, 124-128, 133-137). They were paid for by checks

delivered to and made payable to Hohensee (Tr.

61-66).

The leaflets given by Hohensee to Eichenauer for

distribution described the lectures as:

* * * hope-awakening new light on scores of

specific conditions which today are the scourge

of mankind. What does science say today

about * * * Cancer? Diabetes? Rheumatism?

Liver Disorders? Chronic Constipation? Co-

litis? Stomach Uleers? Kidney Stones? Kid-

ney disease? Morning mouth? Tooth decay?

Bleeding gums? Tuberculosis? Sinusitis?

Asthma? Common cold? Irritability? Vague

pains? Seurvy? Rickets? Beri-Beri? Glau-

coma? Neuritis? Cataracts? Sexual impo-

tency? Frigidity in women? Neurotic Symp-

toms? Heart disease? High blood pressure?

Low blood pressure? Rebuilding of blood?

Anemia? Arteriosclerosis? Hemorrhages?

Insomnia? Fatigue? Foot trouble? Better

eyes without glasses? How to conquer prema-

ture old age? Better eyes without glasses! A

startling revelation by a man who was actu-

ally blind! Today he enjoys perfect vision.

[Tr. 28-29. ]

The advertising copy which Eichenauer placed in

local newspapers in late January and early February

of 1952 was of similar character (Tr. 16, 107-113).

The lectures were delivered by Hohensee between

February 11, and March 6, 1952 (Tr. 210-213). Eich-

enauer placed a reorder for the Herb Laxative on

February 24, 1952 (Tr. 52-53). According to gov-

426336—57——_2

ge i 8A AION BEALE A AESOP TE wememenpe ry

8

ernment witness Kimlel, an employee of the United

States Food and Drug Administration who attended

these lectures, Hohensee repeatedly adverted to the

curative effect of Adolphus brand products and dis-

tributed literature relating to said products. One of

these pamphlets described a diet consisting of El

Rancho Adolphus Peppermint Tea (count I) and

Adolphus Herbal Laxative (count IIT). The pam-

phlet referred to peppermint tea as having been used

in ‘** * * cases of colic, flatulence, headache, rheuma-

tism and for its diuretic qualities,” although a foot-

note further suggested that the purchaser try the diet

and form his own opinion since “‘[t]he effects of

Peppermint Tea as outlined above are controversial

and contrary to Medical opinion’’ (Tr. 219-223; Gov.

Ex. 24). —

Hohensee discussed his treatment of an arthritic

with Peppermint Tea, noted that he never failed to

cure an arthritic at his ranch, and that if arthritics

would follow his directions they would notice a differ-

ence within ninety days (Tr. 224). He sold a booklet

recommending Adolphus Tea as a part of a diet for

high blood pressure (Tr. 225-228; Gov. Ex. 25). Pep-

permint Tea was further recommended during the

lectures as treatment for gall stones, stagnant urine,

prostate glands, sore muscles, lumbago, fits, convul-

sions, tuberculosis, asthma, pin worms, tape worms,

and colitis (Tr. 218-219; 227-229; 232-233; 235-236).

The audience was told to use only El Rancho Adol-

phus Tea, available at the Eichenauer Health Food

Store (Tr. 229, 232, 241-243).

‘“‘Wheat Germ oil’’—charged as misbranded in

Count Il—was recommended, among other things, for

the personality glands, heart disease, multiple scle-

rosis, arthritis, diabetes, high blood pressure, prostate

glands, lumbago, sore muscles and impaired hearing

(Tr. 236-245). Hohensee refuted a statement of a

physician that Wheat Germ Oil was not good for the

heart with the comment: ‘‘I say it is good. Dr. Me-

Vey is dead. He had a heart attack, and here I am

giving lectures’’(Tr. 240). He advised the audience

to use only Adolphus Wheat Germ Oil, for all others

would harm the kidneys (Tr. 241). Similarly, Adol-

phus Herb Laxative (count ITI) was recommended,

among other things, for fits, convulsions, and fainting

spells (Tr. 251-253).

An inspector for the Food and Drug Administra-

tion purchased these products at Eichenauer’s Food

Store on March 1, 1952. None of the labels of these

products contained any reference to the diseases al-

luded to in the promotional material and for which

they were recommended during the lectures (Tr. 142-

147).°

Counts IV-VII

The evidence to show misbranding of Adolphus

“Concentrated Broth” (count IV), ‘‘Whole Wheat”

(count V), ‘“‘Peppermint Tea’’ (count VI) and

““Wheat Hearts’’ (count VII), followed the same pat-

*The only reference to curative effect is found on the left

back panel of the label on the Herb Laxative to the effect that

“[t}his product is for occasional use to relieve temporary con-

stipation” (App. 9a). As noted above, the herb laxative was

recommended, at the lectures, for various other conditions.

10

tern. These products were shipped from Scranton,

Pennsylvania, by Scientifie Living Inc. and El Rancho

Adolphus, Inc. (Tr. 518-529), and were received at

Leed’s Health House in Denver, Colorado, during July

and August 1952 (Tr. 395-396). They were ordered

in connection with a series of lectures delivered by

Hohensee from July through September 1952 (Tr.

380, 534). An advance agent of Hohensee made the

preliminary arrangements for the lectures, arranged

for newspaper advertisements, furnished promotional

material for distribution to Mrs. Ethel Barnes, owner

of the Leed’s Health House, and arranged for her

supply of El Rancho Adolphus products sent from

Seranton, Pennsylvania—all pursuant to the direc-

tions of Hohensee (Tr. 367-388). The Denver news-

paper advertisements, as those in Phoenix, made ref-

erence to a host of diseases to be discussed at the lec-

tures (Tr. 378-379). Mrs. Barnes testified that some

of the merchandise arrived at her store immediately

prior to the lectures; that the arrangements were as

described by Hohensee’s advance agent; that Mrs.

Barnes paid for the El Rancho products by checks

payable to Hohensee or petitioner El Rancho Adol-

phus, Inc.; and that these checks were either delivered

personally to Hohensee or sent to Scranton (Tr. 390-

396 ; 401-402 ; 414; 422-423).

The Denver lectures were attended by government

witnesses Stroessner and Kramer. According to their

testimony, Hohensee distributed literature and made

oral representations concerning the curative effects of

Adolphus brand products (Tr. 533-694; 727-807).

Thus, the Broth was recommended, among other

11

things, for protruding blood vessels, internal worms,

impaired vision, cataracts, glaucoma, fits, convulsions,

and epilepsy (Tr. 546-556; 754-759). The Pepper-

mint Tea was advised for treatment of nerves, high

blood pressure, heart trouble, as a vaginal douche in

the prevention of cancer, worms, colitis, and diabetes

(Tr. 561-573; 629-630; 633-634; 678, 734-744; 749-

751). The Wheat Hearts were recommended for mul-

tiple sclerosis, prostate glands, polio, blood pressure,

heart trouble, worms, and prevention of sex crimes

(Tr. 574-584; 744-749). The Whole Wheat was rec-

ommended for ulcers, cancer, mental instability, and

the personality glands (Tr. 556-561; 760). Hohensee

advised that only Adolphus brand products should be

used, and that they were available at Leed’s Health

House (Tr. 412, 561). With the permission of Mrs.

Barnes, the owner of Leed’s store, 2 government in-

spector obtained samples of these products on Sep-

tember 3, 1952 (Tr. 424-425; 469-473). None of the

products contained any statement on the labeling re-

garding the diseases for which their curative effect

was extolled during the Denver lectures (Tr. 473-

477; App. 10a—15a).

During the Denver lectures, Hohensee commented

on the work of physicians. For examples, he ob-

served that Wendell Wilkie had been “killed by the

medics’’ (Tr. 658-659) ; that Hohensee cured a woman

that medical doctors had been unable to cure (Tr.

750); that doctors were puzzled by diabetes which

Was a very simple disease to cure (Tr. 677).

The witnesses testifying on behalf of the petitioner,

although denying that Hohensee had made claims

12

during the lectures as to the curative effect of Adol-

phus brand products, stated that they had been suffer-

ing from various diseases discussed by Hohensee

when they attended the lectures; that they had pur-

chased Adolphus brand products and used them; and

that they had spent time at Hohensee’s health ranch

(Tr. 956-975 ; 963-965 ; 977-991 ; 992-1003 ; 1007-1017;

1017-1021; 1025-1036; 1041-1049; 1061-1062; 1067-

1072; 1084-1096).

ARGUMENT

1. Much of petitioners’ argument is based on the

erroneous assumption that statements made by Ho-

hensee at the various lectures constituted the mis-

branding for which they were convicted. In truth,

evidence of Hohensee’s representations at the lectures

and the literature he there disseminated, coupled with

Hohensee’s promotional arrangements, only a few

days before the lectures, as well as the sale to the

‘“‘health” stores of Adolphus products immediately

prior to and during the lectures (see the Statement,

supra, pp. 7, 10), was introduced for the sole purpose

of establishing that the products were drugs within

the scope of Section 201 (g) of the Act, supra, p. 3,

when they were introduced in interstate commerce.

Petitioners were not indicted or convicted on the

charge that the promotional material or Hohensee’s

representations constituted misbranding. They were

indicted and convicted on the charge that the labels

of the products constituted misbranding in that they

did not state the purposes, conditions, and diseases

for which the products were intended, in violation of

Section 502 (f) (1) of the Act, supra, p. 4.

a —

13

The relevancy of the curative representations made

by Hohensee at the lectures to establish that the prod-

ucts were sold as drugs is clear. In Kordel v. United

States, 335 U. S. 345, this Court, in sustaining a con-

viction, under Section 301 (a) of the Act, for intro-

ducing misbranded drugs into interstate commerce,

held that dissemination of misleading and false lit-

erature, some of which entered interstate commerce a

year and one half after the drugs, was part of the

same transaction and constituted the misbranding. It

is well within the rationale of that case to say that

representations as to the curative effect of products

made almost at the same time as the goods entered

interstate commerce are relevant for purposes of de-

termining the intended use of the products, particu-

larly when, as here, these representations were part

of an integrated distribution program. And it makes

no difference whether such curative representations

were oral or written. As the First Circuit has re-

cently observed in V. FL. Irons, et al. v. United States,

No. 5193, decided April 24. 1957, p. 17:

Turning now to the second charge contained

in each of Counts II-VI of the information,

that is, that the articles of drug were mis-

branded in that their labeling failed to bear

“‘adequate directions for use” for the various

diseases and conditions for which they were

intended, it may be pointed out that we are

free to look to all relevant sources in order to

ascertain what is the ‘‘intended use” of a drug,

and are not merely confined to the labels on

the drug or the “‘labeling’’. The legislative his-

tory of the 1938 Act makes this clear. See

— ar

14

Dunn, Federal Food, Drug, and Cosmetic Act,

111-12, 240 (1938). Such also has been the

undeviating opinion of the courts which have

had occasions to deal with the issue. * * * In

the present case, therefore, we are entitled to

utilize all of appellants’ literature as well as the

oral representations made by V. Earl Irons at

his leetures or by authorized sales distributors.

See, also, United States v. Cruez, 144 F. Supp. 229

(E. D. Ill.); United States v. 3 Cartons, Ete., 132

F. Supp. 569 (S. D. Cal.)

Hence, there is no merit to petitioners’ contentions

that the District Court for the Middle District of

Pennsylvania had no jurisdiction over the offense, or

that the indictment was invalidly laid under Section

301 (a) of the Act, on the ground that the products

could not have been misbranded when they entered

interstate commerce (Pet. 22-25).*

2. The argument that the convictions violated free

speech, on the ground that petitioners were convicted

*Nor may petitioners properly rely on the dissent in Xordel

to support this argument (Pet. 24-25). As we have noted, the

majority held that, even though false advertising may have en-

tered interstate commerce subsequent to the drugs they de-

seribed, such advertising constituted the misbranding, and con-

viction was proper where the indictment was drawn under See-

tion 301 (a) of the Act. The dissent disagreed on the ground

that, in order to sustain a conviction that the advertising consti-

tuted misbrunding, the indictment (in that case) should have

been under Section 301 (k) of the Act which prohibits mis-

branding while the drugs are held for sale subsequent to inter-

state shipment. Aordel v. United States, 335 U. S. 345, 352-

353. The dissenters did not reach the question here—the valid-

ity of an indictment under Section 301 (a) where representa-

tions made almost simultaneous with the shipment of the goods

were used to show only that the goods were drugs when they

entered interstate commerce.

15

for Hohensee’s representations at the lectures, is spe-

cious. Petitioners were not convicted for what Ho-

hensee said (Pet. 19-22), but for having failed prop-

erly to label the drugs as required by law.’

3. Similarly, petitioners’ allegation that the charge

against them is within the exclusive jurisdiction of

the Federal Trade Commission is fallacious (Pet. 22-

23). The truth or falsity of the promotional material

was not in issue. The charge is that products sold

for use as drugs did not show the diseases for which

they were intended. Alberty Food Products v. United

States, 194 F. 2d 463, 464 (C. A. 9); ef. Kordel v.

United States, 335 U. S. 345, 351.

4. Also without merit is the further constitutional

objection that, in a criminal prosecution, to construe

“‘adequate directions for use” in Section 502 (f) (1)

of the Act, supra, p. 4, as requiring a statement of

the conditions or diseases for which the drug is in-

tended, renders the statute vague and indefinite (Pet.

14-19).

The administrator of the Act has construed “ade-

quate directions for use” as including a statement of

the ‘‘purposes for which it is intended”, 21 C. F. R.

1.106, supra, pp. 4-5. There is nothing uncertain in

requiring a person to specify the diseases which he

represents a drug will cure. This is also the unani-

mous view of the courts. E. g., Alberty Food Prod-

ucts Co. v. United States, 185 F. 2d 321, 326, and

* As the trial judge charged (Tr. 1184-1185) :

“The defendants are not on trial for advancing certain doc-

trines and beliefs, but as I have stated are charged with having

caused the introduction of misbranded drugs into interstate

commerce.”

16

194 F. 2d 463, 464 (C. A. 9) (injunction) ; Colgrove

v. United States, 176 F. 2d 614 (C. A. 9), certiorari

denied, 338 U. S. 911 (injunction—criminal con-

tempt) ; United States v. Vitamin Industries, Inc., 130

F. Supp. 755 (D. Nebr.) (criminal) ; United States v.

150 Packages, Etc., 83 F. Supp. 875 (E. D. Mo.)

(seizure); United States v. Various Quantities of

Articles of Drug, 83 F. Supp. 882 (D. D. C.) (seiz-

ure) ; ef. United States v. El-O-Pathic Pharmacy, 192

F. 2d 62, 77 (C. A. 9).

“‘The high purpose of the Act [is] to protect con-

sumers who under present conditions are largely un-

able to protect themselves in this field * * *.’’ Kordel

v. United States, 335 U. S. 345, 349. See United

States v. Sullivan, 332 U. S. 689; United States v.

Dotterweich, 320 U. 8. 277. Loopholes should not be

created by ‘‘strained and technical constructions

* * *.”. Kordel, supra, at p. 349; United States v.

Urbuteit, 335 U. S. 355, 357-358.

5. Petitioners further contend that it was fatal error

to submit to the jury a photostatice copy of the indict-

ment with those portions relating to Hohensee’s previ-

ous conviction blocked out (Pet. 30-33). This

argument is without substance. Pursuant to Section

303 (a) of the Act, supra, pp. 3-4, Hohensee’s previous

conviction was set out in the indictment to permit im-

position of the heavier second-offender penalties.

This is similar to other statutory schemes. Singer Vv.

United States, 278 Fed. 415, 420 (C. A. 3), certiorari

denied, 258 U. S. 620 (Volstead Act); United States

v. Berkowitz, 45 F. Supp. 564, 565 (W. D. Mo.) (Fair

Labor Standards Act). The blocking out of the prior

—

17

conviction did not change the offense charged by the

grand jury, and petitioners’ rights were certainly not

prejudiced tthereby. Cf. Ex Parte Bain, 121 U. 8. 1,

13; United States v. Krepper, 159 F. 2d 958, 970 (C.

A. 3), certiorari denied, 330 U. S. 824. On the con-

trary, by scrupulously keeping knowledge of the prior

conviction firom the jury, any possibility of prejudice

was avoidedi (see the Statement, supra, p. 5). Cf.

United Staties v. Modern Reed & Rattan Co., 159 F.

2d 656 (C. Ai. 2), certiorari denied, 331 U. S. 831, upon

which petitioners rely, where the conviction was re-

versed solelyy because the prior conviction was made

known to the jury.

6. Petitiomers also contend that the convictions

must be reversed since criminal intent was not estab-

lished. Criminal intent is not an essential ingredient

to establish violation of the Federal Food, Drug, and

Cosmetic Actt. United States v. Dotterweich, 320 U.S.

277, 285-286 ; United States v. Kaadt, 171 F. 2d 600,

604 (C. A. 7). And this is equally true although

Hohensee, im accord with the express mandate of the

Act, was conwicted of a felony.’

*In United States v. Stella D’Orb Biscuit Co., 143 F. Supp.

275 (S. D. N. Y.), the court merely indicated that it might be

preferable to pllead a prior conviction in a separate information

in order to bring into operation the more stringent penalty

Provision of the Act. It was certainly not held that to plead

prior conviction in the same indictment as the offense

charged was fattal error.

"In United States v. Balint, 258 U. S. 250, and United

States v. Behrman, 258 U. S. 280, felony convictions were sus-

tained without proof of criminal intent under the 1914 Nar-

cotic Drug Act.

a

18

7. Petitioners further allege that the evidence is in-

sufficient to sustain the verdicts (Pet. 25-30). The

trial judge and the Court of Appeals found that the

verdicts were amply supported by the evidence (App.

4la-5la; Pet. App. 2a-10a), which is summarized in

the Statement, supra. There is no occasion for fur-

ther review of the evidence by this Court. Kann v.

United States, 323 U. 8. 88, 93; United States v. John-

son, 319 U. S. 503, 518; Delaney v. United States, 263

U. S. 586, 589-590.

8. Finally, petitioners contend that there were nu-

merous instances during the trial when their rights

were prejudiced. These include, among others, alleg-

edly prejudicial comments by the trial judge and

prosecutor; the use of leading questions by the prose-

eutor; allegedly prejudicial and irrelevant remarks

made by the prosecutor during his closing argument;

and ‘‘the whole climate created by the prosecution”

(Pet. 36-44). All of these allegations and others

raised by petitioners were examined by the Court of

Appeals and found to be without merit (Pet. App.

8a-10a).*° The short of it is that an ¢xamination of

the lengthy trial transcript (over 1,000 pages) shows

that petitioners were afforded a fair trial.

* An instance of the prejudicial error alleged by petititoners

involves the trial judge’s comments on the cost of the trial (Pet.

39). This was answered by the Court of Appeals as follows

(Pet. App. 9a) :

“A third objection is voiced to the court’s expressions with

reference to the cost of the trial. In denying the motions for

acquittal, the court did allude to the large trial expense but in

its next sentence and the same paragraph stated ‘If I determine

that I am in error about this (the denial of the motions) at

any time I shall gladly grant a new trial, or even enter &

19

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that the petition for a writ of certiorari should be

denied. -

J. Lee Rankin,

Solicitor General.

Warren Otney III,

Assistant Attorney General.

BEatTrRICE ROSENBERG,

JEROME M. Fert,

Attorneys.

May 1957.

judgment of acquittal, if I think I should * * *. Of the two

other allusions to trial cost in appellants’ appendix, one has to

do with the court trying to narrow the trial scope. In the

other, the court, at considerable length, rejected the govern-

ment’s plea not to postpone the trial at the defense request. The

government urged it had expended large sums of money in

preparation. The court concluded its decision to allow the con-

tinuance by saying:

“‘Now, this all means that the preservation of freedom is

very expensive, just like everything else, more so every day, and

it always has been. So I am not going to sustain the objections

to the motion because of the expense, and I will grant the

motion for a continuance, and I will fix November 29, 1954 at

2 o’clock in the afternoon for the trial of this case’.”

U. S. GOVERNMENT PRINTING OFFICE: 1987