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UNITED STATES v. DIAPULSE CORP. OF AMERICA

November 7, 1973

UNITED STATES of America,
v.
DIAPULSE CORPORATION OF AMERICA, also known as the Diapulse Manufacturing Corporation of America, a corporation, et al., Defendants


Dooling, District Judge.


The opinion of the court was delivered by: DOOLING

MEMORANDUM and ORDER

DOOLING, District Judge.

 Plaintiff moved on August 3, 1973, by order to show cause, to punish The Diapulse Manufacturing Corporation ("Diapulse"), DCA Leasing Corp. ("DCA"), Jesse Ross and Bernard O. Siler for contempt of the preliminary injunction of December 8, 1971, and the permanent injunction of July 18, 1972. The contumacious conduct alleged comprises

 1. Shipment on June 7, 1972, in alleged violation of the preliminary injunction, of a Diapulse device to Ross at Las Vegas for display at a therapy convention accompanied by labeling making claims of therapeutic efficacy.

 2. Shipment on July 19, 1972, to Zimmerman in Pecatonia, Illinois, of a Diapulse modification kit with labeling claiming for the principal Diapulse device as kit-modified therapeutic efficacy, and did so without having obtained labeling approval from the FDA.

 3. Shipment on July 21, 1972, to Appel in Portland, Oregon, of a Diapulse modification kit with labeling claiming for the principal Diapulse device as kit modified therapeutic efficacy, and did so without having obtained labeling approval from FDA.

 4. Shipment on July 19, 1972 -- August 1, 1972, to Cook in Tampa, Florida of a Diapulse modification kit with labeling claiming for the principal Diapulse device as kit-modified therapeutic efficacy, and did so without having obtained labeling approval from the FDA.

 5. Shipment on July 25, 1972, to Zimmerman in Pecatonia, Illinois, of about two Diapulse modification kits with labeling claiming for the principal Diapulse device as kit-modified therapeutic efficacy, and did so without having obtained labeling approval from the FDA.

 6. Shipment on August 2, 1972, to Groves in Roanoke, Virginia, of a Diapulse modification kit with labeling claiming for the principal Diapulse device as kit-modified therapeutic efficacy, and did so without obtaining labeling approval from the FDA.

 7. Sending on September 25, 1972, communications making claims of therapeutic efficacy applicable to a Diapulse device then held for sale by Campbell Soup Company at Chicago, Illinois, after it had been shipped in commerce.

 A. Defendants move to dismiss the proceeding for want of jurisdiction on the ground that the last paragraph of 18 U.S.C. § 402 excludes from its scope contempts committed in disobedience of decrees entered in suits brought -- as United States v. Diapulse Corporation, et al., 68 C 391, was brought -- in the name or behalf of the United States. The major premise of the argument is necessarily that Section 402 is the sole source of jurisdiction for such a contempt proceeding; 21 U.S.C. § 332(b), it is argued, is not a source of contempt jurisdiction but simply invokes Section 402 and Criminal Rule 42 to the extent, and to the extent only, that Section 402 confers jurisdiction in the Section 332(a) cases covered by Section 332(b) (for the obsolete cross-reference in Section 332(b) to 28 U.S.C. § 387 (1928 edition) is, it is argued, a reference to matter now divided between 18 U.S.C. § 402 and Criminal Rule 42).

 The major premise of the argument is false and the argument fails.

 When United States v. Hudson, 1812, 11 U.S. (7 Cranch) 32, 3 L. Ed. 259, decided that the United States circuit courts were without jurisdiction to exercise a common law jurisdiction in criminal cases (in the particular case, an allegedly libelous charge that the President and the Congress secretly voted $2,000,000 to Bonaparte for leave to make a treaty with Spain), the Court also concluded that, while the courts had no implied jurisdiction of crimes against the state (at p. 34),

 
"To fine for contempt, imprison for contumacy, enforce the observance of order, &c., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others: and so far our courts, no doubt, possess powers not immediately derived from statute; but all exercise of criminal ...

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