217 F.Supp. 705 (S.D.N.Y. 1962), United States v. Calise

Citation:217 F.Supp. 705
Party Name:UNITED STATES of America v. John P. CALISE and Westchester Blood Service, Inc., Defendants.
Case Date:August 14, 1962
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 705

217 F.Supp. 705 (S.D.N.Y. 1962)



John P. CALISE and Westchester Blood Service, Inc., Defendants.

United States District Court, S.D. New York

Aug. 14, 1962

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[Copyrighted Material Omitted]

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Robert M. Morgenthau, U.S. Atty. for the Southern Dist. of New York, New York City, for the United States of America; Stephen E. Kaufman, Richard A. Givens, Asst. U.S. Attys., of counsel.

Longo & Torrisi, Mt. Vernon, N.Y., for defendants; Joseph F. Longo, Mt. Vernon, of counsel.

CASHIN, District Judge.

The voluminous eighty count indictment in the above entitled action charges defendants, John P. Calise and Westchester Blood Service, Inc., with several types of violations of the Public Health Service Act and the Federal Food, Drug and Cosmetic Act, and a conspiracy to violate those statutes.

The defendant John P. Calise moves to dismiss as to himself on the ground that although each count of the indictment sets forth his name as a co-defendant to the alleged unlawful acts, 'the counts and allegations show only acts of alleged wrongdoing committed by Westchester Blood Service, Inc., and attributes no unlawful act to John P. Calise.' 1 This argument is without substance. The counts of the indictment each charge the defendant John P. Calise with offenses in the relevant statutory wording. The fact that the offenses alleged concern blood products sold by the defendant Westchester Blood Service, Inc. does not exculpate Calise from criminal responsibility for the acts charged in the indictment. 18 U.S.C. § 2.

Defendants urge that counts 59-75 are vague because they do not show whether the blood number listed is claimed to be the number purporting to identify the pint of blood or the number which in fact identified the pint of blood. 2 The defendants' claim of vagueness is without merit, especially in view of the fact that the government has already voluntarily supplied a bill of particulars specifying that the blood numbers listed are those used by the defendants.

As for the defendants' general objection that all of the counts of the indictment should be dismissed on the ground that '* * * the same are vague, ambiguous, indefinite, uncertain and do not apprise the defendants of any alleged offense', 3 their objection is groundless. The counts substantially follow the terminology of the statutes and they plainly inform the defendants of that which they are accused. The counts of the indictment are sufficiently definite and plain so as to eliminate entirely any possibility that the defendants will be misled as to the offenses with which they stand charged. See United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953). The defendants' objections upon the same grounds to Count 80 in particular must likewise fail for the reasons stated above.

The defendants further assert that counts 31 through 48 inclusive, and counts 55, 56, 57, 58, 59, 60, 62, 65, 66, 67, 70, 72 and 80, alleging violations of the mislabeling provisions of 42 U.S.C. § 262(b), are not within the jurisdiction of this court because the acts complained of occurred entirely within the boundaries of the State of New York. 4 The subsection reads as follows:

'(b) No person shall falsely label or mark any package or container of any virus, serum, toxin, antitoxin, or other product aforesaid; nor alter any label or mark on any package or container of any virus, serum, toxin, antitoxin, or other product aforesaid so as to falsify such label or mark.'

Page 708

The language in subsection (b) does not indicate that Congress intended the effect of the statute to be confined merely to products moving in interstate commerce. The restrictive interpretation of subdivision (b) which the defendants urge is not persuasive, in view of the fact that Congress could very easily have expressed such an intention in the Public Health Service Act, as it was cautious to do in 21 U.S.C. § 331(k) where such an intention actually existed. Furthermore, the manner in which Congress separated the mislabeling ban of Section 262(b) from the labeling requirements of Section 262(a)(2) would seem to be indicative of an intention that Section 262(b) was to reach further in its scope from Section 262(a). To restrict Section 262(b) exclusively...

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