NOTE: This case did not go to trial
GOVERNMENT'S PROPOSED JURY INSTRUCTIONS
Pursuant to Rule 30 of the Federal Rules of Criminal Procedure, the United States of America respectfully requests the Court to include in its charge to the jury the following instructions. The government also requests leave to submit to the Court such further instructions as may become appropriate in light of the evidence adduced at trial.
The government requests that the Court include in its charge to the jury Eleventh Circuit Pattern Basic Instructions . . . (fill in later). . . . Additionally, the government requests that the Court include in its charge the attached offense instructions.
REQUEST NO. 1
"ADULTERATION OF FOOD HELD FOR SALE"
(Counts 1 through 6)
Counts 1 through 6 of the Information charge that the defendant caused food to become adulterated, while it was held for sale, and after it had been shipped in interstate commerce.
In order to find the defendant guilty on these charges, you must find beyond a reasonable doubt:
First: The defendant caused food to become adulterated;
Second: The food was being held for sale;
Third: The food had been shipped in interstate commerce.
21 U.S.C. §§ 331(k) and 342(a)(3) and (a)(4).
REQUEST NO. 2
The term "food" means articles used for food or drink for man or other animals and articles used for components of any such article.
21 U.S.C. § 321(f)
REQUEST NO. 3
Under the Federal Food, Drug, and Cosmetic Act, food (as already defined) may be adulterated in any of several different ways.
For purposes of this case, one way in which food is adulterated is if it consists in whole or in part of any filthy substance, or is otherwise unfit for food.
For purposes of this case, food is also adulterated if it has been prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth. Under this definition, food is deemed adulterated even if it has not actually been contaminated. If you find beyond a reasonable doubt that there were insanitary conditions creating a reasonable possibility that the food would be contaminated with filth, then you should find that the food is adulterated.
The terms "filth" and "insanitary conditions" in these contexts should be construed to have their usual and ordinary meanings, and should not be confined to any scientific or medical definition.
If you find that an article is food, as I have defined food, and if you further unanimously agree that it has any of the characteristics I have just described, then you should find that such food is adulterated.
21 U.S.C. §§ 342(a)(3) and (4); United States v. 1200 Cans Pasteurized Whole Eggs, 339 F. Supp. 131, 136, 140-41 (N.D. Ga. 1972) (§§ 342(a)(3) and (a)(4), cited with approval in United States v. An Article of Food, No. 85-7379 (11th Cir. 1985), reprinted in Kleinfeld & Kaplan, Federal Food, Drug, and Cosmetic Act, Judicial Record, 1985-1986 41; United States v. King's Trading, Inc., 724 F.2d 631, 633 (8th Cir. 1983) (§ 342(a)(4)); United States v. H.B. Gregory Co., 502 F.2d 700, 704 (7th Cir. 1974), cert. denied, 422 U.S. 1007 (1975) ; 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 53.06 (1992) ("filth" and "insanitary conditions").
REQUEST NO. 4
The term "interstate commerce" means commerce between any State and any place outside that State.
21 U.S.C. §§ 321(a)(1) and (b).
REQUEST NO. 5
CORPORATE OFFICIAL'S LIABILITY FOR VIOLATIONS OF FEDERAL FOOD, DRUG, AND COSMETIC ACT
In order to find the defendant guilty, you do not have to find that he personally committed acts causing food to become adulterated. You may find that the defendant caused the adulteration of food if you find beyond a reasonable doubt that, by reason of his job, the defendant had the responsibility and authority to prevent adulteration from occurring, or to promptly correct any adulteration, and that he failed to do so.
Moreover, it is no defense to the crimes charged in the Information that the defendant did not intend adulteration to occur, or that he lacked knowledge of the specific circumstances that caused adulteration. The law does not require the defendant to have actively engaged in wrongdoing in order to be held responsible for the adulteration of food being held for sale in his processing plant. All that the law requires is that the defendant held such a position of responsibility within the enterprise that he had sufficient authority to prevent or correct the dangerous conditions and thereby prevent the adulteration of the food. Responsible agents of businesses whose services and products affect the public health have a legal duty to exercise the foresight and vigilance necessary to ensure that their products are not adulterated and are therefore safe for public consumption. The Federal Food, Drug, and Cosmetic Act imposes this duty because responsible agents have at least the opportunity to learn of, correct, or prevent insanitary conditions, whereas even the most cautious consumer is unable to protect himself.
United States v. Park, 421 U.S. 658 (1975); United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Cattle King Packing Co., Inc., 793 F.2d 232, 239-41 (10th Cir. 1986), cert. denied, Stanko v. United States, 479 U.S. 985 (1986); Palmer v. United States, 340 F.2d 48 (5th Cir. 1964), cert. denied, 382 U.S. 903 (1965); United States v. Gel Spice Co., Inc., 601 F. Supp. 1205 (E.D. N.Y. 1984); United States v. Sene X Eleemosynary Corp., Inc., 479 F. Supp. 970 (S.D. Fl. 1979); 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 53.07 (1992).
REQUEST NO. 6
JURY'S DUTY TO FOLLOW INSTRUCTIONS
It is your duty as jurors to follow the law as stated in these instructions and to apply the rules of law so given to the facts as you find them from the evidence in the case. You must follow the law as I explain it to you whether you agree with that law or not. Regardless of any opinion you may have as to what the law should be, it would violate your sworn duty to base a verdict on any other view of the law than that given in the instructions of the Court.
Counsel have quite properly referred to some of the applicable rules of law in their closing arguments to you. If, however, any difference appears to you between the law as stated by counsel and that as stated by the Court, you are to be governed by the instructions given to you by the Court. Furthermore, in deciding the issues presented to you in this trial, you must not be persuaded by bias, prejudice, or sympathy for or against any of the parties to this case or by any public opinion.
11th Cir. Criminal Cases Pattern Jury Instruction 2.1 (1985); 1 Devitt and Blackmar, Federal Jury Practice and Instructions §§ 10.01, 12.01 (1992).
"HELD FOR SALE"
A food article is "held for sale" if the producer does not intend to use it for his personal consumption.
21 U.S.C. (k); United States v. H.B. Gregory Co., 502 F.2d 700, 704 (7th Cir. 1974) (citing Hipolite Egg Co. v. United States, 220 U.S. 45 (1911) for proposition that "all articles, compound or single, not intended for consumption by the producer, are designed for sale. . . .), cert. denied, 422 U.S. 1007 (1975). See also United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 92 (1964) (holding that bailee "held goods for sale" within meaning of 21 U.S.C. 331(k) even though bailee did not have title to goods); United States v. Cassaro, Inc., 443 F.2d 153, 155-56 (1st Cir. 1971); United States v. Sene X Eleemosynary Corp., Inc., 479 F. Supp. 970, 981-82 (S.D. Fl. 1979) (agreeing with Hipolite definition of "held for sale" and stating that this term "has long been afforded a liberal reading").
JEFFREY B. CHASNOW
Department of Justice
Office of Consumer Litigation
P.O. Box 386
Washington, D.C. 20044