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Federal Criminal Convictions Reversed Even When Lawyers Failed to Make Argument: No One Bothered to Look at Whether the Defendant’s Actions Were “contrary to Law”

Kish Law LLC

In an amazing opinion issued in Atlanta by the Eleventh Circuit, the court reversed a series of federal criminal convictions because the indictment did not even charge a crime. And, they did so even though none of the lawyers for either side bothered to address whether the indictment properly charged a federal criminal offense! The whole issue came down to whether the Defendant’s actions were “contrary to law”, and because they were not, the court of appeals reversed all their convictions.

The Defendants and their company imported dairy products into the U.S. from Central America. Apparently, several of their imported products were contaminated with E. Coli and salmonella.

Some of the post-9/11 laws beefed up the statutes that criminalize the unlawful importing of goods into the United States. One of those laws is 18 U.S.C. § 545. The unlawful importation charges in the indictment here were based on violations of a Customs regulation, alleging the failure to deliver, export, and destroy with FDA supervision certain imported goods found to be adulterated. See 19 C.F.R. § 141.113(c). Failure to comply with this regulation typically gives rise to a civil remedy of liquidated damages in the amount of three times the value of the goods.

The criminal statute, 18 U.S.C. §545, says it is a crime to import items if doing so is “contrary to law”. To summarize what is a quite lengthy decision, the Court of Appeals decided that the regulation is not the kind of “law” referred to in this particular criminal statute.

To me there are two notable items from this decision. First, the Court of Appeals itself brought up the whole issue of whether the indictment even charges a crime. The judges told the lawyers for both sides to file more briefs on the questions of whether 1) the appeals court can even address the issue if no one raised it (they decided they could), and 2) whether the charges, as set out in the indictment, even alleged a crime. I’ve been doing this a very long time, but cannot ever remember a similar case.

The second thing that popped out to me when reading the opinion is that the Court of Appeals totally rejected the prosecutor’s arguments that any problems with the indictment could be fixed by “inferring” the missing pieces. My law partner, Carl, and I have been fighting this fight for over a decade now. Prosecutors get invalid indictments that do not allege everything needed to prove a crime, but judges have been increasingly letting them get away with it by referring to some faulty and flimsy earlier rulings where the missing elements of the crime are put back in by the process of making an “inference.

It is cases like this that re-energize me. I am glad to see judges who take their jobs seriously and who do not think they are supposed to merely rubber stamp every conviction that comes along. While such cases get my juices flowing, the decision also reminds me that all lawyers need to take a good long look at the charges in an indictment, and not just assume the charging document actually alleges a crime.

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