The opinion of the court was delivered by: LEVET
The above-named corporate defendant, Stella D'Oro Biscuit Co., Inc., was held guilty after a jury trial under an indictment for violation of the Federal Food, Drug and Cosmetic Act, Title 21 U.S.C.A. §§ 331(a), 333(a), 342(a)(3) and 342(a)(4). This defendant had been previously convicted for the same offense on February 5, 1951 in the same court, which conviction became final before any of the current violations of said Act were committed by this defendant as alleged in the indictment and in which conviction resulted.
The procedural background of this case is as follows:
(1) On February 28, 1956, the Grand Jury voted an indictment of five counts against the corporate defendant, Stella D'Oro Biscuit Co., Inc., for violation of Title 21 U.S.C.A. §§ 331(a), 333(a), 342(a)(3) and 342(a)(4). (The first count was subsequently withdrawn.)
(2) An information alleging the previous conviction of this corporate defendant for violation of Section 331 of Title 21 U.S.C.A. on February 5, 1951 was filed in this court in March 1956 and notices were sent to the corporation to appear for pleading to the indictment of February 28, 1956 and to plead to the aforesaid information charging a prior conviction for the same offense Pleas of not guilty were entered.
(3) On June 14, 1956, the jury returned a verdict of guilty on counts 2, 3, 4 and 5 of this indictment against the corporate defendant, Stella D'Oro Biscuit Co., Inc. At this time a motion was made by the defendant to preclude sentence as a previous offender under Section 333(a) of Title 21 U.S.C.A., which reads as follows:
'Any person who violates any of the provisions of section 331 shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than one year, or a fine of not more than $ 1,000, or both such imprisonment and fine; but if the violation is committed after a conviction of such person under this section has become final such person shall be subject to imprisonment for not more three years, or a fine of not more than $ 10,000, or both such imprisonment and fine.'
(4) At the time of the making of this motion, the Court denied the defendant's motion to limit the sentence to that of a first offender. After admission by the corporate defendant of the fact of the prior conviction, the time thereof and the identity of the defendant, the defendant was sentenced to a fine of $ 3,000 on each of the four counts on which the jury had found it guilty. The Court then indicated its reasons, but stated that an opinion would be filed.
This motion was made upon the ground that the indictment did not contain the allegation or averment of the previous conviction and that, therefore, the punishment under this section must be no more than a $ 1,000 fine. The defendant further contended that it is a fundamental principle of criminal law that in a prosecution under a statute imposing a greater punishment for a second offense than for a first offense, the fact that the offense charged is a second violation must be directly averred in the indictment in order to justify a sentence as a second offender.
To sustain such a position the defendant has cited the following cases: United States v. Berkowitz, D.C.W.D.Mo., 1942, 45 F.Supp. 564; United States ex rel. Manchbach v. Moore, D.C., 2 F.2d 988; Olivito v. United States, 9 Cir., 1933, 67 F.2d 564; United States v. Modern Reed & Rattan Co., 2 Cir., 1948, 159 F.2d 656, certiorari denied 331 U.S. 831, 67 S. Ct. 1510, 91 L. Ed. 1845. However, all of the aforesaid cases were decided before the adoption of the Federal Rules of Criminal Procedure, 18 U.S.C.A. None of them involved cases where the practice followed here had obtained.
Olivito v. United States, 9 Cir., 1933, 67 F.2d 565, involved certain statutes under the National Prohibition Act concerning sentences where a defendant had allegedly been engaged in habitual violations. In that case the defendant had been convicted in a City Court for possession of intoxicating liquor. The Court said: 'There was not a scintilla of evidence to prove habitual violation by defendant, since the former acts were too remote and were not prosecuted under the National Prohibition Act.' at page 565. In the present case at bar, the record shows notice of previous conviction and an admission thereof, all before sentence was imposed.
United States ex rel, Manchbach v. Moore, D.C., 2 F.2d 988, also involved the National Prohibition Act. Section 29 of said Act, 27 U.S.C.A. § 46, provided as follows:
'Any person * * * shall be fined for a first offense not more than $ 500; for a second offense not less than $ 100 nor more than $ 1,000, or be imprisoned not more than ninety days; for any subsequent offense he shall be fined not less than $ 500 and be imprisoned not less than three months nor more than two years.'
In the Manchbach case, supra, the defendant had pleaded guilty but no notice had been served by virtue of the indictment or otherwise that there had been previous convictions. In this case, on the other hand, the defendant, Stella D'Oro Biscuit Co., Inc., received timely notice of the previous conviction.
United States v. Berkowitz, D.C.W.D.Mo., 1942, 45 F.Supp. 564, 565, involved Title 29 U.S.C.A. § 216(a), Fair Labor Standards Act, which reads as follows:
'Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $ 10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.'
The Court then held that under the above-mentioned statute, 'an imprisonment penalty cannot be imposed except in those cases where a second offense has not only been committed, but where the indictment or information charges the fact.' (Emphasis added.) Manifestly, the information in the case at bar expressly charged the defendant with having been previously convicted of the offense alleged in the indictment.
Under the Narcotics Law, 26 U.S.C.A. § 7237, the statute provides in part as follows:
'After conviction, but prior to pronouncement of sentence, the court shall be advised by the United States attorney whether the conviction is the offender's first or a subsequent offense. If it is not a first offense, the United States attorney shall file an information setting forth the prior convictions. The offender shall have the opportunity in open court to affirm or deny that he is identical with the person previously convicted. If he denies the identity, sentence shall be postponed for such time as to permit a trial before a jury on the sole issue of the offender's identity with the person previously convicted. If the offender is found by the jury to be the person previously convicted, or if he acknowledges that he is such person, he shall be sentenced as prescribed in this subsection.'
This procedure in substance was followed by the United States Attorney in this case. The defendant contended that there was no authority to follow such method since the procedure was not directed by statute in the Federal Food, Drug and Cosmetic Act. However, the legislation authorizing that procedure is indicative that the Congress considered that method sufficient for due process.
United States v. Modern Reed & Rattan Co., Inc., 2 Cir., 1947, 159 F.2d 656, involved the Fair Labor Standards Act of 1938, Title 29 U.S.C.A. §§ 201, 207 et seq. Previous convictions and sentences were placed ...