United States v. 5 CASES, ETC.

• Decision Date: 10 January 1950
• Docket Number: Docket 21430.,No. 81,81
• Parties: UNITED STATES v. 5 CASES, MORE OR LESS, CONTAINING "FIGLIA MIA BRAND", etc., et al. (5 cases).
• Court: U.S. Court of Appeals — Second Circuit

179 F.2d 519 (1950)

UNITED STATES v. 5 CASES, MORE OR LESS, CONTAINING "FIGLIA MIA BRAND", etc., et al. (5 cases).

No. 81, Docket 21430.

United States Court of Appeals Second Circuit.

Argued December 5, 1949.

Decided January 10, 1950.

Avrutis & Zizmor, New York City, Julius Zizmor, New York City, of counsel, for appellant.

Alexander M. Campbell, Assistant Attorney General, and Adrian W. Maher, United States Attorney, Hartford, Conn., Vincent A. Kleinfeld and John T. Grigsby, Attorneys, Department of Justice, Washington, D. C., and Edward K. Adelsheim, Attorney, Federal Security Agency, of counsel, for appellee.

Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is an appeal by Antonio Corrao Corporation from a decree condemning certain cases of edible oils which the appellant had blended in its plant in Brooklyn, New York, and shipped to purchasers in Connecticut in June 1948. The libel of information in each of the five consolidated proceedings alleged that the oil was adulterated within the meaning of the Federal Food, Drug and Cosmetic Act,¹ in that (1) it contained little if any, olive oil, (2) artificial flavoring had been added to simulate olive oil, and (3) squalene had been added.² The libel also charged misbranding in that the label statements as to the percentage of pure olive oil were false and misleading.³ The jury returned a special verdict finding that the goods were adulterated and misbranded as charged. The appeal challenges the sufficiency of the evidence to support the verdict and assigns numerous errors to the conduct of the trial.

1. The evidence is sufficient: Squalene is a hydrocarbon found in olive oil. The squalene content of blended edible oils is the universally accepted criterion of the amount of olive oil present in a blend. However, squalene is also found in shark liver oil and it is impossible to distinguish one squalene from the other. Consequently by adding shark liver squalene to peanut oil a blend can be produced which will appear to contain 10% or 20% of olive oil although in fact it contains little or none. Knowing that the commercial source of shark liver squalene was a distilling company in Rochester, government agents "marked" it by mixing a small amount of anthranilic acid in the Rochester company's product. If any of this "marked" squalene were added to peanut oil to make the blended oil measure up to the squalene test for olive oil, the fraud could be detected by using a chemical which would cause the anthranilic acid to take on a reddish hue. The chemical test, when it was applied to the seized samples of appellant's oil, disclosed that they contained anthranilic acid. A shipment of the Rochester company's "marked squalene was traced to Memmoli in Brooklyn, and he was shown to be an acquaintance of the appellant's president. The "marked" squalene was not traced beyond Memmoli but it was extremely improbable that any anthranilic acid should have gotten into the seized samples except from using the "marked" squalene traced to him. The appellant suggests that anthranilic acid may accidentally have gotten on the olives themselves, but that possibility was for the jury to weigh. Their inference that it came from the Rochester company's shipment was certainly a permissible one and amply justified their special verdict as to adulteration and misbranding.

2. It is contended that the samples put in evidence were not proved to be "representative" samples of the goods contained in each shipment. For example, the shipment to Market Wholesale Grocers consisted of 180 one-gallon cans, and the government restricted its proof to an analysis of the contents of only one can out of this shipment. However, witnesses testified to the appellant's method of manufacturing and said that as much as 8600 gallons were mixed at one time. If all the cans in each shipment to a single consignee were filled from the same "mix" obviously a sample taken from one can was representative of all the cans in that shipment. The appellant offered no evidence to prove that the contents of the cans in a single shipment came from different mixes. In the absence of such evidence, the jury was entitled to infer that all the oil in any one shipment (the largest of which consisted of only 180 gallons) did come from the same mix and, therefore, that the one gallon sample was representative of all the cans in the shipment. The contention that the burden of proof on this issue was erroneously placed on the appellant is not substantiated by the charge. The jury was instructed that before they could make any finding favorable to the Government they must find that the sample involved was representative of the shipment. This plainly put the burden of proof on the libellant, and the later statement that they could take into consideration the claimant's failure to ask for additional samples can not fairly be construed as an instruction shifting the burden of proof, as the appellant now contends.

3. There was no error in denying appellant's counsel permission to make an opening statement to the jury. While there appears to be an absolute right to open, without express statutory provision therefor, in a few jurisdictions,⁴ the rule is by no means universal.⁵ We think that opening is merely a privilege to be granted or withheld depending on the circumstances of the individual case. Since an opening must not be argumentative, its utility lies chiefly in outlining the facts to be proven, especially where they are rather complex.⁶ Here the issues to be tried were simple and had been clearly explained by the court upon the voir dire. Hence we see no abuse of discretion in the denial of counsel's request. Even if the denial were erroneous, the error would not appear to be prejudicial since counsel was accorded the right of summation.

Nor was there error in excluding the appellant's president from the court room. The appellant had requested that witnesses be excluded. The judge granted that request but, in effect, annexed to the grant the condition that Mr. Corrao, who was also to be a witness, should likewise be excluded. This was not, as appellant contends, the exclusion of a party; the corporation, not Mr. Corrao, was the claimant. One case has been found holding it was prejudicial error to exclude a corporation's president from the courtroom where he was charged with the duty of looking after the corporation's interest at the trial. Sherman v. Irving Merchandise Corp., Sup.App. T., 26 N.Y.S.2d 645. That decision appears never to have been cited. As the matter is clearly procedural, we shall follow the rule of universal application in federal courts that the exclusion of witnesses from the courtroom lies within the discretion of the trial judge. See Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010; Oliver v. United States, 10 Cir., 121 F.2d 245, 250; Mitchell v. United States, 10 Cir., 126 F.2d 550. There was no abuse of discretion in attaching to the granting of appellant's motion to exclude witnesses the condition that the witness Corrao should also be excluded.

5. The next objection is denial of the claimant's motion for discovery. Before trial the claimant moved for an order directing the United States to furnish it with true and exact copies of each and every chemical test and analysis made by or for the United States on the samples of oil taken from the seized goods. The motion was based on Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The Government suggests that a condemnation proceeding under the Food, Drug and Cosmetic Act is not subject to the Civil Rules because 21 U.S.C.A. § 334(b) provides: "* * * the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty * * *" However, the Supreme Court has interpreted this as referring only to the initial procedure of seizure by process in rem. Four Hundred and Forty-Three Cans of Frozen Egg Product v. United States, 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174. It now appears well established that the Rules of Civil Procedure do apply to condemnation proceedings. Eureka Productions, Inc. v. Mulligan, 2 Cir., 108 F.2d 760; United States v. 88 Cases, etc., of Bireley's Orange Beverage, D.C.N.J., 5 F.R.D. 503; Cf. United States v. 720 Bottles, D.C.N.Y., 3 F.R.D. 466. And discovery need not be limited to analyses of fresh fruits and vegetables ...