Van Liew v. United States, 19000.

• Decision Date: 05 August 1963
• Docket Number: No. 19000.,19000.
• Citation: 321 F.2d 664
• Parties: Gordon E. VAN LIEW, Dell Van Liew, Arthur R. Becker, Verne C. Madison, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 664 (1963)

Gordon E. VAN LIEW, Dell Van Liew, Arthur R. Becker, Verne C. Madison, Appellants, v. UNITED STATES of America, Appellee.

No. 19000.

United States Court of Appeals Fifth Circuit.

August 5, 1963.

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

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

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

JOHN R. BROWN, Circuit Judge.

Our disposition of this appeal makes it necessary for us to consider only one question presented here by Defendants. That question is whether the indictment states an offense against the United States. The Defendants were tried and convicted under a six-count indictment. Count I charged them with conspiring to introduce into interstate commerce adulterated and misbranded food.¹ Counts II through VI charged the substantive offenses of introducing into interstate commerce foods which were adulterated or were misbranded.² We conclude that the Defendants were prosecuted under the authority of a faulty indictment. The convictions are accordingly reversed and the cause remanded.

It is essential to bear in mind that this is a prosecution for economic misbranding or economic adulteration. In the sale of its products through the channels of established, reputable, reliable dairies and the like, there is not the slightest suggestion that Defendants' commodity was unwholesome. On the contrary, the Government conceded that "there is nothing wrong with their product, not a thing in the world," and that it "is just as good and just as palatable and has as many vitamins as freshly squeezed" orange juice. It stipulated that the Defendants' commodity was produced in "a clean, modern, sanitary plant." The Court so recognized in its charge³ and while not immediately connected with our disposition, the jury under alternative verdict forms held that the violations were committed by Defendants "without intent to defraud or mislead."

Since we do not reach the question of the sufficiency of the evidence to support the convictions, it is unnecessary to give a detailed statement of the facts. However, they briefly consist of these. Cal-Tex Citrus Juice, Inc. engaged in the business of making an orange drink. The product was composed of freshly squeezed orange juice, concentrated orange juice, water, sugar, and at times glucose and ascorbic acid. The product ordinarily contained these ingredients, and rarely was composed entirely of juice as it comes from an orange. The drink was produced in the Cal-Tex plant in Houston, Texas and shipped to points in Louisiana, Kansas, Missouri, and other states.

The Defendants used three corporations in their business of producing and distributing this orange drink. Each of the Defendants served in some capacity as officers and directors of each of these three corporations. Cal-Tex was the corporate entity which actually produced the drink. Transportation Leasing, Inc. was used by Defendants to own all of the rolling stock used in the production and delivery of the drink, as well as being used for the purchase and delivery of sugar, frozen concentrate, Vitamin C, and glucose used in the production. Central States Processors, Inc. was another corporation which served as the distributor of the orange drink.

To the indictment (see notes 1, 2 supra), Defendants filed a "Motion Raising Defenses and Objections"⁴ plus a motion in arrest of judgment, F.R.Crim. P. 34, which asserted that the indictment did not state facts sufficient to state a criminal offense. The motions pointed out with great particularity the failure of the indictment to allege facts and circumstances regarding misbranding and adulteration. Overruling these motions, the District Court necessarily held the indictment sufficient.

The guidelines for determining the sufficiency of an indictment have been established for so many years that they are no longer open to question. We do not think it would be helpful to set out the many ways in which the rules have been stated. The rule as stated in 1833 was that "in all cases, the offence must be set forth with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged." United States v. Mills, 1833, 7 Pet. 138, 32 U.S. 138, 142, 8 L.Ed. 636. Recently, the criteria were reiterated with emphasis in Russell v. United States, 1962, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240: "These criteria are, first, whether the indictment `contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet,"' and, secondly, `"in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."' citing cases." We have given recent, and decisive, recognition to these principles in Beitel v. United States, 5 Cir., 1962, 306 F.2d 665.

These judicial principles have descended from the Constitution which declares that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; * * *", and that "In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; * * *." U. S. Constitution, Amends. V, VI. Responding to these basic demands, F.R.Crim.P. 7(c) provides that "The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

Important as are the two most emphasized criteria — (1) notice and (2) double jeopardy — the presentment by a Grand Jury has in our constitutional scheme another basic function. It is the protection to the citizen against unfounded charges. Little may be left open to construction or interpretation of an indictment. If the offense is not plainly stated and is made so only by a process of interpretation, there is no assurance that the Grand Jury would have charged such an offense. The Supreme Court has made this vividly clear in Smith v. United States, 1959, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041. "The Fifth Amendment made the common law rule requiring indictments mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings." And even more recently it has been emphasized in Russell. "To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him." 369 U.S. 749, 770, 82 S.Ct. 1038, 1050. It was just such principles which led us to confine tolling exceptions to indictments as such, not informations tentatively in lieu of indictments. Hattaway v. United States, 5 Cir., 1962, 304 F.2d 5, 12.

The first count of the indictment here charged the Defendants with a conspiracy to violate the laws of the United States (note 1, supra), 18 U.S.C.A. § 371. The attack made on this Count is that it does not state an offense. With this, we are in basic agreement. The indictment alleges the conspiracy in typical terms in that the Defendants "did unlawfully, knowingly, * * * conspire, confederate, and agree together * * *" to violate laws of the United States. This Count also alleges the manner in which the Defendants worked together, e. g., they were interrelated officers and directors of the various corporations, etc. We may assume that this Count adequately charges the existence of the conspiracy, i. e., agreement, and also some of the means or overt acts by which it was being carried out. But the fault with Count I lies, not in the conspiracy element, but in its failure to meet the standards described above in setting out the manner by which the specified federal laws have been violated.

Paragraphs 1 and 2 of Count I allege that in furtherance of the conspiracy, the Defendants introduced into interstate commerce a food "which was adulterated within the meaning of" 21 U.S.C.A. § 342(b) (2) and (4). These sections state that a food is adulterated "(2) if any substance has been substituted wholly or in part therefor * * * or (4) if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is."⁵

Paragraphs 3, 4, and 5 of Count I alleged that the Defendants conspired to introduce into interstate commerce a food "which was misbranded within the meaning of" 21 U.S.C.A. § 343(a), (b), (i) (2).⁶

At the outset we think it appropriate to point out that the Government's response to this contention confuses the Defendants' constitutional right to know what offense is charged with his need to know the evidentiary details establishing the facts of such offense. As to the latter, the remedy lies in the Motion for Bill of Particulars, F.R.Crim.P. 7(f).

Here the conspiracy indictment as to adulteration essentially charges only that Defendants "would produce a food represented to be pure orange juice, but which in truth and in fact the defendants would misbrand and adulterate by adding to orange juice, sugar, water, and other ingredients."⁷

But this is not a federal...