United States v. Gel Spice Co., Inc.
| Decision Date | 21 December 1984 |
| Docket Number | No. 80 CR 650.,80 CR 650. |
| Citation | 601 F. Supp. 1205 |
| Parties | UNITED STATES of America, v. GEL SPICE CO., INC., Barry Engel and Andre S. Engel, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
COPYRIGHT MATERIAL OMITTED
U.S. Dept. of Justice, for the U.S.; Raymond W. Philipps, Beverly S. Nash, Washington, D.C., of counsel.
Friend, Dorfman & Marks, New York City, for defendants Gel Spice Co. and Barry Engel; Jerold W. Dorfman, New York City, of counsel.
Perles & Albert, New York City, for defendant Andre S. Engel; David A. Beale, New York City, of counsel.
This criminal prosecution under the Federal Food, Drug and Cosmetic Act (the "Act"), 21 U.S.C. §§ 301 et seq., was initiated with the filing of a ten-count Information on December 3, 1980. The information charges Gel Spice Co., Inc. ("Gel Spice"), its President, Barry Engel, and its Vice-President, Andre S. Engel, with causing various articles of food that had been shipped in interstate commerce to be held for sale in a building accessible to rodents, thereby exposing the food to contamination of rodent filth. This, it is charged, resulted in the food becoming adulterated (a) within the meaning of 21 U.S.C. § 342(a)(4) (1976),1 in that various lots of food were held under insanitary conditions whereby they may have become contaminated with filth (all Counts); and (b) within the meaning of 21 U.S.C. § 342(a)(3) (1976),2 in that the food consisted in part of a filthy substance by reason of the presence therein of rodent excreta pellets, rodent gnawings, rodent hair or rodent urine (Counts I, II, III and VIII). Proof of either charge is a violation of 21 U.S.C. § 331(k) (1976),3 which prohibits the doing of any act that results in food becoming adulterated while being held for sale after shipment in interstate commerce.
Each Count of this Information is predicated upon inspections by employees of the United States Food and Drug Administration ("FDA") of the McDonald Avenue, Brooklyn, N.Y., food warehouse operated by Gel Spice. Counts I and II arise from an FDA inspection in July 1976; Counts IV and V from an inspection in March 1977; Counts III, VI and VII from an inspection in July 1977; and Counts VIII, IX and X from an inspection in January 1979. The corporation and Barry Engel are named in all ten counts; Andre Engel is named in Counts I through VII.
After a lengthy period of discovery and motion practice,4 a bench trial was held on February 29, March 1, 2 and 5, 1984. Extensive briefs and memoranda were subsequently filed. The following constitute the Court's findings of fact and conclusions of law. Fed.R.Crim.P. 23(c).
Gel Spice was incorporated under the laws of New York State in 1955. Since 1969 it has had an office and warehouse at 593 McDonald Avenue, Brooklyn, New York. Gel Spice imports, processes, and packages spices. The processing involves grinding, blowing, sifting, and repackaging the spices into consumer and industrial size containers.
Barry Engel has been the President of Gel Spice since 1963, and is responsible for the purchasing of spices and their storing, processing and packaging at the McDonald Avenue facility. His brother, Andre Engel, is responsible for sales. Their mother, Margaret Engel, handles the financial operation of the company. All have equal shares in Gel Spice and may sign checks and documents on behalf of the company.
The McDonald Avenue facility is 300' × 125' × 14' and is divided into five separate areas: A large main raw materials storage room for receiving and storing spices; an adjacent production room for processing the spices, and next to that a packaging materials storage room. There are, in addition, an office area on the McDonald Avenue side of the production room and a cool room on the McDonald Avenue side of the packaging materials storage room. Two sliding garage doors open on to McDonald Avenue, one in the main storage room and the other in the packaging materials storage room.5
Gel Spice imports spices from abroad, particularly from South America, Europe and the Middle East. The spices are imported by ship and unloaded at piers. When the spices arrive, an official sampler from an outside firm is sent by Gel Spice to take a random sample from the bags.
The sampler follows procedures and standards published by the American Spice Trade Association and the sample is tested for Gel Spice by an independent laboratory using those standards. Gel Spice's decisions regarding the acceptance and use of the merchandise are based on the results of that test. It is notable that no examination is made at the pier of the outside of the bags, and only a random number of bags have samples drawn from within.
If the sampled spices pass the pier inspection, then the entire shipment is brought to the McDonald Avenue warehouse. Everyone in the trade knows that imported spices can arrive at the Gel Spice facility in a contaminated state; accordingly, measures must be taken to avoid bringing rodents into the building. When the spices arrive, a Gel Spice employee looks for evidence of rodent activity. Employees also scan the bags with a "black light" that will expose possible urine stains. At any given time, there may be 10,000 or more bags of spice stored at Gel's premises.
From 1976 through 1979 Gel Spice had an ongoing sanitation and rodent control program. The firm once used DDT before that insecticide was banned. DDT was quite efficient. The insecticide was spread around the doorways and around the plant and no mice would cross the DDT to come into the building. When DDT was banned, the company's exterminator recommended bait stations, traps, and then glue boards. Bait stations involve the use of poisoned food; traps catch the rodents.
Continuing their effort to develop an effective sanitation program, defendants retained various firms, all of whom promised satisfactory results. Between 1974 and 1979 Gel Spice had four different outside exterminators, who would come once each week or every two weeks. During this period, Gel Spice was inspected four times by the FDA. Those inspections form the basis of this Information.
In July 1976 FDA Investigators Thomas Gardine and Brian Landesberg inspected the McDonald Avenue warehouse. They examined a lot of chili peppers in the warehouse's cool room. Inspector Gardine saw several dead rodents on bags of a different spice next to the lot of chili peppers. He also observed several dead rodents on the floor, one of which was covered with maggots and which, in Gardine's opinion, had been decomposing for at least one week. Throughout various areas of the cool room Inspector Gardine observed rodent excreta pellets. Burlap cuttings from the bags of chili pepper tested positively for mammalian urine, as did samples of the peppers themselves.
In the raw material storage room Inspector Gardine examined a lot of sesame seed, which forms the basis of Count II of the Information. He observed a decomposing rodent along the east wall of that room, and what appeared to be a rodent gnaw hole through one of the bags to the sesame seed. Burlap cuttings from various bags tested positively for mammalian urine, as did samples of the sesame seed. Several product samples also tested positively for rodent excreta.
On the other side of the warehouse, in the packaging materials storage room, Gardine observed several decomposing rodents, both in and out of bait boxes. Additionally, he saw numerous access holes for rodents throughout the warehouse.
Counts IV and V of the Information arise out of a March 1977 inspection of lots of marjoram and basil. Investigator Edward Miracco testified that the marjoram was in the main storage room. On the bags of marjoram, Miracco found rodent excreta pellets and numerous dead beetle-like insects. Sifting through the marjoram itself, Miracco found dead insects. Samples of marjoram later tested positively for rodent excreta pellets and red flour beetles.
Miracco also examined a lot of basil, finding rodent excreta pellets on six of the 34 bags he inspected. Burlap cuttings from seven of the bags tested positively for mammalian urine. On the floor of the main storage room was spilled sodium bisulfate; Miracco saw rodent tracks through the chemical. He also saw a hole in a sliding door opening from the area adjacent to the cool room on to McDonald Avenue.
Counts III, VI and VII arise respectively from a July 1977 FDA Inspection of lots of arrowroot flour, sesame seed and whole chili pepper. The arrowroot flour was in the main storage room. Investigator Bodner observed rodent pellets on and around the various bags. Rodent hairs were found around a gnaw hole in one bag, and 28 different cuttings tested positively for mammalian urine.
The sesame seed was stored in the cool room. Rodent pellets were scattered throughout the various bags of seed, and one pellet was lying on sesame seed in a torn bag. Eight samples of burlap bag cuttings tested positively for mammalian urine, and thirteen samples of the sesame seed itself tested positively for rodent pellets. Also stored in the cool room was a lot of whole chili pepper. There were many rodent excreta pellets on and around the bags.
In the course of this inspection, Investigators Bodner and Lesser observed other signs of rodent activity throughout the plant: live rodents; a dead rodent; and rodent excreta pellets. Four bait boxes had no bait in them and the hole in the sliding door to McDonald Avenue, first noticed by Investigator Miracco in the March 1977 inspection, still had not been closed.
The final FDA Inspection of Gel Spice's warehouse occurred in January 1979. Examinations of lots of basil, aniseed and bay leaves led to Counts VIII, IX and X of the...
To continue reading
Request your trial
-
US v. 789 CASES
...v. United States, 200 F.2d 818, 821 (8th Cir.1952); United States v. Cassaro, Inc., 443 F.2d at 157; United States v. Gel Spice Co., Inc., 601 F.Supp. 1205, 1211 (E.D.N.Y.1984), aff'd, 773 F.2d 427 (2d Cir. 1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 804, 88 L.Ed.2d 780 (1986); United Sta......
-
United States v. Am. Mercantile Corp.
...proved to support a conviction, is one which would with reasonable possibility result in contamination.”); United States v. Gel Spice Co., Inc., 601 F.Supp. 1205, 1211 (E.D.N.Y.1984). 47.Berger, 200 F.2d at 823. 48.United States v. Cassaro, Inc., 443 F.2d 153, 157 (1st Cir.1971). 49.Id. at ......
-
United States v. American Mercantile Corp.
...to support a conviction, is one which would with reasonable possibility result in contamination."); United States v. Gel Spice Co., Inc., 601 F. Supp. 1205, 1211 (E.D.N.Y. 1984). 47. Berger, 200 F.2d at 823. 48. United States v. Cassaro, Inc., 443 F.2d 153, 157 (1st Cir. 1971). 49. Id. at 1......
-
United States v. S. Serra Cheese Co., Case No. 14-13077
...Warehouse Co., 376 U.S. 86, 90-91 (1964); Berger v. United States, 200 F.2d 818, 821 (8th Cir. 1952); United States v. Gel Spice Co., Inc., 601 F. Supp. 1205, 1211 (E.D.N.Y. 1984). Proof of actual contamination is not required. United States v. Gel Spice Co., 773 F.2d 427, 429 (2nd Cir. 198......