An Old Fashioned Park Criminal Prosecution With Some Twists – Part IIJanuary 30, 2014
By John R. Fleder –
On October 2, 2013, HP&M posted the following on this blog:
On September 26, 2013, the United States Attorney for the District of Colorado announced that he had filed a six count criminal Information against Eric and Ryan Jensen. The government alleges that the defendants violated the FDC Act by introducing adulterated cantaloupes into interstate commerce. The government also alleges that the cantaloupes bore Listeria monocytogenes and 33 people died. It is quite curious (we are being charitable here) that the government’s press release alleges that 147 people were hospitalized as a result of sales of the cantaloupes, but those allegations appear nowhere in the criminal Information!
The prosecution is a misdemeanor case, and does not allege any criminal “intent” on the part of the defendants. There is no public indication that the defendants are prepared to plead guilty and/or cooperate with the government against others. This fact pattern strongly suggests that this case is an old style Park criminal prosecution where the government files criminal charges under the FDC Act against company officials, without allegations that the defendants intended to violate the law and without a plea bargain that a misdemeanor prosecution is a settlement of more serious felony charges. Our speculation is that a thorough government investigation here failed to turn up evidence that the defendants violated the FDC Act “with the intent to defraud or mislead,” which would be necessary to commence felony charges under the FDC Act. In fact, the government used a grand jury to investigate this case, even though it can file a criminal Information involving misdemeanor charges without using a grand jury.
The second interesting twist in this case is that arrest warrants were issued for the defendants. Arresting defendants charged only with misdemeanors was certainly not the norm with regard to old style Park prosecutions. Typically, the defendants were simply notified of the charges and came to court voluntarily to enter their guilty or not guilty pleas.
Recent events have demonstrated that this case is indeed what this writer calls an old fashioned Park criminal prosecution. The government filed criminal charges under the FDC Act against company officials, without allegations that the defendants intended to violate the law and without a plea bargain that demonstrated that a misdemeanor prosecution was a settlement of more serious felony charges.
On January 28, 2014, the United States District Court for the District of Colorado sentenced the two defendants to five years probation, based on their guilty pleas to the six count criminal Information. They were also placed in home detention for six months, required to complete 100 hours of community service, and ordered to pay a total of $150,000 in restitution. The court did not impose any fine “because Defendants have no ability to pay a fine.”
On January 17, 2014, the government filed a somewhat remarkable “Sentencing Statement.” It argued that the relevant offense level for this case was 9. When a criminal case fits into the offense level of 9, a court must require some jail time unless it orders substitute measures such as home detention, under Sentencing Guideline 5B1.1. The government stated that it agreed with the United States Probation Office that the recommended sentence should be probation. The government explained that “any offense that results in 33-40 deaths [which deaths resulted from the sales of the adulterated canteloupes by defendants’ company] is a serious offense.” Nevertheless, “the seriousness of the offense is tempered in this case by the lack of a willful, intentional or knowing state of mind. These defendants were at worst negligent or reckless in their acts or omissions.”
The government then discussed what it described were mitigating circumstances, namely what the defendants did after they discovered that their company’s fruit was tainted. The government stated that the defendants: sought to voluntarily recall the fruit; through their counsel offered cooperation and assistance in the government’s investigation; and addressed the victims and their families “in an attempt to provide the victims a sense of comfort and closure,” waiving what the government called “constitutional protections in favor of addressing sensitive victim issues.”
The government also made a somewhat remarkable claim that it has already seen a significant difference in how food safety is viewed as a result of this prosecution. It asserted (without citation) that “A recognition that shoddy compliance with food safety standards and statutes potentially exposes those in the distribution chain to criminal liability has been taken seriously by the food industry in light of this prosecution.” That statement should be beneficial to the food industry in a variety of contexts.
It is interesting that the government did not explicitly ask for home detention or community service for the defendants even though the Court later imposed those requirements.
So what do we take away from this case:
- This is perhaps the first recent case where the government has actually gone on record stating that it believed that defendants prosecuted under 21 U.S.C. 333(a) lacked any criminal intent. In most or all other recent cases the government has stood silent on whether a defendant prosecuted under this statute had any criminal intent;
- Even conduct that leads to a substantial number of deaths will not necessarily warrant jail time;
- Defendants can take remedial steps after the “crimes” have been committed which will substantially reduce the sanctions that the government will seek and that a court will impose;
- For better or worse, the Park Doctrine is indeed alive, at least to the extent that it was applied in this case; and
- Based on comments made by the government in its Sentencing Statement, it appears that the prosecutors concluded that when deaths occur, the government believes it is obliged to seek criminal sanctions regardless of whether the people prosecuted have any wrongful intent.