16739. Alleged Misbranding of oil. U. S. v. Antonio Corrao. Plea of nqt guilty. 
Tried to a jury; verdict of guilty. Jury verdict set aside and new trial 
ordered; defendant retried by court and acquitted.   (F. D. C. No,
14255. Sample Nos. 50970-F, 57263-F to 57265-F, incl., 76113^, 
76117-F, 76119-F, 76482-F, 76483-F, 77830-F.)
INFORMATION FILED :   June 2,1945, against Antonio Corrao, Brooklyn, N. Y.
ALLEGED SHIPMENT: Between the approximate dates of August 4, 1943, and 
February 7,1944, from the State of New York into the States of Pennsylvania, 
New Jersey, and Connecticut.
LABEL, IN PART : "Figlia Mia Brand * * * Composed of 80% Cottonseed & 
Peanut Oils 20% Pure Olive Oil Packed By Universal Salad Oil Co. Brook- 
lyn, N. Y." or "La Sposa Brand * * * Composed of 80% Cottonseed & 
Peanut Oils 20% Imported Olive Oil * * * Packed By Universal Salad 
Oil Co.   Brooklyn, N. T."
NATURE OF CHARGE: Misbranding, Section 403 (a), the label statements "Com- 
posed of 80% Cottonseed & Peanut Oils 20% Pure [or "Imported"] Olive Oil" 
were false and misleading since the product was composed essentially of 
cottonseed oil and contained very little olive oil, and four lots, in addition, 
contained little or no peanut oil; and (portion of product), Section 403 (f), 
certain information required by the law to appear on the label did not appear 
in such terms as to render it likely to be read and understood by the ordinary 
individual under customary conditions of purchase and use since the label on 
the cans bore representations in a foreign language, Italian, and the common 
or usual name of each ingredient did not appear on the label in Italian.
DISPOSITION : A plea of not guilty having been entered, the defendant filed a 
motion for a bill of particulars on August 10,1945, which motion was granted. 
In April 1946, the case came on for trial before the jury. At the conclusion of 
the trial, the defendant's attorney filed a motion to dismiss, which motion the 
court reserved decision on. The case was sent to the jury, which found the 
defendant guilty. Defendant then filed a motion to set aside the verdict as 
contrary to the weight of evidence, and on August 15, 1946, the court handed 
down the following memorandum opinion setting aside the jury verdict and 
ordering a new trial:
ABRUZZO, District Judge: "There was a motion made at the end of the case 
after the jury had returned a verdict of conviction, and I reserved decision 
on that motion. I wish at this time to set forth the reasons for the action 
which I am about to take. Under the pleas of not guilty the defendant was 
convicted on counts 2, 4, 6, 8, 10, 12, 15, 17, and 20. Under these counts the 
proof showed that the cans of olive oil had the following words on them: 
20% olive oil, 80% cottonseed and peanut oil. There were other counts wherein 
the charge was that the oil was adulterated, but I dismissed all of those counts, 
as they seemed to be a duplication of the counts charging misbranding. There 
were other misbranding counts which I dismissed because there were not con- 
tained on the can the words, '20% olive oil and 80% cottonseed and peanut oil.'
"Tests were made of the cans of olive oil which were intercepted by the 
Government in interstate commerce, and these tests were the subject of the 
testimony before the jury upon which the conviction was based. The olive 
oil that went in these cans which I have seen was tested by the Government 
and they depended in their tests on breaking down the contents of the olive
oil and then performing what is known as a squalene test, which was evolved 
by Dr. Fitelson, a Government witness employed by the Government, and as a 
result of these tests and the testimony given by him the jury convicted this 
defendant. This squalene test has never been officially adopted by the Asso- 
ciation of Official Agricultural Chemists, and I understand the time for them 
to determine whether to adopt this as a permanent test or not is to be in Novem- 
ber, and action will be taken at that time to determine whether they will adopt 
this as the test for the detection of olive oil, and as I recall the testimony, 
Dr. Fitelson testified that he adopted a certain formula based upon his exami- 
nation of many oils, and adopting that particular formula he came to the 
conclusion that there was 1 to 2 percent olive oil in each of the cans pertaining 
to the counts which were left to the jury, but he testified, however, that had 
he adopted any other formula but the one he did—and it is quite evident that 
no expert could foresee the formula that he saw fit to adopt—he would get a 
greater content of olive oil.
"Under the circumstances, I do not think a verdict of guilty is justified, and 
on the weight of the evidence I am going to set the verdict aside under each 
count. I do this because perhaps the Government can strengthen its proof by 
the time a new trial is on, and it should be given the opportunity to do so. 
It might call other experts or other tests might be made which would have 
greater probative value in court and before a jury. I am not unmindful of 
the fact that it is important that if this man is guilty he should be punished. 
On the other hand I am not unmindful of the fact that in the present state of 
the proof I cannot conscientiously allow the verdict to stand.
"For these reasons I grant the motion to set aside the verdict, and only upon 
the grounds which I have set forth in this opinion, and I direct that the case 
be placed on the calendar for retrial in the early part of November."
The case was retried before a judge without a jury, and in January 1949 a 
verdict of acquittal was entered.