Posted On Monday, February 25, 2013
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On Thursday, DOJ announced criminal charges against five individuals relating to the manufacture and distribution of salmonella-tainted peanuts and peanut products by the now defunct Peanut Corporation of America (PCA). The charges against the owner and president of the company, a food broker, and three individuals involved in the operation of the company’s Blakely, Georgia plant, include mail and wire fraud, the introduction of adulterated and misbranded food into interstate commerce, and conspiracy. Two of the individuals were also charged with obstruction of justice.
This case provides a sobering reminder to those involved in industries that don’t typically see criminal investigations that failure to implement and execute compliance programs can have dire consequences, and that deception in response to investigations will always make things worse. The team bringing the case reflects a multi-agency approach that can be used in such circumstances. Specifically, the case was investigated by the Food and Drug Administration’s Office of Criminal Investigations and the FBI. With the filing of the charges, which include a 76 count indictment against four of the individuals, the case is now being prosecuted by trial attorneys of the Consumer Protection Branch of DOJ’s Civil Division and the Office of U.S. Attorney for the Middle District of Georgia.
While there can be little doubt that the potential for injury and even death from contaminated food products had an impact on the decision to file criminal charges, the dishonesty reflected in the operations … as well as the response to the investigation, likely had a greater impact.
The charges are the culmination of an investigation that began after the Food and Drug Administration and the U.S. Centers for Disease Control and Prevention traced a national outbreak of salmonella to the PCA plant in Blakely as the likely source. According to the government, the Blakely plant was a peanut roasting facility where PCA roasted raw peanuts and produced granulated peanuts, peanut butter, and peanut paste. PCA shipped the products to customers that ranged in size from small, family-owned businesses to global, multibillion-dollar food companies.
The government alleges that the defendants defrauded PCA customers about the quality and purity of their peanut products and specifically misled PCA customers about the existence of food-borne pathogens by failing to notify the customers of contamination even when laboratory testing revealed the presence of salmonella in peanut products shipped from the Blakely plant. The government also claims that four of the defendants carried out a scheme to fabricate certificates of analysis (COAs) accompanying various shipments of peanut products. COAs are documents that summarize laboratory results, including results concerning the presence or absence of pathogens.
While there can be little doubt that the potential for injury and even death from contaminated food products had an impact on the decision to file criminal charges, the dishonesty reflected in the operations described above, as well as the response to the investigation, likely had a greater impact. Specifically, according to the government, after the salmonella outbreak that gave rise to this investigation, FDA inspectors visited the plant several times in January 2009. The indictment against four of the individuals alleges that the inspectors asked specific questions about the plant, its operations, and its history, and, in several instances, three of the defendants gave untrue or misleading answers to these questions.
DOJ also provided information to potential victims, announcing that “Individuals who feel that they may have been affected by or have become ill from tainted PCA products, and businesses that purchased products that were recalled as a result of the outbreak, should visit the following website for further details: https://forms.fbi.gov/pca-salmonella-tainted-product-case/“
Posted On Friday, February 22, 2013
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No we don’t bear news of a revival of the 1974 hit by Carl Douglas. Actually, that would be old news. Douglas re-recorded “Kung Fu Fighting” in 1998, and it shot to 8 in the UK, but I digress. More to the point, on Wednesday the Supreme Court, echoing its decision more than 50 years ago in Fong Foo v. United States, 369 U.S. 141 (1962), re-affirmed the concept that retrial following a court-decreed acquittal is barred, even if the acquittal is “based upon an egregiously erroneous foundation.” Evans v. Michigan, No. 11-1327 (February 20, 3013). The decision in Evans, resulted in a reversal of a decision of the Michigan Supreme Court, which had reversed the trial court’s acquittal of Lamar Evans on the charge “burning other real property.” The opinion of an 8-1 Court (Justice Alito dissenting), authored by Justice Sotomayor, concluded that the Double Jeopardy Clause barred retrial of Evans after the trial court had granted judgment of acquittal.
In the trial court, Lamar Evans was charged under Michigan law with burning “other real property.” After the close of the government’s case, Evans made a motion for judgment of acquittal, arguing that the government had failed to prove a critical element of the crime, asserting specifically that the government had failed to prove that the building was “not a dwelling house.” The trial court agreed, entering a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence to prove that particular element of the offense. It based its finding on the fact that the evidence had demonstrated that the burned property actually was a dwelling house.
In its review, the Supreme Court pointed out, as both the defense and prosecution had ultimately agreed as the case moved through appeals in Michigan, that the unproven “element” was not actually a required element at all. Rather, under controlling precedent, burning “other real property” is a lesser included offense of Arson (which requires that the structure be a dwelling), while the provision under which he was charged covers all other real property. Accordingly, there had been no requirement for the government to prove that the structure was something other than a dwelling.
“…the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.”
The Court emphasized that on the issue of Double Jeopardy it has “applied Fong Foo’s principle broadly,” ruling in the course of numerous cases that an acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e.g., Fong Foo, 369 U. S., at 143, or forgoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U. S. 462, 467–468 (2005). Again, the Court stated that an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U.S. 54, 68–69, 78 (1978); a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U. S., at 473; or a “misconstruction of the statute” defining the requirements to convict. Arizona v. Rumsey, 467 U. S. 203 (1984). Justice Sotomayor wrote that “in all these circumstances, the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character,” quoting United States v. Scott, 437 U. S. 82, 98 (1978).
Most essentially, the Court found that its prior rulings on the issue “have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” It distinguished such rulings from those more “procedural” rulings that may also terminate a case mid-trial, which are more commonly referred to as dismissals or mistrials. Those types of dismissals, the Court wrote, include “rulings on questions that ‘are unrelated to factual guilt or innocence,’ but ‘which serve other purposes,’ including ‘a legal judgment that a defendant, although criminally culpable, may not be punished” because of some problem like an error with the indictment, quoting Scott, at 98, and n. 11.
Justice Alito wrote in his dissent that the majority was incorrect in finding that the trial judge’s ruling was an actual “acquittal.” He asserted that it was not, explaining that the Court has consistently defined an acquittal as a decision that “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” He disputed that a true acquittal could be based on the failure of the prosecution to prove an “imaginary element.”
The complete opinion can be found here: http://www.supremecourt.gov/opinions/12pdf/11-1327_7648.pdf
