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Charges dismissed because the underlying conduct of the indictment was civil in nature

In U.S. v. Izuriet, the defendants owned a company that imported cheese, butter, and bread from Central America to the U.S. The Defendants were charged with conspiracy to unlawfully import adulterated foodstuff in violation of 18 U.S.C. § 371 and §545, with failure to export or destroy under FDA supervision five bad shipments and with failing to hold and make available one shipment for Customs examination. The Defendants appealed their conviction on a variety of grounds, but at oral argument the panel raised the question of whether the indictment sufficiently charged a federal crime of unlawful importation in violation of 18 U.S.C. § 545. The relevant language of §545 makes it a crime to fraudulently or knowingly import…into the United States, any merchandise….knowing the same to have been imported…into the United States contrary to law. The question raised by the court was what law did the indictment allege was violated such that it was contrary to law and therefor a violation of 18 U.S.C. §545. The charge was based on factual allegations that the defendants violated customs regulations by failing to “deliver, export, and destroy” certain imported goods found to be adulterated” as required by F.D.A. regulations. The Court found that the failure to comply with the regulation normally gives rise to a civil remedy for liquidated damages totaling three times the value of the goods.

The opinion discusses a split in the circuits regarding an interpretation of the language “contrary to law” in §545. The 9th Circuit narrowly interprets §545 to mean it can only criminalize a regulation where the regulation itself is a crime. The 4th Circuit has a more expansive interpretation of §545 and criminalizes any importation regulation that has “the force and effect of law.” The 11th Circuit leaned in favor of the 4th Circuit’s interpretation, which does not require the regulation to be a criminal offense, but the 11th Circuit had concerns about converting a statute that normally has civil remedies into a criminal law.

The regulations cover the conditions under which imported goods may be delivered out of Customs’ custody pending admission as well as the procedures by which goods may be recalled and examined. Though the regulation was issued under a statute that lays out dozens of acts subject to criminal penalties, the statute does not specify a crime for the conduct here which was the simple failure to hold, redeliver, export, and/or destroy the food. The 11th Circuit found the regulation establishes a contractual obligation between Customs and the importers regarding temporary release and storage of the imported goods, along with an agreed-upon liquidated damages of three-times the value of the merchandise for non-compliance. The 11th Circuit viewed the regulation as strictly civil. The court found the Rule of Lenity was applicable because it found §545 to be “grievously ambiguous” with respect to the effect of criminalizing the regulation and the conduct here. The court vacated the substantive convictions because it found that §545 did not charge a crime, and the court vacated the conspiracy count because the unlawful acts charged as the object of the conspiracy are not criminal in nature. “The indictment was sufficiently unclear as to whether any crime was charged such that the average person could easily read [the conspiracy count] as actually charging only a conspiracy to commit non-criminal acts.”