UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: December 28, 1976.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
CERTIFIED GROCERS CO-OP, A CORPORATION, HOWARD E. HILL AND DONALD E. LATSCH, INDIVIDUALS, DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Western District of Wisconsin - No. 73 Cr 2 James E. Doyle, Judge.
Castle, Senior Circuit Judge, Tone, Circuit Judge, and Robert L. Kunzig, Judge.*fn*
TONE, Circuit Judge.
In this food-adulteration prosecution under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq., the government appeals under 18 U.S.C. § 3731 from a judgment of acquittal entered after a bench trial. The defendants, relying upon that section's provision that "no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution," have moved to dismiss the appeal for lack of jurisdiction. The question of jurisdiction, under the standard set forth in United States v. Jenkins, 420 U.S. 358, 43 L. Ed. 2d 250, 95 S. Ct. 1006 (1975), is intertwined with the merits. On the authority of that case we dismiss the appeal.
The defendants, Certified Grocers Co-Op and two of its principal officers, were charged in a two-count information with violating § 301(k) of the Federal Food, Drug and Cosmetic Act,*fn1 by permitting flour held in their warehouse to become adulterated and permitting it to become exposed to adulteration.*fn2 Each count charged both adulteration and exposure to adulteration of certain described flour, General Mills brand in Count I and Pillsbury brand in Count II. Pursuant to Rule 23(c), Fed. R. Crim. P., the District Court made special findings of fact accompanied by an opinion explaining its decision. The court found the following facts:
The individual defendants were responsible for the day-to-day operations of the co-operative, including the sanitary conditions at the warehouse. The flour which was the subject of the information was shipped in interstate commerce and arrived at the warehouse on September 6, 1972, in the case of the General Mills flour, and August 28 of that year in the case of the Pillsbury flour. There were at least 15 bales of Gold Medal flour, each containing 12 two-pound bags, and 4 bales of Pillsbury flour, each containing 18 two-pound bags, making an aggregate of 252 bags.
A Food and Drug Administration inspection on September 19 and 20, 1972, while these 252 bags were being held for sale in the warehouse, disclosed that at least eight of them contained holes gnawed by rodents. These holes were approximately evenly divided between the General Mills flour described in Count I and the Pillsbury flour described in Count II. Only two of the individual two-pound bags were actually sampled, one from each lot. The General Mills bag contained two rodent excreta pellets and one rodent hair; the Pillsbury bag contained 10 rodent excreta pellets. Near the bales and elsewhere in the warehouse were several hundred rodent excreta pellets and several rodent bait boxes, one of which showed "recent rodent activity." Two dead rodents were "lying about outside the packaged food." There were numerous rodent burrows in the ground near the outside of the warehouse walls.
On September 20, 1972, after FDA inspectors had discovered the conditions just described, defendants voluntarily destroyed the 252 bags of flour, acknowledging in a written statement signed in the presence of the inspectors, "This flour was destroyed because they [the bales and bags] were rodent chewed."
Notwithstanding the foregoing findings, the court acquitted the defendants. With respect to actual contamination (21 U.S.C. § 342(a)(3)), the judge concluded that the government had not proved when the rodent activity in the warehouse occurred or whether the two packages which actually contained excreta were breached and contaminated before or after they arrived at the warehouse. Because of this gap in the evidence, he was unable to conclude "beyond a reasonable doubt that any of these defendants were the persons whose acts resulted in the presence of the [filth] in either of the two specific packages." Alternatively, he held that some minimum level of contamination was permissible under the statute and that "the quantity of foreign substances present was insufficient to support a conviction." The government does not challenge the holding on actual contamination, although presumably it does not agree with the alternative ground of the holding.
With respect to the possibility of contamination (21 U.S.C. § 342(a)(4)), the judge found that the presence, while the flour was being held in the warehouse, of "the gnawed holes and the rodent pellets and hairs and the two dead rodents lying about the packaged food . . . was no doubt an 'insanitary condition,'" but that "there was no reason to suppose that any of these things could or would enter the packages." He "attach[ed] somewhat less importance" to the lack of evidence of when the rodent activity occurred than he had with respect to the (a)(3) issue, and said "it may be inferred that some significant portion of that activity" occurred while the flour was present. Yet it was "difficult to draw sensible inferences as to what portion of this rodent activity" occurred before the flour arrived at the warehouse, and it was "impossible to determine" how much, "if any," occurred while the flour was there or so soon before the government's inspection that there was no time to take remedial action. And "if a significant portion" of the rodent activity occurred before the flour arrived, the later activity "may have been picayune."
Recognizing that the standard required for conviction under (a)(4), as interpreted in United States v. H. B. Gregory Co., 502 F.2d 700, 704-705 (7th Cir.), cert. denied, 422 U.S. 1007, 45 L. Ed. 2d 670, 95 S. Ct. 2629 (1975), is whether the insanitary conditions made it "reasonably possible" that the flour would become contaminated,*fn3 the judge stated that "one might conclude that insanitary conditions . . . made it reasonably possible that a mouse would enter [two packages of flour] . . . and deposit therein . . . rodent excreta pellets and one rodent hair. . . ." Because of the "elusive" nature of the conviction standards, he then stated that "the ultimate question appears to be how the word 'contaminated' in § 342(a)(4) is to be construed, in conjunction with 'reasonably possible.'" He construed "contaminated," as he had the language of (a)(3), to permit the presence of contaminants within a "range of tolerance contemplated by the statute."*fn4 He concluded that the filth described in the findings, which he calculated were the product of "about seven full mouse-days, so to speak," and was contained in a 100,000-square-foot warehouse, was within that range of tolerance.
Despite our misgivings about the District Court's interpretation of the statute*fn5 and the acquittal itself, we conclude that we are required to dismiss the appeal for want of jurisdiction. The double-jeopardy clause governs our appellate jurisdiction under 18 U.S.C. § 3731. In United States v. Jenkins, supra, 420 U.S. at 367, that clause was interpreted to permit an appeal from an acquittal following a bench trial if the district court's findings of fact show that it "resolved against the defendant[s] all of the factual issues necessary to support a finding of guilt under the correct legal standard." In considering whether there is jurisdiction over the appeal the trial court's findings can be sifted "to determine [whether] the court's finding of 'not guilty' is attributable to an erroneous conception of the law . . . ." The double-jeopardy clause precludes review, however, if
"further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would [be] required upon reversal and remand . . . . To subject [the defendants] to any further such proceedings at this stage would violate the Double Jeopardy Clause . . . ." Id. at 370.*fn6
We are unable to conclude that this rigorous standard is satisfied in the case at bar. Assuming, as we do, the correctness of the government's interpretation of (a)(4), see note 5, supra, the district judge did not "expressly or even impliedly" find against the defendants "on all issues necessary to establish guilt." United States v. Jenkins, supra, 420 U.S. at 367. Specifically, he did not find that the conditions at defendants' warehouse made it "reasonably possible," United States v. H. B. Gregory Co., supra, 502 F.2d at 704-705, that the flour named in the information would be contaminated. Rather, he merely stated that "one might conclude" that some contamination was reasonably possible, and did so only after "assuming inspections and cleanup at reasonably short intervals," a fact as to which there was no evidence introduced at the trial. This is hardly the sort of finding necessary to establish guilt in a criminal case, in which the due process clause requires that guilt be proved beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
Nor may we make the finding ourselves. Reasonable possibility was treated as an issue of fact in United States v. H. B. Gregory Co., supra, 502 F.2d at 705,*fn7 and we think it must be so viewed here. Although the finding of the District Court that at least eight of the 252 bags were rodent-chewed and two contained rodent excreta establishes actual contamination within (a)(3), cf. United States v. H. B. Gregory Co., supra, 502 F.2d at 703, and a fortiori a "reasonable possibility" of contamination, the court's inability to conclude beyond a reasonable doubt that this contamination resulted from any acts of the defendants precludes a determination that § 301(k) was violated. Receiving and holding the food after it has become contaminated does not satisfy the statutory words, "the doing of any act . . . with respect to, a food . . . [which] results in such article being adulterated." Furthermore, even if there might be circumstances in which the proximity of food to filth outside the food packages would establish a reasonable possibility of contamination as a matter of law, this is not such a case, because we cannot determine from the findings the proximity of the flour bags to that filth. However clear it may appear to us that the inference of a reasonable possibility of contamination should have been drawn, that inference could only be drawn by the trier of fact. It is too late for that under the Supreme Court's interpretation of the double-jeopardy clause in Jenkins. Thus, we cannot remand to permit the District Court to redetermine the facts under the correct legal standard.