U.S. v. Contris, 77-5009

• Decision Date: 09 April 1979
• Docket Number: No. 77-5009,77-5009
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles M. CONTRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 893

592 F.2d 893

UNITED STATES of America, Plaintiff-Appellee, v. Charles M. CONTRIS, Defendant-Appellant.

No. 77-5009.

United States Court of Appeals Fifth Circuit.

April 9, 1979.

Joseph C. DaPore, Lima, Ohio, for defendant-appellant.

William T. Moore, Jr., U. S. Atty., J. Michael Faulkner, Asst. U. S. Atty., Augusta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before JONES, GODBOLD and GEE, Circuit Judges.

JONES, Circuit Judge:

The appellant, Charles M. Contris, owned and operated a meat packing plant under the name of Newberry Packing Company at Newberry, South Carolina. There horses were slaughtered and the meat was cut and packaged under the supervision of agents of the Federal government. Mrs. Ada Sue Pawneshing operated a Halfway House, so called, in Augusta, Georgia, for disabled veterans with mental problems or who were alcoholics. Augusta is a little more than sixty miles from Newberry. Contris offered to sell her beef at low prices, claiming he could do so by using cattle accidentally killed or which had broken legs or similar injuries. About a week after their meeting he sold and delivered three or four boxes of meat to her. He promised to supply her with a freezer so she could buy in quantities and sell to others. He said he would get a grinder for her so she could make hamburger meat.

On June 12, 1974, Mrs. Pawneshing, in Augusta, telephoned a meat order to Contris in Newberry. On June 21, 1974, Moses Johnson, an employee of Contris, loaded boxes of horse meat into Contris' refrigerated truck at the Newberry packing plant and drove to the Halfway House in Augusta. There Contris met Johnson, having driven there in a second truck loaded with a chest-type freezer to be used by Mrs. Pawneshing to store meat and a grinder to be used in making hamburger meat.

Contris and two helpers unloaded the freezer, placed it on a side porch, and stacked the boxes of meat inside. One of the employees at the Halfway House quoted Contris as saying that "he would have to mix some kind of fat meat with the meat that was already in the freezer to make stuff like hamburger meat." The witness was asked if Contris said anything about delivering more meat. The witness responded, "He said he would bring it back later." When asked "What was he talking about that he was going to bring back later?" the witness replied, "I presume the fat to mix with that meat." Johnson took the truck, locked and refrigerated, home with him overnight. Contris went back to Newberry.

The next morning, June 22, 1974, Johnson, with the truck, started for the place where he expected to sell the remaining meat. On the way he stopped at the house of a friend for a visit. A deputy sheriff, suspecting the truck was stolen, investigated and found that Johnson had no driver's license but had an outstanding warrant for nonsupport. Johnson was detained. He opened the truck and the deputy discovered horse meat in unlabeled boxes. The deputy called another deputy who examined the contents of the truck and found, along with unlabeled boxes of meat, a box of labels which apparently had been affixed to boxes. The state agents sealed the truck and sent for agents of the United States Department of Agriculture. Contris represented to the agents that he had sold the meat to Johnson who had sold a part to the Halfway House and intended to sell the rest to others.

On June 23, 1974, Contris went to the Halfway House to pick up his trailer. He did not remember delivering any fat. The government agents found fifty pounds of horse fat there.

Contris was charged in a six-count indictment with illegal interstate transportation in commerce of horse meat and meat products. The district court dismissed Counts 1, 2, and 6. Count 3 charged that Contris, on June 21, 1974, transported from Newberry, South Carolina, to Augusta, Georgia, in commerce, 437 pounds of equine meat and meat food products in the form of stew meat, steaks and roasts "which were not plainly and conspicuously marked, labeled, or otherwise identified as required by regulations prescribed by the Secretary of Agriculture to show the kinds of animals from which said products were derived; done in violation of Title 21, United States Code, Sections 619 ¹ and 676(a) ²; 9 Code of Federal Regulations, Sections 316.12(b) ³ and 317.9 ⁴." Count 5 of the indictment also charged that 18 U.S.C.A. § 2 ⁵ was violated.

The case was tried without a jury. Contris and the government expressly waived the right to request special findings of fact as provided by Rule 23(c) of the Federal Rules of Criminal Procedure. The district court made Findings and Conclusions. The district court held that Counts 3 and 5 involved but one shipment in commerce and Count 5 was merged with Count 3.

Prior to the trial Contris filed a motion to dismiss Counts 1 through 5 of the indictment on the ground that these counts failed to allege a crime punishable by law. Contris urged before the district court, and makes the same contention before this Court, that Counts 3, 4 and 5 of the indictment were fatally defective in failing to set forth the essential elements of the crimes of which he was accused. Violations of the Fifth and Sixth Amendments were asserted and it was contended that Rule 7(c) of the Federal Rules of Criminal Procedure ⁶ was not followed.

The appellant argues that if a violation of the regulations is to be charged, the indictment must show a failure to properly label the primal parts of an equine carcass as required by 9 C.F.R. § 316.9(b), or a failure to properly label the cartons containing stew meat, steaks and roasts of horse meat as required by 9 C.F.R. § 317.9. Contris says to the Court that the indictments were defective and a judgment of acquittal should have been entered.

The Fifth Amendment requires that persons charged with crimes shall be indicted. The Sixth Amendment provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation. In the leading Russell case, decided in 1962, the Supreme Court set out the two criteria by which the sufficiency of an indictment is to be tested. These are whether the facts stated show the essential elements of the offense, and whether the facts alleged are sufficient to permit the defendant to plead former jeopardy in a subsequent prosecution. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). Whether an indictment sufficiently charges a crime is a question of law, not of fact. United States v. Miller, 5th Cir., 491 F.2d 638, cert. den. 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186 (1974). The validity of an indictment is to be determined by reading the indictment as a whole. United States v. Markham, 5th Cir. 1976, 537 F.2d 187. Indictments are read for their clear meaning and convictions will not be reversed because of minor deficiencies which do not prejudice the accused. United States v. Kahn, 7th Cir. 1967, 381 F.2d 824. Whether or not the defendant has been prejudiced is a controlling test of the validity of an indictment. Stapleton v. United States, 9th Cir. 1958, 260 F.2d 415. The sufficiency of an indictment is to be tested by practical rather than technical considerations. Duke v. United States, 5th Cir. 1956, 233 F.2d 897. The test of sufficiency is not whether the indictment could have been more artfully or precisely drawn, but whether it states the elements of the offense intended to be charged and adequately apprises the defendant of that which he must be prepared to meet. United States v. Rosner, S.D.N.Y.1972, 352 F.Supp. 915.

It seems clear that the deficiency in the indictment was not material, that the appellant was adequately informed of the...