Not that it’s rare for a Circuit Court to acquit a defendant for the abject failure of the government to prove a crime, but to give the prosecutor a good “dressing down” in the process is something that shouldn’t be missed. Even if the crime is the alleged mislabeling of salad dressing.
In United States v. Farinella, a 13 page decision from the 7th Circuit, Judge Posner takes us on a whirlwind tour of the world of salad dressing labeling, all the while exposing how the government played bait and switch with the very heart of its argument, that the “best if eaten by” date is the same thing as the “expiration date” on the label. As it turns out, it’s not, and the salad dressing has a shelf life similar to that of Twinkies.
There are some gems in this decision that could well be applied to many cases, and are worth keeping in your bag of tricks for future reference. At one point, the government called an FDA “expert” to testify what he thought the law should be. To this, the Court said:
If there is a requirement that the FDA’s approval must be obtained before a “best when purchased by” date may be changed, it would, to be a lawful predicate of a criminal conviction, have to be found in some statute or regulation, or at least in some written interpretive guideline or opinion, and not just in the oral testimony of an agency employee. It is a denial of due process of law to convict a person of a crime because he violated some bureaucrat’s secret understanding of the law. “The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.” Torres v. INS, 144 F.3d 472, 474 (7th Cir. 1998); see George Campbell Painting Corp. v. Chao, 463 F. Supp. 2d 184, 190-91 (D. Conn. 2006); Oppenheimer Mendez v. Acevedo, 388 F. Supp. 326, 335 (D.C. Puerto Rico 1974).(My emphasis, because it would be wrong to miss the incisive use of the word “bureaucrat” in any judicial opinion.) Certainly a classic point of law, applicable to so many other things, given the pervasive government reliance on “expert” opinion. And we’re not done yet.
After noting that the AUSA mislead the jury by arguing “expiration date” rather than “best by” date, Judge Posner related a question from oral argument (proof yet again that oral argument is always worth your time):
And finally comes the Court’s coup de grâce:We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be. We are not permitted to reverse a judgment on the basis of a lawyer’s misconduct that would not have caused a reasonable jury to acquit, United States v. Hasting, 461 U.S. 499, 505-06 (1983); United States. v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995), but in this case, had the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct. That sanction is not available only because the government presented so little evidence that the defendant is entitled to an acquittal. That does not detract from the gravity of the prosecutor’s misconduct and the need for an appropriate sanction. The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.
Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove
True, it was only salad dressing, but for any white collar practitioner dealing with fraud that’s predicated upon the government’s “interpretation”, this decision is gem. And a fun read to boot.
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Where were the skeptics on the jury? Why were they so credulous? I looked for the answer, hopefully, found it, and found it to be what I expected, on page 10. J. Posner asks the same question I did:
“Because the government presented insufficient evidence that the defendant engaged in misbranding, he is
entitled to be acquitted. But since there was insufficient evidence, why did the jury convict? Perhaps because of a series of improper statements by prosecutor Juliet Sorensen in her rebuttal clsoing argument, for which the government in its brief (which she signed) belatedly apologizes (belatedly because the government defended the remarks emphatically in the district court).”
It is very refreshing for an appellate panel to call out a prosecutor for intemperately bearing down on a defendant, whether or not a factually and legally innocent defendant as in this case. And it is rare for appellate courts to fix a name to the prosecutor in her display of mediocrity. That is usually secret information, isn’t it?
Assistant U.S. attorneys and state prosecutors pursue convictions on behalf of governments funded by tax spigots connected to bottomless pits. Bad prosecutors worship a concept of themselves as the White Hats, and money is no object to them in their mission of grinding away at prosecutions, no matter how frivolous. Money is no object to prosecutions, period.
Keeping this in mind and moving right along, we read this from the Court:
“The brief says that ‘the remarks which drew sustained objections were improper, because they cast the defendant’s exercise of his constitutional right to counsel in a negative light.’
“Indeed they were and they did. The reference to these ‘sustained objections’ by the defendant’s lawyer is to two statements made by the prosecutor to the jury. After the court sustained the defendant’s objection to the first statement — ‘Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this’ — she said to the jury: ‘Black and white in our system of justice, ladies and gentlemen. You have to earn justice. You can’t buy it.’ The judge sustained an objection to this statement too. That was too weak a response. He should have made clear to the prosecutor after sustaining the first objection that one more false step and he would declare a mistrial. The prosecutor’s second statement was worse than the first, because it could be understood as a warning that the defendant might try to obtain an acquittal by bribery.”
What a display of exasperation toward the trial court for giving the government a garden-variety pass, again, as so often happens, instead of yanking it by a short tether. The mistrial option may have been unpreserved. If so, the decision does not mention it. And a trial order of dismissal if there was one as there should have been was no doubt denied, summarily.
A fun read it is. But as J. Posner lets on, it is pathetic, isn’t it?
Lettuce continue this discussion, as the matter involved is no small tomatoes; the law, after all, does forbid crouton and unusual punishment.
I’ll be here all week, folks; try the veal.
I knew you would enjoy it. It really is a great read.
You’ve got to be ashamed of yourself for this one.
Judge Posner told me that he does not agree with our moderator and instead is always amused by Jdog’s little rib ticklers.
It seems to me high time Jdog knows. The judge agrees.
Aw, shucks, Ma’am.
So much so, I turned beet red. How could he do this to arugula guy like you?
Oh and my made-from-scratch salad dressing has an indefinite shelf life. Like Henri’s! Nobody thinks I’m kidding about it.