Berger v. United States

• Citation: 200 F.2d 818
• Decision Date: 30 December 1952
• Docket Number: No. 14578.,14578.
• Parties: BERGER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

200 F.2d 818 (1952)

BERGER v. UNITED STATES.

No. 14578.

United States Court of Appeals, Eighth Circuit.

December 30, 1952.

Charles S. Sigoloff, St. Louis, Mo. (J. E. Sigoloff, St. Louis, Mo., on the brief), for appellant.

John T. Grigsby, Attorney, Department of Justice, Washington, D. C. (Charles B. Murray, Asst. Atty. Gen., George L. Robertson, U. S. Atty., Marvin C. Hopper, Asst. U. S. Atty., St. Louis, Mo., Vincent A. Kleinfeld, Attorney, Department of Justice, and Paul M. Steffy, Attorney, Federal Security Agency, Washington, D. C., of counsel, on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

COLLET, Circuit Judge.

Defendant was charged in three counts with unlawfully causing to be introduced and delivered for introduction into interstate commerce a number of cases of pickles and pickle relish in jars, which were adulterated within the meaning of 21 U.S.C.A. § 342(a) (4) in that they had been prepared and packed under insanitary conditions whereby they may have become contaminated with filth. The three counts related to separate shipments, one made on May 3, 1951, and two on May 17, 1951. At the close of the Government's case the Government dismissed the third count of the information. Motion to dismiss Counts One and Two was made by defendant at the close of the Government's case on the grounds that the information did not state facts sufficient to constitute an offense and that the statute upon which the information was based is unconstitutional. A separate motion for judgment of acquittal was made upon the ground that the evidence was insufficient to sustain a conviction. These motions were overruled. The defendant offered no evidence. The case was submitted to a jury which returned a verdict of guilty on both counts. After the verdict, the motion for judgment of acquittal on the ground of the insufficiency of the evidence was renewed and again overruled. Judgment and sentence followed, from which this appeal is prosecuted. Only two questions are presented on this appeal. Defendant challenges (1) the constitutionality of the statute, and, (2) the sufficiency of the evidence.

Unconstitutionality of the statute¹ is asserted upon the ground that it is so indefinite, uncertain and obscure that it does not inform one accused thereunder of the nature and cause of the accusation in violation of the Sixth Amendment to the United States Constitution.²

The constitutional test of definiteness and certainty of the language used in a statute defining a criminal offense has been frequently stated. Reference to only a few of the cases will sufficiently demonstrate the rule.

In United States v. Brewer, 139 U.S. 278, 288, 11 S.Ct. 538, 541, 35 L.Ed. 190:

"Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid." Citing United States v. Sharp, Fed.Cas.No.16,264, Pet.C.C. 118.

In Connally v. General Const. Co., 269 U. S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, it is stated thus:

"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284; Collins v. Kentucky, 234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510.

And in United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 41 S.Ct. 298, 300, 65 L. Ed. 516:

"The * * * inquiry * * * is the certainty or uncertainty of the text in question, that is, whether the words * * * constituted a fixing by Congress of an ascertainable standard of guilt and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."

In the late case of Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 707, 95 L.Ed. 886, the Chief Justice, speaking for the Court, said:

"The essential purpose of the `void for vagueness\' doctrine is to warn individuals of the criminal consequences of their conduct. * * * This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.

* * * * * *

"We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Impossible standards of specificity are not required. United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322."

It should be noted that the statute in question is designed to prohibit the introduction or delivery for introduction into interstate commerce of food, etc., which is adulterated. In aid of that objective it defines an adulterated food as that which: —

"* * * has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, * * *."

It is clear that the congressional intent is to make it a criminal offense for a person to prepare, pack or hold food under such insanitary conditions that it may become contaminated. It is not necessary that it actually become contaminated. Stated in the language of Chief Justice Stone in Corn Products Refining Co. v. Federal Trade Commission, 324 U.S. 726, 738, 65 S.Ct. 961, 967, 89 L.Ed. 1320, the statute is designed to prevent adulterations "in their incipiency" by condemning insanitary conditions which may result in contamination.

It is clear from an examination of United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658; Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653, and Corn Products Refining Co. v. Federal Trade Commission, supra, that the clause — "whereby it may have become contaminated" — is not to be construed to mean that criminality may be predicated upon proof of an insanitary condition which gives rise to a "mere possibility" of contamination. The condition condemned by the statute, which must be proved to support a conviction, is one which would with reasonable possibility result in contamination. Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 46, 68 S.Ct. 822, 92 L.Ed. 1196. Such construction placed upon the words "which may render such articles injurious to health" resulted in the statute being impervious to attack on constitutional grounds. United States v. Lexington Mill & Elevator Co., supra. That is also true of the statute now under consideration.

In the light of the foregoing construction of the statute, does it convey a sufficiently definite warning of what conduct will constitute a crime? Its plain meaning is that no one shall prepare, pack or hold food, in this instance pickle relish, for introduction or delivery for introduction into interstate commerce under conditions which would with reasonable possibility result in the food becoming contaminated with filth.

It is contended that because the statute leaves open for determination the degree of insanitation which would possibly or probably result in contamination, it does not meet the test of definiteness. Or, as the argument was put in Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232, estimates of the degree of dirtiness and lack of sanitation which would probably or with reasonable possibility bring about the prohibited result might differ and a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. But the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. The criterion of criminality is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct. Nash v. United States, supra. As illustrated in the Nash case: — "`An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it' by common experience in the circumstances known to the actor." The perpetrator of the act must be held responsible for estimating what the jury may determine was the probable result of his act....