United States v. John R. Park
499 F.2d 839
4th Cir.
1974
Check Treatment

*1 America, UNITED STATES Appellee, PARK, Appellant.

John R.

No. 73-1953. Appeals, Court of n Fourth Circuit.

Argued Nov. July 2,

Decided

840 infor 1973, a five-count March Philadelphia, Pa. Harvey, Gregory M. charging and Acme filed mation was Jr., Hen- Boyd, Rob Ross (J. Cookman above; cited the offenses Park with brief), Md., Báltimore,

drickson, the 1971 from stemmed four counts inspection appellant. fifth from count and Jr., Linton, Asst. U. S. M. Leonard trial Acme inspection. Prior to 1972 Atty., on Beall, (George U. S. Atty. was pleaded guilty Park to all counts. appellee. brief), for theory a cor that he “was tried on the law, who, porate bore a under officer BOREMAN, Senior Circuit Before storage receipt lationship and to FIELD, Cir- Judge, and CRAVEN and subject him to crimi food which Judges. cuit liability v. Dot nal terweich, under United States 134, 88 [64 320 U.S. 277 S.Ct. (1943).” Judge: found The L.Ed. BOREMAN, Circuit 48] Senior guilty Park on all counts and Acme Park, President of R. John fined a total $250.2 Acme), (hereafter Markets, Inc. alleging appeals his conviction violat and convicted tried ing (1) _to erred in its instructions (k)- causing 331 21 § U.S.C. — the warnings evidence (2) which had traveled adulteration of alleged prior violations which was in interstate commerce improperly admitted. Act was undis held sale.1 The charged inspector puted the Food that an The Drug (F.D.A.) an Administration sole was “whether the Defend- inspection of Acme’s ware ant held a Baltimore sponsibility house in November and December in the of Acme business again Markets”; March of that Park 1971 and On could guilty consciously inspector if he do both of these occasions “even did not wrong” though he had not found evidence rodent infestation of and even “personally participated food stored warehouse. a re situa- in the As proved beyond inspections tion” if it were a reason- sult of these an informal hearing responsible able that Park doubt “had a in June 1972 at the F. held Although relation D.A.’s to situation.” We conclude office. Baltimore correctly present, does not state was not he was to at invited hearing case, represented by tend the law of that the and was conviction McCahan, of Park on all reversed Robert counts must be W. Baltimore Division and a trial new awarded. al Vice President of Acme. imprisonment up part: years. provides, to 1. 21 three U.S.C. 331 punish drug following causing The violations of food laws are acts and there- regard proof scienter, able prohibited: of are without Court has indicated that an open question whether, absence of (k) alteration, mutilation, destruc- proof scienter, an incar accused could be tion, obliteration, or removal of the whole violating “regulatory” cerated for statute. part any labeling of, or 246, States, Morissette v. United 342 U.S. 72 doing respect to, act (1952) ; 240, S.Ct. 96 L.Ed. 288 see also food, drug, cosmetic, device, or if such act v. States International Minerals & is donfe article is while such held for sale Corp., 558, 564, Chemical 402 U.S. (whether sale) ship- the first after 1697, (1971). L.Ed.2d We note that ment interstate commerce and results process respect due standards being in such article mis- liberty appear higher loss of than branded. respect property. Cf. those with loss Argersinger Hamlin, S.Ct. too, (1972). We, controlling 2. Park 32 L.Ed.2d 530 con stated that a factor in his open question appeal sider inti decision this to be this conviction mate it. fact that a no second conviction U.S. felony, punishable by §C. 331 is a a term of offense committed ... asserts that this all The Government who do have such a the decision of Su share is controlled preme v. Dotter the furtherance of transaction which Court United States L. the statute outlaws . .” weich, (1943),3 Dot U.S. at 284. criminal* acts Ed. contends subject were specifically Fed of Acme’s conviction terweich held charged cannot be Food, Drug, Act Park without Cosmetic eral *3 participated directly 301-392, “dispenses he (Act), that or construc 21 U.S.C. §§ tively therein or were that the acts done with the conventional conspiracy to further some criminal in some criminal conduct —awareness of part.5 wrongdoing.” which took To the lan use at guage Dotterweich, “under From the § [21 Government argues corporation may may predi U.S.C. a commit § 331] that conviction be persons solely upon showing an offense cated de and all aid and a that the guilty.” fendant, Park, equally abet its commission are was the President of corporation. (emphasis offending The error here added). is It is that the relation to Government has confused the defendant’s acts, merely wrongdoing” the criminal not his relation element of “awareness corporation, “wrongful action”; which the must element of consider; dispenses 21 U.S.C. is Dotterweich concerned § with the need prove proprie with criminal conduct and not first of not those elements but tary relationships. the second. sum, general told the proposition, aAs some guilty act of would be commission were es if or omission is an position sential, shown' that he “had a every author element of crime. For ity responsiblity in and the situation individual out to be convicted charges proved of which way must these in be arose.” This that he was in some struction, personally responsible taken in combination with the the act consti parts tuting charge above, Supreme crime. related Court recognized might well have left the this in “The postured 3. As which in Dotterweich sions resulted contamination of the when it Supreme primary reached food. The facts of Dotterweich established Court personal “only corporation which find we lacking ‘person’ subject prosecution” in the case before us. un- Therefore, der the Act. 4. The Federal Food, Drug, and Act Cosmetic very Court’s reveals little about (k) prohibits “causing” adultera- setting factual case. Mr. Dotter- has traveled in interstate Manager weich was President General commerce and held for sale. We Company, of Buffalo Pharmaeal Inc. “wrongful define action” this context as company small, employing only twenty- acts of the accused which the adulter- cause employees, six all of whom one worked on ation of such food. upper building. floor of Mr. Dotter- responsible corporate “general principal weich was Acme maintained its of- oversee- ing” Company headquarters Philadelphia, operations; of the he was the fices supervisor employees. .Pennsylvania. direct president, of all also The trial As transcript principal establishes Mr. maintained executive offices there. Dotterweich personally every president Acme’s of- executive decision and As chief executive personal supervisory theoretically ficer, had ty responsibili- direct Park was physical employees approximately 36,000 over the acts which in 874 retail resulted shipment outlets, special the interstate 12 main misbranded warehouses drugs. and west the instant case Park warehouses located the east Acme, the chief executive States. hold Park officer of a coasts To corporate giant. criminally wrongful multistate in- See note liable actions of supervisory respon- every employees by It clear each and fra. sibility his one these employees merely corpo- showing over most of the indi- his manifestly allegation unjust, rect. There is no and be- ration is unfair yond Park was deci- the realm of reasonableness. executive in detail the admissibili impression be court examined that Park could erroneous alleged ty relating prior “wrongful of evidence guilty the absence of subject conviction part. offenses action” his attempt elaborate subsequent Upon trial here.8 finding of instructed should be guilt predicated some must- majority adopted modern The Woods wrongful That action Park. action concerning approach ad- liberal gross negligence inattention missibility This court of such evidence. discharging corporate duties and his by “pigeon- to decide the refused obligations of other a host holing” one of a the evidence under omission which acts commission recognized exceptions to the number of would “cause” the contamination general inad- rule that evidence is such an accused food.7 “Whether shares Opting more flexible missible. for a sponsibility process re in the business cited Mc- sulting depends *4 in distribution unlawful 190, p. Cormick on Evidence produced on the at the trial and evidence (Cleary Ed.1972). assuming its evidence the submission — problem merely one “[T]he appropri warrants it —to the under pigeonholing, balancing, on but one of guidance.” Dotterweich, supra, ate side, the the one the actual need for 284, U.S. at at 138. S.Ct. light crimes the other evidence in argued by prosecution that It the the issues and evidence avail- the other the of such will make convincing- prosecution, able to the the enforcement Neverthe- more difficult. ness the other evidence the requirements less, process the. are due crimes were committed and that justice intended to favor fairness actor, strength and the perceive over ease of enforcement. We weakness evi- crimes nothing requiring proof harsh about supporting issue, in dence and on personal sanctioning wrongdoing before other, degree which imposition penalties. of criminal probably be roused the evi- overmastering hostility.” dence ground We find another Woods, United 127, States v. 484 F.2d versal Park’s conviction. He contends (4 1973) (emphasis added). Cir. admission evidence of a warning by determining admissibility F.D.A. as al In leged “prior to have existed in 1970 in Acme’s evidence the crimes” Woods ma- Philadelphia prejudicial jority relevancy, persua- warehouse was balanced the requiring error reversal. There no siveness need such evidence prosecution against prejudice resulting of either Acme to the following or Park warning. F.D.A.’s defendant because of its admission. dissenting opinion Judge recent v. States Woods Woods, (4 1973), F.2d 127 application Cir. Widener this favored the of a 4, supra. 6. Woods, See note In the case of United States v. su- pra, the defendant was convicted of first-de- appear gree question eight-month-old It would of causa murder of an infant. principal upon tion will abe a retrial. At trial evidence that other children de- question respira- of causation distin fendant’s care had died suffered guished tory prove from intent. United States difficulties was admitted to Sheridan, 379, v. charged. ap- 329 U.S. 67 commission of the crime On (1946). guidance peal L.Ed. 359 Some with re this court held that the evidence was spect general to the of causation can be admissible in and also admissible to construing prove corpus found in cases “aid and abet” delicti. Woods was phrase appears completely in United States v. decided in a different factual set- Dotterweich, 277, 284, legal ting, principles 64 S.Ct. enunciated therein (1943). clearly applicable present L.Ed. 48 See also United States case. Peoni, (2 1938). v. 100 F.2d 401 Cir. outweigh balancing ef- idence its and less liberal traditional large will, part, depend on the fect Regardless test.9 pre- prosecution’s approach to the new evi applied, are convinced n retrial, Thus, concerning Philadelphia case. inci sentation its dence theory- the district will be incumbent inadmissible dent was admissibility determine tried. the ease was on which light this crime” evidence Initially there we conclude developments. Philadelphia need for the no actual new Reversed and remanded for a the district In his dence. trial. judge stated that: yourselves need concern “[Y]ou CRAVEN, Judge (dissent- Circuit elements of the first two ing) : your The main issue for deter- case. I I would affirm because believe only the third ele- mination is case is controlled ment, Defendant held a Dotterweich, 320 U.S. responsibili- position of my (1943). express L.Ed. To ty in of Acme Markets.” the business enough viewpoint, quote from Thus, as this case was submitted to the writing Mr. Frankfurter Justice light the sole issue Court Philadelphia presented, need evi Drugs Act The Food and of 1906 apparent. Absent a dence is not show Congress power of its an exertion ing of such need we are *5 keep impure balancing that, even under the liberal drugs com- out of the channels of prejudicial Woods, effect of Congress By merce. the Act any possible outweighed this evidence range over of its extended the control relevancy persuasiveness might it and stiff- illicit noxious articles have had.10 penalties ened the disobedience. legislation passing, deciding, purposes thus note without We light phases health of above evi- of the lives and our comments touch “prior might which, people dence of become in the circumstances crimes” industrialism, largely sufficiently necessary be- modern are relevant Regard yond self-protection. warrant its Our admission retrial. prosecution purposes construc- conclusion must these should infuse wrongful by legislation show tion of if it be some act working may affect treated instrument result of as a prescribed government merely by as a not test as in Woods increas- ing English “prior . the need words. crimes” collection of prosecution dence. Dotterweich Whether need for and the persuasiveness subjected fa- on a now is based and relevance of ev- such 10. applying balancing test, 9. a is consistent with the considera- Such a conclusion Throughout confronting may tions result in Woods. the district court be reached assuming emphasized succinctly: summarized ex- in Woods ception applicable, overriding to the rule is before need for .crimes” admitting particular peculiar prior crimes, nature evidence of acts of because of the first, determine, the court should cases. whether infanticide relevant; secondly, Indeed, persuasive the evidence is is so the evidence wheth- prejudicial necessary unduly infanticide er the evidence so not- appre- withstanding wrongdoer relevancy; and, thirdly, be . . if the is to its having hended, prior tests, relevance met both think that its whether clearly prosecu- outweighs truly effect evidence is its needed jury. tion. Woods, Woods, United States v. F.2d 484 F.2d (4 1973) 1973) added). (Widener, J., dissenting opin- (4 (emphasis Cir. Cir. ion). drugs legislation type whereby misbranded [or food]. miliar Hard-' ship may penalties as effective means there doubtless a serve regulation. legislation dispenses penalizes statute which thus Such the trans- though action with the conventional consciousness wrongdoing wanting. totally of some Bal- criminal conduct —awareness ’ ancing wrongdoing. Congress hardships, In the interest relative good larger preferred place puts upon it of act- has those burden it ing person opportunity who at otherwise have at least hazard informing standing innocent but themselves of existence danger. imposed protec- public relation to a shipments sharing like And is clear that of consumers in il- so before “punished commerce, licit those now in are rather than to throw issue public if the hazard on the innocent statute article misbrand- wholly adulterated], helpless. ed and that arti- [or cle be misbranded adulterat- [or 284-285, Id. at without conscious fraud at all. ed] judge perfectly The trial clear De- that “the fact present fendant and is chief execu- 280-281, (citations Id. at S.Ct. at tive officer of the Acme Markets does omitted). finding require guilt. Though, Dotterweich re- Coui't personally participated he need not have versed a Second Circuit decision that situation, in the he must have had a said be motivated “fear sponsible relationship to the issue. The 301(a) an enforcement of as written is, case, in this the de- might operate by sweeping harshly too fendant, Park, by John R. virtue of his any person within its condemnation how- position company, in the had a remotely entangled pro- ever in the in the shipment.” scribed charges situation out of which these S.Ct. at But defendant Park was arose.” just entangled” “remotely in the Thus, again language in the of Mr. proscribed adulteration. Like Dotter- *6 Frankfurter, Justice “the District Court weich, president corpora- he was of the properly respon- left the of the power opera- full with to control its sibility shipment to [Park] prevent tions and to take measures to jury, and there was sufficient rat infestation food. support dence to its verdict.” delegated day-to-day supervision had subordinates, sanitation to examining Moreover it is clear from power responsibility tained both the argument prosecutor’s system to see that of rodent control equate there was no effort to effective, work, was if it didn’t presidency corporation change it. responsibility. government Instead, As Mr. Justice Frankfurter said about argued that Mr. Park was system because he had established a The offense is committed rodent control that did not work in all who '. have such re- March November 1971 and March sponsible share the furtherance 1972 and that even so he made no effort change system.1 improve transaction which the out- statute laws, namely, put government’s into the stream contention was not they interstate commerce should convict if found testimony system having 1. Park’s indicated the FDA in received a letter from the president, outlining unsanitary established before he became but work, inspection he conceded that if it didn’t the Philadel- and need team had found in changing, responsibility phia ed his warehouse. change addition, acknowledged it. (that president Mr. Park they convict undisputed) should but they it to his if setting system up sanitation way delegating responsibility in a and of way. sanitary job in does the my sympathetic brothers’ I am them, justice prompts sense of me, into statute

seems to to write degree of mens rea scien- some small liability, prerequisite but I ter as a today’s government’s fear that share congression- undermine the decision will protecting purpose innocent “the al pro-

public wholly helpless” to food.

tect themselves from contaminated trial, I

Because there be a new align myself majority’s

want to

suggestion that evidence in the nature offenses” be admissible.

Indeed, go I further. If an addi- put upon

tional burden of is to be government show that Mr. Park wrongfully,

acted then it would seem to clearly

me that evidence would be admis- system that Park’s o'f rodent con-

sible

trol did work in March 1970 in Phil-

adelphia, or in November 1971 or March

1972 in Baltimore. If rule is other-

wise, government pos- I think the cannot

sibly sustain its new burden. America,

UNITED STATES *7 Plaintiff-Appellee, al.,

Kirk et BAKER Defendants- Appellants.

Nos. 73-1440-73-1443. Appeals, States Court of

Seventh Circuit.

Argued Feb. July 9,

Decided