United States v. H. Wool & Sons, 261

• Decision Date: 27 July 1954
• Docket Number: Docket 23041.,No. 261,261
• Parties: UNITED STATES v. H. WOOL & SONS, Inc. et al.
• Court: U.S. Court of Appeals — Second Circuit

215 F.2d 95 (1954)

UNITED STATES v. H. WOOL & SONS, Inc. et al.

No. 261, Docket 23041.

United States Court of Appeals Second Circuit.

Argued June 15, 1954.

Decided July 27, 1954.

Watters & Donovan, New York City (Clarke S. Ryan and Sidney Schwartz, New York City, of counsel), for defendants-appellants, H. Wool & Sons, Inc. and Herbert Wool.

J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City (Richard Owen, Asst. U. S. Atty., New York City, of counsel), for appellee, United States.

Before SWAN, MEDINA and HARLAN, Circuit Judges.

HARLAN, Circuit Judge.

H. Wool & Sons, Inc., a wholesale seller of dairy products, and Herbert Wool, the Corporation's Secretary, who was one of its principal owners and active in the management of its affairs, have been found guilty by a jury of violating § 331(k) of Title 21 of the United States Code, 21 U.S.C.A. § 331(k),¹ which among other things, prohibits the doing of any act with respect to an article of food held for sale after shipment in interstate commerce which results in misbranding, as defined in § 343(e) (2).² Section 333(a), 21 U.S.C.A. § 333(a), makes violation of § 331 a misdemeanor.³

The food involved was butter, alleged to have been received by Wool Inc. after it had been in interstate commerce. The act of the defendants asserted to have resulted in misbranding was the repacking of some of this butter on or about September 23, 1952 in cartons labeled in part

"One Pound Net Weight Lily Brand Creamery Butter"

whereas the Government claims the butter in such packages weighed less than a pound.

The conviction of the defendants was on the third Count of an information which in the first two Counts charged the defendants with deliveries on two different dates of underweight butter for introduction into interstate commerce, also in violation of the Statutes just referred to. The jury acquitted on the first two Counts.

At the trial the Government introduced evidence, which indeed was not disputed, that shortly before September 23, 1952, Wool Inc. had obtained a shipment of butter from Zenith-Godley Company, which in turn had received the butter in interstate commerce from an Iowa concern, and that a substantial amount of this butter was on the Wool premises when the alleged repacking occurred on September 23, 1952. Nor was it seriously disputed that 19 of the 20 supposedly one-pound cartons of repackaged butter examined that day on the Wool premises by the Government inspectors were underweight.

The only factual issues under the third Count of the information which were really open to dispute related to (1) whether the butter in the 19 shortweight cartons had been in interstate commerce, (2) whether the defendants had knowledge that such was the case, and (3) whether they knew that such cartons were underweight. As to the last point, the trial Judge thought — and we must say with every justification — that defendants' counsel had conceded in his summation that the cartons were underweight. However, since it may be argued, as it now apparently is, that the statements of defense counsel in this respect related to the charges under the first two Counts of the information, we shall assume that no such concession was intended as to the third Count.

The appellants' contentions as to the absence of evidence that the defendants had knowledge of the out of state origin of any of the butter on the Wool premises or of the fact that the repackaged butter was underweight may be quickly disposed of. Both the wording of § 331(k) and the cases show that it was not incumbent on the Government to prove that the defendants knew that the butter contained in the underweight cartons had been in interstate commerce. See United States v. Dotterweich, 1943, 320 U.S. 277, 280-281, 64 S.Ct. 134, 88 L.Ed. 48; United States v. Tannuzzo, 2 Cir., 1949, 174 F.2d 177, 180. As to this issue, the trial Court charged the jury that "the law provides that if it the butter is brought into the state and it is misbranded here, that it is a violation." And further "that if this butter came from out of the state and was misbranded, that is a violation of the law and comes within the charge of the third count in this case." This was a correct statement of the law. Nor was it necessary to prove that the defendants knew that the 19 cartons, or any of them, were underweight. See United States v. Balint, 1922, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Dotterweich, supra.

The next question is whether, as the appellants contend, the evidence as to the shortweight butter having been in interstate commerce was insufficient to take the case to the jury. We think it was not. As we have already noted, there was no dispute that there was on the Wool premises at the time a substantial amount of Zenith-Godley butter, and that this butter had been in interstate commerce before reaching the premises of the defendant corporation. So, in essence, the question was whether the defendants' underweight butter was Zenith-Godley butter. As to this, we have the following testimony from Inspector Ledder given on his direct examination by Government counsel: "Q. Inspector Ledder, did you at any time during that day September 23, 1952 have a conversation with Mr. Wool the individual defendant as to the source of the butter? A. I did. I asked Mr. Herbert Wool where the butter that was being printed at the time we were there came from, and he told me that he had purchased it from Zenith Godley Company, in New York, and had received it from Zenith Godley's truck the day before."

This testimony was not specifically denied by the defendant Wool when he took the stand, and when there is added to it the testimony of Ledder as to what he observed, and that of Inspector North, although perhaps less persuasive than that of Ledder, we are left with no doubt but that the evidence on this vital issue was ample both to require submission of the case to the jury and to sustain its verdict.

It is next contended that reversal is required, particularly as to the defendant Herbert Wool, because of the Government's cross-examination of two of the character witnesses offered by Herbert Wool. Three such witnesses were called, Sofoul, Spero, and Ludwig. Sofoul and Ludwig were asked by the prosecuting attorney whether they had heard that the defendants on seven different occasions between October 9, 1946 and September 16, 1952 had paid departmental fines to the New York City Department of Weights and Measures for being in possession of shortweight butter. In some of the questions the Corporation and the individual defendant were coupled together, e. g., "Q. Did you hear that in sic January 24, 1947, the defendant corporation and the person in charge, Herbert Wool, paid a fine to the City of New York for shortweight butter in the amount of $67?" In others the corporation alone was referred to, e. g., "Q. Or did you hear that in sic May 27, 1948, the defendant corporation paid a departmental fine to the City of New York for shortweight butter, for $500?" And in others, the defendant Herbert Wool alone was mentioned, e. g., "Q. Have you heard in the community that on October 9, 1946, Mr. Wool paid a fine to the New York City Department of Weights and Measures of $275 for being in possession of short-weight butter?" Sofoul testified that he had not heard of any such episodes. Ludwig testified that he had heard that the individual defendant had paid such fines on several occasions. No such questions were...