It is essential to bear in mind that this is a prosecution for economic misbranding or economic adulteration. In the sale of its products through the channels of established, reputable, reliable dairies and the like, there is not the slightest suggestion that Defendants' commodity was unwholesome. On the contrary, the Government conceded that 'there is nothing wrong with their product, not a thing in the world,' and that it 'is just as good and just as palatable and has as many vitamins as freshly squeezed' orange juice. It stipulated that the Defendants' commodity was produced in 'a clean, modern, sanitary plant.' The Court so recognized in its charge3 and while not immediately connected with our disposition, the jury under alternative verdict forms held that the violations were committed by Defendants 'without intent to defraud or mislead.'

Since we do not reach the question of the sufficiency of the evidence to support the convictions, it is unnecessary to give a detailed statement of the facts. However, they briefly consist of these. Cal-Tex Citrus Juice, Inc. engaged in the business of making an orange drink. The product was composed of freshly squeezed orange juice, concentrated orange juice, water, sugar, and at times glucose and ascorbic acid. The product ordinarily contained these ingredients, and rarely was composed entirely of juice as it comes from an orange. The drink was produced in the Cal-Tex plant in Houston, Texas and shipped to points in Louisiana, Kansas, Missouri, and other states.

The Defendants used three corporations in their business of producing and distributing this orange drink. Each of the Defendants served in some capacity as officers and directors of each of these three corporations. Cal-Tex was the corporate entity which actually produced the drink. Transportation Leasing, inc. was used by Defendants to own all of the rolling stock used in the production and delivery of the drink, as well as being used for the purchase and delivery of sugar, frozen concentrate, Vitamin C, and glucose used in the production. Central States Processors, Inc. was another corporation which served as the distributor of the orange drink.

To the indictment (see notes 1, 2 supra), Defendants filed a 'Motion Raising Defenses and Objections'4 plus a motion in arrest of judgment, F.R.Crim.P. 34, which asserted that the indictment did not state facts sufficient to state a criminal offense. The motions pointed out with great particularity the failure of the indictment to allege facts and circumstances regarding misbranding and adulteration. Overruling these motions, the District Court necessarily held the indictment sufficient.

The guidelines for determining the sufficiency of an indictment have been established for so many years that they are no longer open to question. We do not think it would be helpful to set out the many ways in which the rules have been stated. The rule as stated in 1833 was that 'in all cases, the offence must be set forth with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged.' United States v. Mills, 1833, 7 Pet. 138, 32 U.S. 138, 142, 8 L. Ed. 636. Recently, the criteria were reiterated with emphasis in Russell v. United States, 1962,369 U.S. 749, 763, 82 S. Ct. 1038, 1046, 8 L. Ed. 2d 240: 'These criteria are, first, whether the indictment 'contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet," and, secondly, "in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." (citing cases).' We have given recent, and decisive, recognition to these principles in Beitel v. United States, 5 Cir., 1962, 306 F.2d 665.

These judicial principles have descended from the Constitution which declares that 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; * * *', and that 'In all criminal prosecutions, the accused shall enjoy that right * * * to be informed of the nature and cause of the accusation; * * *.' U.S. Constitution, Amends. V, VI. Responding to these basic demands, F.R.Crim.P. 7(c) provides that 'The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.'

Important as are the two most emphasized criteria-- (1) notice and (2) double jeopardy-- the presentment by a Grand Jury has in our constitutional scheme another basic function. It is the protection to the citizen against unfounded charges. Little may be left open to construction or interpretation of an indictment. If the offense is not plainly stated and is made so only by a process of interpretation, there is no assurance that the Grand Jury would have charged such an offense. The Supreme Court has made this vividly clear in Smith v. United States, 1959, 360 U.S. 1, 9, 79 S. Ct. 991, 996, 3 L. Ed. 2d 1041. 'The Fifth Amendment made the (common law rule requiring indictments) mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings.' And even more recently it has been emphasized in Russell. 'To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.' 369 U.S. 749, 770, 82 S. Ct. 1038, 1050. It was just such principles which led us to confine tolling exceptions to indictments as such, not informations tentatively in lieu of indictments. Hattaway v. United States, 5 Cir., 1962, 304 F.2d 5, 12.

The first count of the indictment here charged the Defendants with a conspiracy to violate the laws of the United States (note 1, supra), 18 U.S.C.A. 371. The attack made on this Count is that it does not state an offense. With this, we are in basic agreement. The indictment alleges the conspiracy in typical terms in that the Defendants 'did unlawfully, knowingly, * * * conspire, confederate, and agree together * * *' to violate laws of the United States. This Count also alleges the manner in which the Defendants worked together, e.g., they were interrelated officers and directors of the various corporations, etc. We may assume that this Count adequately charges the existence of the conspiracy, i.e., agreement, and also some of the means or overt acts by which it was being carried out. But the fault with Count I lies, not in the conspiracy element, but in its failure to meet the standards described above in setting out the manner by which the specified federal laws have been violated.

Paragraphs 1 and 2 of Count I allege that in furtherance of the conspiracy, the Defendants introduced into interstate commerce a food 'which was adulterated within the meaning of' 21 U.S.C.A. 342(b)(2) and (4). These sections state that a food is adulterated '(2) if any substance has been substituted wholly or in part therefor * * * or (4) if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is.'5

Paragraphs 3, 4, and 5 of Count I alleged that the Defendants conspired to introduce into interstate commerce a food 'which was misbranded within the meaning of' 21 U.S.C.A. 343(a), (b), (i)(2).6

At the outset we think it appropriate to point out that the Government's response to this contention confuses the Defendants' constitutional right to know what offense is charged with his need to know the evidentiary details establishing the facts of such offense. As to the latter, the remedy lies in the Motion for Bill of Particulars, F.R.Crim.P. 7(f).

Here the conspiracy indictment as to adulteration essentially charges only that Defendants 'would produce a food represented to be pure orange juice, but which in truth and in fact the defendants would misbrand and adulterate by adding to orange juice, sugar, water, and other ingredients.'7

But this is not a federal crime unless it contravenes a statute.8 The statute specified was 342(b)(2) and (4). But this charges a variety of unknown actions. Thus, under subparagrpah (2) it is adulterated 'if any substance has been substituted wholly or in part therefor.' 'Therefor' for what? Subparagraph (2) does not make sense without subparagraph (1) as an antecedent. But subparagraph (1) deals with the omission or abstraction in whole or in part of 'any valuable constituent.'

For there to be a crime under (2), there must be the substitution of 'any substance' for some 'valuable constituent' of the food. Unless there is a 'valuable constituent' plus a substitution of 'any substance' for it, there is simply no crime. But the trial Court cannot guess, and the Defendants may not constitutionally be compelled to guess, what it was (if anything) the Grand Jury had in mind. With the infinite variety of foods now manufactured and processed, the indictment must specify what the 'valuable constituent' is and then charge what 'substance has been substituted * * * therefor.'

Neither in the conspiracy count nor the substantive counts (note 2, supra) is there even the vaguest hint as to what the 'valuable constituent' is or even that the Defendants 'by adding to orange juice, sugar, water, and other ingredients' were making a substitution 'therefor.'

The deficiency is even more startling as to 342(b)(4). There are at least three different kinds of adulterations resulting from 'any substance' that 'has been added * * * mixed or packed therewith.' The first is when the effect is 'to increase its bulk or weight.' Second, when it is to 'reduce its quality or strength.' The third when it is to 'make it appear better or of greater value than it is.'

Just what was it the Grand Jury thought these Defendants had done? Increased weight? Its bulk? Reduced its quality? Its strength? Or made it appear better or greater? Better or greater than what?⁶

Under subparagraph (2) incorporating necessarily subparagraph (1) and the introductory alternatives of subparagraph (4) with its stil further alternative acts, there is a minimum of eleven possible crimes. Did the Grand Jury intend to charge all eleven? Must the Defendants guess what ones were intended, thereby putting on the Defendants the burden of developing evidentiary detail as to all? To the extent that the queries can be answered by response to a Bill of Particulars, the Defendants may not in fact have been deprived of the right to know what proof they would have to meet. But this is only part of it. For the District Attorney is not the Grand Jury, and he may not determine what it is that the Grand Jury has charged. If the choice of one or more out of many unidentified crimes may be made by the prosecutor, then presentment by a Grand Jury will have become a useless, historic ritual.10

What has been said as to 'adulteration' requires a reversal of the conspiracy count regardless of its sufficiency as to 'misbranding.' The guilty verdict was general. With inquiry forever foreclosed, it is just as likely that the verdict was based on the insufficient charge of adulteration as on misbranding. Consequently, we do not need to determine whether the conspiracy count adequately charges as an object thereof the separate offense of misbranding. 343(a), (b), and (i)(2).

But we do have to face the problem in relation to the substantive counts IV and VI (note 2, supra). Except to identify the time, places and quantity of a shipment of '* * * food represented to be pure fresh orange juice,' the indictment merely charges in the words of the statute that 'such food was misbranded within the meaning of' 343(a), (b), and (i)(2).

While the structure of 343(a), (b) (see note 6, supra) is not so complex as 342, its relation to the balance of the Act makes a charge merely in statutory terms inadequate. A food11 is misbranded if the label is '(a) * * * false or misleading in any particular,' or the item is '(b) * * * offered for sale under the name of another food.'

We might assume that 'false' carries its usual meaning. But 'misleading' has its own peculiar statutory meaning.12 The statute envisages therefore that there might be a misleading label without it being false and vice versa. What is claimed here? That the label was false or misleading? Misleading, but not false? Misleading and false? False, but not misleading? And if misleading, in what way does the particular shipment come within the statutory definition of that term? (See note 12, supra).

It should be noted that in the substantive counts there is not even a single word about the addition of sugar, water, etc. Nor is there the slightest hint as to what made the label as to the product 'represented to be pure fresh orange juice' misleading or false.

The shortcomings are even more flagrant as to misbranding from the item being '(b) * * * offered for sale under the name of another food.' That charge involves at least two elements. The first is the real name of the food sold. Second is the name of the other food. What was the name of the food as shipped here? What was the name of the other food? It only gets worse when we look at the conjunctive charge of misbranding under (i)(2). First, that automatically brings into play 343(g). More important, it requires that for an item not having a subparagraph (g) standard of identity, the label msut show '(1) the common or usual name of the food, if any there be * * *.' Did this 'food' as shipped have a common name? If so, what was it? Or was it nameless under the phrase 'if any there be'? While subparagraph (1) was not specifically alleged, it relates directly to subparagraph (2). Subparagraph (2) requires the usual names of ingredients if the food is 'fabricated from two or more ingredients.' Here there was not a single word in the substantive counts charging that the shipment was 'fabricated,' whatever that means. Nor was there any factual statement as to what the 'ingredients' were, or what their usual names were.

Wrapped up in the easy generality 'misbranded within the meaning of' 343(a), (b), and (i)(2) were not less than six possible, but separate, offenses. Were all six intended? Or only two? Or three? Which ones? This deficiency was not cured by the bill of particulars. For it is not the office of a bill of particulars to ascertain what offense is charged.

The long and short of it is that the Defendants were not sufficiently apprised of the nature of the charges being made so that they could adequately prepare a defense. Although evidentiary detail as to a few of the missing pieces was supplied in the Government's answer to the Defendants' motion for a bill of particulars, 'it is a settled rule that a bill of particulars cannot save an invalid indictment.' Russell v. United States, supra, 369 U.S. at 770, 82 S. Ct. at 1050; Beitel v. United States, supra, 306 F.2d at 671. The indictment completely relied on the statutes for stating an offense. An indictment in the language of the offended statute is valid if the words of the statute 'fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.' But if the statute is pleaded in the indictment in general terms, 'it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.' Russell v. United States, supra, 369 U.S. at 765, 82 S. Ct. at 1047.

This seems especially necessary as to acts asserted to be criminal offenses under a statutory scheme as complex as this one and in which severe penalties of fine and imprisonment may be exacted even as misdemeanors when the actions taken or omitted are determined to have been done with no 'intent to defraud or mislead.' 21 U.S.C.A. 333(a), (b). When, as this statute permits, innocuous and morally innocent actions may send men to jail for long periods of time because mistakes in processing or labeling, etc. result in economic adulteration, it is essential that the offense (or offenses) be identified and charged in terms which adequately relate the actions to the statute.13 This in no sense implies that we require the pleading of evidence.

For the reasons discussed above, all of the Counts were defective. The judgments of conviction are reversed and the causes remanded with idrections to dismiss the indictments.

Reversed and remanded.