Reich v. United States, 5160.
| Decision Date | 11 December 1956 |
| Docket Number | No. 5160.,5160. |
| Parties | Wilhelm REICH et al., Defendants, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Wilhelm Reich pro se.
Michael Silvert pro se.
Charles Haydon, New York City, for Wilhelm Reich Foundation, appellant.
Joseph L. Maguire, Atty., Dept. of Health, Education and Welfare, Washington, D. C., with whom Peter Mills, U. S. Atty., Portland, Maine, and Warren E. Whyte, Atty., Dept. of Health, Education and Welfare, Washington, D. C., were on the brief, for appellee.
Before MAGRUDER, Chief Judge. and WOODBURY and HARTIGAN, Circuit Judges.
Writ of Certiorari Denied February 25, 1957. See 77 S.Ct. 563.
The United States, on February 10, 1954, filed a complaint under § 302(a) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1043, 21 U.S.C.A. § 332(a), in the United States District Court for the District of Maine asking for an injunction restraining the Wilhelm Reich Foundation, a Maine corporation, and Wilhelm Reich and Ilse Ollendorff, individuals residing in Rangeley, Maine, from violating § 301(a) and (k) of the above Act, 21 U.S.C.A. § 331(a, k), by either introducing, or causing the introduction into interstate commerce, or, while being held for sale after shipment in interstate commerce doing anything resulting in the misbranding of, certain devices known as "orgone energy accumulators,"1 which it was alleged were adulterated within the meaning of § 501 (c) of the Act, 21 U.S.C.A. § 351(c) and misbranded within the meaning of § 502 (a) thereof. 21 U.S.C.A. § 352(a). Service of the complaint and summons was duly made on the defendants on the same day that the complaint was filed.
The defendants entered no appearances and filed no answers. Indeed, in a letter to the judge of the court below dated February 25, 1954, the defendant, Dr. Wilhelm Reich, indicated unmistakably that he, at least, had no intention of filing either an appearance or an answer. Dr. Reich wrote to the court in part:
"My factual position in the case as well as the world of science of today does not permit me to enter the case against the Food and Drug Administration, since such action would, in my mind, imply admission of the authority of this special branch of the government to pass judgment on primordial, pre-atomic cosmic orgone energy."
On the day after this letter was written requests for admissions were propounded by the United States and served on each of the defendants. These requests were ignored, and on March 19, 1954, upon request of the United States, the default of each defendant was entered by the clerk of the court below. On the same day the United States moved for default judgment, its motion was granted, and the court immediately entered a decree of injunction as prayed for in the complaint. By the terms of this injunction the named defendants, and "each and all of their officers, agents, servants, employees, * * * and all persons in active concert or participation with them or any of them" were "perpetually enjoined and restrained" from indulging in the practices set out in detail in the complaint. Furthermore all orgone energy accumulators out on a rental basis or otherwise owned or controlled by the defendants were ordered recalled to the defendants' place of business in Rangeley, Maine, and there either destroyed or dismantled for salvage under the supervision of employees of the Food and Drug Administration, and in addition all printed labels and order blanks for orgone energy accumulators, and certain listed descriptive literature pertaining thereto, were ordered destroyed.
Certified copies of the decree of injunction were served on the named defendants on March 22, 1954, and at the same time copies were either served or mailed to several other persons in the Rangeley area who were either employees of or contractors for the defendants in the manufacture and distribution of the devices. At the same time copies of the decree were also mailed to a number of duly licensed physicians in the New York, New Jersey, and Philadelphia area, most of whom specialized in psychiatry, who were known to have used orgone energy accumulators in the treatment of their patients. Included in this group was the appellant herein, Dr. Michael Silvert.
On March 30, 1954, the defendant Ilse Ollendorff as clerk of the corporate defendant sent a telegram to the United States Attorney for the District of Maine stating:
"The Wilhelm Reich Foundation is far advanced in preparing full compliance with injunction of March 19, 1954 Stop An exact account of measures taken and still in progress will be sent to your office for your information."
No further account of measures taken to comply with the injunction was ever sent to the District Attorney, nor does it appear that in fact any such measures ever were undertaken.
Next, on May 5, 1954, the doctors in the New York-Philadelphia area referred to above, including as we have already noted the appellant Dr. Michael Silvert, applied to the court below for leave to intervene. Their application was denied on November 17, 1954, in accordance with an opinion of the court below of that date reported in 17 F.R.D. at 96. This court affirmed on that opinion sub nom Baker v. United States, 1955, 221 F.2d 957.
We turn now to the case before us which was initiated by the United States Attorney for the District of Maine on July 15, 1955, when, acting under § 302 (b) of the Act, he filed in the court below an information charging the Wilhelm Reich Foundation, Dr. Wilhelm Reich and Dr. Michael Silvert with failing and refusing to obey the injunction of March 19, 1954, and asking for an order to show cause why they should not be adjudged in criminal contempt for their misbehavior. The defendants appeared and filed motions to dismiss, which were denied; the United States moved to amend, its motion was allowed, and the defendants again moved to dismiss and their motions were again denied. They also filed several other motions, all of which were denied, and do not require description or discussion. It will suffice to say that the defendants were given full opportunity for hearing on every occasion.
Eventually, on May 3, 1956, the defendants, in accordance with their request, were put to trial by jury on their pleas of not guilty. They were found guilty by the jury and thereafter sentenced by the court, the corporation to a fine and the individuals to terms of imprisonment. These appeals are from the respective judgments of sentence.
The defendants did not contend below and do not urge here that the injunction of March 19, 1954, had in fact been obeyed. On the contrary, they admitted...
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