United States v. ID RUSSELL LABORATORIES

• Decision Date: 08 November 1977
• Docket Number: No. 76 CR 108-W-1.,76 CR 108-W-1.
• Citation: 439 F. Supp. 711
• Parties: UNITED STATES of America, Plaintiff, v. I. D. RUSSELL LABORATORIES, a corporation, and Gregory P. Bergt, John Paul Russell, and William T. Russell, Defendants.
• Court: U.S. District Court — Western District of Missouri

439 F. Supp. 711

UNITED STATES of America, Plaintiff, v. I. D. RUSSELL LABORATORIES, a corporation, and Gregory P. Bergt, John Paul Russell, and William T. Russell, Defendants.

No. 76 CR 108-W-1.

United States District Court, W. D. Missouri, W. D.

November 1, 1977.

Memorandum and Order November 8, 1977.

Anthony P. Nugent, Jr., First Asst. U.S. Atty., Kansas City, Mo., Stephen H. McNamara, Acting Chief Counsel, Food and Drug Administration, Harry Shulman, Food and Drug Administration, Rockville, Md., for plaintiff.

Thain Q. Blumer, Richard G. McMorris, Kansas City, Mo., for defendants.

Wayne A. Pokorny, Minnetonka, Minn., for defendant Bergt.

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE GOVERNMENT'S CASE

JOHN W. OLIVER, Chief Judge.

I.

This criminal contempt proceeding, like Morissette v. United States, 342 U.S. 246, 247, 72 S.Ct. 240, 96 L.Ed. 288 (1952), would have remained "a profoundly insignificant case" except that the government's basic theory of criminal liability raises questions both fundamental and far-reaching in federal criminal contempt law. The case was commenced by the filing of a petition for an order to show cause in criminal contempt for an alleged violation of a consent decree entered by this Court October 11, 1974, in Civil Action No. 74 CV 553-W-1, entitled United States of America, Plaintiff, vs. I. D. Russell Laboratories, a corporation, and Dan B. Russell, John Paul Russell and William T. Russell, individual defendants.

Experience in processing contempt proceedings establishes that government counsel charged with the duty of representing the United States generally, or some federal agency in particular, in connection with a contempt proceeding frequently are not familiar with Rule 42 of the Rules of Criminal Procedure, with 18 U.S.C. §§ 401 and 402, or with the history and the gloss placed on that rule and those provisions of the Code defining contempt, as contained in numerous Supreme Court decisions. In spite of the fact that district court contempt judgments suffer an abnormally high reversal rate, the reported cases suggest that the same mistakes in this exceedingly complicated and rapidly developing area of law are made over and over again.

Experience in contempt proceedings also demonstrates the frequent absence of informed communication between counsel for a particular federal agency and field personnel of that agency, between agency counsel and the Assistant United States Attorney assigned to prosecute a contempt proceeding, and between both sets of government counsel and the district judge in whose court a contempt prosecution may be filed. It is for those reasons that we state the procedural history of this case in more detail than would otherwise be necessary. We deem such a statement particularly necessary in light of the inability of the Court of Appeals for the Eighth Circuit to get the attention of the Food and Drug Administration in United States v. Kramer Grocery Co., 418 F.2d 987 (8th Cir. 1969), a matter we shall later discuss in some detail.

When the petition for criminal contempt was filed on July 14, 1976, we noted that the Food and Drug Administration apparently had encountered difficulties in obtaining an inspection of the defendant I. D. Russell Laboratories on June 29, June 30, July 1, and July 2, 1976. Before issuance of the show cause order, the Court discussed the case with the Assistant United States Attorney who filed the case on behalf of the Food and Drug Administration and was assured that the Food and Drug Administration actually wanted its right of inspection confirmed by court order, rather than criminal sanctions. The order to show cause accordingly was entered requiring defendants to respond in writing on or before July 30, 1976. Defendants filed an answer alleging that the petition for criminal contempt was premature in that it was filed in violation of § 305 of the Food, Drug and Cosmetic Act, and prayed in the alternative that the petition be dismissed or that the defendants be afforded an opportunity to prove that the plaintiff's allegations were false and untrue.

On August 2, 1976, the government filed a trial memorandum obviously prepared by counsel for the Food and Drug Administration which suggested that rather than seeking to obtain remedial relief to obtain the inspection mandated by the consent decree, as the Court had been advised by the United States Attorney's office, the Food and Drug Administration apparently wanted to prove that the defendants were in criminal contempt and that they "must be so adjudged and sentenced accordingly," (page 8 of the government's August 2, 1976, trial memorandum).

The government's August 2, 1976, trial memorandum argued that "neither willfulness nor intent need be proved to convict for criminal contempt of an injunction entered under authority of the Federal Food, Drug and Cosmetic Act." The government further argued that "it has been specifically decided that intent is not an element in the charge of contempt for violation of an injunction issued under the Federal Food, Drug and Cosmetic Act." United States v. Lit. Drug Co., 333 F.Supp. 990 (D.N.J.1971); United States v. Schlicksup Drug Co., 206 F.Supp. 801 (S.D.Ill.1962); and an unreported 1961 Southern District of New York opinion, United States v. Wilson-Williams, Inc., cited in Schlicksup, were relied upon to support the notion that "the government need neither allege nor prove intent .. in criminal contempt actions brought to punish violators of an injunction issued under the Federal Food, Drug and Cosmetic Act." (August 3, 1976 Trial memorandum at 7).

On August 10, 1976, the government filed a supplemental memorandum in response to defendants' answer. That response apparently was dictated to the United States Attorney's office by the office of the General Counsel of the Food and Drug Administration in Rockwell, Maryland, because an identical copy of the same supplemental memorandum was filed August 16, 1976. That response suggested that "the defendants have in fact violated Section 301(f), of the Food, Drug and Cosmetic Act, 21 U.S.C. § 331(f), in that they refuse to permit a lawful inspection by Food and Drug Investigators under 21 U.S.C. § 374." That memorandum suggested, however, that "prosecution for this violation may at some future time be recommended to the United States Attorney, however, no criminal charge pursuant to § 301(f) of the Act is contained in the Order to Show Cause here."

This Court assumed that the government's statement in its August 10-16, 1976, supplemental memorandum indicated that the Food and Drug Administration had retreated from the position stated in its August 2, 1976, trial memorandum and that it wished to obtain an inspection of defendants' plant, rather than attempting to put the defendants in jail. Such a position, of course, would have been consistent with the original advice given the Court by the United States Attorney's office in this district. Acting upon the assumption stated, we directed our law clerk to ask defendants' counsel whether defendants would voluntarily permit the inspection provided in the consent decree. Defendants' counsel wrote the Court on September 10, 1976, stating:

In response to your Clerk's recent inquiry, let me assure you that my clients have every intention to allow any inspection authorized by the law, or by Order of this Court. On no occasion have any of those clients intentionally violated the law or the Order of this Court.

Defendants' counsel pointed out various questions which had been raised in regard to the government's effort to inspect and also stated that "some `personality' difference seems to be involved as defendants believe that Inspector James R. Lahar has taken a personal dislike to them and their business and perhaps a simple change of inspectors would reduce tension and allow inspections to proceed without difficulty."

On September 23, 1976, counsel for the defendants advised the Court that he had contacted the Assistant United States Attorney who filed the petition on behalf of the Food and Drug Administration and had advised him that "my clients have every intention of obeying the law and this Court's Order by allowing inspection." Counsel for the defendants further advised that arrangements would be made to have either an Assistant United States Attorney or someone from the Food and Drug Administration contact counsel for the defendants in regard to permitting "the proper inspection" and that "hopefully, any inspection required by the law may be performed without incident." We assumed that the matter was in the process of being worked out by counsel to the satisfaction of everyone concerned and that this case would eventually be dismissed as moot. The files and records in this case and in United States of America, Plaintiff, vs. Articles of Drug, etc. No. 77-0035-CV-W-4, show that the Food and Drug Administration in fact did obtain an inspection during January of 1977.

On March 11, 1977, however, the third Assistant United States Attorney to whom this case has been assigned advised the Court that the Food and Drug Administration wished to proceed with the criminal contempt action regardless of the fact that an inspection had been made in January, 1977. Counsel for the defendants indicated surprise that the Food and Drug Administration wished to go forward with the criminal contempt proceeding because he "had understood that the inspections subsequent to your original action had gone quite satisfactorily."

On March 31, 1977, the Court received a letter from the attorney for the Food and Drug Division of the Food and Drug Administration in Rockwell, Maryland, which stated that "we emphasize that the filing of this contempt action was not for the purpose of obtaining an inspection.... Instead, this is a criminal case to obtain penal sanctions for contempt of court... The...