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April 19, 1956

EL RANCHO ADOLPHUS PRODUCTS, Inc., a Corporation; Scientific Living, Inc., a Corporation; and Adolphus Hohensee, an Individual

The opinion of the court was delivered by: WATSON

The defendants found guilty by verdict of a jury on seven counts *fn1" of misbranding of drugs in interstate commerce, 21 U.S.C.A. § 1(b), move for arrest of judgment *fn2" or for a new trial. *fn3"

The trial covered a period of seventeen days and presents a transcript of one thousand two hundred eighteen pages.

 The defendants contend that the indictment fails to state facts sufficient to constitute an offense against the United States. The indictment charges the defendants with causing the introduction or delivery for introduction into interstate commerce of a number of shipments of drugs which were misbranded, in the language of 21 U.S.C.A. § 352(f)(1), *fn4" by reason of the failure of their labeling to bear adequate directions for use. An indictment charging the elements of the offense is sufficient. United States v. Debrow, 346 U.S. 374, 74 S. Ct. 113, 98 L. Ed. 92. The indictment further specifies that the directions for use were inadequate because they did not state the diseases, purposes, or conditions for which the drugs were intended to be used. In order that directions for use be adequate, a statement of the intended uses must be included. Alberty Food Products v. United States, 9 Cir., 194 F.2d 463. The reason for this requirement is clear. It enables a layman to attempt intelligently and safely self medication. It is not sufficient that the labeling contain a minimum of information and the use of the drug be induced by collateral representations either oral or written. Adequate labeling is best suited to obtain the beneficient purposes contemplated by the Federal Food, Drug and Cosmetic Act, viz.: broad protection of the consumer from misbranded drugs, and as a practical matter places no onus on those motivated by an honest belief that the claims made for their drug will be accomplished by its use. Since the government in the indictment substantially states the elements of the crime charged, it has charged an offense against the United States.

 The defendants also contend that this Court is without jurisdiction of the offense charged. The offense was committed within the Middle District of Pennsylvania. The offense did not take place where the lectures were given of the literature was distributed by the defendant Hohensee, as defendants contend, but where the drugs were introduced in interstate commerce, which was within the Middle District of Pennsylvania. The tenor of the lectures and excerpts from the literature were offered into evidence to show that the products in question were drugs and to show their intended uses. There was substantial evidence from which the jury could find beyond a reasonable doubt that the articles were intended to be used as drugs when they were introduced into interstate commerce. This Court did have jurisdiction.

 Defendants' motion in arrest of judgment must be denied.

 Defendants argue that the verdict was contrary to law and the weight of the evidence. In considering the sufficiency of the evidence to sustain the verdict of the jury, this Court must take that view of the evidence which is most favorable to the government and must give to the government the benefit of all the inferences which reasonably may be drawn from the evidence. United States v. Toner, D.C., 77 F.Supp. 908. The verdict of the jury must be sustained if there is substantial evidence to support it.

 A perusal of the record in the light of these principles satisfies the Court that the verdict of the jury must be upheld. It is not necessary to recount the evidence at this time. It is sufficient to say that there was ample substantial testimony supporting no other reasonable hypothesis but that of guilt of the defendants.

 Moreover, the indictment in each count refers to specific shipments of the products on designated dates to designated destinations. Thus, the information contained in the indictment and the information given defendants in response to their request for a bill of particulars enabled them to prepare their defense, the traditional purpose for which a bill of particulars is allowed. Norris v. United States, 5 Cir., 152 F.2d 808.

 The next reason advanced by the defendants in support of their motion for a new trial is that the Court erred in granting the Government additional peremptory challenges even though counsel for the defendants stipulated that the government should have additional challenges. The defendants argue that this stipulation was entered into without the presence of the defendant Hohensee.

 In spite of the cases cited by defendants to the broad effect that a defendant must be present at all proceedings after an indictment is returned, later cases hold that the right is not so sweeping. It is apparent that in every bench conference between Court and counsel, the defendant has no voice, and in effect is not present even though rulings may be made which vitally affect him. In the Third Circuit, perhaps the leading case on the subject is United States v. Johnson, 3 Cir., 1942, 129 F.2d 954, 144 A.L.R. 182, where the Court made an exhaustive analysis of precedent to determine the propriety of the exclusion of defendant for a portion of the proceedings, in that case during argument on a point of law.

 There are occasions during the proceedings after an indictment is returned when it is not necessary that the defendant be present. Johnson v. United States, 318 U.S. 189, 63 S. Ct. 549, 87 L. Ed. 704, and a conference at which the number of peremptory challenges is agreed upon by stipulation is one of those occasions. A defendant in a criminal case is bound by the stipulation of his counsel, and his specific assent is needed only as to waiver of his constitutional or other 'substantial' legal rights. Himmelfarb v. United States, 9 Cir., 1949, 175 F.2d 924. It has repeatedly been held that the peremptory challenges are governed by statute and not by the Constitution. United States v. Macke, 2 Cir., 1947, 159 F.2d 673.

 The defendants also contend that the Court erred in permitting counsel from the Food and Drug Administration to take part in the conduct of the case.

 Defendants argue that Mr. Risteau of the Department of Health, Education, and Welfare was improperly permitted to take part in the trial of the case, even though during the trial, documents were submitted showing his appointment as a special assistant to the United States Attorney. A similar factual situation was held ...

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