(concurring in part and dissenting in part).
I agree that defendants were properly found to have violated Title 21 U.S.C. § 331 (k) in that they “held” food for sale after shipment in interstate commerce which consisted in whole or in part of a filthy, putrid, or decomposed substance (i. e., the corn meal referred to in Count I), and held food for sale after shipment in interstate commerce under unsanitary conditions whereby it may have become contaminated with filth (i. e., the corn meal, poppy seed, caraway seed and corn grits referred to in Counts I, II, III and IV respectively). However, I respectfully disagree with the finding that defendants were each guilty of four separate violations of the statute.
These defendants were charged in a four-count information with holding adulterated food for sale after the interstate shipment thereof in violation of Title 21 U.S.C. § 331 (k). Count I charged that corn meal was “adulterated” as that term is defined by 21 U.S.C. § 342(a)(3) and as defined by § 342(a)(4), i. e., Count I charged that the corn meal consisted in part of a “filthy, putrid or decomposed substance” [(a)(3)] and that it was “held under unsanitary conditions whereby it may have become contaminated with filth • • [(a)(4)].
Counts II, III and IV charged, respectively, that poppy seed, caraway seed and corn grits were held under unsanitary conditions and were “adulterated” within the meaning of § 342(a)(4). The government neither charged nor proved that these foods actually consisted of a filthy, putrid or decomposed substance [§ 342(a)(3)].
If the government had charged and proved adulteration as defined by § 342(a)(3) as to each of the four kinds of food held for sale by the H. B. Gregory Co., I would agree that defendants may properly be found to have committed four separate violations of Title 21 U.S.C. § 331 (k), and accordingly, I would not consider separate sentences as to each count improper. But where the government charges three separate offenses (Counts II, III and IV) under § 342(a)(4) because three different kinds of food are being held, and proves but one unsanitary condition (i. e., the unsanitary condition of the building in *708which the foods are stored), I believe the maximum sentence that should be imposed is that which may be imposed for a single violation of the Act, a fine not to exceed one thousand dollars and/or imprisonment for not more than one year. 21 U.S.C. 333(a).
To hold otherwise conditions the extent of a defendant’s criminal liability not only on his failure to provide a sanitary environment for the foods held for sale, but also on whether defendant has held one, ten, twenty or one hundred different kinds of food on the premises, irrespective of the quantity thereof. To illustrate the problem thus presented, imagine the potential liability of a supermarket manager in charge of a mice-infested store. The government’s proof of this single unsanitary condition could, under the majority’s view, sustain separate convictions, potentially allowing consecutive one year prison terms, for each of the hundreds of different kinds of food held for sale on the premises. At the same time, the owner of a warehouse wherein large quantities of only one kind of food are stored could not receive a sentence in excess of one year in prison, plus a fine of one thousand dollars.
To avoid the prospect that such fortuitous circumstances could distinguish the criminal liability of one defendant from that of another, I would hold that if the government chooses to prove adulteration solely on the basis of § 342(a)(4), a defendant’s maintenance of an unsanitary facility within which foods are held for sale should be considered the conduct proscribed, regardless of how many different kinds of foods are stored therein, and that therefore only one sentence may be imposed.
I am not persuaded that Akin Distributors of Florida, Inc. v. United States, 399 F.2d 306 (5th Cir. 1968); Robinson v. United States, 366 F.2d 575 (10th Cir. 1966); V. E. Irons, Inc. v. United States, 244 F.2d 34 (1st Cir. 1957); or United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed. 2d 536 (1964), cited by the majority, are authority to the contrary.
In both Robinson and V. E. Irons, Inc., defendants were charged with multiple counts of “misbranding” drugs. Neither case involved “adulteration”; neither case imposed multiple penalties on the basis of a single act or omission; neither case involved 21 U.S.C. § 342(a)(4).
The Fifth Circuit’s decision in Akin involved both § 342(a)(3) and § 342(a)(4). The brief opinion in that case states that “appellant had received foods and allowed same to become adulterated within the meaning of Title 21 U.S.C. § 342(a)(3) and (a)(4) . . . ”. 399 F.2d at 307. The opinion does not disclose whether or not a finding of guilty was sustained as to any count in which evidence showed adulteration only within the meaning of § 342(a)(4), but a reasonable inference may be drawn that the government proved adulteration under § 342(a)(3) as to each of the different kinds of foods claimed to have become contaminated. The basis for so inferring is found in the court’s statement that “the evidence supporting the alleged adulteration of the food named in each count was different for each food.” 399 F.2d at 307.
Finally, the Wiesenfeld decision dealt solely with the question of whether the act of “holding” food for sale under unsanitary conditions whereby it may become contaminated with filth constitutes a violation of § 331 (k). The Court answered that question in the affirmative. Whether a defendant could be sentenced separately on the basis of each of the several kinds of food so held was not an issue in Wiesenfeld and was not considered by that Court.
Accordingly, I would affirm the convictions under Count I and would affirm as to Counts II, III and IV on the basis that they constitute but one offense. Consistent with this view, I would vacate two of the one thousand dollar fines imposed upon the corporate defendant, and would vacate two of the five hundred dollar fines imposed upon Mr. Gregory.