United States v. Christie Industries, Inc.

• Decision Date: 03 August 1972
• Docket Number: No. 71-1831.,71-1831.
• Parties: UNITED STATES of America v. CHRISTIE INDUSTRIES, INC. Edwin C. CHRISTIE. Appeal of Edwin C. CHRISTIE.
• Court: U.S. Court of Appeals — Third Circuit

465 F.2d 1002 (1972)

UNITED STATES of America v. CHRISTIE INDUSTRIES, INC. Edwin C. CHRISTIE.

Appeal of Edwin C. CHRISTIE.

No. 71-1831.

United States Court of Appeals, Third Circuit.

Argued July 11, 1972.

Decided August 3, 1972.

COPYRIGHT MATERIAL OMITTED

Gerald W. Conway, Schreiber, Conway, Reiseman & Michals, Newark, N. J., for appellants.

Carolyn E. Arch, Asst. U. S. Atty., Newark, N. J., for appellee.

Before ALDISERT, MAX ROSENN and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Appellant Edwin C. Christie was convicted by a jury for violating 18 U.S.C. § 401(3) by failing to obey a preliminary injunction that had been entered by the District Court. Christie was sentenced to imprisonment for one year, and appeals from the conviction and sentence.

The preliminary injunction was entered in a civil action brought by the United States against Christie and his company Christie Industries, Inc., on June 16, 1967. The complaint charged that the defendants were shipping firecracker assembly-kits and components thereof to children through interstate commerce; that the firecracker components were "banned hazardous substances" within the scope of 15 U.S.C. §§ 1261(f)(1)(A)(v), (vi) and 1261(q)(1);¹ and that the defendants were violating 15 U.S.C. § 1263(a) by shipping the firecracker components in interstate commerce. After a hearing on June 26, 1967, the District Court ruled in favor of the Government and directed that an order be prepared to grant the Government's request for a preliminary injunction.

On September 11, 1967, the preliminary injunction was entered, the text of which is set out in full in the margin.² Although the recitals state that the firecracker assembly-kit is comprised of various components, the order itself merely forbids dealing in "the aforesaid fireworks assembly-kits."

On April 4, 1968, the Government filed in the District Court a Petition for Order to Show Cause in criminal contempt, charging that Christie and his company had violated the preliminary injunction during the period September-December, 1967. After a trial on June 18-19, 1968, the District Court found the defendants guilty of contempt and fined each of the defendants $2500. On appeal from that conviction this court reversed, United States v. Christie Industries, Inc., 465 F.2d 1000 (3 Cir., 1971). We held:

"The government has failed to prove an essential element of the criminal contempt, viz., that the defendants violated the injunction." 1001 (emphasis added; footnote omitted).

The evidence in that case was that children received fireworks kits from "Ecco," "Ecco Products," or "Rocfuel Ltd.," but there was no evidence that the defendants were connected with those entities at the time the injunction was alleged to have been violated.

On June 24, 1969, while the first appeal was pending, the Government filed a second Petition for Order to Show Cause in criminal contempt, charging that Christie and his company had violated the preliminary injunction during the period December 1967-November 1968. After a seven-day trial in November and December 1970, the jury returned a verdict of guilty on each of the eight separate charges. On July 15, 1971, Christie was sentenced to imprisonment for one year on the second conviction, which is before us on this appeal.³

I. SUFFICIENCY OF THE EVIDENCE

Christie contends that the evidence was insufficient to support a finding that he had violated the preliminary injunction. Our analysis on this question must begin with the preliminary injunction itself.

Although the Government's complaint in the civil action requested that the defendants be enjoined from shipping "any firecracker assembly-kit, or any similar article, or any component of said firecracker assembly-kits," the preliminary injunction itself referred only to "the aforesaid fireworks assembly-kits." In the recital of the preliminary injunction, the assembly-kits had been stated to contain the following five components: (1) "cylinder casings"; (2) "cup-like end caps"; (3) "fuse coil"; (4) "one plastic bag containing potassium nitrate"; and (5) "one plastic bag containing aluminum powder and sulfur." Thus phrased, the preliminary injunction was in keeping with the following colloquy between defense counsel and the District Court which took place after the Court had ruled in favor of the Government in the civil action and had directed that an order be prepared:

"MR. QUIRK: If your Honor please, could we perhaps be more specific in what the terms of the injunction would read? I assume that the items prepared today are enjoined from any further use?

"THE COURT: That particular package is.

"MR. QUIRK: That\'s right.

"THE COURT: That is all they are asking for.

"MR. QUIRK: All right, sir." (App., p. 2a).

Christie argues here that the preliminary injunction covered nothing more than shipments of the "kit" as such. We disagree that the preliminary injunction must be read so narrowly.

It is true, as Christie argues, that a person will not be held in contempt of an order unless the order has given him fair warning that his acts were forbidden. In a recent case this court has stated:

"The longstanding, salutary rule in contempt cases is that ambiguities and omissions in orders redound to the benefit of the person charged with contempt."

Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir. 1971); accord, Lichtenstein v. Lichtenstein, 425 F.2d 1111 (3d Cir. 1970); In re Rubin, 378 F.2d 104 (3d Cir. 1967).

But this is not to say that where an injunction does give fair warning of the acts that it forbids, it can be avoided on merely technical grounds. The language of an injunction must be read in the light of the circumstances surrounding its entry: the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent. John B. Stetson Co. v. Stephen L. Stetson Co., 128 F.2d 981, 983 (2d Cir. 1942); see Haskell v. Kansas Natural Gas Co., 224 U.S. 217, 223, 32 S.Ct. 442, 56 L.Ed. 738 (1912). It is with these precepts, and the particular charges to be recounted in detail below, in mind that the following holdings are reached.

First, we hold that the preliminary injunction is violated by the shipment in a single package of components that made up the "kit," even though the components were sold separately and were not advertised or sold as a "kit." To hold otherwise would be to allow avoidance of the preliminary injunction through a mere change of terminology.⁴

Second, we hold that the preliminary injunction could not be avoided by a mere substitution of components. Although the injunction states that the kit contained "cylinder casings," no sensible person could argue that by substituting non-cylindrical casings the package could be shipped. Nor do we think glass jars could be substituted for the plastic bags containing the chemical powders to immunize the "kit," nor the use of explosive chemical substitutes in place of the particular chemicals listed.⁵

Third, we reject the Government's argument that the shipment of each separate component of the assembly-kit was enjoined. The preliminary injunction plainly refers to a package of components for constructing fireworks, and the colloquy between the District Court and defense counsel reinforces our belief that shipment of separate components were not covered. The purpose of the preliminary injunction was to keep away from children⁶ firecrackers that might injure them and others. If a child could not use the shipment to make a firecracker, the shipment cannot be seen as violating the preliminary injunction.

Fourth, despite our holding that shipment of separate components would not violate the preliminary injunction, we hold that the injunction is not avoided by shipping all components for firecrackers except the fuse. For reasons that will become clearer when the particular facts are discussed below, the availability of fuse to children must have been well known to Christie. In addition, a reasonably curious child can devise substitutes for fuse, such as string or paper, in cases where he cannot obtain fuse. If Christie shipped all the ingredients for a firecracker except for the fuse, we believe that the preliminary injunction was violated.⁷

Our fifth concern is whether the separate shipment of components in two or more packages would violate the preliminary injunction even though neither separate package would have been in violation. We think that it would, absent circumstances indicating that the violation was unintentional and that it occurred despite the use of reasonable care on the part of Christie. After the preliminary injunction was issued, Christie was under an obligation to take steps to insure that violations of the order would not occur. Unless Christie could show that reasonable steps were taken, even inadvertent shipments of fireworks assembly-kits to children should be considered violations of the preliminary injunction.⁸

Sixth, we hold that a warning placed in Christie's catalog that purchasers must be of legal age and Christie's requirement that purchasers sign a statement on the order blank signifying their adulthood are not alone sufficient steps to insure compliance with the preliminary injunction. The likelihood that a child would order despite the warning in the catalog, and that he would sign the statement regardless of its truth, was clearly too great. A shipment by Christie to a child, even though Christie was not aware of the fact of childhood, cannot be immunized merely by Christie's receipt of the child's false statement and Christie's reliance on the catalog warning.⁹

On the final point, too, there is evidence that Christie was well aware that he was dealing with children despite his protestations of reliance upon the catalog warning and the signed statements. One element in Christie's promotion was an offer of a radio-controlled model airplane to...