2121. Misbranding: of Miracle Slenderizing: Cream. U. S. v. Norval C. Douglas
(Miracle Products). Plea of not guilty. Tried to the jury. "Verdict of
guilty. Sentence of 1 year's imprisonment and fine of $4,000. Judgment
reversed on appeal to the Circuit Court of Appeals. Case returned to the
district court -for retrial. Plea of nolo contendere subsequently entered
and a fine of $2,000 and costs imposed. (F. D. C. No. 14292. Sample Nos.
4120&-F, 63480-F.)
INFORMATION FILED: On or about June 20, 1945, Northern District of Illinois,
against Norval C. Douglas, trading as Miracle Products at Chicago. 111.
ALLEGED SHIPMENT: From the State of Illinois into the States of Texas and
Georgia. The product was shipped on or about March 2 and May 22, 1944.
A number of circulars entitled "The Miracle Plan For A Slender Body" and
"For the Preservation and Enhancement of Beauty" were shipped with a
portion of the product, and a number of the circulars were shipped separately
on or about April 26, 1944.
PRODUCT: Examination showed that the product was a semi-solid, consisting
essentially of water, magnesium stearate, epsom salt, and sodium sulfate,
perfumed with methyl salicylate.
NATURE OF CHARGE: Misbranding, Section 502 (a), the labeling of the product
was false and misleading since it represented and suggested that the article
would be efficacious in the reduction of body weight, whereas it would not
be efficacious for such purpose.
The information charged also that another product, Miracle Aid, was mis-
branded under the provisions of the law applicable to cosmetics, as reported
in notices of judgment on cosmetics.
DISPOSITION : The defendant having entered a plea of not guilty, the case came
on for trial before a jury on December 3, 1945. The jury returned a verdict
of guilty. The court thereupon sentenced the defendant to serve 1 year in jail,
and imposed a fine of $1,000 on each of the 4 counts of the information. The
case was subsequently appealed to the United States Circuit Court of Appeals
for the Seventh Circuit, and on June 15,1946, the following opinion was handed
down by that court:
MAJOR, Circuit Judge'- "This is an appeal from a judgment of conviction
predicated upon an information filed by the United States District Attorney,
which charged a violation of numerous sections of the Federal Food, Drug,
and Cosmetic Act, 21 U. S. C. A. 301, et seq.
"Defendant urges numerous grounds for reversal, but inasmuch as we are
of the view that the judgment must be reversed on one of such grounds, it is
unnecessary to state or discuss the others. The court sent to the jury the
information, to which were attached two affidavits, each of which contained
convincing proof in support of the charges contained in the information. One
of the affidavits was made by a person called as a witness at the trial, the
other was not.   We see no reason to set forth the contents of these affidavits.
It is sufficient to state that they strongly supported the government's case; in
fact, they contained proof of every element essential to a conviction.
"The question therefore is, was the submission of these affidavits to the jury
reversible error? The government attempts to excuse their submission almost
entirely by the fact that the court instructed the jury in the usual form to
the effect that the information was no evidence of the defendant's guilt, that it
was not to be treated by the jury as raising any kind of presumption against
the defendant, and that it was simply the formal manner prescribed by law
for preferring a charge and should be regarded by the jury solely in that light.
A number of cases are cited in which this general instruction has been approved.
We need not cite or discuss them for the reason that they are beside the point.
No complaint is made because the information was permitted to go to the jury,
but the criticism is directed solely at the affidavits. It is one thing to send to
the jury an indictment or information, the accusation against the defendant,
but something entirely different to send affidavits containing the government's
proof in support of such accusation. We know of no authority and we suspect
there is none which condones, much less approves, such a procedure.
"It is pointed out by the government that these affidavits were required by
the court as a prerequisite to its granting leave to file the information. This
no doubt was a proper procedure. The filing of an information is discretionary
with the court and leave must be obtained. In the exercise of this discretion,
it may properly require that in some manner it be satisfied of probable cause
for a prosecution. One of the ways by which it may be so satisfied is by the
filing of affidavits.    See Albrecht v. United States, 273 U. S. 1, 5.
"It is also suggested that the affidavits were attached to the information and
became a part thereof. We are unable to discern how this affects the situation.
We know of no reason why they should be attached to the information other
than perhaps for the purpose of convenience. In any event, they are no part of
the charge, and their sole function is to serve as proof in convincing the court
that leave should be granted to file. Furthermore, the fact that they were
attached to the information furnishes no reason why they could or should
not have been detached before the information was sent to the jury.
"The government is in a dilemma in attempting to sustain its position. In
one breath it concedes, as it must, that these affidavits were submitted to the
court as proof in support of the charge for the purpose of inducing the court
to grant leave to file, and in the next breath argues that when these same
affidavits were submitted to the jury they were merely a part of the accusation
and constituted no proof in support thereof. This latter argument is untenable
and must be rejected. In fact, we think that there would be no difference in
effect or result if the transcript of the testimony given before a grand jury as
the basis for an indictment was submitted to the trial jury. Surely no one
would seriously contend but that such procedure would constitute prejudicial
error.
"Lastly, the government urges that this court ignore the error for the reason
that it was neither excepted to nor assigned as error by the defendant. Again
the government is in a rather awkward situation. There is nothing in the
record, including the court's charge to the jury, to show or indicate that either
defendant or the court had any knowledge that these affidavits were being
submitted to the jury. The court instructed the jury concerning the infor-
mation and of course all had knowledge that it was being submitted. Ob-
viously, defendant's counsel could not be expected to object to the submission
of the affidavits unless he had knowledge thereof. True, as pointed out, the
court no doubt had knowledge that the affidavits were attached to the infor-
mation at the time leave was granted to file, but it does not follow that it had
such knowledge at the time it submitted the information. Furthermore, it may
be that the court presumed that counsel for the government would make it his
business, as he should have done, to ascertain that these affidavits were de-
tached. Counsel for the government was the moving factor in the matter and
must be held responsible for a procedure which, in our judgment, was unfair,
prejudicial and attended with dangerous consequences.
"Furthermore, we are of the view that the question presented is too serious
to go unnoticed even though it was not properly raised in the court below.
Amendment VI of the Constitution of the United States provides: 'In all
criminal prosecutions, the accused shall enjoy the right * * * to be con-
fronted with the witnesses against him.'   The submission to the jury of the
affidavits complained of was a palpable infringement of this constitutional
right.
"The judgment is REVERSED."
A petition for rehearing was filed, and following its denial on July 6, 1946,
the case was returned to the district court. On February 25, 1947, the defend-
ant entered a plea of nolo contendere, on which date the court imposed a fine of
$2,000 and costs, which included charges against both the drug and cosmetic.