Prosecutor Gets “Dressing Down” from Judge Posner and Seventh Circuit

The defendant in U.S. v. Farinella, NO. 08-1839, 08-1860, 2009 WL 615408 (7th Cir., Mar. 12, 2009) purchased 1.6 million bottles of “Henri’s Salad Dressing” in 2003, id. At *1. The label on each bottle of dressing stated that the dressing was “best when purchased by” and then gave a date from January to June 2003. Id. With enough dressing to flavor a salad the size of Rhode Island, the defendant proceeded to change the dates on the bottles to May to July of 2004 and then resold the bottles to dollar stores, where they were sold to the public. Id.

The Department of Justice viewed the defendant’s change as fraudulent and misleading, and charged the defendant with wire fraud and introducing a misbranded food into interstate commerce with intent to defraud or mislead, and the defendant was convicted and sentenced to five year’s probation. Id. However, eminent Seventh Circuit Judge and legal commentator Richard Posner disagreed.

Judge Posner stated that the government’s characterization of the “best when purchased by” date as an “expiration date” was itself false and misleading, observing that “[s]alad 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.” Id. The Court observed that neither the FDA nor the Federal Trade Commission had published any regulations defining or prohibiting the change of a “best when purchased by” date. Id. At *2. Judge Posner noted that there was no evidence that selling salad dressing after the “best when purchased by” date endangered human health, that any of the 1.6 million bottles had deteriorated, or that any purchaser of the dressing had ever complained about the taste—indeed the Henri’s evidenced no deterioration in flavor by the time of the defendant’s trial, some 4 years after the last “best when purchased by” date. Id. The Court also observed that the government had presented no evidence regarding either the industry’s or consumers’ understanding of the meaning of the “best when purchased by” date. Id. Judge Posner viewed the government’s persistent and personal equation of “best when purchased by” with “expires on” as disingenuous to say the least.

Judge Posner next took the government to task for presenting an FDA expert at trial who testified that he had found no evidence in FDA databases that the defendant had inquired with the FDA regarding the relabeling of the salad dressing—thereby implying that changing the “best when purchased by” date on the label somehow required FDA approval or permission when there was no evidence that it did. Id. At *3. The Court cited the rule that “‘The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.’” Id. (quoting Torres v. INS, 144 F.3d 472, 474 (7th Cir.1998); citing George Campbell Painting Corp. v. Chao, 463 F.Supp.2d 184, 190-91 (D.Conn.2006); Oppenheimer Mendez v. Acevedo, 388 F.Supp. 326, 335 (D.Puerto Rico 1974)).

The Court concluded that:

[T]o prove a person guilty of having made a fraudulent representation, a jury must be given evidence about the meaning (unless obvious) of the image claimed to be fraudulent, and that was not done here. We remind that one possible meaning of “best when purchased by” is that it is a guarantee by the seller that if acquired by then (and, presumably, eaten within a reasonable time afterward) it will taste as good as when it was first sold; if this is the meaning that consumers attach to the phrase, there was no misrepresentation.
Id. at *4. It held that because the government had presented insufficient evidence that the defendant had engaged in misbranding, he was entitled to be acquitted. Id.

Most significantly, the Court called out the prosecutor by name in its opinion, relating that the prosecutor, during rebuttal closing argument, had made statements to the jury to the effect that the defendant was “trying to buy his way out” by hiring a “high-paid lawyer” and that you “can’t buy justice.” Id. At *5. The Court also cited the prosecutor’s implying to the jury that changing the “best when purchased by” date prevented the manufacturer from tracing the product to keep it from causing illness; her urging the jury that if the defendant’s actions were proper, that they should start “growing their food;” her references to “truck fulls of nasty, expired salad dressing;” and numerous other references, despite the fact that there was no evidence of any health or safety issues with the dressing, or any problems with its taste or freshness. Id. The Court took a dim view of these repeated instances of misconduct and invited the district court to explore the issue of the proper sanction for such misconduct, concluding:

We are not permitted to reverse a judgment by a lawyer’s misconduct that would not have caused a reasonable jury to acquit, United States v. Hasting, 461 U.S. 499, 505-06, 103 S.Ct. 1974, 76 L.Ed.2d 96 (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 from 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.