Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.
McLAUGHLIN, Circuit Judge.
The defendant-appellant was charged in an information with violating Title 7 U.S.C.A. § 1622(h) (1955), in that he, "* * * did knowingly and unlawfully falsely make a mark with respect to the grade of certain meat food products of the Colonial Beef Company, 409 N. Franklin Street, Philadelphia, Pennsylvania, to wit: 1. On four beef ribs, the defendant did place a U.S. Department of Agriculture mark identifying those beef ribs as 'U.S.D.A. Prime' grade, whereas, the true grade of those beef ribs was 'U.S.D.A. Choice'." Similar violations as to twenty-six other pieces of beef were also alleged.
The case was tried to the court and the evidence revealed that during the critical period Carabasi was working as a meat grader for the Department of Agriculture. He had been so employed since 1951. In March 1959, he was grading meat at the plant of Colonial Beef Company, Philadelphia, Pennsylvania. During that time at the request of a buyer for Colonial Beef Company, he marked four pieces of beef "U.S.D.A. Prime" instead of "U.S.D.A. Choice" their true grade. It was also proven that the twenty-six other pieces of meat were overgraded by Carabasi. All of the said beef came from establishments in states other than Pennsylvania. In addition it was established that the roller used by Carabasi to stamp the grade on the beef did not contain his identification letters as grader.*fn1
The district court after detailing the above evidence found that:
"There was a falsely made official mark by the defendant since he used a roller containing a grade higher than the grade to which each piece of beef was entitled." [185 F.Supp. 550.]
Appellant's first argument is that even though the evidence supports the factual conclusion that he did overgrade the beef, the information should be dismissed since those acts do not constitute the false making of a mark, under the language of the statute. 7 U.S.C.A. § 1622(h) (1955).
The statute is divisible into three parts. The first clause, which appellant is alleged to have violated provides:
"Whoever knowingly shall falsely make, issue, alter, forge, or counterfeit any official certificate, memorandum, mark, or other identification, or device for making such mark or identification, with respect to inspection, class, grade, quality, size, quantity, or condition, issued or authorized under this section * * * shall be fined not more than $1,000 or imprisoned not more than one year, or both."
The next clause prohibits the possession, uttering, publishing, or using as true any falsely made, issued, altered, forged, or counterfeited mark. The final clause prohibits the false representation that an agricultural product has been officially graded. Appellant was not charged with the violation of either of these latter provisions, but only the first, i.e., that he falsely made a mark.
Although there are no reported cases interpreting this law, its legislative history leaves no doubt that one of its purposes was to proscribe what the appellant did.
In sponsoring the amendment the Secretary of Agriculture stated that it "* * * provides additional safeguards against * * * unauthorized use of official grade marks or designations, and false or deceptive references to United States grade standards or services. * * * It is proposed that the statute be further amended to prohibit the unauthorized use of official grade marks or designations and the making of false or deceptive references to United States grade standards or inspection services. * * * False, deceptive or unauthorized marks or claims concerning the United States grades or the Government inspection relating thereto are detrimental to the best interests of the producer, distributors and consumers." (Emphasis supplied.) U.S.Code, Cong. & Ad.News Vol. II, 84th Cong., 1st Sess.1955 p. 2729.
In the same volume, p. 2728, the House Report further states:
"The penalty provision which would be added to the Agricultural Marketing Act of 1946 by S. 1757 is more inclusive and stricter and affords greater protection to the inspection service than the penalty provision of the Perishable Agricultural Commodities Act. It covers violations of such regulations as may be issued to govern the use of inspection certificates, memorandums, marks, identifications, and devices. It is applicable to memorandums, marks, identifications, e.g. United States standards, and devices such as meat grading ...