Van Liew v. United States, 19252.

• Citation: 321 F.2d 674
• Decision Date: 05 August 1963
• Docket Number: No. 19252.,19252.
• Parties: Gordon E. VAN LIEW, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

321 F.2d 674 (1963)

Gordon E. VAN LIEW, Appellant, v. UNITED STATES of America, Appellee.

No. 19252.

United States Court of Appeals Fifth Circuit.

August 5, 1963.

A. F. Thomson, J. Edwin Smith, Percy Foreman, Houston, Tex., T. Gilbert Sharpe, Brownsville, Tex., for Gordon E. Van Liew; Smith & Lehmann, Foreman & Walsh, Houston, Tex., Sharpe & Hardy, Brownsville, Tex., of counsel.

Robert C. Maley, Jr., Asst. U. S. Atty., Houston, Tex., Woodrow Seals, U. S. Atty., Scott T. Cook, Asst. U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

On this appeal from a judgment of conviction on two counts of perjury, the questions for our determination are whether the alleged perjured statement in one of the counts was lifted out of the context in which it was made and whether there is sufficient evidence to support the conviction on the other count. A careful scrutiny of the record convinces us that both of these questions must be answered favorably to the Defendant Gordon Van Liew, and the convictions must be reversed.

This is one phase of a triple attack by the Government concerning activities of Defendants (and Associates) in the manufacture and sale of an orange juice product. On June 19, 1959, a hearing was held in the United States District Court on the Government's motion for a preliminary injunction. In that civil action brought for equitable relief, the Government sought a preliminary injunction restraining several named defendants from shipping a certain orange drink on the ground that in the manner sold and labeled it was economically adulterated and misbranded.¹ The Government's action was unsuccessful. The District Court declined to grant the relief, dissolved the prior restraining order and subsequently set the case for trial on its merits.² The Government then pursued the criminal route. On March 27, 1961, the individual defendants were placed on trial under a six count indictment charging a criminal conspiracy to misbrand and adulterate the orange drink, and the substantive counts of adulteration and misbranding also under 21 U.S.C.A. §§ 342(b) (2) and (4), 343 (a), (b), and (i) (2). On April 7, 1961, the jury returned verdicts of guilty. But as in the earlier civil proceeding, the result was not that sought by the Government since the verdicts found no intent to defraud or mislead, thus reducing the offense from a felony to a misdemeanor. By separate opinion we have this day reversed these convictions by our determination that the indictment was defective. Van Liew v. United States, 5 Cir., 1963, 321 F.2d 664.

On April 20, 1961, just shortly after the criminal trial for adulteration and misbranding, the Defendant Gordon Van Liew and two others³ were charged under a six count indictment⁴ with having committed perjury at the original hearing on the motion for preliminary injunction in the civil case. Though finding the two other defendants not guilty, the jury returned a verdict of guilty as to Defendant Gordon Van Liew on Counts III⁵ and IV⁶ (note 4, supra). At the same time it found him not guilty as to Count V.⁷ This appeal followed.

As was true in the criminal misbranding and adulteration case, Van Liew v. United States, 5 Cir., 1963, 321 F.2d 664, it should be emphasized here that the Government's attack was for economic adulteration or misbranding.⁸ Purity, wholesomeness, or nutritiousness of the product widely distributed through reputable local dairies was not questioned.⁹

The Defendant Gordon Van Liew asserts here, as he asserted in his motion for judgment of acquittal below, that the allegedly perjured statements set out in Count IV (see note 6, supra) were lifted out of the context in which they were spoken at the injunction hearing. Consequently, there was a failure to prove either falsity or intentional falsification. We agree. It is vital, of course, that the stream of justice not be contaminated by untruth, Adams v. United States, 5 Cir., 1962, 302 F.2d 307, 310 (dissenting). But the seriousness of the crime of perjury and the fact that it turns finally on the subjective knowledge and purpose of the swearer require that the Government not be allowed to predicate its case upon the answer to a single question which in and of itself may be false, but which is not shown to be false when read in conjunction with testimony immediately preceding and following the alleged perjured statement. The oft-quoted rule is applicable here. "A charge of perjury may not be sustained by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." Fotie v. United States, 8 Cir., 1943, 137 F.2d 831, 842; Brown v. United States, 8 Cir., 1957, 245 F.2d 549, 556; United States v. Geller, S.D. N.Y., 1957, 154 F.Supp. 727, 730, n. 3; cf. Meyers v. United States, 1948, 84 U.S.App.D.C. 101, 171 F.2d 800, 806, 11 A.L.R.2d 1.

At the injunction hearing, the Defendant testified at length about the operations of his plant and the method by which they processed the orange drink. He explained how raw oranges were squeezed, how the raw orange juice was blended, how the mixture was pasteurized by a rapid heating and cooling process, and how the commodity was finally bottled and shipped to consumers. The Government's contention is that the statement "Not to my knowledge" was made in answer to a question encompassing the entire production of the orange drink. Literally this was untrue since by use of a dairy hose water could be put in the tanks. In other words, the Government's theory is that the Defendant had stated that from its inception in the raw oranges to the bottled commodity there was no way water could be added. This reading of the questions and answers is unsound. When read in light of the surrounding testimony, one of two things is clear. The first is that we think the Defendant's answer obviously referred to the pasteurization process alone.¹⁰ But second, if this is not so as an established fact, the uncertainties as to what the interrogator thought, or what the swearer thought the interrogator thought by the words "operation or processing" are such that neither we nor a jury could hold that knowing falsification was proved beyond a reasonable doubt. Moreover, there is no showing in the record, either at the injunction hearing, the adulteration and misbranding criminal prosecution, or the perjury trial, that water was added, or could be added, through this pasteurization process. The conviction as to Count IV is accordingly reversed and remanded with directions that a judgment of acquittal be entered.

As to Count III, the Government had the burden of proving by clear, convincing and direct evidence to a moral certainty and beyond a reasonable doubt that the Defendant knowingly and intentionally swore to a falsehood. The Government's proof must be by substantial evidence excluding to the satisfaction of the jury every other hypothesis than that the Defendant in testifying as he did purposefully misstated the fact knowing it to be false and untrue. Brown v. United States, 8 Cir., 1957, 245 F.2d 549; Blumenfield v. United States, 8 Cir., 1962, 306 F.2d 892; Beckanstin v. United States, 5 Cir., 1956, 232 F.2d 1; United States v. Rose, 3 Cir., 1954, 215 F.2d 617; United States v. Neff, 3 Cir., 1954, 212 F.2d 297; McWhorter v. United States, 5 Cir., 1952, 193 F.2d 982; Fotie v. United States, 8 Cir., 1943, 137 F.2d 831. The Government did not meet its burden here.

The Defendant asserts two reasons why the proof was insufficient as a matter of law. The first is one with which the parties in brief and argument have been much — if not too much — preoccupied. The Defendant contends that when he stated no water or sugar had been added to the "product" (see note 5, supra), this meant he was testifying that no water or sugar had been added to the resulting finished commodity after it had been through the mixing stage. Of course there is no showing anywhere that water or sugar was added to the final commodity. The Government takes the opposite viewpoint. It claims that the Defendant understood the term "product" to mean the commodity during any stage in the processing. To show this, the Government points to the fact that in Defendant's testimony, he frequently used the word "product" when referring to the commodity during its processing stages. The Government's position in this regard is buttressed by the implied jury finding that the Defendant knew the term "product" meant the in-between processes.¹¹

While we do not discard altogether this emphasis on "product" as having no controlling significance, we think the second ground is both sound and unanswerable. It likewise lends intrinsic support to the idea that the witness thought the inquiry related to a time subsequent to blending. The second contention is that the record in the civil injunction proceeding as reflected by excerpts introduced in the perjury trial shows positively that in the making of this "product" frozen orange concentrate was customarily and frequently used when and as needed to stabilize the taste of the finished commodity.¹² Actually this practice is so much a part of the processing of drinks of this kind that little was said about it in so many words, and in no event was the use of concentrates claimed to be adulteration or misbranding. Orange concentrate, as its name implies, is the result of evaporation of liquids out of single strength fresh raw orange juice, pulp, peel, etc. Commercial, governmentally recognized standards are used to determine the extent of concentration. The higher the Brix (relative weight of solids to total weight), the higher is the concentration. This is a perishable and concentrate is shipped and stored under deep refrigeration.

Since the testimony from all sources acknowledged that the taste, the sweetness, tartness, insipidness,...