## Facts

- Berger operated a plant that processed and packed pickles and pickle relish.
- The United States charged Berger by a three-count information with unlawfully causing jars of pickles and pickle relish to be introduced and delivered for introduction into interstate commerce as adulterated food, in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 342(a)(4).
- Each count corresponded to a separate interstate shipment: one on May 3, 1951, and two on May 17, 1951.
- The government’s theory was that the food was “adulterated” because it was prepared and packed under insanitary conditions whereby it may have become contaminated with filth.
- Government witnesses (including an inspector) described extensive unsanitary conditions at the plant, including many unscreened windows (with numerous broken panes) and unscreened doors that allowed pests and birds to enter.
- Inspectors observed pigeons flying in and out of the building, and on occasion pigeons were shot inside the plant.
- Inspectors also reported insects, bugs, and spiders in and around processing areas, including bugs and spiderwebs in pickle barrels and containers.
- Equipment was described as rusty, and some product showed mold.
- Berger presented no evidence at trial.
- At the close of the government’s case, the government dismissed Count Three.
- The jury convicted Berger on Counts One and Two; the district court denied Berger’s motions challenging the information, the constitutionality of § 342(a)(4), and the sufficiency of the evidence, and entered judgment and sentence.
- Berger appealed to the U.S. Court of Appeals for the Eighth Circuit.

## Issues

1. Whether 21 U.S.C. § 342(a)(4) is unconstitutionally indefinite (void for vagueness) because the phrase “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth” fails to give adequate notice of prohibited conduct.
2. Whether the evidence was sufficient to support the convictions on Counts One and Two for causing adulterated pickles and pickle relish to be introduced into interstate commerce under § 342(a)(4).

## Decision

- The Eighth Circuit held that § 342(a)(4) is not unconstitutionally vague or indefinite.
- The court construed “may have become contaminated” to require more than a remote or theoretical chance; the condemned condition must be one that would, with reasonable possibility, result in contamination with filth.
- Applying that construction, the court held the statute gave adequate warning of what conduct is prohibited.
- The court held the evidence of the plant’s conditions was sufficient for the jury to find beyond a reasonable doubt that the shipped products were prepared and packed under conditions that would, with reasonable possibility, result in contamination.
- The court affirmed the judgment of conviction on Counts One and Two.

## Legal Principles

- A criminal statute satisfies due process and notice requirements when its language gives a person of ordinary intelligence fair warning of what conduct is forbidden, judged by common understanding and usage.
- Under 21 U.S.C. § 342(a)(4), the phrase “whereby it may have become contaminated with filth” is read to require conditions that would create a reasonable possibility of contamination, not a merely speculative or trivial possibility.
- The FDCA’s adulteration provisions reach insanitary conditions before contamination is proved; the statute targets adulteration at an early stage by condemning conditions that are reasonably likely to result in contamination.
- Proof of insanitary conditions creating a reasonable possibility of contamination can support conviction even without proof that particular shipped jars contained filth.
- Statutory standards that turn on matters of degree are not automatically invalid; juries may determine whether conditions meet the statutory threshold based on the evidence.
- On review of evidentiary sufficiency, the appellate court considers whether the evidence permitted the jury to find the elements proved beyond a reasonable doubt.

## Conclusion

Berger’s convictions for introducing adulterated pickles and pickle relish into interstate commerce were affirmed because § 342(a)(4), read to require insanitary conditions that would with reasonable possibility cause contamination with filth, gave adequate notice and was constitutional, and the government’s evidence of pervasive unsanitary conditions at the plant was sufficient for the jury to find the statutory standard met without showing actual filth in the specific jars shipped.


Berger v. United States, 200 F.2d 818 (1952)