United States v. Shapiro

• Decision Date: 06 February 1974
• Docket Number: No. 73-1670.,73-1670.
• Citation: 491 F.2d 335
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. SHAPIRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

491 F.2d 335 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. SHAPIRO, Defendant-Appellant.

No. 73-1670.

United States Court of Appeals, Sixth Circuit.

Argued December 5, 1973.

Decided February 6, 1974.

Robert L. Sloss, Jon L. Fleischaker, Wyatt, Grafton & Sloss, Laurence E. Higgins, Louisville, Ky., on brief, for defendant-appellant.

Margaret A. Cotter, U. S. Dept. of Justice, for plaintiff-appellee; George J. Long, U. S. Atty., A. Duane Schwartz, Asst. U. S. Atty., Gregory B. Hovendon, Chief, Consumer Affairs Section, Anti-Trust Div., U. S. Dept. of Justice, Washington, D.C., on brief; Peter Barton Hutt, Asst. Gen. Counsel, Joanne S. Sisk, Chief, App. and Sp. Proceedings Branch, Barbara L. Spivak, Atty., Office of the Gen. Counsel, Food and Drug Div., Dept. of Health, Ed. and Welfare, Rockville, Md., of counsel.

Before EDWARDS and PECK, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PER CURIAM.

This is an appeal from the District Court's order revoking defendant-appellant's probation and imposing a sentence of six months imprisonment.

Appellant Shapiro is the former co-owner of the Tasty Cookie Company, holding the positions of president and sales manager. His partner Yandell O'Koon was secretary-treasurer and production manager. After charges of violating the Food, Drug and Cosmetic Act, 21 U.S.C. § 331(a) & (k) (1970), were filed in an information both men pled guilty to four counts involved in those charges and nolo contendere to one count. Each defendant was fined three hundred dollars on each count and was given a probated two-year sentence ". . . with the condition that the defendant conduct his food handling in accordance with the Federal Food, Drug and Cosmetic Act." After the probation order was entered, the plant was closed for a one-month period for cleaning purposes and reopened in mid-January 1973. The men also agreed to sell the plant and in early February a prospective purchaser, Red River Industries, was found. Negotiations with Red River proceeded but in the meantime disagreements arose between the partners, and in late March Shapiro bought out his partner in order to complete the sale to Red River. During the subsequent negotiations Red River hired a man named Reed to take charge of Tasty's production. Six days after hiring Reed, Red River signed a formal agreement with appellant giving the "operations and management" to Red River effective April 10. On April 18, a stock purchase agreement reciting the undertakings of the parties in great detail was signed. Final closing occurred on April 27 but just prior to the closing date, on April 23-24, an FDA inspector examined the Tasty premises and found them to be in noncompliance with the FDA regulations in that they were accessible to and infested with vermin.

Armed with the inspection's results, the FDA petitioned the District Court to revoke Shapiro's probation and, after a hearing, the court found Shapiro had violated the terms of probation and imposed a six months incarceration. No action was taken against Shapiro's former partner since his resignation preceded the April 23-24 inspection of the company by the FDA.

As a point of departure, we note that it is well settled that a trial court has discretion to revoke an order of probation and that, upon review, an appellate court must determine whether that discretion was abused. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); United States v. Tucker, 444 F.2d 512 (6th Cir. 1971), cert. denied, 404 U.S. 1048, 92 S.Ct. 711, 30 L.Ed.2d 739 (1972). Our review of the record convinces us that the District Court did not abuse its discretion in revoking the appellant's probation.

The record clearly establishes that not only was Shapiro given adequate notice as to the type of activity proscribed by the terms of his probation but also it is clear that the terms of the probation were neither vague nor uncertain. Further, there is more than sufficient evidence for the District Court to reasonably conclude that Shapiro had not complied with the terms of his probation. The record is replete with evidence, testimonial and demonstrative, that food products continued to be produced under unsanitary conditions in a vermin infested plant. The results of the April 23-24 inspection clearly reflect that there was a continuing lack of interest in plant sanitation and that the promised correction of unsanitary conditions was not met with adequate attempts to fulfill those promises.

At the revocation hearing Shapiro did not contest any factual matters relating to the condition of the plant nor did he dispute...