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U.S. District Court, D. Maryland
Nov. 28, 1979
Attorney for the government: Elizabeth H. Trimble.5
Attorney for the defendants: James M. Kramon.6
Excerpt of Bench Opinion rendered November 28, 1979, from transcript of proceedings.7
THE COURT: The Court would like to proceed to rule on the matter this morning while it is fresh in mind. I do want to thank counsel for their presentations in the matter which have been most thorough. Like counsel often do, I guess, they were a little optimistic in their estimates of how long the case would take, but it is a complicated matter and I can well understand that it takes some time to present, and I am certainly not being critical of counsel because I think it was presented and tried as expeditiously as possible.9
I am going to read a bench opinion incorporating my views about it, but in order not to hold the parties in suspense, I will start by giving the ultimate conclusion, and that is that I would have to deny the Motion for Judgment of Acquittal renewed by Mr. Kramon at the close of all the evidence, and I would have to find in favor of the Government and against the Defendants in the case because, in the Court's judgment, the Government has established by proof beyond a reasonable doubt violations of the Act which governs in this case and, basically, therefore, the further remarks that I will make in the matter are really findings of fact and conclusions of law implementing the general finding that I have just announced.10
This case involves a criminal prosecution arising under the Federal Food, Drug & Cosmetic Act, 21 U. S. C., Section 301 et seq. The indictment returned on August 7, 1979 charges Baltimore Pizza Crust, Inc., Frank F. Corbi, president of Baltimore Pizza Crust, Inc., and Joseph N. Corbi, treasurer and general manager of Baltimore Pizza Crust, Inc. with two counts of violating 21 U. S. C., Section 331(k). Count One charges that from on or about March 17, 1978 to on or about March 22, 1978, the Defendants held food for sale after shipment in interstate commerce in a building accessible to insects and caused such food to be exposed to contamination by insect filth, which resulted in the food becoming adulterated as defined in 21 U. S. C., Section 342(a)(3) and (a)(4). Count Two is similar to Count One except that Count Two involves the period from on or about December 1, 1977 to on or about December 7, 1977, and Count Two alleges adulteration only as defined in 21 U. S. C., Section 342(a) (4).11
The case was tried before the Court, sitting without a jury, on November 26, 27 and 28, 1979, and the Court has heard the final arguments of both sides this morning. For the reasons to be outlined, the Court is convinced beyond a reasonable doubt that the Defendants are guilty of the offenses charged in the indictment.12
The facts of the case are not the subject of serious dispute, and the Court makes the following findings with respect to the facts. Defendant Baltimore Pizza Crust, Inc. (the company) is located in Baltimore, Maryland and is engaged in the business of making pizza crust. At the times in question in this case, the company purchased its flour, a major ingredient in pizza crusts, from Seaboard Allied Milling Corporation of Culpepper, Virginia. This flour, which Defendants admit was shipped in interstate commerce, is the food substance that the indictment alleges became adulterated.13
The inspection which is the basis of Count Two of the indictment took place on December 6 and 7, 1977 and apparently was a routine periodic inspection of the company by FDA. At trial, Norman Timberlake, one of the two Food and Drug Administration investigators who participated in this inspection, testified that he and his co-investigator collected seventeen subsamples from the interior and exterior of the pizza crust production system. These subsamples were analyzed at an FDA laboratory, and six of the seventeen subsamples were found to contain one or more insects and/or insect larvae. The insects found were flour beetles, silverfish, and cigarette beetles. In addition, Mr. Timberlake testified that he observed at least 25 live insects on top of one of the two bulk flour storage bins, in which flour is stored when it arrives at the plant, and at least 40 insects on top of the other storage bin (Bin #2). The inside of Bin #1 was inspected but the inside of Bin #2 was not because the investigators were told that it was empty and not in use.14
Mr. Timberlake learned that the flour which was being processed during his inspection of the plant had been received from Seaboard on December 1, 1977. In discussing the results of the inspection with Defendant Joseph Corbi, Mr. Corbi told him that he thought it was possible that the flour had been received from Seaboard in a contaminated condition. Mr. Timberlake did not conduct an investigation into this allegation, nor did he recommend to anyone at FDA that this possibility should be investigated. Mr. Corbi stated that no one inspected the flour when it arrived at Baltimore Pizza Crust and that it would be too costly to train someone or to hire a specialist to inspect incoming flour.15
The findings of the FDA as a result of this investigation were mailed to Defendant Frank Corbi on February 16, 1978. His attention was drawn to the fact that several prior inspections of the company had revealed similar insect infestation problems in the flour handling system, and he was advised that legal action would be considered if the problems were not corrected.16
The Court notes that several documents introduced into evidence by the Government (over Defense objection) indicate that the company had been inspected on five previous occasions — twice by the State of Maryland and three times by the Food and Drug Administration. On each of these occasions, active insect infestation was found in the plant and Defendants were notified of the problem.17
The inspection which is the basis for Count One of the indictment took place on March 21 to 23, 1978. Troy Williams, one of the two FDA investigators who participated in this inspection, testified that numerous live insects, dead insects, and insect larvae were found in and around the flour handling equipment. The investigators took from Storage Bin #2 a sample of flour which, upon laboratory analysis, was found to contain no evidence of insect contamination. They also took a sample consisting of 47 subsamples from various points of the system, both inside and outside. Twenty-nine of the forty-seven subsamples contained insect filth in the form of live or dead insects, larval cast skins, fragments and webbing. Mr. Williams took a number of photographs of the flour processing area which evidenced conditions that may have contributed to insect infestation.18
At several places, significant amounts of static or encrusted flour had built up. This build-up was present on the machinery in the plant, on the ceiling, on ceiling crossbeams, and on at least one light fixture. One photograph shows a crack in the cinderblock wall of the building through which light is entering the building. Another photograph is described as "one of several holes at wall/floor junction apparently in connection with spaces beneath floor or walls." Two other photographs show a hole in one screen of the rotating flour sifter and a tear in another screen. These openings could conceivably let pass through the flour sifter objects, such as insects, which would then become part of the finished product. In fact, two dough balls collected as subsamples near the end of the production system were found to contain insect filth. Another possible means [of] ingress may have been an open, unscreened fan in the ceiling of the production area. This fan was not in use, but Defendant Joseph Corbi indicated that the fan had been installed only recently and would be turned on soon.19
Finally, the photographs taken by Mr. Williams show that before the plant commenced operation on the morning of March 22, 1978, the flour processing equipment in many places was still encrusted with dough and flour from the previous day's operations. The inspectors had been told on March 21 that all the machinery was washed at the end of each day.20
Mr. Williams testified that in his estimation the temperature in the building was at least 85 degrees Fahrenheit. Mr. Howard Green, a witness for the Defendants, stated that in his experience as an exterminator for over twenty years, higher temperatures result in a decrease in the time necessary for insect larvae to hatch. Thus, it is inferrable that the heat in the Baltimore Pizza Crust building tended to promote the rapid hatching of larvae. In fact, at the conclusion of an FDA inspection in March 1977, Joseph V. Corbi, the son of Defendant Joseph Corbi and the assistant plant manager, was informed by the FDA inspectors that the warmth of the plant was conducive to the incubation of insect larvae.21
The Defendant company had an extermination services contract during the periods in question in this case with the Home Exterminating Company of Baltimore. The sanitation program included a "cracks and crevices" program of spraying until approximately early May of 1978. In April 1978, Joseph V. Corbi received from the sales manager of Home Exterminating Company a letter which stated that a substantial increase in the company's pest control program was needed. The letter stated that "After checking your plant (entire building) I found you have great need of Weevil control around your flour bins. This letter was dated eleven days after the completion of the March 1978 FDA inspection. Among the suggestions contained in the letter were the use of a pyrethum fog near the flour bins and the fumigation of the bins "to rid existing Weevil infestation."22
Turning to the applicable law, Section 331(k) of 21 U. S. C. states:23
"The following acts and the causing thereof are hereby prohibited:
"(k) The … doing of any … act with respect to a food … if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated."
Section 342 defines adulteration as follows:25
"A food shall be deemed to be adulterated —
"(a) … (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health…"
As already pointed out, Count One of the indictment charges Defendants with a violation of Section 331(k)in that the flour held by the Defendant company at the time of the March 1978 inspection was adulterated as defined in subsections (a)(3) and (a)(4) of Section 342. Count Two charges a violation of Section 331(k) in that the flour held at the time of the December 1977 inspection was adulterated as defined in Section 342(a) (4).27
With respect to Count One, it is clear to the Court beyond a reasonable doubt that the Defendant corporation and the individual Defendants as responsible officers thereof held flour (eventually processed into pizza crust) for sale after shipment in interstate commerce and that the insanitary conditions at the plant may have caused the insect infestation found in the flour and, in fact, did cause at least some of the infestation. The numerous insanitary conditions found by investigator Williams certainly "may have" contributed to the contamination found. Under Section 342(a)(4), the Government need only show that conditions in the plant were such that they "would with reasonable possibility result in contamination." Berger v. United States, 200 F. 2d 818 at 821 (8th Cir. 1952). In the Court's view, the Government has met this burden.28
The Court also finds that the Government has proved that the conditions at Baltimore Pizza Crust actually caused adulteration in the flour as defined in Section 342(a)(3).29
Under the terms of the statute, an (a)(3) adulteration is proven once the presence of any contamination in food is found, except perhaps a de minimis amount. See United States v. General Foods Corp., 446 F. Supp. 740 at 744 (N. D. N. Y.), aff'd, 591 F. 2d 1332 (2d Cir. 1978).30
For example, uncontradicted testimony, in part by one of the Defendants' witnesses, established that the temperature at the plant was such as to facilitate the growth and hatching of insect larvae. Whether or not the larvae were introduced into the plant in the flour when it was shipped from Seaboard, as Defendants contend, the evidence indicates that Defendants maintained a condition that decreased hatching time and, thus, further contributed to the insect infestation found throughout the flour processing system.31
Having found that at least on condition at the company actually caused insect infestation, the Court notes that this condition existed at least as far back as March 1977 when it was pointed out to Joseph V. Corbi. The heat problem no doubt existed in December 1977 and, thus, was, in the language of Section 342(a)(4), "an insanitary condition" which "may have" caused contamination of flour in the plant. In addition, in light of the five inspections and the results thereof prior to December 1977, the Court finds beyond a reasonable doubt that the Defendants failed to take adequate precautions against insect infestation and that such failure created an insanitary condition that may have caused contamination. See generally United States v. Park, 421 U. S. 658 at 672 (1975). Thus, the Government, in the Court's judgment, has met its burden of proof with respect to Count Two as well as with respect to Count One.32
The Defendant's major contention in this case has been that the insect infestation found by the FDA Inspectors was caused not by Defendants, but by Seaboard Allied Milling Corporation in that the flour shipped by Seaboard allegedly contained insects and larvae. Defendants argue that they cannot be convicted for receiving such flour because they did not initiate the contamination and that the Government has failed to prove that they exacerbated the contamination.33
Even if the Government had failed to show that conditions at the Defendants' business may have or actually initiated contamination, which the Court does not believe to be the case, the Court would not view Defendants' argument as meritorious. In United States v. Nova Scotia Food Products Corp., 417 F. Supp. 1364 (E. D. N. Y. 1976), rev'd on other grounds, 568 F. 2d 240 (2d Cir. 1977), the district court was faced with a similar argument. In that case, a processor of smoked whitefish argued that the FDA had no power under Section 342 (a)(4) to promulgate regulations prescribing methods by which fish processors must attempt to eradicate botulism from fish. The processor argued that because th bacteria occurred naturally in the fish in their native habitat and that the processor did not introduce the bacteria into the fish during processing, no "insanitary condition" had been created by the processor.34
The court responded to that argument as follows:35
"While Section 342(a)(4) may literally seem to deal only with conditions brought about by processing itself, the regulation under review … is specifically addressed to setting processing parameters to prevent the 'outgrowth and toxin formation of C. Botulinum Type E.' Seen in the perspective of (the regulation's) purpose and the purpose of subsection (a)(4), the use of the word 'insanitary' in subdivision (4) of Section 342(a) is, at worst, inelegant, but it is not inadequate to include preparing, packing, or holding conditions which permit a continuance of the outgrowth and toxin formation of the C. Botulinum Type E in the product under process…. It is beside the point that the bacterial infestation here is not one that invades the fish during the processing." 417 F. Supp. at 1369.
Similarly, in the present case, the Court finds it to be irrelevant whether insect infestation of the flour was introduced at Seaboard's facilities in Culpepper, Virginia. Like the court in the case just quoted, this Court believes that the language of subsection (a) (4) is flexible enough to apply to infestation that a defendant permits to continue and grow at its own natural pace, even if the defendant performs no affirmative act to encourage the continuation and growth. If the language of the statute is flexible enough to be so construed, the Court believes that it should be.37
As the Supreme Court has stated in United States v. Park at Page 673 of 421 U. S.:38
"Congress has seen fit to enforce the accountability of responsible corporate agents dealing with products which may affect the health of consumers by penal sanctions cast in rigorous terms, and the obligation of the court is to give them effect so long as they do not violate the Constitution."
The clear import of Park and other cases is that food and drug legislation should be liberally construed so as to further its important goal — the protection of consumers of food products who cannot protect themselves.40
In U. S. v. Dotterweich, 320 U. S. 277, the Supreme Court said, speaking through Mr. Justice Frankfurter:41
"The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of legislation if it is to be treated as a working instrument of government and not merely as a collection of English words."
Finally, with respect to the liability of the individual Defendants, Joseph N. Corbi and Frank Corbi, the Court finds that the Government has proved that these Defendants had a "responsible relation" to the violations in question and that it is appropriate to find them guilty along with the corporation. As the Supreme Court said in United States v. Wisenfeld Warehouse Co., 376 U. S. 86 at Page 91 (1964):43
"Food and drug legislation, concerned as it is with protecting the lives and health of human beings, under circumstances in which they might be unable to protect themselves, often 'dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing.' In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." United States v. Balint, 258 U. S. 250 and United States v. Dotterweich, 320 U. S. 277 at 281.
Because of their respective positions at Baltimore Pizza Crust, the individual Defendants clearly stood "in responsible relation to a public danger."45
The Court in this regard finally again quotes from the opinion of Mr. Justice Frankfurter speaking about the defendant Dotterweich in that case, who was president of the corporation involved. Mr. Justice Frankfurter said at Page 286 of 64 S. Ct.:46
"The offense is committed … by all who … have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs (or food). Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless."
For all of the reasons stated, the Court will enter a judgment order against the Defendants in the case, and I will ask the Government to submit such an order promptly.48
MISS TRIMBLE: Yes, we will, Your Honor.49
We will also order a presentence report for the two individual Defendants.50
THE COURT: Very good. Is there anything further this morning?51
MISS TRIMBLE: I don't believe so, Your Honor. They are on personal recognizance and we have no objection to that continuing, Your Honor.52
THE COURT: Yes, the Court will continue both Defendants at liberty on their own personal recognizance.53
I hereby certify the foregoing is a true and accurate excerpt from transcript of proceedings.54
S. M. Lee Schap
Official Court Reporter
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