U.S. v. Barnett

• Citation: 587 F.2d 252
• Decision Date: 08 January 1979
• Docket Number: No. 77-5811,77-5811
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessie P. BARNETT, Jr., Barnett & Sons Salvage, Ltd. and Billy D. Hicks, Defendants-Appellants.

Page 252

587 F.2d 252

UNITED STATES of America, Plaintiff-Appellee, v. Jessie P. BARNETT, Jr., Barnett & Sons Salvage, Ltd. and Billy D. Hicks, Defendants-Appellants.

No. 77-5811.

United States Court of Appeals Fifth Circuit.

Jan. 8, 1979.

Grady F. Tollison, Jr., Mary Ann Connell, Oxford, Miss., for Barnett, Barnett & Sons, etc.

Charles S. Gibson, Dermott, Ark., for Hicks.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, John R. Hailman, Asst. U. S. Attys., Oxford, Miss., Barry Blyveis, Assoc. Chief Cnsl., Food & Drug Adminis., Rockville, Md., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Mississippi.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

COLEMAN, Circuit Judge.

When Theodore Roosevelt was President of the United States, the misbranding and harmful adulteration of foods had become of such nationwide moment that Congress enacted the first Food and Drug Act, 1906.

Eight years later, in an appraisal of the Act, the Supreme Court said:

The statute upon its face shows, that the primary purpose of Congress was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded and adulterated foods. The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was, and not upon misrepresentations as to character and quality. As against adulteration, the statute was intended to protect the public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such articles injurious to the health of consumers. If this purpose has been effected by plain and unambiguous language, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms. This principle has been frequently recognized in this court.

United States v. Lexington Mill Company, 232 U.S. 399, 409, 34 S.Ct. 337, 340, 58 L.Ed. 658 (1914).

At a later point in that opinion the Court said:

Congress has here, in this statute, with its penalties and forfeitures, definitely outlined its inhibition against a particular class of adulteration.

232 U.S. at 411, 34 S.Ct. at 340.

From time to time the Act has been amended in the light of new developments and with a view to more effectively protecting the general public from foods which may be harmful or which have been misbranded. We have no doubt that the various provisions of the Act are plain, that they suffer from no ambiguity amounting to impermissible vagueness, and that they do not violate the Constitution.

The grand jury for the Northern District of Mississippi indicted Jessie P. Barnett, Jr., Billy D. Hicks, and Barnett & Sons Salvage, LTD., for criminal violations of these statutes, as well as for a conspiracy to commit those violations. ¹

A jury convicted all three defendants on all six counts.

Hicks was sentenced to three years imprisonment on one count, with eligibility for parole after nine months; also to a fine of $1,000 and three years probation on each of the remaining counts, the periods of probation to run concurrently with each other.

On Count 1, Barnett was sentenced to imprisonment for six months and to pay one-half of the cost of prosecution; also to pay a fine of $1,000 and three years probation on each of the remaining counts, the periods of probation to run concurrently with each other.

Barnett & Sons Salvage Company, LTD., was fined $250 on each of the six counts.

All defendants have appealed. We affirm as to all.

The action began on September 1, 1975, when Hicks made an arrangement with the Planters Oil Mill, Inc., of Tunica, Mississippi, in which it was agreed that the Mill would receive cottonseed which had been poison-treated for planting purposes, process it into cottonseed meal, and deliver the meal to the railroad agent at Tunica for transportation to various customers in Interstate Commerce. It was further agreed that from this operation the cost of processing and shipping would first be deducted, after which the parties would split the profits, if any. Shipment of the treated seed To Planters began on September 2, contained in bags, marked "Poison-treated Do not use for food, feed, or oil".

In the meantime, Hicks had made a separate arrangement with Jessie P. Barnett, Jr., of Barnett & Sons Salvage Company, LTD., in which Barnett agreed that his Company would find buyers for the meal processed from the treated planting cottonseed.

On September 9, Barnett made a contract with Southern Feed Ingredients Company, a company which deals solely in components for animal feed, by which Barnett was to sell Southern 1,000 tons of cottonseed meal. The record is not clear as to whether Barnett knew initially that the meal was to be manufactured from treated seed, but there is no doubt that he soon learned of it. The serious aspect of this case is that Barnett never informed Southern at any time that the meal was to be processed from cottonseed which had been poison-treated for planting purposes.

At various times and on various dates, within the time period alleged in the indictment, Planters processed the treated cottonseed, loaded the resulting meal onto railroad cars, and consigned the cars to the railroad agent at Tunica. The bills of lading contained the warning, Fertilizer use only. Copies of those bills of lading were sent to Barnett & Sons and to Southern.

It was during this period that Mr. Barnett really stuck his hand in the fire by representing to Southern that the warnings appearing on the bills of lading were erroneous, that the meal was fit for animal feed. The invoices from Planters, sent to Hicks and to Barnett & Sons Salvage Company, LTD., bore the warning "Fertilizer, chemical or industrial use only". Not stopping at this, Planters notified both Hicks and Barnett & Sons, by certified letter, return receipt requested, that the Mill had begun consigning meal to the railroad agent and that "we want it fully understood that the products from these seed are only good for fertilizer, chemical or industrial use."

On the dates alleged in the indictments Southern directed the railroad agent to ship Matters lost no time in coming to a head. One of Southern's customers complained "that the meal had a burned or dark color, and a burned smell". Southern then told Planters to send a sample of the meal to a laboratory in Memphis for analysis. On September 19 the samples were sent. On September 25, the laboratory reported that the samples contained "less than .01 parts per million" of Disyston. The report, however, did not indicate that any test had been conducted for mercury or for PCNB.

the meal to various customers, as therein charged.

The customer also submitted samples of the meal to the state laboratory at Mississippi State University. On September 22, this laboratory notified the customer that the meal samples contained Disyston. The customer then recalled all of the meal that could be traced and shipped it back to Southern. It informed Southern of the situation and also informed Mississippi feed inspectors, as well as investigators for the Food and Drug Administration, that the meal was tainted.

The Food and Drug Administration investigators took samples of the meal at Planters, in Tunica, and from all places to which the meal had been shipped or at which could be found in transit. Tested by Food and Drug Administration laboratories, these samples revealed the presence of mercury, PCNB, and Disyston.

HICKS

Mr. Hicks complains first that the statutes in question are unconstitutional. We have already pointed out the holding of the Supreme Court in United States v. Lexington Mill Company, 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658 (1914).

We agree that, most assuredly, criminal statutes must fairly apprise those who are subject to them as to the conduct which is proscribed. ² Even so, "no more than a reasonable degree of certainty can be demanded", Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952).

We can attribute no merit whatever to the contention that the statutes left the defendants without fair warning that their acts were illegal. 21 U.S.C. § 331(a) prohibits the "introduction or delivery for introduction into interstate commerce of any food . . . that is adulterated . . . ." 21 U.S.C. § 342(a)(1) defines an adulterated food as one bearing or containing "any poisonous or deleterious substance which may render it injurious to health". 21 U.S.C. § 321(f) specifies that the term " 'food' means . . . articles used for food or drink for man or other animals . . . ."

Hicks testified that only by analysis could it be determined whether it would be safe to feed the meal. This does not help him. The cottonseed meal in this case was sold for feed prior to analysis and this was done with Hicks' knowledge. The facts, as previously stated herein, reflects the warnings received by Hicks that the product was unfit for animal feed.

Mr. Hicks complains that he was prejudiced by overly extensive expert testimony adduced on behalf of the government with reference to the harmful effects of mercury, PCNB, and Disyston. Our evaluation of the trial record, however, leaves us with the firm conviction that the rulings of the trial court on the materiality and relevancy of this testimony were well within its discretion, United States v. Grimm, 5 Cir. 1978, 568 F.2d 1136, 1138; United States v. Brown, 5 Cir. 1977, 547 F.2d 1264, 1266. Indeed, if Hicks thought that the extensiveness of the proof as to these rather indisputable facts would put the case out of focus, to his prejudice, he could easily have eliminated the hazard by merely stipulating the harmfulness, putting an end of the matter. On the other hand, if there was any doubt about it, the government was entitled to...