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122.

Sample Indictment -- Food Fraud Prosecution -- Miscellaneous Counts

The Grand Jury further charges:

COUNTS 2 - 13

Mail Fraud

1. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

2. From at least as early as January 1985 through December 1990, in the Western District of Kentucky, in Jefferson County, Kentucky, and elsewhere, the defendants,

XXXX X. XXXX,
XXXX X. XXXX,
XXXXX X. XXXX,
XXXX XXXXXXX XXXX,
XXXXXX XXXXXX,
XXXXXXXX XXXX XXXXXX, and
XXX XXXXXX XXXXXXXX,
did knowingly and willfully devise and intend to devise a scheme and artifice to defraud, and obtain money and property from, buyers of foods represented to be unsweetened orange juice products, by means of false and fraudulent pretenses, representations and promises, knowing that the pretenses, representations, and promises were false when made.

3. It was part of said scheme and artifice that Moon Down sold to customers products that were represented to be unsweetened orange juice products, when in fact, as a result of the acts of the defendants, those products contained substantial quantities of beet sugar, syrup containing sugar, and also contained citric acid, which ingredients were not orange juice or orange juice concentrate.

4. It was further part of said scheme and artifice to defraud that defendants XXXXX X. XXXX,XXXXX X. XXXX, XXXXXX X. XXXX, XXXXXXX XXXXXX, and XXXXXXXXX XXXX XXXXXX would arrange for Moon Down and related entities to acquire large amounts of beet sugar from various sources.

5. It was further part of said scheme and artifice that defendants XXXXXX X. XXXX and XXXX XXXXXX XXXXXXXX would direct Moon Down employees to blend beet sugar into products that Moon Down would sell as unsweetened orange juice products.

6. It was further part of said scheme and artifice that defendant XXXXX XXXXXXX XXXX would represent Moon Down's products as unsweetened orange juice products.

7. It was further part of said scheme and artifice that defendants XXXXXXX XXXXXX and XXXXXXXXX XXXX XXXXXX would mail payment for sugar purchased on behalf of Moon Down and related entities.

8. It was further part of said scheme and artifice that defendant XXXXX X. XXXX would mail customers assurances and guarantees that Moon Down did not adulterate its products, and that Moon Down did business in an honest and forthright manner.

9. It was further part of said scheme and artifice that the defendants would receive in the mail invoices for sugar and syrup containing sugar that Moon Down purchased, and that those invoices would not indicate that the products contained sugar.

10. On or about the dates listed below, for the purpose of executing and attempting to execute said scheme and artifice to defraud, in the Western District of Kentucky, the defendants, XXXXX X. XXXX, XXXXX X. XXXX, XXXXXX X. XXXX, XXXXX XXXXXXX XXXX, XXXXXXX XXXXXX, XXXXXXXXX XXXX XXXXXX, and XXXX XXXXXX XXXXXXXX, caused to be placed in authorized depositories for mail matter, to be sent and delivered by the United States Postal Service, to the recipient listed below, and caused to be taken and received from the United States Postal Service, invoices, invoice stubs, payments, letters, and guarantees, as indicated below, each such instance being a separate and additional Count of this Indictment.

Count Date Type of Document Recipient

2 Nov. 22, Invoices stubs and Sugar Sweet, Inc. 1988 payment for invoices P.O. Box 1234 000291-1, 00033240 Heart, Indiana

3 Dec. 2, Invoices stubs and Sugar Sweet, Inc. 1988 payment for invoices P.O. Box 1234 000699-1, 000529 Heart, Indiana

4 Dec. 6, Invoices stub and Sugar Sweet, Inc. 1988 payment for invoice P.O. Box 1234 000805 Heart, Indiana

5 Dec. 12, Invoices stubs and Sugar Sweet, Inc. 1988 payment for invoices P.O. Box 1234 001001-1, 000846-1 Heart, Indiana

6 Jan. 5, Invoices stubs and Sugar Sweet, Inc. 1989 payment for invoices P.O. Box 1234 001540-1, 001344-1, Heart, Indiana 001262-1

7 Jan. 10, Invoices stubs and Sugar Sweet, Inc. 1989 payment for invoices P.O. Box 1234 00140-1, 001678-1, Heart, Indiana 001712-1

8 Nov. 28, Invoice Moon Down Foods, Inc. 1989 [Doc. No. 20 11168] 6300 Blueberry Lane Louisville, Kentucky

9 Dec. 22, Invoice stub and Sugar Sweet, Inc. 1989 payment for invoice P.O. Box 1234 010778 Heart, Indiana

10 Jan. 23, Invoice stubs and Sugar Sweet, Inc. 1990 payment for invoices P.O. Box 1234 011674, 011275, Heart, Indiana 011319, 011320, 011505

11 May 25, Letter and guarantee A firm in 1990 Yonkers, N.Y.

12 May 29, Letter and guarantee A firm in 1990 Whitehouse, N.J.

13 Aug. 17, Invoice Moon Down Foods, Inc. 1990 [Doc. No. 09 00755] One Moon Down Drive Benton, Kentucky 42025

All in violation of Title 18, United States Code, Sections 1341 and 2.

The Grand Jury further charges:

COUNTS 14 - 21

Interstate Shipment of Adulterated Food

11. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

12. On or about the dates listed below, in the Western District of Kentucky, and elsewhere, the defendants,

XXXXX X. XXXX,

XXXXX X. XXXX,

XXXXXX X. XXXX,

XXXXX XXXXXXX XXXX,

XXXXXXX XXXXXX,

XXXXXXXXX XXXX XXXXXX, and

XXXX XXXXXX XXXXXXXX,

with the intent to defraud and mislead, unlawfully introduced and delivered for introduction, and caused to be introduced and delivered for introduction, into interstate commerce, for delivery to customers of Moon Down in the places listed below, adulterated foods, to wit: foods labeled as, and otherwise represented to be, orange concentrate and unsweetened concentrated orange juice for manufacturing.

13. The foods were adulterated within the meaning of Title 21, United States Code, Section 342(b)(1), in that a valuable constituent, namely, orange juice concentrate, was in part omitted and abstracted therefrom; and Section 342(b)(2), in that beet sugar and syrup containing sugar was substituted in part for a valuable constituent, to wit: orange juice concentrate. Each instance listed below is a separate and additional Count of this Indictment.

COUNT CITY TO WHICH SHIPPED DATE OF SHIPMENT INVOICE NUMBER

14 Grandview, Washington January 10, 1990 Invoice 9691

15 Franklin, Massachusetts January 10, 1990 Invoice 9693

16 Franklin, Massachusetts January 30, 1990 Invoice 9877

17 Franklin, Massachusetts January 30, 1990 Invoice 9884

18 Grandview, Washington January 31, 1990 Invoice 9888

19 Sulphur Springs, Texas January 31, 1990 Invoice 9889

20 East Greenbush, New York March 8, 1990 Invoice 10269

21 Coventry, Connecticut April 6, 1990 Invoice 10586

All in violation of Title 21, United States Code, Sections 331(a) and 333(a)(2), and Title 18, United States Code, Section 2.

The Grand Jury further charges:

COUNTS 22 - 29

Interstate Shipment of Misbranded Food

14. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

15. On or about the dates listed below, in the Western District of Kentucky, and elsewhere, the defendants,

XXXXX X. XXXX,

XXXXX X. XXXX,

XXXXXX X. XXXX,

XXXXX XXXXXXX XXXX,

XXXXXXX XXXXXX,

XXXXXXXXX XXXX XXXXXX, and

XXXX XXXXXX XXXXXXXX,

with the intent to defraud and mislead, unlawfully introduced and delivered for introduction, and caused to be introduced and delivered for introduction, into interstate commerce, for delivery to customers of Moon Down in the places listed below, misbranded foods, to wit: foods labeled as, and otherwise represented to be, orange concentrate and unsweetened concentrated orange juice for manufacturing.

16. The foods were misbranded within the meaning of Title 21, United States Code, Section 343(a)(1), in that the labeling of those foods was false and misleading because it represented and suggested that the foods consisted only of unsweetened orange juice concentrate, whereas said foods, in fact, contained beet sugar and syrup containing sugar; and Section 343(b), in that the food beet sugar was offered for sale under the name of another food, namely, unsweetened concentrated orange juice for manufacturing; and 343(g), in that foods represented to be foods for which a definition and standard of identity was prescribed by regulation (21 C.F.R. § 146.153) namely, concentrated orange juice for manufacturing, failed to conform to that definition and standard of identity, in that they were composed, in part, of ingredients not permitted by the definition and standard of identity, including beet sugar (without a labeling statement). Each instance listed below is a separate and additional Count of this Indictment.

COUNT CITY TO WHICH SHIPPED DATE OF SHIPMENT INVOICE NUMBER

22 Grandview, Washington January 10, 1990 Invoice 9691

23 Franklin, Massachusetts January 10, 1990 Invoice 9693

24 Franklin, Massachusetts January 30, 1990 Invoice 9877

25 Franklin, Massachusetts January 30, 1990 Invoice 9884

26 Grandview, Washington January 31, 1990 Invoice 9888

27 Sulphur Springs, Texas January 31, 1990 Invoice 9889

28 East Greenbush, New York March 8, 1990 Invoice 10269

29 Coventry, Connecticut April 6, 1990 Invoice 10586

All in violation of Title 21, United States Code, Sections 331(a) and 333(a)(2), and Title 18, United States Code, Section 2.

The Grand Jury further charges:

COUNT 30

Adulteration of a Food

17. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

18. On or about January 8, 1990, in the Western District of Kentucky, and elsewhere, the defendants,

XXXXX X. XXXX,

XXXXX X. XXXX,

XXXXXX X. XXXX,

XXXXX XXXXXXX XXXX,

XXXXXXX XXXXXX,

XXXXXXXXX XXXX XXXXXX, and

XXXX XXXXXX XXXXXXXX,

with the intent to defraud and mislead, caused a food (production document AAA02090), labeled as, and otherwise represented to be, unsweetened concentrated orange juice for manufacturing, while held for sale after shipment of one of its components, namely, orange juice concentrate, in interstate commerce to Benton, Kentucky, to be adulterated within the meaning of Title 21, United States Code, Section 342(b)(1), in that a valuable constituent, namely, orange juice concentrate, was in part omitted and abstracted therefrom; and Section 342(b)(2), in that beet sugar was substituted in part for a valuable constituent, to wit: orange juice concentrate.

All in violation of Title 21, United States Code, Sections 331(k) and 333(a)(2), and Title 18, United States Code, Section 2.

The Grand Jury further charges:

COUNT 31

Misbranding of a Food

19. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

20. On or about January 8, 1990, in the Western District of Kentucky, and elsewhere, the defendants,

XXXXX X. XXXX,

XXXXX X. XXXX,

XXXXXX X. XXXX,

XXXXX XXXXXXX XXXX,

XXXXXXX XXXXXX,

XXXXXXXXX XXXX XXXXXX, and

XXXX XXXXXX XXXXXXXX,

with the intent to defraud and mislead, caused a food (production document AAA02090), labeled as, and otherwise represented to be, unsweetened concentrated orange juice for manufacturing, while held for sale after shipment of one of its components, namely, orange juice concentrate, in interstate commerce to Benton, Kentucky, to be misbranded within the meaning of Title 21, United States Code, Section 343(a)(1), in that the labeling of that food was false and misleading because it represented and suggested that the food consisted only of unsweetened concentrated orange juice for manufacturing, whereas said food, in fact, contained beet sugar; and Section 343(b), in that the food beet sugar was offered for sale under the name of another food, namely, unsweetened concentrated orange juice for manufacturing; and 343(g), in that a food represented to be a food for which a definition and standard of identity was prescribed by regulation (21 C.F.R. § 146.153) namely, concentrated orange juice for manufacturing, failed to conform to that definition and standard of identity, in that it was composed, in part, of ingredients not permitted by the definition and standard of identity, including beet sugar (without a labeling statement).

All in violation of Title 21, United States Code, Sections 331(k) and 333(a)(2), and Title 18, United States Code, Section 2.

The Grand Jury further charges:

COUNT 32

Adulteration of a Food

21. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

22. On or about January 30, 1990, in the Western District of Kentucky, and elsewhere, the defendants,

XXXXX X. XXXX,

XXXXX X. XXXX,

XXXXXX X. XXXX,

XXXXX XXXXXXX XXXX,

XXXXXXX XXXXXX,

XXXXXXXXX XXXX XXXXXX, and

XXXX XXXXXX XXXXXXXX,

with the intent to defraud and mislead, caused a food (No. 1012, production document AAA00182), labeled as, and otherwise represented to be, unsweetened concentrated orange juice for manufacturing, while held for sale after shipment of one of its components, namely, orange juice concentrate, in interstate commerce to Benton, Kentucky, to be adulterated within the meaning of Title 21, United States Code, Section 342(b)(1), in that a valuable constituent, namely, orange juice concentrate, was in part omitted and abstracted therefrom; and Section 342(b)(2), in that beet sugar was substituted in part for a valuable constituent, to wit: orange juice concentrate.

All in violation of Title 21, United States Code, Sections 331(k) and 333(a)(2), and Title 18, United States Code, Section 2.

The Grand Jury further charges:

COUNT 33

Misbranding of a Food

23. Paragraphs 1 through 10 of Count 1 are adopted and incorporated by reference as though set forth fully herein.

24. On or about January 30, 1990, in the Western District of Kentucky, and elsewhere, the defendants,

XXXXX X. XXXX,

XXXXX X. XXXX,

XXXXXX X. XXXX,

XXXXX XXXXXXX XXXX,

XXXXXXX XXXXXX,

XXXXXXXXX XXXX XXXXXX, and

XXXX XXXXXX XXXXXXXX,

with the intent to defraud and mislead, caused a food (No. 1012, production document AAA00182), labeled as, and otherwise represented to be, unsweetened concentrated orange juice for manufacturing, while held for sale after shipment of one of its components, namely, orange juice concentrate, in interstate commerce to Benton, Kentucky, to be misbranded within the meaning of Title 21, United States Code, Section 343(a)(1), in that the labeling of that food was false and misleading because it represented and suggested that the food consisted only of unsweetened concentrated orange juice for manufacturing, whereas said food, in fact, contained beet sugar; and Section 343(b), in that the food beet sugar was offered for sale under the name of another food, namely, unsweetened concentrated orange juice for manufacturing; and 343(g), in that a food represented to be a food for which a definition and standard of identity was prescribed by regulation (21 C.F.R. § 146.153) namely, concentrated orange juice for manufacturing, failed to conform to that definition and standard of identity, in that it was composed, in part, of ingredients not permitted by the definition and standard of identity, including beet sugar (without a labeling statement).

All in violation of Title 21, United States Code, Sections 331(k) and 333(a)(2), and Title 18, United States Code, Section 2.

A TRUE BILL

______________________________ FOREMAN

______________________________ JOSEPH M. WHITTLE UNITED STATES ATTORNEY