Sample Government's Motion in Limine re Knowledge and Intent
NOTE: The court denied the motions that are the subject of
memorandum in a published opinion, United States v. Luv N'Care
International, Inc., 897 F. Supp. 941 (W.D. La. 995). The
discussion is found at pages 944-45.|
GOVERNMENT'S RESPONSE TO
DEFENDANTS' MOTIONS IN LIMINE
On November 4th, 1994, defendants Luv N' Care International,
Luv N' Care, Ltd., XXXXX X. XXXXX, and XXXXXX X. XXXXX filed two
in limine.[FN1] During a pretrial conference with counsel on
10, 1994, the Court ordered that the government respond to the
defendants' motions by November 21, 1994. Pursuant to that order,
United States submits this memorandum and urges that the Court
the defendants' motions.
FN1. Defendants' motions are both captioned "Motion in
Limine." One of the motions relates to the intent standard
a conviction under 15 U.S.C. § 1263, and will be referred to in
memorandum as Defendants' Section 1263 Motion. The second motion
to the requirements of 16 C.F.R. § 1511.7(a), and will be
to in this memorandum as Defendants' Section 1511.7(a) Motion.
I. KNOWLEDGE AND INTENT ARE NOT REQUIRED ELEMENTS OF THE
OFFENSE AT ISSUE
The defendants have asked the Court to declare that 15 U.S.C.
1263 is "not a statute of strict liability, but one that requires
intentional violation, knowingly [sic] violation, or at least gross
negligence." Defendants' Section 1263 Motion at 2. The defendants
that "no prior interpretation of this particular law has preceded
indictments." Id. at 1. See also Motion for Continuance,
Guerriero Affidavit at III ("this is a novel case inasmuch as it
requires interpretation of a statute never yet tested or
the Courts to affect knowledge"). Contrary to the defendants'
assertions, the legal standard in this case is not novel or
The applicable legal standard has been in place for decades.
In United States v. Chalaire, a federal court in
held that criminal prosecutions pursuant to the Federal Hazardous
Substances Act ("FHSA"), the statute at issue here, do not require
evidence of knowledge or willfulness.
Knowledge and willfulness are not elements of 15
§ 1263(b). Nowhere in the statute are these elements
It is clear from the legislative history of the statute that
intended that knowledge and willfulness not be elements. The
Protection Act of 1966 amended the Federal Hazardous Substances
Act of 1960. The prohibited acts section of the latter Act is
after the corresponding section of the Federal Food, Drug and
Act [21 U.S.C. § 331]". 1960 U.S. Code and Congressional and
Administrative News, p. 2840. The Supreme Court and the Fifth
have interpreted 21 U.S.C. § 331 as not requiring knowledge and
316 F. Supp. 543, 548-49 (E.D. La. 1970) (emphasis added) (case
citations omitted). See also United States v.
Klehman, 397 F.2d 406, 408 (7th Cir. 1968) (where company ships
banned hazardous substance, conviction of its president under FHSA
requires "proof that he had 'a responsible share in the furtherance
the transaction.'" (quoting United States v. Dotterweich,
U.S. 277, 284 (1943)).
The Chalaire opinion is firmly grounded in the FHSA as
as Supreme Court precedent, which has determined that convictions
the Food, Drug, and Cosmetic Act ("FDCA"), the model for the FHSA,
not require proof of knowledge or wilfulness.[FN2] The legal
announced in Chalaire over twenty years ago is clear. It is
unique or unprecedented. Indeed, it is entirely in keeping with the
applicable statute, the statute's legislative history, and Supreme
precedent that has construed the kind of legislation at issue
FN2. The close relation between the FHSA and the FDCA
been recognized by the courts and is evident from the legislative
history of the statute. See, e.g., United States
Articles of Hazardous Substance, 588 F.2d 39, 42 (4th Cir.
(FHSA Section 1265 is modelled after FDCA Section 304); H. R.
1861, 86th Cong. 2d Sess. (1960), reprinted in 1960
Code Cong. & Admin. News 2833, 2841 ("[Section 1266] has the same
meaning and effect as section 305 [21 U.S.C. 𨶧] of the
Food, Drug, and Cosmetic Act.") Prior to the establishment of the
Consumer Product Safety Commission, the Food and Drug
administered the FHSA. See, e.g., R.B. Jarts, Inc.
Richardson, 438 F.2d 846, 850-51 (2d Cir. 1971).
FN3. Although Chalaire involved 15 U.S.C. §
1263(b) and the instant case involves 15 U.S.C. § 1263(a),
sections are identical in not requiring proof of knowledge or
wilfulness. A stiffer penalty is provided for both sections under
U.S.C. § 1264(a) where fraudulent "intent to defraud or
proven. This structure is similar to the structure of the FDCA,
which the provisions at issue have been patterned. See 21
§§ 331 and 333(a).
Certain legislation is directed at "phases of the lives and
of people which, in the circumstances of modern industrialism, are
largely beyond self-protection." United States v.
320 U.S. 277, 280 (1943). See also United States
Freed, 401 U.S. 601, 609-10 (1971) (intent requirement would
inferred in statute prohibiting possession of certain unregistered
firearms because it affected public safety). The Supreme Court
that this is "now a familiar type" of legislation where penalties
as effective means of regulation. Dotterweich, 320 U.S. at
280-81. "Such legislation dispenses with the conventional
for criminal conduct--awareness of some wrongdoing. In the interest
the larger good it puts the burden of acting at hazard upon a
otherwise innocent but standing in responsible relation to a public
danger." Id. at 281.
In United States v. Park, the Supreme Court reaffirmed
refined the strict liability standard, stating that the
foresight and vigilance imposed on corporate agents "are no more
stringent than the public has a right to expect of those who
assume positions of authority in business enterprises whose
products affect the health and well-being of the public that
them." 421 U.S. 658, 672 (1975). In that case the Supreme Court
that responsible corporate officials, in light of the highest
of foresight and vigilance, may be held criminally liable where
have the power to prevent or correct violations committed by the
corporate entity, even though the officials may not have been
aware of the violations. Id. at 674-77.
In sum, the Supreme Court has consistently found that in
legislation like that at issue here, Congress has weighed the
hardships and determined to place the burden of ensuring that the
is not harmed "upon those who have at least the opportunity of
themselves of the existence of conditions imposed for the
consumers before sharing in illicit commerce, rather than to throw
hazard on the innocent public who are wholly helpless."
Dotterweich, 320 U.S. at 285. See also
421 U.S. at 672; Freed, 401 U.S. at 610 (quoting United
v. Balint, 258 U.S. 250, 253-54 (1971)). Congress made that
determination in the passing the Child Protection Act of 1966,
which this case is being prosecuted.[FN4] That determination is
controlling in this case.
FN4. The defendants point to a civil penalty provision
different provision of the FHSA that specifically requires
the violator in order to impose liability. That civil penalty
was added to the FHSA by the Consumer Product Safety Commission
Improvements Act of 1990, which made revisions to a number of
under which the Consumer Product Safety Commission operates. The
penalty provision, thus, has no bearing upon this criminal
other than to demonstrate that Congress is fully able to include a
specific intent requirement in remedial legislation when it deems
II. THE DEFENDANTS' REQUEST TO DISMISS THE WARNING LABEL
COUNTS IS WITHOUT FOUNDATION
Though captioned a "Motion in Limine," the defendants motion
respect to the counts of the indictment charging violations of the
warning label regulation, 16 C.F.R. § 1511.7(a), in substance
requests the Court to dismiss those counts. See Defendants Section
1511.7(a) Motion at 1. Insofar as it can be discerned, the
argument is twofold: (1) they cannot have violated the regulation
they placed the required warning on the back of the packaging of
pacifiers, and (2) as to counts in which they are charged with both
warning label violation and another violation (e.g. failure to meet
structural integrity requirements), the government must prove both
violations in order to obtain convictions.Both of the arguments
The defendants first assert that "[i]n Counts 3, 4, 5, 7, 8,
11, the indictment the Government [sic] charges the defendant with
violating 16 C.F.R. 1511.7(a) on the grounds, not that defendants'
products lacked a conspicuous warning, but that it was not on the
front of the package." Defendants' Section 1511.7(a) Motion
This assertion is simply wrong. Each of the challenged counts is
grounded upon an allegation that the defendants' "packaging
contain legibly and conspicuously the following statement:
- Do Not Tie Pacifier Around Child's Neck as it Presents a
Danger.'" See Indictment, Counts 3, 4, 5, 7, 8, 10, and 11
Whether or not defendants' packaging contained the required
"legibly and conspicuously," is an evidentiary matter to be
at trial. By their so-called motion in limine, the defendants are
attempting to obtain a ruling from the Court as to what constitutes
legible and conspicuous warning before the United States has an
opportunity to present its evidence. There is no provision for such
motion and it should be summarily denied. Cf. Fed. R. Crim.
(motions for acquittal are to made at the close of a party's
presentation of evidence).
Having argued, incorrectly, that the government cannot
violation of the warning label regulation, defendants go on to
that counts of the Indictment alleging both a warning label
and another violation must be dismissed because the government must
prove both violations to obtain a conviction. Defendants' Section
1511.7(a) Motion at 2. Defendants cite no authority for this
The absence of citations is unsurprising, since defendants'
directly contrary to controlling Fifth Circuit precedent.
Where there are two or more ways in which a statute can be
violated, and a defendant is charged conjunctively in one count
violating the statute in two of those ways, proof of either type of
violation is sufficient for a conviction. United States v.
Atkins, 698 F.2d 711, 715 (5th Cir. 1983). See
United States v. Ruiz, 986 F.2d 905, 911 (5th Cir. 1993);
United States v. Jacquillon, 469 F.2d 380, 386 (5th Cir.
cert. denied, 410 U.S. 938 (1973). Thus, proof beyond
reasonable doubt with regard to either of the violations
in the counts challenged by defendants will be sufficient to
conviction. Defendants' motion in this regard should, therefore, be
For the foregoing reasons, the defendants' motions in limine
be denied in their entirety.
MICHAEL D. SKINNER
United States Attorney
Assistant United States Attorney
GERALD C. KELL
Senior Trial Counsel
Office of Consumer Litigation
U.S. Department of Justice
P.O. Box 386
Washington, D.C. 20044
November 18, 1994
[cited in USAM 4-8.210;
Civil Resource Manual 104]