|||SUPREME COURT OF THE UNITED STATES
|||1975.SCT.42010 <http://www.versuslaw.com>; 421 U.S. 658, 95
S. Ct. 1903, 44 L. Ed. 2d 489
|||June 9, 1975
|||CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
|||Allan Abbott Tuttle argued the cause for the United States. With him on
the briefs were Solicitor General Bork, Assistant Attorney General Kauper,
Howard E. Shapiro, and Peter Barton Hutt.
|||Gregory M. Harvey argued the cause for respondent. With him on the brief
was Orvel Sebring.*fn*
|||Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell,
|||MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
|||We granted certiorari to consider whether the jury instructions in the
prosecution of a corporate officer under 301 (k) of the Federal Food, Drug,
and Cosmetic Act, 52 Stat. 1042, as amended, 21 U.S.C. 331 (k), were appropriate
under United States v. Dotterweich,
320 U.S. 277
|||Acme Markets, Inc., is a national retail food chain with approximately
36,000 employees, 874 retail outlets, 12 general warehouses, and four special
warehouses. Its headquarters, including the office of the president, respondent
Park, who is chief executive officer of the corporation, are located in
Philadelphia, Pa. In a five-count information filed in the United States
District Court for the District of Maryland, the Government charged Acme
and respondent with violations of the Federal Food, Drug, and Cosmetic Act.
Each count of the information alleged that the defendants had received food
that had been shipped in interstate commerce and that, while the food was
being held for sale in Acme's Baltimore warehouse following shipment in
interstate commerce, they caused it to be held in a building accessible
to rodents and to be exposed to contamination by rodents. These acts were
alleged to have resulted in the food's being adulterated within the meaning
of 21 U.S.C. 342 (a)(3) and (4),*fn1
in violation of 21 U.S.C. 331 (k).*fn2
Acme pleaded guilty to each count of the information. Respondent pleaded
not guilty. The evidence at trial*fn3
demonstrated that in April 1970 the Food and Drug Administration (FDA) advised
respondent by letter of insanitary conditions in Acme's Philadelphia warehouse.
In 1971 the FDA found that similar conditions existed in the firm's Baltimore
warehouse. An FDA consumer safety officer testified concerning evidence
of rodent infestation and other insanitary conditions discovered during
a 12-day inspection of the Baltimore warehouse in November and December
1971.*fn4 He also related that
second inspection of the warehouse had been conducted in March 1972.*fn5
On that occasion the inspectors found that there had been improvement in
the sanitary conditions, but that "there was still evidence of rodent activity
in the building and in the warehouses and we found some rodent-contaminated
lots of food items." App. 23.
|||The Government also presented testimony by the Chief of Compliance of
the FDA's Baltimore office, who informed respondent by letter of the conditions
at the Baltimore warehouse after the first inspection.*fn6
There was testimony by Acme's Baltimore division vice president, who had
responded to the letter on behalf of Acme and respondent and who described
the steps taken to remedy the insanitary conditions discovered by both inspections.
The Government's final witness, Acme's vice president for legal affairs
and assistant secretary, identified
respondent as the president and chief executive officer of the company and
read a bylaw prescribing the duties of the chief executive officer.*fn7
He testified that respondent functioned by delegating "normal operating
duties," including sanitation, but that he retained "certain things, which
are the big, broad, principles of the operation of the company," and had
" the responsibility of seeing that they all work together." Id., at 41.
|||At the close of the Government's case in chief, respondent moved for a
judgment of acquittal on the ground that "the evidence in chief has shown
that Mr. Park is not personally concerned in this Food and Drug violation."
The trial judge denied the motion, stating that United States v. Dotterweich,
320 U.S. 277
(1943), was controlling.
|||Respondent was the only defense witness. He testified that, although all
of Acme's employees were in a sense under his general direction, the company
had an "organizational structure for responsibilities for certain functions"
according to which different phases of its operation were "assigned to individuals
who, in turn, have staff and departments under them." He identified those
individuals responsible for sanitation, and related that upon receipt of
the January 1972 FDA letter, he had conferred with the vice president for
who informed him that the Baltimore division vice president "was investigating
the situation immediately and would be taking corrective action and would
be preparing a summary of the corrective action to reply to the letter."
Respondent stated that he did not "believe there was anything [he] could
have done more constructively than what [he] found was being done." App.
|||On cross-examination, respondent conceded that providing sanitary conditions
for food offered for sale to the public was something that he was "responsible
for in the entire operation of the company," and he stated that it was one
of many phases of the company that he assigned to "dependable subordinates."
Respondent was asked about and, over the objections of his counsel, admitted
receiving, the April 1970 letter addressed to him from the FDA regarding
insanitary conditions at Acme's Philadelphia warehouse.*fn8
He acknowledged that, with the exception of the division vice president,
the same individuals had responsibility for sanitation in both Baltimore
and Philadelphia. Finally, in response to questions concerning the Philadelphia
and Baltimore incidents, respondent admitted that the Baltimore problem
indicated the system for handling sanitation "wasn't
working perfectly" and that as Acme's chief executive officer he was responsible
for "any result which occurs in our company." Id., at 48-55.
At the close of the evidence, respondent's renewed motion for a judgment
of acquittal was denied. The relevant portion of the trial judge's instructions
to the jury challenged by respondent is set out in the margin.*fn9
Respondent's counsel objected to the instructions on the ground that they
failed fairly to reflect our decision in United States v. Dotterweich, supra.,
and to define "'responsible relationship.'" The trial judge overruled Page
666} the objection. The jury found respondent guilty on all counts of the
information, and he was subsequently sentenced to pay a fine of $50 on each
|||The Court of Appeals reversed the conviction and remanded for a new trial.
That court viewed the Government as arguing "that the conviction may be
predicated solely upon a showing that... [respondent] was the President
of the offending corporation," and it stated that as "a general proposition,
some act of commission or omission is an essential element of every crime."
499 F.2d 839,
841 (CA4 1974). It reasoned that, although our decision in United States
v. Dotterweich, supra, at 281, had construed the statutory provisions under
which respondent was tried to dispense with the traditional element of "'awareness
of some wrongdoing,'" the Court had not construed them as dispensing with
the element of "wrongful action." The Court of Appeals concluded that the
trial judge's instructions "might well have left the jury with the erroneous
impression that Park could be found guilty in the absence of 'wrongful action'
on his part,"
499 F.2d, at 841-842,
and that proof of this element was required by due process. It held, with
dissent, that the instructions did not "correctly state the law of the case,"
id., at 840, and directed that on retrial the jury be instructed as to "wrongful
action," which might be "gross negligence and inattention in discharging...
corporate duties and obligations or any of a host of other acts of commission
or omission which would 'cause' the contamination of food." Id., at 842.
|||The Court of Appeals also held that the admission in evidence of the April
1970 FDA warning to respondent was error warranting reversal, based on its
conclusion that, "as this case was submitted to the jury and in light of
the sole issue presented," there was no need for the evidence and thus that
its prejudicial effect outweighed its relevancy under the test of United
States v. Woods,
484 F.2d 127
(CA4 1973), cert. denied,
415 U.S. 979
499 F.2d, at 843.
|||We granted certiorari because of an apparent conflict among the Courts
of Appeals with respect to the standard of liability of corporate officers
under the Federal Food, Drug, and Cosmetic Act as construed in United States
v. Dotterweich, supra, and because of the importance of the question to
the Government's enforcement program. We reverse.
|||The question presented by the Government's petition for certiorari in
United States v. Dotterweich, supra, and the focus of this Court's opinion,
was whether "the manager of a corporation, as well as the corporation itself,
may be prosecuted under the Federal Food, Drug, and Cosmetic Act of 1938
for the introduction of misbranded and adulterated articles into interstate
commerce." Pet. for Cert., No. 5, O.T. 1943, p. 2. In Dotterweich, a jury
had disagreed as to the corporation, a jobber purchasing drugs from manufacturers
and shipping them in interstate commerce under its own label, but had convicted
Dotterweich, the corporation's president and general manager. The Court
of Appeals reversed the conviction on the ground that only the drug dealer,
whether corporation or individual, was subject to the criminal provisions
of the Act, and that where the dealer was a corporation, an individual connected
therewith might be held personally only if he was operating the corporation
"as his 'alter ego.'" United States v. Buffalo Pharmacal Co.,
131 F.2d 500,
503 (CA2 1942).*fn11
|||In reversing the judgment of the Court of Appeals and reinstating Dotterweich's
conviction, this Court looked to the purposes of the Act and noted that
they "touch phases of the lives and health of people which, in the circumstances
of modern industrialism, are largely beyond self-protection."
320 U.S., at 280.
It observed that the Act is of "a now familiar type" which "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." Id., at 280-281.
|||Central to the Court's conclusion that individuals other than proprietors
are subject to the criminal provisions of the Act was the reality that "the
only way in which a corporation can act is through the individuals who act
on its behalf." Id., at 281. The Court
also noted that corporate officers had been subject to criminal liability
under the Federal Food and Drugs Act of 1906, n.12 and it observed that
a contrary result under the 1938 legislation would be incompatible with
the expressed intent of Congress to "enlarge and stiffen the penal net"
and to discourage a view of the Act's criminal penalties as a "'license
fee for the conduct of an illegitimate business.'"
320 U.S., at 282-283.
|||At the same time, however, the Court was aware of the concern which was
the motivating factor in the Court of Appeals' decision, that literal enforcement
"might operate too harshly by sweeping within its condemnation any person
however remotely entangled in the proscribed shipment." Id., at 284. A limiting
in the proscribed shipment." Id., at 284. A limiting principle, in the form
of "settled doctrines of criminal law" defining those who "are responsible
for the commission of a misdemeanor," was available. In this context, the
Court concluded, those doctrines dictated that the offense was committed
"by all who... have... a responsible share in the furtherance of the transaction
which the statute outlaws." Ibid.
|||The Court recognized that, because the Act dispenses with the need to
prove "consciousness of wrongdoing," it may result in hardship even as applied
to those who share "responsibility in the business process resulting in"
a violation. It regarded as "too treacherous" an attempt "to define or even
to indicate by way of illustration the class of employees which stands in
such a responsible relation." The question of responsibility, the Court
said, depends "on the evidence produced at the trial and its submission
- assuming the evidence warrants it - to the jury under appropriate guidance."
The Court added: "In such matters the good sense of prosecutors, the wise
guidance of trial judges, and the ultimate
judgment of juries must be trusted." Id., at 284-285.*fn13
See 21 U.S.C. 336. Cf. United States v. Sullivan,
332 U.S. 689,
|||The rule that corporate employees who have "a responsible share in the
furtherance of the transaction which the statute outlaws" are subject to
the criminal provisions of the Act was not formulated in a vacuum. Cf. Morissette
v. United States,
342 U.S. 246,
258 (1952). Cases under the Federal Food and Drugs Act of 1906 reflected
the view both that knowledge or intent were not required to be proved in
prosecutions under its criminal provisions, and that responsible corporate
agents could be subjected to the liability thereby imposed. See, e.g., United
States v. Mayfield, 177 F. 765 (ND Ala. 1910). Moreover, the principle had
been recognized that a corporate agent, through whose act, default, or omission
the corporation committed a crime, was himself guilty individually of that
crime. The principle had been applied whether or not the crime required
"consciousness of wrongdoing," and it had been applied not only to those
corporate agents who themselves committed the criminal act, but also to
those who by virtue of their managerial positions or other similar relation
to the actor could be deemed responsible for its commission.
|||In the latter class of cases, the liability of managerial officers did
not depend on their knowledge of, or personal participation in, the act
made criminal by the statute.
Rather, where the statute under which they were prosecuted dispensed with
"consciousness of wrongdoing," an omission or failure to act was deemed
a sufficient basis for a responsible corporate agent's liability. It was
enough in such cases that, by virtue of the relationship he bore to the
corporation, the agent had the power to prevent the act complained of. See,
e.g., State v. Burnam, 71 Wash. 199, 128 P. 218 (1912); Overland Cotton
Mill Co. v. People, 32 Colo. 263, 75 P. 924 (1904). Cf. Groff v. State,
171 Ind. 547, 85 N.E. 769 (1908); Turner v. State, 171 Tenn. 36, 100 S.W.
2d 236 (1937); People v. Schwartz, 28 Cal. App. 2d 775, 70 P. 2d 1017 (1937);
Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev.
|||The rationale of the interpretation given the Act in Dotterweich, as holding
criminally accountable the persons whose failure to exercise the authority
and supervisory responsibility reposed in them by the business organization
resulted in the violation complained of, has been confirmed in our subsequent
cases. Thus, the Court has reaffirmed the proposition that "the public interest
in the purity of its food is so great as to warrant the imposition of the
highest standard of care on distributors." Smith v. California,
361 U.S. 147,
152 (1959). In order to make "distributors of food the strictest censors
of their merchandise," ibid., the Act punishes "neglect where the law requires
care, or inaction where it imposes a duty." Morissette v. United States,
342 supra, at 255. "The accused, if he does not will the violation, usually
is in a position to prevent it with no more care than society might reasonably
expect and no more exertion than it might reasonably exact from one who
assumed his responsibilities." Id., at 256. Cf. Hughes, Criminal Omissions,
67 Yale L.J. 590 (1958). Similarly, in cases decided after Dotterweich,
Courts of Appeals have recognized that those corporate agents vested with
the responsibility, and power commensurate with that responsibility, to
devise whatever measures are necessary to ensure compliance with the Act
bear a "responsible relationship" to, or have a "responsible share" in,
|||Thus Dotterweich and the cases which have followed reveal that in providing
sanctions which reach and touch the individuals who execute the corporate
mission - and this is by no means necessarily confined to a single corporate
agent or employee - the Act imposes not only a positive duty to seek out
and remedy violations when they occur but also, and primarily, a duty to
implement measures that will insure that violations will not occur. The
requirements of foresight and vigilance imposed on responsible corporate
agents are beyond question demanding, and perhaps onerous, but they are
no more stringent than the public has a right to expect of those who voluntarily
assume positions of authority in business enterprises whose services and
products affect the health and well-being of the public that supports them.
Cf. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev.
731, 741-745 (1960).*fn15
|||The Act does not, as we observed in Dotterweich, make criminal liability
turn on "awareness of some wrongdoing"
or "conscious fraud." The duty imposed by Congress on responsible corporate
agents is, we emphasize, one that requires the highest standard of foresight
and vigilance, but the Act, in its criminal aspect, does not require that
which is objectively impossible. The theory upon which responsible corporate
agents are held criminally accountable for "causing" violations of the Act
permits a claim that a defendant was "powerless" to prevent or correct the
violation to "be raised defensively at a trial on the merits." United States
v. Wiesenfeld Warehouse Co.,
376 U.S. 86,
91 (1964). If such a claim is made, the defendant has the burden of coming
forward with evidence, but this does not alter the Government's ultimate
burden of proving beyond a reasonable doubt the defendant's guilt, including
his power, in light of the duty imposed by the Act, to prevent or correct
the prohibited condition. 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 courts is to give them effect so long as they do not violate the
|||We cannot agree with the Court of Appeals that it was incumbent upon the
District Court to instruct the jury that the Government had the burden of
establishing "wrongful action" in the sense in which the Court of Appeals
used that phrase. The concept of a "responsible relationship" to, or a "responsible
share" in, a violation of the Act indeed imports some measure of blameworthiness;
but it is equally clear that the Government establishes a prima facie case
when it introduces evidence sufficient to warrant a finding by the trier
of the facts that the defendant had, by reason of his position in the
corporation, responsibility and authority either to prevent in the first
instance, or promptly to correct, the violation complained of, and that
he failed to do so. The failure thus to fulfill the duty imposed by the
interaction of the corporate agent's authority and the statute furnishes
a sufficient causal link. The considerations which prompted the imposition
of this duty, and the scope of the duty, provide the measure of culpability.
|||Turning to the jury charge in this case, it is of course arguable that
isolated parts can be read as intimating that a finding of guilt could be
predicated solely on respondent's corporate position. But this is not the
way we review jury instructions, because "a single instruction to a jury
may not be judged in artificial isolation, but must be viewed in the context
of the overall charge." Cupp v. Naughten,
414 U.S. 141,
146-147 (1973). See Boyd v. United States,
271 U.S. 104,
|||Reading the entire charge satisfies us that the jury's attention was adequately
focused on the issue of respondent's authority with respect to the conditions
that formed the basis of the alleged violations. Viewed as a whole, the
charge did not permit the jury to find guilt solely on the basis of respondent's
position in the corporation; rather, it fairly advised the jury that to
find guilt it must find respondent "had a responsible relation to the situation,"
and "by virtue of his position... had... authority and responsibility" to
deal with the situation. The situation referred to could only be "food...
held in unsanitary conditions in a warehouse with the result that it consisted,
in part, of filth or... may have been contaminated with filth."
|||Moreover, in reviewing jury instructions, our task is also to view the
charge itself as part of the whole trial. "Often isolated statements taken
from the charge, seemingly prejudicial on their face, are not so when considered
in the context of the entire record of the trial." United States v. Birnbaum,
373 F.2d 250,
257 (CA2), cert. denied,
389 U.S. 837
(1967). (Emphasis added.) Cf. Cupp v. Naughten, supra. The record in this
case reveals that the jury could not have failed to be aware that the main
issue for determination was not respondent's position in the corporate hierarchy,
but rather his accountability, because of the responsibility and authority
of his position, for the conditions which gave rise to the charges against
|||We conclude that, viewed as a whole and in the context of the trial, the
charge was not misleading and contained an adequate statement of the law
to guide the jury's determination. Although it would have been better to
give an instruction more precisely relating the legal issue to the facts
of the case, we cannot say that the failure to provide the amplification
requested by respondent was an abuse of discretion. See United States
331 U.S. 532,
536-537 (1947); Holland v. United States,
348 U.S. 121,
140 (1954). Finally, we note that there was no request for an instruction
that the Government was required to prove beyond a reasonable doubt that
respondent was not without the power or capacity to affect the conditions
which founded the charges in the information.*fn17
In light of the evidence adduced at trial, we find no basis to conclude
that the failure of the trial court to give such an instruction sua sponte
was plain error or a defect affecting substantial rights. Fed. Rule Crim.
Proc. 52 (b). Compare Lopez v. United States,
373 U.S. 427,
436 (1963), with Screws v. United States,
325 U.S. 91,
107 (1945) (opinion of DOUGLAS, J.).
|||Our conclusion that the Court of Appeals erred in its reading of the jury
charge suggests as well our disagreement with that court concerning the
admissibility of evidence demonstrating that respondent was advised by the
FDA in 1970 of insanitary conditions in Acme's Philadelphia warehouse. We
are satisfied that the Act imposes the highest standard of care and permits
conviction of responsible corporate officials who, in light of this standard
of care, have the power to prevent or correct violations of its provisions.
Implicit in the Court's admonition that "the ultimate judgment of juries
must be trusted," United States v. Dotterweich,
320 U.S., at 285,
however, is the realization that they may demand more than corporate bylaws
to find culpability.
Respondent testified in his defense that he had employed a system in which
he relied upon his subordinates, and that he was ultimately responsible
for this system. He testified further that he had found these subordinates
to be "dependable" and had "great confidence" in them. By this and other
testimony respondent evidently sought to persuade the jury that, as the
president of a large corporation, he had no choice but to delegate duties
to those in whom he reposed confidence, that he had no reason to suspect
his subordinates were failing to insure compliance with the Act, and that,
once violations were unearthed, acting through those subordinates he did
everything possible to correct them.*fn18
|||Although we need not decide whether this testimony would have entitled
respondent to an instruction as to his lack of power, see supra, at 676,
had he requested it,*fn19
the testimony clearly created the "need" for rebuttal evidence. That evidence
was not offered to show that respondent had a propensity to commit criminal
acts, cf. Michelson v. United States,
335 U.S. 469,
475-476 (1948), or, as in United States v. Woods,
484 F.2d 127,
that the crime charged had been committed; its purpose
was to demonstrate that respondent was on notice that he could not rely
on his system of delegation to subordinates to prevent or correct insanitary
conditions at Acme's warehouses, and that he must have been aware of the
deficiencies of this system before the Baltimore violations were discovered.
The evidence was therefore relevant since it served to rebut respondent's
defense that he had justifiably relied upon subordinates to handle sanitation
matters. Cf. United States v. Ross,
321 F.2d 61,
67 (CA2), cert. denied,
375 U.S. 894
(1963); E. Cleary, McCormick on Evidence 190, pp. 450-452 (2d ed. 1972).
And, particularly in light of the difficult task of juries in prosecutions
under the Act, we conclude that its relevance and persuasiveness outweighed
any prejudicial effect. Cf. Research Laboratories, Inc. v. United States,
167 F.2d 410,
420-421 (CA9), cert. denied,
335 U.S. 843
|||MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL and MR. JUSTICE POWELL
|||Although agreeing with much of what is said in the Court's opinion, I
dissent from the opinion and judgment, because the jury instructions in
this case were not consistent with the law as the Court today expounds it.
|||As I understand the Court's opinion, it holds that in order to sustain
a conviction under 301 (k) of the Federal Food, Drug, and Cosmetic Act the
prosecution must at least show that by reason of an individual's corporate
position and responsibilities, he had a duty to use care to maintain the
physical integrity of the corporation's food products. A jury may then draw
the inference that when the food is found to be in such condition as to
violate the statute's prohibitions, that condition was "caused" by a breach
of the standard of care imposed upon the
responsible official. This is the language of negligence, and I agree with
|||To affirm this conviction, however, the Court must approve the instructions
given to the members of the jury who were entrusted with determining whether
the respondent was innocent or guilty. Those instructions did not conform
to the standards that the Court itself sets out today.
|||The trial judge instructed the jury to find Park guilty if it found beyond
a reasonable doubt that Park "had a responsible relation to the situation....
The issue is, in this case, whether the Defendant, John R. Park, by virtue
of his position in the company, had a position of authority and responsibility
in the situation out of which these charges arose." Requiring, as it did,
a verdict of guilty upon a finding of "responsibility," this instruction
standing alone could have been construed as a direction to convict if the
jury found Park "responsible" for the condition in the sense that his position
as chief executive officer gave him formal responsibility within the structure
of the corporation. But the trial judge went on specifically to caution
the jury not to attach such a meaning to his instruction, saying that "the
fact that the Defendant is pres[id]ent and is a chief executive officer
of the Acme Markets does not require a finding of guilt." "Responsibility"
as used by the trial judge therefore had whatever meaning the jury in its
unguided discretion chose to give it.
|||The instructions, therefore, expressed nothing more than a tautology.
They told the jury: "You must find the defendant guilty if you find that
he is to be held accountable for this adulterated food." In other words:
"You must find the defendant guilty if you conclude that he is guilty."
The trial judge recognized the infirmities in these instructions, but he
that he was required to give such a charge under United States v. Dotterweich,
320 U.S. 277,
which, he thought, in declining to define "responsible relation" had declined
to specify the minimum standard of liability for criminal guilt.*fn1
|||As the Court today recognizes, the Dotterweich case did not deal with
what kind of conduct must be proved to support a finding of criminal guilt
under the Act. Dotterweich was concerned, rather, with the statutory definition
of "person" - with what kind of corporate employees were even "subject to
the criminal provisions of the Act." Ante, at 670. The Court held that those
employees with "a responsible relation" to the violative transaction or
condition were subject to the Act's criminal provisions, but all that the
Court had to say with respect to the kind of conduct that can constitute
criminal guilt was that the Act "dispenses with the conventional requirement
for criminal conduct - awareness of some wrongdoing."
320 U.S., at 281.
|||In approving the instructions to the jury in this case - instructions
based upon what the Court concedes was a misunderstanding of Dotterweich
- the Court approves a conspicuous departure from the long and firmly established
division of functions between judge and jury in the administration of criminal
justice. As the Court put the matter more than 80 years ago: S
|||"We must hold firmly to the doctrine that in the courts of the United
States it is the duty of juries
in criminal cases to take the law from the court and apply that law to the
facts as they find them to be from the evidence. Upon the court rests the
responsibility of declaring the law; upon the jury, the responsibility of
applying the law so declared to the facts as they, upon their conscience,
believe them to be. Under any other system, the courts, although established
in order to declare the law, would for every practical purpose be eliminated
from our system of government as instrumentalities devised for the protection
equally of society and of individuals in their essential rights. When that
occurs our government will cease to be a government of laws, and become
a government of men. Liberty regulated by law is the underlying principle
of our institutions." Sparf v. United States,
156 U.S. 51,
|||More recently the Court declared unconstitutional a procedure whereby
a jury, having acquitted a defendant of a misdemeanor, was instructed to
impose upon him such costs of the prosecution as it deemed appropriate to
his degree of "responsibility." Giaccio v. Pennsylvania,
382 U.S. 399.
The state statute under which the procedure was authorized was invalidated
because it left "to the jury such broad and unlimited power in imposing
costs on acquitted defendants that the jurors must make determinations of
the crucial issue upon their own notions of what the law should be instead
of what it is." Id., at 403. And in Jackson v. Denno,
378 U.S. 368,
the Court found unconstitutional a procedure whereby a jury was permitted
to decide the question of the voluntariness of a confession along with the
question of guilt, in part because that procedure permitted the submergence
of a question of law, as to which appellate review was constitutionally
required, in the general deliberations of a jury.
These cases no more than embody a principle fundamental to our jurisprudence:
that a jury is to decide the facts and apply to them the law as explained
by the trial judge. Were it otherwise, trial by jury would be no more rational
and no more responsive to the accumulated wisdom of the law than trial by
ordeal. It is the function of jury instructions, in short, to establish
in any trial the objective standards that a jury is to apply as it performs
its own function of finding the facts.
|||To be sure, "the day [is] long past when [courts]... parsed instructions
and engaged in nice semantic distinctions," Cool v. United States,
409 U.S. 100,
107 (REHNQUIST, J., dissenting). But this Court has never before abandoned
the view that jury instructions must contain a statement of the applicable
law sufficiently precise to enable the jury to be guided by something other
than its rough notions of social justice. And while it might be argued that
the issue before the jury in this case was a "mixed" question of both law
and fact, this has never meant that a jury is to be left wholly at sea,
without any guidance as to the standard of conduct the law requires. The
instructions given by the trial court in this case, it must be emphasized,
were a virtual nullity, a mere authorization to convict if the jury thought
it appropriate. Such instructions - regardless of the blameworthiness of
the defendant's conduct, regardless of the social value of the Food, Drug,
and Cosmetic Act, and regardless of the importance of convicting those who
violate it - have no place in our jurisprudence.
|||We deal here with a criminal conviction, not a civil forfeiture. It is
true that the crime was but a misdemeanor and the penalty in this case light.
But under the statute even a first conviction can result in imprisonment
for a year, and a subsequent offense is a felony
carrying a punishment of up to three years in prison.*fn2
So the standardless conviction approved today can serve in another case
tomorrow to support a felony conviction and a substantial prison sentence.
However highly the Court may regard the social objectives of the Food, Drug,
and Cosmetic Act, that regard cannot serve to justify a criminal conviction
so wholly alien to fundamental principles of our law.
|||The Dotterweich case stands for two propositions, and I accept them both.
First, "any person" within the meaning of 21 U.S.C. 333 may include any
corporate officer or employee "standing in responsible relation" to a condition
or transaction forbidden by the Act.
320 U.S., at 281.
Second, a person may be convicted of a criminal offense under the Act even
in the absence of "the conventional requirement for criminal conduct - awareness
of some wrongdoing." Ibid.
|||But before a person can be convicted of a criminal violation of this Act,
a jury must find - and must be clearly instructed that it must find - evidence
beyond a reasonable doubt that he engaged in wrongful conduct amounting
at least to common-law negligence. There were no such instructions, and
clearly, therefore, no such finding in this case.*fn3
|||For these reasons, I cannot join the Court in affirming Park's criminal
|||* Briefs of amici curiae urging affirmance were filed by James F. Rill,
Robert A. Collier, and John Hardin Young for the National Association of
Food Chains; by H. Thomas Austern, H. Edward Dunkelberger, Jr., and Geoffrey
Richard Wagner Smith for the National Canners Assn.; by Robert C. Barnard
and Charles F. Lettow for the Synthetic Organic Chemical Manufacturers Assn.;
and by Frederick M. Rowe, Paul M. Hyman, and Jonathan W. Sloat for the Grocery
Manufacturers of America, Inc.
|||*fn1 Section 402 of the Act,
21 U.S.C. 342, provides in pertinent part:
"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...."
|||*fn2 Section 301 of the Act,
21 U.S.C. 331, provides in pertinent part:
"The following acts and the causing thereof are prohibited: . . . . .
"(k) The alteration, mutilation, destruction, obliteration, or removal
of the whole or any part of the labeling of, or the doing of any other
act with respect to, a food, drug, device, or cosmetic, 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 or misbranded."
|||*fn3 The parties stipulated
in effect that the items of food described in the information had been shipped
in interstate commerce and were being held for sale in Acme's Baltimore
|||*fn4 The witness testified
with respect to the inspection of the basement of the "old building" in
the warehouse complex:
"We found extensive evidence of rodent infestation in the form of rat
and mouse pellets throughout the entire perimeter area and along the wall.
"We also found that the doors leading to the basement area from the rail
siding had openings at the bottom or openings beneath part of the door
that came down at the bottom large enough to admit rodent entry. There
were also roden[t] pellets found on a number of different packages of
boxes of various items stored in the basement, and looking at this document,
I see there were also broken windows along the rail siding." App. 20-21.
On the first floor of the "old building," the inspectors found: "Thirty
mouse pellets on the floor along walls and on the ledge in the hanging
meat room. There were at least twenty mouse pellets beside bales of lime
Jello and one of the bales had a chewed rodent hole in the product...."
Id., at 22.
|||*fn5 The first four counts
of the information alleged violations corresponding to the observations
of the inspectors during the November and December 1971 inspection. The
fifth count alleged violations corresponding to observations during the
March 1972 inspection.
|||*fn6 The letter, dated January
27, 1972, included the following:
"We note with much concern that the old and new warehouse areas used
for food storage were actively and extensively inhabited by live rodents.
Of even more concern was the observation that such reprehensible conditions
obviously existed for a prolonged period of time without any detection,
or were completely ignored. . . . . . "We trust this letter will serve
to direct your attention to the seriousness of the problem and formally
advise you of the urgent need to initiate whatever measures are necessary
to prevent recurrence and ensure compliance with the law." Id., at 64-65.
|||*fn7 The bylaw provided in
"The Chairman of the board of directors or the president shall be the
chief executive officer of the company as the board of directors may from
time to time determine. He shall, subject to the board of directors, have
general and active supervision of the affairs, business, offices and employees
of the company.... "He shall, from time to time, in his discretion or
at the order of the board, report the operations and affairs of the company.
He shall also perform such other duties and have such other powers as
may be assigned to him from time to time by the board of directors." Id.,
|||*fn8 The April 1970 letter
informed respondent of the following "objectionable conditions" in Acme's
"1. Potential rodent entry ways were noted via ill fitting doors and
door in repair at Southwest corner of warehouse; at dock at old salvage
room and at receiving and shipping doors which were observed to be open
most of the time. "2. Rodent nesting, rodent excreta pellets, rodent stained
bale bagging and rodent gnawed holes were noted among bales of flour stored
in warehouse. "3. Potential rodent harborage was noted in discarded paper,
rope, sawdust and other debris piled in corner of shipping and receiving
dock near bakery and warehouse doors. Rodent excreta pellets were observed
among bags of sawdust (or wood shavings)." Id., at 70.
|||*fn9 "In order to find the
Defendant guilty on any count of the Information, you must find beyond a
reasonable doubt on each count.
. . . .. "Thirdly, that John R. Park held a position of authority in
the operation of the business of Acme Markets, Incorporated. "However,
you need not concern yourselves with the first two elements of the case.
The main issue for your determination is only with the third element,
whether the Defendant held a position of authority and responsibility
in the business of Acme Markets. . . . . . "The statute makes individuals,
as well as corporations, liable for violations. An individual is liable
if it is clear, beyond a reasonable doubt, that the elements of the adulteration
of the food as to travel in interstate commerce are present. As I have
instructed you in this case, they are, and that the individual had a responsible
relation to the situation, even though he may not have participated personally.
"The individual is or could be liable under the statute, even if he did
not consciously do wrong. However, the fact that the Defendant is [president]
and is a chief executive officer of the Acme Markets does not require
a finding of guilt. Though, he need not have personally participated in
the situation, he must have had a responsible relationship to the issue.
The issue is, in this case, whether the Defendant, John R. Park, by virtue
of his position in the company, had a position of authority and responsibility
in the situation out of which these charges arose." Id., at 61-62.
|||*fn10 Sections 303 (a)
and (b) of the Act, 21 U.S.C. 333 (a) and (b), provide:
"(a) Any person who violates a provision of section 331 of this title
shall be imprisoned for not more than one year or fined not more than
$1,000, or both. "(b) Notwithstanding the provisions of subsection (a)
of this section, if any person commits such a violation after a conviction
of him under this section has become final, or commits such a violation
with the intent to defraud or mislead, such person shall be imprisoned
for not more than three years or fined not more than $10,000, or both."
Respondent's renewed motion for a judgment of acquittal or in the alternative
for a new trial, one of the grounds of which was the alleged abuse of
discretion in the initiation of the prosecution against him, had previously
been denied after argument.
|||*fn11 The Court of Appeals
relied upon 303 (c) of the Act, 21 U.S.C. 333 (c), which extended immunity
from the penalties provided by 303 (a) to a person who could establish a
guaranty "signed by, and containing the name and address of, the person
residing in the United States from whom he received in good faith the article...."
(Emphasis added.) The court reasoned that where the drug dealer was a corporation,
the protection of 303 (c) would extend only to such dealer and not to its
|||*fn13 In reinstating Dotterweich's
conviction, the Court stated: "For present purpose it suffices to say that
in what the defense characterized as 'a very fair charge' the District Court
properly left the question of the responsibility of Dotterweich for the
shipment to the jury, and there was sufficient evidence to support its verdict."
320 U.S. at, 285.
|||*fn14 See, e.g., Lelles
v. United States,
241 F.2d 21
(CA9), cert. denied,
353 U.S. 974
(1957); United States v. Kaadt,
171 F.2d 600
(CA7 1948). Cf. United States v. Shapiro,
491 F.2d 335,
337 (CA6 1974); United States v. 3963 Bottles,
265 F.2d 332
(CA7), cert. denied,
360 U.S. 931
(1959); United States v. Klehman,
397 F.2d 406
|||*fn15 We note that in 1948
the Senate passed an amendment to 303 (a) of the Act to impose criminal
liability only for violations committed "willfully or as a result of gross
negligence." 94 Cong. Rec. 6760-6761 (1948). However, the amendment was
subsequently stricken in conference. Id., at 8551, 8838.
|||*fn16 In his summation
to the jury, the prosecutor argued:
"That brings us to the third question that you must decide, and that
is whether Mr. John R. Park is responsible for the conditions persisting.
. . . . . "The point is that, while Mr. Park apparently had a system,
and I think he testified the system had been set up long before he got
there - he did say that if anyone was going to change the system, it was
his responsibility to do so. That very system, the system that he didn't
change, did not work in March of 1970 in Philadelphia; it did not work
in November of 1971 in Baltimore; it did not work in March of 1972 in
Baltimore, and under those circumstances, I submit, that Mr. Park is the
man responsible. . . . . . "Mr. Park was responsible for seeing that sanitation
was taken care of, and he had a system set up that was supposed to do
that. This system didn't work. It didn't work three times. At some point
in time, Mr. Park has to be held responsible for the fact that his system
isn't working...." App. 57, 59, 60.
|||*fn17 Counsel for respondent
submitted only two requests for charge: (1) "Statutes such as the ones the
Government seeks to apply here are criminal statutes and should be strictly
construed," and (2) "The fact that John Park is President and Chief Executive
Officer of Acme Markets, Inc. does not of itself justify a finding of guilty
under Counts I through V of the Information." 1 Record 56-57.
|||*fn18 In his summation
to the jury, counsel for respondent argued:
"Now, you are Mr. Park. You have his responsibility for a thousand stores
- I think eight hundred and some stores - lots of stores, many divisions,
many warehouses. What are you going to do, except hire people in whom
you have confidence to whom you delegate the work? . . . . . "... What
I am saying to you is that Mr. Park, through his subordinates, when this
was found out, did everything in the world they [ sic] could." 3 Record
|||*fn19 Assuming, arguendo,
that it would be objectively impossible for a senior corporate agent to
control fully day-to-day conditions in 874 retail outlets, it does not follow
that such a corporate agent could not prevent or remedy promptly violations
of elementary sanitary conditions in 16 regional warehouses.
|||*fn1 In response to a request
for further illumination of what he meant by "responsible relationship"
the District Judge said:
"Let me say this, simply as to the definition of the 'responsible relationship.'
Dotterweich and subsequent cases have indicated this really is a jury
question. It says it is not even subject to being defined by the Court.
As I have indicated to counsel, I am quite candid in stating that I do
not agree with the decision; therefore, I am going to stick by it."
|||*fn2 See ante, at 666 n.
|||*fn3 This is not to say
that Park might not be found guilty by a properly instructed jury in a new
trial. But that, of course, is not the point. "Had the jury convicted on
proper instructions it would be the end of the matter. But juries are not
bound by what seems inescapable logic to judges." Morissette v. United States,
342 U.S. 246,
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