United States v. Park, 73-1953.

• Decision Date: 02 July 1974
• Docket Number: No. 73-1953.,73-1953.
• Citation: 499 F.2d 839
• Parties: UNITED STATES of America, Appellee, v. John R. PARK, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

499 F.2d 839 (1974)

UNITED STATES of America, Appellee, v. John R. PARK, Appellant.

No. 73-1953.

United States Court of Appeals, Fourth Circuit.

Argued November 7, 1973.

Decided July 2, 1974.

Gregory M. Harvey, Philadelphia, Pa. (J. Cookman Boyd, Jr., Rob Ross Hendrickson, Baltimore, Md., on brief), for appellant.

Leonard M. Linton, Jr., Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.

BOREMAN, Senior Circuit Judge:

John R. Park, President of Acme Markets, Inc. (hereafter Acme), was tried and convicted by a jury of violating 21 U.S.C. § 331(k) — causing the adulteration of food which had traveled in interstate commerce and which was held for sale.¹ The evidence is undisputed that an inspector of the Food and Drug Administration (F.D.A.) made an inspection of Acme's Baltimore warehouse in November and December of 1971 and again in March of 1972. On both of these occasions the inspector found evidence of rodent infestation of food stored in the warehouse. As a result of these inspections an informal hearing was held in June 1972 at the F. D.A.'s Baltimore office. Although Park was not present, he was invited to attend the hearing and was represented by Robert W. McCahan, Baltimore Divisional Vice President of Acme.

In March of 1973, a five-count information was filed charging Acme and Park with the offenses cited above; four counts stemmed from the 1971 inspection and the fifth count from the 1972 inspection. Prior to trial Acme pleaded guilty to all counts. Park was tried on the theory that he "was a corporate officer who, under law, bore a relationship to the receipt and storage of food which would subject him to criminal liability under United States v. Dotterweich, 320 U.S. 277 64 S.Ct. 134, 88 L.Ed. 48 (1943)." The jury found Park guilty on all counts and he was fined a total of $250.²

Park appeals his conviction alleging (1) the court erred in its instructions to the jury and (2) prejudicial evidence of warnings of alleged prior violations of the Act was improperly admitted.

The court charged the jury that the sole question was "whether the Defendant held a position of authority and responsibility in the business of Acme Markets"; that Park could be found guilty "even if he did not consciously do wrong" and even though he had not "personally participated in the situation" if it were proved beyond a reasonable doubt that Park "had a responsible relation to the situation." We conclude that this charge does not correctly state the law of the case, that the conviction of Park on all counts must be reversed and a new trial awarded.

The Government asserts that this case is controlled by the decision of the Supreme Court in United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L. Ed. 48 (1943),³ and contends that Dotterweich specifically held that the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. §§ 301-392, "dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing." 320 U.S. at 281, 64 S.Ct. at 136. From this the Government argues that the conviction may be predicated solely upon a showing that the defendant, Park, was the President of the offending corporation. The error here is that the Government has confused the element of "awareness of wrongdoing" with the element of "wrongful action";⁴ Dotterweich dispenses with the need to prove the first of those elements but not the second.

As a general proposition, some act of commission or omission is an essential element of every crime. For an accused individual to be convicted it must be proved that he was in some way personally responsible for the act constituting the crime. The Supreme Court recognized this in Dotterweich: "The offense is committed . . . by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws. . . ." 320 U.S. at 284. The criminal acts which were the subject of Acme's conviction cannot be charged to Park without proof that he participated directly or constructively therein or that the acts were done to further some criminal conspiracy in which he took part.⁵ To use the language of Dotterweich, "under § 301 21 U.S.C. § 331 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty." 320 U.S. 284, 64 S.Ct. at 138 (emphasis added). It is the defendant's relation to the criminal acts, not merely his relation to the corporation, which the jury must consider; 21 U.S.C. § 331 is concerned with criminal conduct and not proprietary relationships.

In sum, the court told the jury that Park would be guilty if it were shown that he "had a position of authority and responsiblity in the situation out of which these charges arose." This instruction, taken in combination with the other parts of the charge related above, might well have left the jury with the erroneous impression that Park could be found guilty in the absence of "wrongful action" on his part.

Upon a subsequent trial the jury should be instructed that a finding of guilt must be predicated upon some wrongful action by Park. That action may be gross negligence and inattention in discharging his corporate duties and obligations or any of a host of other acts of commission or omission which would "cause"⁶ the contamination of the food.⁷ "Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance." Dotterweich, supra, 320 U.S. at 284, 64 S.Ct. at 138.

It is argued by the prosecution that the requirement of such proof will make enforcement more difficult. Nevertheless, the requirements of due process are intended to favor fairness and justice over ease of enforcement. We perceive nothing harsh about requiring proof of personal wrongdoing before sanctioning the imposition of criminal penalties.

We find another ground for reversal of Park's conviction. He contends that the admission in evidence of a warning by F.D.A. as to conditions alleged to have existed in 1970 in Acme's Philadelphia warehouse was prejudicial error requiring reversal. There was no evidence of prosecution of either Acme or Park following F.D.A.'s warning. In the recent case of United States v. Woods, 484 F.2d 127 (4 Cir. 1973), this court examined in detail the admissibility of evidence relating to prior alleged offenses not the subject of conviction and we will not attempt to elaborate here.⁸

The Woods majority adopted a modern and liberal approach concerning the admissibility of such evidence. This court refused to decide the issue by "pigeonholing" the evidence under one of a number of recognized exceptions to the general rule that such evidence is inadmissible. Opting for a more flexible balancing test the court cited McCormick on Evidence § 190, p. 453 (Cleary Ed.1972).

"The problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility." United States v. Woods, 484 F.2d 127, 134 (4 Cir. 1973) (emphasis added).

In determining the admissibility of "prior crimes" evidence the Woods majority balanced the relevancy, persuasiveness and need for such evidence against the prejudice resulting to the defendant because of its admission. In a dissenting opinion in Woods Judge Widener favored the application of a traditional and less liberal balancing test.⁹ Regardless of the balancing test applied, we are convinced that the evidence concerning the Philadelphia incident was inadmissible under the theory on which the case was tried.

Initially we conclude that there was no actual need for the Philadelphia evidence. In his jury charge the district judge stated that:

"You need not concern yourselves with the first two elements of the case. The main issue for your determination is only with the third element, whether the Defendant held a position of authority and responsibility in the business of Acme Markets."

Thus, as this case was submitted to the jury and in light of the sole issue presented, need for the Philadelphia evidence is not apparent. Absent a showing of such need we are of the opinion that, even under the liberal balancing test of Woods, the prejudicial effect of this evidence outweighed any possible relevancy or persuasiveness it might have had.¹⁰

We note in passing, without deciding, that in light of our comments above evidence of "prior crimes" might become sufficiently necessary and relevant to warrant its admission on retrial. Our conclusion that the prosecution must show some wrongful act by the accused may affect the result of the balancing test as prescribed in Woods by increasing the need for "prior crimes" evidence. Whether the need for and the persuasiveness and relevance of such evidence may outweigh its prejudicial effect will, in large part, depend on the prosecution's new approach to the presentation of its case. Thus, on retrial, it will be incumbent upon the district court to determine the admissibility of this "prior crime" evidence in light of developments.

Reversed and remanded for a new trial.

CRAVEN, Circuit Judge (dissenting):

I would affirm because I believe this case is controlled by United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). To express my viewpoint, it is enough to quote from Mr. Justice Frankfurter writing for the Court in Dotterweich:

The Food and Drugs Act of 1906 was an exertion

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