USA v. Charles Farinella, 08-1839.
The opinion of the court was delivered by: Posner, Circuit Judge.
The defendant was convicted by a jury of wire fraud, 18 U.S.C. § 1343, and of introducing into interstate commerce a misbranded food with intent to defraud or mislead. 21 U.S.C. §§ 331(a), 333(a)(2). The judge sentenced him to five years’ probation (including six months of home confinement) and to pay a $75,000 fine and forfeit the net gain from the offense, which was in excess of $400,000.
The government’s cross-appeal challenges the sentence as too lenient. The defendant’s appeal primarily argues that there was insufficient admissible evidence to convict him of misbranding.
The facts, stated as favorably to the government as the record permits, but without extraneous detail, are as follows. In May 2003 the defendant bought 1.6 million bottles of “Henri’s Salad Dressing” from ACH Foods. The label on each bottle said “best when purchased by” followed by a date. The intention was to sell the salad dressing to consumers through discount outlets.
The government calls these the dates on which “the dressing would expire.” That is itself false and misleading, and is part of a pattern of improper argumentation in this litigation that does no credit to the Justice Department.
The term “expiration date” on a food product, unlike a “best when purchased by” date, has a generally understood meaning: it is the date after which you shouldn’t eat the product. Salad dressing, however, or at least the type of salad dressing represented by Henri’s, is what is called “shelf stable”; it has no expiration date.
There is no suggestion that selling salad dressing after the “best when purchased by” date endangers human health; so far as appears, Henri’s Salad Dressing is edible a decade or more after it is manufactured. There is no evidence that the taste of any of the 1.6 million bottles of Henri’s Salad Dressing sold by the defendant had deteriorated by the time of trial-four years after the latest original “best when purchased by” date-let alone by the latest relabeled “best when purchased by” date, which was 18 months after Unilever’s original “best when purchased by” date. There is no evidence that any buyer of any of the 1.6 million bottles sold by the defendant has ever complained about the taste.
No evidence was presented that “best when purchased by” has a uniform meaning in the food industry. The government wants us to believe that it is a synonym for “expires on” but presented no evidence for this interpretation.
In mid-trial the government was permitted to call as an expert witness an employee of the Food and Drug Administration. He testified that the FDA has a database of inquiries regarding the relabeling of food product, that he had looked in the database, and that he had found no record of an inquiry from the defendant concerning the relabeling of salad dressing. The implication was that changing the “best when purchased by” date on a label requires the FDA’s permission.
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). Moreover, the law that a jury applies is the law given to it by the judge in his instructions, not the legal opinion offered by a witness, including an expert witness. United States v. Chube II, 538 F.3d 693, 701 (7th Cir. 2008).
The prosecutor told the judge that if there is a “best when purchased by” date on the label of a food product “and it’s changed[,] that is a violation of the Food, Drug and Cosmetic Act.” That is false.
We do not suggest that a novel fraud can never be punished as a crime. But to prove a person guilty of having made a fraudulent representation, a jury must be given evidence about the meaning (unless obvious) of the representation claimed to be fraudulent, and that was not done here.
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 in her rebuttal closing argument, for which the government in its brief belatedly apologizes (belatedly because the government defended the remarks emphatically in the district 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 objections 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.
There were additional improprieties, not acknowledged and for the most part not even discussed by the government in its brief. The prosecutor told the jury that if what the defendant “did was business as usual in the food industry, I suggest we stop going to the store right now and start growing our own food.”
That was a veiled reference to the nonexistent issue of safety, which she pressed further when she said that “in spite of all this talk about the quality of the dressing, I don’t see them opening any of these bottles and taking a whiff.” She also called the bottles of salad dressing “truckfulls of nasty, expired salad dressing.”
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.
REVERSED
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