Gray v. United States, 13773.

• Decision Date: 14 July 1949
• Docket Number: No. 13773.,13773.
• Citation: 174 F.2d 919
• Parties: GRAY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F.2d 919 (1949)

GRAY v. UNITED STATES.

No. 13773.

United States Court of Appeals Eighth Circuit.

April 18, 1949.

As Corrected on Denial of Rehearing June 6, 1949.

Rehearing Denied July 14, 1949.

C. A. Taney, Jr., of Minneapolis, Minn. (Leonard L. Kalish, of Philadelphia, Pa., on the brief), for appellant.

Clifford F. Hansen, Asst. U. S. Atty., of St. Paul, Minn. (Alexander M. Campbell, Asst. Atty. Gen., John W. Graff, U. S. Atty., of St. Paul, Minn., and Vincent A. Kleinfeld, Atty., Dept. of Justice, and Bernard D. Levinson, Atty., Federal Security Agency, both of Washington, D. C., on the brief), for appellee.

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

WOODROUGH, Circuit Judge.

The appellant was convicted and sentenced to pay a fine of $1,000 and costs for introducing into interstate commerce a certain drug called Powdr-X contained in packages and misbranded, in violation of the Federal Food, Drug, and Cosmetic Act, § 301(a) et seq., 21 U.S.C.A. § 331(a) et seq. The information against him contained four counts but the jury found him not guilty on count 2, and count 4 was dismissed during the trial. The judgment from which he appeals was entered upon the jury verdicts on the remaining counts of the information numbered one and three. Each of these counts was predicated upon one of the two shipments of packages of the drug made by appellant at Minneapolis, Minnesota; one shipment on December 6, 1945 to Mrs. H. Feltenberger at Culver City, Calif. (first count), and the other on March 23, 1946, to Ira J. Evans at North El Monte, Calif. (third count). The charge was to the effect that in each of the shipments the drug was misbranded in violation of the Act; (1) that the label upon each of the immediate containers was as follows:

"Powdr X Net Weight 8 oz. Contents Silicon Dioxide, Aluminum Oxide Ferric Oxide, Calcium Oxide Magnesium Oxide, Sodium Oxide. L. M. Gray, National Distributor 3856 Chicago Avenue Minneapolis, Minn Phone Colfax 8295."

(2) that the appellant accompanied each shipment with a letter intended to be used together with the drug and constituting a labeling thereof, which letter he mailed to the consignee on the same day he made the shipment. In one of the letters it was stated that the drug was "splendid for almost any infection, abrasion or ulcers" (first count), and in the other that "We have good reason for expecting Powdr X to correct ulcers of the stomach * * *" "Gas pains that usually accompany ulcers of the stomach should subside in a week or ten days", which statements were false and misleading and in truth said drug would not be efficacious as stated; (3) that the drug was not designated by a name recognized in an official compendium and its label failed to bear the common or usual name of the drug, to wit, pumice; (4)¹ the labeling failed to bear adequate directions for use, to wit, there were no directions for use.

Before entering his plea appellant moved to dismiss the information on the ground that each of the counts was duplicitous in that each attempted to charge more than one offense denounced by the Act, because each count² charged against him conduct alleged to be in violation of 21 U.S.C.A. § 352(a)³ and conduct alleged to be in violation of 21 U.S.C.A. § 352(e)⁴ and conduct alleged to be in violation of 21 U.S.C.A. § 352(f).⁵

It was argued for the motion and is reiterated here that these three kinds of conduct connected with the shipment of drugs in interstate commerce, to wit, (1) accompanying the shipment with a letter containing false statements; (2) failing to put the true name of the drug on its "label", and (3) failing to include directions for use in its "labeling", should be deemed separate offenses and pleaded in separate counts under 18 U.S.C.A. § 557 and Rule 8(a) of Federal Rules of Criminal Procedure, 18 U.S.C.A. It is stressed that the Act makes clear and positive distinction between conduct in respect to what the Act defines as the "label" on the package of the drug and in respect to what it defines as the "labeling" of the drug. 21 U.S.C.A. § 321(k) provides that "The term `label' means a display of written, printed, or graphic matter upon the immediate container of any article; * * *", and 21 U.S.C.A. § 321 (m) says that "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." The Act makes "labeling" the broadly inclusive term and "label" is narrowly confined to what is put on the immediate container. It is contended that writing and mailing a letter containing false statements about the drug is conduct so different in kind from failing to put required matter in its label or failing to put required instructions for use in either the letter or the label that the inclusion of charges of the three sorts of misconduct in each count made each count duplicitous.

The trial court after consideration of the motion and argument, concluded that the charge in each count was single and not duplicitous in that the offense charged in each count was the introducing and delivering for shipment in interstate commerce of a misbranded article, in violation of 21 U.S.C.A. § 331(a), which prohibits the introduction or delivery for introduction into interstate commerce of "any * * * drug * * * that is * * * misbranded", under penalties provided in § 333(a). It deemed the several acts and omissions charged against appellant to be specifications of the ways in which that offense was committed by him. We find no error in that ruling.

But the court recognized that the offense in each count might be established under the information by proof of either one or all of the ways in which misbranding was charged to have been accomplished and it suggested to the prosecutor to amend the information by adding to it at the foot of each count the following: "It being the intent and purpose of the plaintiff to charge hereunder only one interstate shipment and offense under the Food, Drug, and Cosmetic Act."

The amendment having been made the motion was treated as being directed against the amended information and was denied, a plea of not guilty as to each count was entered and the trial proceeded before the court and jury over a period of 16 days. It was not disputed that the appellant had made the two shipments of the drug, each including a number of packages of the Powdr-X produced by grinding up a certain mineral substance found in volcanic formation on a ranch property in Colorado, nor that the packages shipped bore the label described in the information, nor that appellant caused the two shipments to be accompanied by the described letters mailed by him to the respective consignees, but the testimony of lay and expert witnesses on the questions as to what Powdr-X really was and whether or not it was pumice as charged and whether or not it had therapeutic capacities as represented in the letters was very voluminous and contradictory in respect to the inferences to be drawn from it.

At the conclusion of its instructions to the jury the court delivered to the jury forms of verdict with blank spaces which the jury was directed to fill in with the words "guilty" or "not guilty", according to the findings arrived at. The forms had been prepared by the prosecution and appear not to have been exhibited to appellant's counsel, or discussed before their delivery to the jury. There was one form for each of the three counts submitted to the jury but each form required the jury to make and declare more than one determination of "guilty" or "not guilty" upon each of the three counts submitted to it. Responding to count one, the form filled in by the jury with the words "guilty" and "not guilty" and returned into court as the jury's verdict on that count reads as follows:

"Verdict as to First Count of Information (Feltenberger)

"We, the jury in the above entitled action, find the defendant, as charged in the first count of the Information * * * guilty of misbranding by introducing into interstate commerce a drug, to-wit, Powdr-X, with a label which was false and misleading; not guilty of misbranding by introducing a drug, to-wit, Powdr-X, in interstate commerce which was not designated solely by a name registered in an official compendium and that its label failed to bear the common name of the drug, to-wit, pumice; not guilty of misbranding by introducing into interstate commerce a drug, to-wit, Powdr-X, which failed to bear adequate directions for use. (Feltenberger)

"Dated this 27th day of March, 1948 "Richard A. Fancher "Foreman."⁶

As shown on the face of this verdict the jury undertook to make special declarations by use of the words "guilty" or "not guilty" in respect to particulars of misbranding described by paraphrases of parts of the information in the verdict-forms but the only matter in respect to which the jury found the appellant guilty was "of misbranding by introducing into interstate commerce a drug, to-wit, Powdr-X, with a label which was false and misleading." Responding specially to other particulars of the charges paraphrased in the verdict-forms, the jury wrote in the words "not guilty."

The record shows that after the instructed jury had been deliberating for some hours without coming to agreement the prosecuting attorney in the presence of appellant's counsel indicated to the trial judge in chambers that mistakes had been made in the wording of the forms of the verdicts delivered to the jury which they were directed to fill out. The prosecutor used the verdict form applicable to the first count for illustration and pointed out to the court that the wording of the form related the declaration of "guilty" or "not guilty" which the jury might write in the first blank space in the form, to "a label" that was false instead of to "labeling that was false" but there was no formal request or motion to...