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Thursday, March 12, 2009

Ind. Decisions - 7th Circuit issues two Indiana decisions

In U.S. v. Terri Sawyer (SD Ind. Judge McKinney), a 19-page opinion, Judge Flaum writes:

Terri Sawyer was convicted for participating in a conspiracy to distribute methamphetamine. Her appeal primarily rests on the district court’s refusal to instruct the jury on the elements of a duress defense, although she also raises questions about her sentence and certain evidentiary rulings as well. For the following reasons, we affirm the judgment and sentence of the district court.
In Malone v. ReliaStar Life Insurance (ND Ind. Judge Lee), a 25-page opinion, Judge Kaane writes:
This is a case about death. To be entitled to the death benefit payable under a life insurance policy, a beneficiary must prove that the insured is actually, or, in the alternative, perhaps only legally, dead. There is a difference between the two. As is often the case in the law, words and concepts so familiar in everyday life assume esoteric identities when cloaked in legal rhetoric. It should come as no surprise, then, that not even death, perhaps the most sobering and forthright fact in life, is immune from legal definition.

A life insurance beneficiary may prove an insured’s death in two ways. One avenue is for the beneficiary to utilize direct or circumstantial evidence to prove, by a preponderance of the evidence, that an insured is, in fact, dead. In lieu of proving actual death, however, a beneficiary may seek to prove death by means of a legal pre- sumption. In other words, although the insured may, as a matter of fact, be alive, in certain circumstances the law permits one to presume he is dead. The mechanics of this presumption are at the center of this case. For the reasons that follow, we conclude that the district court incorrectly instructed the jury and employed a flawed special verdict form. Taken together, these errors were prejudicial. We remand for a new trial.
A 13-page decision by Judge Posner today in a case out of ND Illinois, U.S. v. Farinella, is of interest. Judge Posner writes:
In May 2003 the defendant bought 1.6 million bottles of “Henri’s Salad Dressing” from ACH Foods, which in turn had bought it from Unilever, the manufacturer. The label on each bottle said “best when purchased by” followed by a date, which had been picked by Unilever, ranging from January to June 2003. ACH had purchased Henri’s Salad Dressing from Unilever when the “best when purchased by” date was approaching. The intention was to sell the salad dressing to consumers through discount outlets. The defendant accordingly resold the salad dressing he bought from ACH to “dollar stores,” which are discount stores, but before doing so he pasted, over the part of the label that contains the “best when purchased by” date, on each bottle, a new label changing the date to May or July 2004. The government calls these the dates on which “the dressing would expire.” That is itself false and misleading, and is part of a pattern of improper argumentation in this litigation that does no credit to the Justice Department. The usage echoes the indictment and was employed repeatedly by the prosecution at trial; in her opening argument the principal prosecutor said that “it’s a case about taking nearly two million bottles of old, expired salad dressing and relabeling it with new expiration dates to pass it off as new and fresh . . . . [N]obody wants to eat foul, rancid food.” The term “expiration date” (or “sell by” date, another date that the government’s brief confuses with “best when purchased by” date) on a food product, unlike a “best when purchased by” date, has a generally understood meaning: it is the date after which you shouldn’t eat the product. Salad 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. * * *

It is important to understand what else this case does not involve, and also what is not in the record—the omissions are more interesting than the scanty contents of the government’s threadbare case. There is no sug- gestion that selling salad dressing after the “best when purchased by” date endangers human health; so far as appears, Henri’s Salad Dressing is edible a decade or more after it is manufactured. There is no evidence that the taste of any of the 1.6 million bottles of Henri’s Salad Dressing sold by the defendant had deteriorated by the time of trial—four years after the latest original “best when purchased by” date—let alone by the latest relabeled “best when purchased by” date, which was 18 months after Unilever’s original “best when purchased by” date. There is no evidence that any buyer of any of the 1.6 million bottles sold by the defendant has ever complained about the taste. * * *

The government could have performed tests on the salad dressing to determine its freshness—perhaps the same tests that Unilever had performed. It did not do so, or, if it did, it did not present the results at trial. In her closing argument the prosecutor 14 times substituted “expiration date” or “expires” for “best when purchased by”—14 further improprieties, which grew to 20 in the government’s main appeal brief by virtue of its using “sell-by date” as a synonym for “expiration date.”

We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be. We are not permitted to reverse a judgment on the basis of a lawyer’s misconduct that would not have caused a reasonable jury to acquit, United States v. Hasting, 461 U.S. 499, 505-06 (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 on the basis of 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.

Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

Posted by Marcia Oddi on March 12, 2009 01:01 PM
Posted to Ind. (7th Cir.) Decisions