107.

Sample Government's Motion in Limine re Knowledge and Intent

NOTE: The court denied the motions that are the subject of this memorandum in a published opinion, United States v. Luv N'Care International, Inc., 897 F. Supp. 941 (W.D. La. 995). The "intent" discussion is found at pages 944-45. GOVERNMENT'S RESPONSE TO DEFENDANTS' MOTIONS IN LIMINE INTRODUCTION On November 4th, 1994, defendants Luv N' Care International, Inc., Luv N' Care, Ltd., XXXXX X. XXXXX, and XXXXXX X. XXXXX filed two motions in limine.[FN1] During a pretrial conference with counsel on November 10, 1994, the Court ordered that the government respond to the defendants' motions by November 21, 1994. Pursuant to that order, the United States submits this memorandum and urges that the Court reject the defendants' motions. FN1. Defendants' motions are both captioned "Motion in Limine." One of the motions relates to the intent standard necessary for a conviction under 15 U.S.C. § 1263, and will be referred to in this memorandum as Defendants' Section 1263 Motion. The second motion relates to the requirements of 16 C.F.R. § 1511.7(a), and will be referred to in this memorandum as Defendants' Section 1511.7(a) Motion. DISCUSSION 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 either intentional violation, knowingly [sic] violation, or at least gross negligence." Defendants' Section 1263 Motion at 2. The defendants state that "no prior interpretation of this particular law has preceded these 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 interpreted in the Courts to affect knowledge"). Contrary to the defendants' assertions, the legal standard in this case is not novel or ambiguous. The applicable legal standard has been in place for decades. In United States v. Chalaire, a federal court in Louisiana 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 U.S.C. § 1263(b). Nowhere in the statute are these elements mentioned. It is clear from the legislative history of the statute that Congress intended that knowledge and willfulness not be elements. The Child Protection Act of 1966 amended the Federal Hazardous Substances Labeling Act of 1960. The prohibited acts section of the latter Act is "patterned after the corresponding section of the Federal Food, Drug and Cosmetic Act [21 U.S.C. § 331]". 1960 U.S. Code and Congressional and Administrative News, p. 2840. The Supreme Court and the Fifth Circuit have interpreted 21 U.S.C. § 331 as not requiring knowledge and wilfulness. 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 a banned hazardous substance, conviction of its president under FHSA requires "proof that he had 'a responsible share in the furtherance of the transaction.'" (quoting United States v. Dotterweich, 320 U.S. 277, 284 (1943)). The Chalaire opinion is firmly grounded in the FHSA as well as Supreme Court precedent, which has determined that convictions under the Food, Drug, and Cosmetic Act ("FDCA"), the model for the FHSA, do not require proof of knowledge or wilfulness.[FN2] The legal standard announced in Chalaire over twenty years ago is clear. It is not unique or unprecedented. Indeed, it is entirely in keeping with the applicable statute, the statute's legislative history, and Supreme Court precedent that has construed the kind of legislation at issue here.[FN3] FN2. The close relation between the FHSA and the FDCA has been recognized by the courts and is evident from the legislative history of the statute. See, e.g., United States v. Articles of Hazardous Substance, 588 F.2d 39, 42 (4th Cir. 1978) (FHSA Section 1265 is modelled after FDCA Section 304); H. R. Report No. 1861, 86th Cong. 2d Sess. (1960), reprinted in 1960 U.S. Code Cong. & Admin. News 2833, 2841 ("[Section 1266] has the same meaning and effect as section 305 [21 U.S.C. 𨶧] of the Federal Food, Drug, and Cosmetic Act.") Prior to the establishment of the Consumer Product Safety Commission, the Food and Drug Administration administered the FHSA. See, e.g., R.B. Jarts, Inc. v. 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), those sections are identical in not requiring proof of knowledge or wilfulness. A stiffer penalty is provided for both sections under 15 U.S.C. § 1264(a) where fraudulent "intent to defraud or mislead" is proven. This structure is similar to the structure of the FDCA, after which the provisions at issue have been patterned. See 21 U.S.C. §§ 331 and 333(a). Certain legislation is directed at "phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection." United States v. Dotterweich, 320 U.S. 277, 280 (1943). See also United States v. Freed, 401 U.S. 601, 609-10 (1971) (intent requirement would not be inferred in statute prohibiting possession of certain unregistered firearms because it affected public safety). The Supreme Court observed that this is "now a familiar type" of legislation where penalties serve as effective means of regulation. Dotterweich, 320 U.S. at 280-81. "Such legislation dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." Id. at 281. In United States v. Park, the Supreme Court reaffirmed and refined the strict liability standard, stating that the requirements of foresight and vigilance imposed on corporate agents "are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them." 421 U.S. 658, 672 (1975). In that case the Supreme Court held that responsible corporate officials, in light of the highest standard of foresight and vigilance, may be held criminally liable where they have the power to prevent or correct violations committed by the corporate entity, even though the officials may not have been personally aware of the violations. Id. at 674-77. In sum, the Supreme Court has consistently found that in passing legislation like that at issue here, Congress has weighed the relative hardships and determined to place the burden of ensuring that the public is not harmed "upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless." Dotterweich, 320 U.S. at 285. See also Park, 421 U.S. at 672; Freed, 401 U.S. at 610 (quoting United States v. Balint, 258 U.S. 250, 253-54 (1971)). Congress made that determination in the passing the Child Protection Act of 1966, under which this case is being prosecuted.[FN4] That determination is controlling in this case. FN4. The defendants point to a civil penalty provision in a different provision of the FHSA that specifically requires knowledge by the violator in order to impose liability. That civil penalty provision was added to the FHSA by the Consumer Product Safety Commission Improvements Act of 1990, which made revisions to a number of statutes under which the Consumer Product Safety Commission operates. The civil penalty provision, thus, has no bearing upon this criminal prosecution other than to demonstrate that Congress is fully able to include a specific intent requirement in remedial legislation when it deems such a requirement appropriate. II. THE DEFENDANTS' REQUEST TO DISMISS THE WARNING LABEL COUNTS IS WITHOUT FOUNDATION Though captioned a "Motion in Limine," the defendants motion with 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 defendants' argument is twofold: (1) they cannot have violated the regulation if they placed the required warning on the back of the packaging of their pacifiers, and (2) as to counts in which they are charged with both a 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 must fail. The defendants first assert that "[i]n Counts 3, 4, 5, 7, 8, 10 and 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 at 2. This assertion is simply wrong. Each of the challenged counts is grounded upon an allegation that the defendants' "packaging failed to contain legibly and conspicuously the following statement: 'Warning - Do Not Tie Pacifier Around Child's Neck as it Presents a Strangulation Danger.'" See Indictment, Counts 3, 4, 5, 7, 8, 10, and 11 (emphasis added). Whether or not defendants' packaging contained the required warning "legibly and conspicuously," is an evidentiary matter to be determined at trial. By their so-called motion in limine, the defendants are attempting to obtain a ruling from the Court as to what constitutes a legible and conspicuous warning before the United States has an opportunity to present its evidence. There is no provision for such a motion and it should be summarily denied. Cf. Fed. R. Crim. P. 29 (motions for acquittal are to made at the close of a party's presentation of evidence). Having argued, incorrectly, that the government cannot establish a violation of the warning label regulation, defendants go on to assert that counts of the Indictment alleging both a warning label violation 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 argument. The absence of citations is unsurprising, since defendants' argument is 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 with 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 also United States v. Ruiz, 986 F.2d 905, 911 (5th Cir. 1993); United States v. Jacquillon, 469 F.2d 380, 386 (5th Cir. 1972), cert. denied, 410 U.S. 938 (1973). Thus, proof beyond a reasonable doubt with regard to either of the violations alleged in the counts challenged by defendants will be sufficient to sustain a conviction. Defendants' motion in this regard should, therefore, be denied. CONCLUSION For the foregoing reasons, the defendants' motions in limine should be denied in their entirety. Respectfully submitted, MICHAEL D. SKINNER United States Attorney JIM COWLES Assistant United States Attorney By: ___________________________ GERALD C. KELL Senior Trial Counsel DOUGLAS STEARN Attorney Office of Consumer Litigation U.S. Department of Justice P.O. Box 386 Washington, D.C. 20044 (202) 514-1586/307-0061 November 18, 1994 [cited in USAM 4-8.210; Civil Resource Manual 104]