AUSA Rebuked by Name in 7th Cir. Reversal

By Jeralyn, Section Court Decisions
Posted on Tue Mar 17, 2009 at 06:26:17 PM EST
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The 7th Circuit Court of Appeals has reversed the conviction of a man convicted of violating food-labeling laws and wire fraud for allegedly relabeling bottles of salad dressing. (Opinion here (pdf)).

The appeals court found the evidence at trial insufficient but in addition, called out AUSA Juliet Sorensen by name for improper conduct during the trial.

It's not unusual for judges to be critical of prosecutorial tactics. But Posner's rebuke is drawing attention because he identified the prosecutor by name and called for sanctions.

"The government's appellate lawyer told us that the prosecutor's superior would give her a talking-to," Posner wrote in the opinion that was joined by two other judges on the 7th U.S. Circuit Court of Appeals. "We are not impressed by the suggestion."

Here are a couple of Ms. Sorensen's egregious statements to the jury. [More...]

Sorensen said, "Ladies and gentlemen, don't let the defendant and his high-paid lawyer buy his way out of this." After defense counsel objected, she added, "You have to earn justice. You can't buy it."

Posner wrote, "The prosecutor's second statement was worse than the first, because it could be understood as a warning that the defendant might try to obtain an acquittal by bribery."

The appellate division of the U.S. Attorneys' office didn't even try to defend Sorenson's statements in its brief, which, ironically, was signed by Sorensen:

The government later conceded in written arguments to the appellate court that the two statements "were improper, because they cast defendant's exercise of his constitutional right to counsel in a negative light." Sorensen signed the brief.

As to the relabeling claim, the Court noted:

At trial, Sorensen repeatedly characterized the "best-when-purchased date" as the date the dressing would expire, which Posner called "false and misleading."

"The term 'expiration date' … on a food product … has a generally understood meaning: It is the date after which you shouldn't eat the product," Posner said. "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."

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AUSA Rebuked by Name in 7th Cir. Reversal | 31 comments (31 topical)

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This was a great decision (none / 0) (#1)
by Steve M on Tue Mar 17, 2009 at 06:36:16 PM EST

Well worth the read. LINK Posner is a strong writer.

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.

By the way, it is Sorensen, not Sorenson. She turns out to be Ted Sorensen's daughter.

: thanks, I'll fix the spelling (none / 0) (#2)
by Jeralyn on Tue Mar 17, 2009 at 06:43:47 PM EST

and add the link to the opinion.

to me, the term 'expiration date' (none / 0) (#3)
by ding7777 on Tue Mar 17, 2009 at 07:04:39 PM EST

means don't sell it after that date but the product can still be consumed within a couple of days without a problem

Sure (none / 0) (#4)
by Steve M on Tue Mar 17, 2009 at 07:09:47 PM EST

and based on that, if you heard that someone altered the expiration date on a product by several months, you'd probably conclude it was fraudulent of them. But in fact, this particular product apparently does not "expire" at any point whatsoever in the short term, nor were the bottles even labeled with an "expiration date."

So basically, you have a legally meaningless "best if sold by" date on the bottle (it tastes just as good after that date, but apparently they want the stores to make sure they regularly buy new product), but the prosecutor is calling it an "expiration date" and otherwise misleading the jury into believing that the case has something to do with falsely labeling rotten food.


Wonder why the trial judge didn't (none / 0) (#5)
by oculus on Tue Mar 17, 2009 at 07:48:11 PM EST

kick the case? Asleep?


Dunno (none / 0) (#6)
by Steve M on Tue Mar 17, 2009 at 08:24:47 PM EST

We don't really know exactly how the record played out. Posner's pronouncement that this sort of salad dressing never goes bad just sort of comes from on high.


: Brandeis brief w/tastings? (none / 0) (#7)
by oculus on Tue Mar 17, 2009 at 08:36:58 PM EST

: Posner (none / 0) (#13)
by Bemused on Wed Mar 18, 2009 at 07:30:59 AM EST

appears to have been referring to defense testimony at times without specifically citing. the opinion is remarkable for the harsh criticism but it is also a bit less structured than most published opinions
He doesn't bother to present the opinion with sections such as standard of review, summary of facts, discussion. In setting out the summary of facts he is also casting argumentative aspersions at the prosecution and its case.
Indeed, even in the sentence introducing the summary of facts he takes a shot:
"The facts, stated as favorably to the government as the record permits, but without extraneous detail, are as follows...."
When he ventures into pure speculation (such as about why best by dates are put on labels when not required) he says he is speculating (but then takes another shot by saying his speculation is not nearly as implausible as the government's) but when he says the salad dressing posed no threat he doesn't say he is speculating. I'd assume the defense had an expert who said that and no government expert directly contradicted him.
He also barely bothers even to mention law in passing. You won't see many published opinions with so few cases cited. I believe that is probably intended as a message to the government and perhaps the court below that this was so blatant he need not cite cases to support his legal statements.
Anyone really interested could go on PACER and get the briefs which will have much more detailed statement of facts.

I know the patrons (none / 0) (#8)
by JamesTX on Tue Mar 17, 2009 at 10:13:47 PM EST

of this site are not in the business of providing legal education, or are at least not doing it here for free. But my lay-brain is confused. As I understand it, appeals courts address only questions of law. Here the appeals court decided that the evidence was not sufficient to convict. If the jury decided the evidence was sufficient to convict, how can the appeals court decide it isn't? Is determining whether the evidence is sufficient to convict a question of law or fact?

Don't get me wrong, I think it is a great decision! In fact, that is why I am trying to understand how it happened. I am just trying to better understand how this kind of thing can happen, because I think it will become more important in the future as the conservative grip on society begins to crumble under its own weight.

There are many people in jail doing long hard time on cases where the evidence is much thinner than this (especially in narcotics offenses). Authoritarianism has been the rule of the day for so long that most jurors consider the mere accusation of a prosecutor to be the ultimate definitive evidence of a fact. Peremptory challenges can easily eliminate the few who don't fall in this category. Juries seem to behave as if the prosecutor's opinion is the only evidence needed. That is, they completely and unquestioningly submit to the authority of the prosecutor such that the prosecution's arguments are taken as the definition of fact. That is how authoritarianism works, and the conservative movement has produced a generation of people who can't reason in any other way. They are objectively afraid to challenge authority (to them it is as immoral as it is dangerous). Their subjective rationalizations must follow to reduce cognitive dissonance. The only conclusion which protects them is thus the assumption that all official pronouncements by those associated with police authority are indubitable facts. In contrast, defense arguments are taken as "rhetoric" and manipulation -- attempts to "bend" facts presented by the authorities whom the juries fear. This protects the jury from the guilt they would feel for failing to give defendants a fair chance in argument. It has led to increasingly absurd prosecutions where less and less is demanded of prosecutors, and therefore less is delivered. We are now to a point where they feel they don't have to deliver anything, and so the jury's cognitive dissonance is at a maximum. The jury has to do the work of convicting when the prosecutor fails to do so, as the only allowable outcome is conviction. Acquittal would mean the authority was wrong, and that breaks down the entire cognitive policy of authoritarianism. If authority were wrong, it would be devastating to the structure of the authoritarian personality. The whole world would fall apart, because the underlying structure of the personality is supported by the assumption that authority is fundamentally incapable of error.

If recent changes suggest authoritarianism is beginning to crumble, then the trial system will begin to function again. But in cases where defendants went down simply because of lock step compliance with authority, there will likely be more appeals.

Is it possible to challenge the sufficiency of evidence in an appeal? Somehow I was under the impression it wasn't. We have a lot of people who are in prison simply because juries were psychologically incapable of challenging authority. Are these people lost? Does the legal system have anything to offer them? Is this the best we can do?

Google "Jackson v. Virginia" (5.00 / 1) (#10)
by atlanta lawyer on Wed Mar 18, 2009 at 01:13:07 AM EST

The Supreme Court has said that it violates the due process clause of the fourteenth Amendment to convict someone without sufficient evidence. The test for an appellate court is a low one, generally, whether any reasonable jury could have found beyond a reasonable doubt that the person committed the crime. Usually all evidence is viewed in the light most favorable to the jury's verdict, together with reasonable inferences that stem from that evidence. If it's comes down to a question of credibility, appellate courts are even more deferential as they don't hear or see live witnesses, just transcripts and are in a poor position to make credibility calls compared to jurors and trial judges.

Not a lot (I know, that's real scientific) of cases are reversed for this reason,(insufficiency of the evidence) and when they, this is the sort of typical case. This case, at least for the appellate court, wasn't really about what happened (a factual issue) but how to characterize it. If it comes down to, if you believe x happened the state wins but Y happens the defendant wins, the court probably won't question the juries determination of what happened. IF the question can be frame, "The defendant did X, but is X a crime?", the appellate court is more likely to make up it's own mind on that issue, which is really applying the law to a certain set of facts.


: Federal habeaus. (5.00 / 1) (#11)
by oculus on Wed Mar 18, 2009 at 01:31:03 AM EST

[Jackson v. Virginia://supreme.justia.com/us/443/307/case.html]

It is extremely difficult (5.00 / 1) (#14)
by Bemused on Wed Mar 18, 2009 at 07:44:48 AM EST

to win sufficiency of the evidence cases on appeal-- even to get a new trial let alone an order directing entry of a judment of acquittal.

The basic rule is that the appellate court must view the facts in the light most favorable to the government's case and also assume the jury drew every rational inference from the facts against the defendant. Having made that analysis, the appellate court is only to order acquittal when no rational juror could have found proof of each essential element beyond a reasonable doubt.

New trial analysis is slightly different because it can be ordered when the weight of the evidence is such that a court is convinced a miscarriage of justice may have occurred. in new trial analysis the court can weigh credibility of testimony and is not required to make every possible rational inference in favor of the government. It's still hard to get a new trial for sufficiency grounds on appeal though, because appellate courts employ a deferential abuse of discretion standard to the trial judge's legal reasoning and defer to his factual determinations (including credibility) unless clearly erroneous.


Thanks to all.... n/t (none / 0) (#18)
by JamesTX on Wed Mar 18, 2009 at 08:51:00 AM EST

jeralyn, (none / 0) (#9)
by cpinva on Wed Mar 18, 2009 at 12:19:30 AM EST

the link to the pdf file of the opinion doesn't seem to be working.

this sounds like something that would be said on a not very well researched tv program, not in a real courtroom.

link works now (none / 0) (#12)
by Jeralyn on Wed Mar 18, 2009 at 01:41:43 AM EST

nope (none / 0) (#27)
by txpublicdefender on Wed Mar 18, 2009 at 03:05:46 PM EST

It still doesn't work for me.


: maybe this one will (none / 0) (#28)
by txpublicdefender on Wed Mar 18, 2009 at 03:35:28 PM EST

Opinion

And it was said in a courtroom. (none / 0) (#19)
by scribe on Wed Mar 18, 2009 at 09:58:52 AM EST

Posner (nor, for that matter, any other federal appeals court judge) is simply not going to call out a prosecutor (or a defense attorney) like this unless the wrongdoing is spread across the record, in detail.

I've read a lot of trial misconduct cases and this is the first one I remember where the offending attorney was identified by name. That's how bad, how egregious, this was.


: I can't recall (none / 0) (#24)
by Bemused on Wed Mar 18, 2009 at 01:31:40 PM EST

seeing an appellate court name check either.
I have seen numerous decisions where the appellate court states that an offending lawyer is not the appellate counsel when that is the case presumabbly to make sure people reading the opinion don't jump to an erroenous conclusion, but other than cases where fee sharing disputes come into play I don't remember really any cases where an opinion names the lawyers involved in the body of the opinion.

this is interesting (none / 0) (#15)
by Bemused on Wed Mar 18, 2009 at 07:59:38 AM EST

Wholesale distributor gets 2 1/2 years in salad-dressing relabeling scheme
By Ameet Sachdev
December 10, 2008

The former president of a Des Plaines-based wholesale distributor was sentenced Wednesday to 2 1/2 years in prison for selling salad dressing with fake expiration dates that made the bottles appear fresher than they were.

Ross Marks, 41, pleaded guilty in June to one count of wire fraud in connection with the salad-dressing scheme he carried out in 2003 while operating Division Sales Inc., a family business started by his grandfather. The company later went out of business.

Marks is to begin serving his sentence Feb. 10. He asked a federal judge at his sentencing hearing Wednesday to serve his time in or near New Mexico, where his family lives, said Assistant U.S. Atty. Juliet Sorensen. Marks grew up in north suburban Highland Park.

A federal judge also ordered Marks to forfeit about $426,000 in profits he and his business partner, Mark Farinella, made by relabeling 1.6 million bottles of expired or about-to-expire salad dressing and selling them to retailers.

Farinella was convicted of fraud in 2007. He received five years of probation and was fined $75,000. He has appealed his conviction.

As part of his guilty plea, Marks admitted to another offense that was not part of the original indictment. He repackaged millions of Ray-O-Vac AA and AAA batteries that were dead or damaged and sold them as new or "minimally used." The judge ordered Marks to pay $402,767 in restitution in connection with the battery scheme, Sorensen said.

Interesting (none / 0) (#16)
by jbindc on Wed Mar 18, 2009 at 08:05:39 AM EST

So he's not really "innocent" and really has committed fraud - just legally not on the salad dressing.


So what? (none / 0) (#20)
by scribe on Wed Mar 18, 2009 at 10:06:52 AM EST

The issue is not whether he's a shady businessman (whatever that means).

Nor is it whether he makes Mr. Irwin Mainway look like a paragon of commercial virtue.

Rather, the issue is twofold: (a) whether there was an actual crime committed (the opinion is dubious as to that) and (b) whether (assuming (a) exists) he was properly proven guilty beyond a reasonable doubt.

This was purely an incident of a prosecutor trying to "Get" a particular defendant - one who always seems to slip out of the grasp of law enforcement. That prosecutor was out of line, and deserves to be fired, daughter of a prominent person or not.


: I think my point has been missed (none / 0) (#21)
by Bemused on Wed Mar 18, 2009 at 10:33:49 AM EST

Farinella went to trial and now on appeal has been acquitted but Marks pled guilty to a count which appears to be based on the same facts (although Marks also pled to a different count in addition).
The article in no way changes the situation with respect to Farinella who has a 7th Cir. decision expressly finding the evidence was insufficient to sustain a conviction and cannot be tried again for the same offense. Farinlla has a court declaration he did not commit the crime with which he was charged which is the same charge which the article mentions in referring to the his fraud conviction. So, there is no reason to suggest he is guilty of anything.
Marks though admitted guilt and now has to attempt to convince a court to allow him to withdraw that guilty plea and have the conviction vacated. That isn't easy. The district court likely will find it no longer has jurisdiction because a motion to arrest judgment because the indictment did not state an offense (which is different issue than sufficiency of the evidence but which may apply from what Posner had to say) must be filed within 7 days after the guilty lea unless the court grants an extension during those 7 days. It doesn't sound as if Marks filed one.
Plea agreements also frequently include appeal and collateral attack waivers (although the enforceability of a waiver can be litigated). Marks may run into obstacles because he pled and waived the issue upon which he would now want to predicate vaacting the conviction.
He might have to go the § 2255 route and allege ineffective assistance of counsel and/or that his plea was not knowing and voluntary because he was misled as to and did not understand the elements of the offense to which he pled. Usually courts find ineffective assistance of counsel arguments are not subject to waiver.
Sometimes, in situations

that article (none / 0) (#17)
by Bemused on Wed Mar 18, 2009 at 08:15:04 AM EST

refers to the guilty plea of a co-defendant. It appears the co-defendant, Marks, pled to a charge related to the same scheme in which Farinella was just acquitted and also a separate charge related to the batteries.

It's interensting because it may be (and is in fact very likely)the government had no more evidence with which to convict Marks for the salad dressing labeling than it had for Farinella. It's even more difficult to be granted leave to withdraw a guilty plea than it is to win an acquittal on appeal for insufficient evidence.

Heh, I'd make (none / 0) (#22)
by eric on Wed Mar 18, 2009 at 10:54:38 AM EST

her sign the brief, too. No way I would want my name associated with this Sorensen person.

: Ted would probably just as soon (none / 0) (#23)
by oculus on Wed Mar 18, 2009 at 10:57:14 AM EST

the media misspell her last name.

So, how is a consumer to be protected from someone (none / 0) (#25)
by jawbone on Wed Mar 18, 2009 at 02:18:03 PM EST

in the supply chain changing labels? I do check "sell by" dates, as I don't go through some items all that fast and I do want the freshest items--so I can age them! Especially if the item migrates to the back of the pantry drawer.... And, guess what? I opened a bottle of long-stored dressing and it smelled rancid; the oil had deteriorated without being opened. Even the stabilized apparently can become unstable.

I am looking at this purely as a consumer and with no legal training whatsoever.

Neither my gallon of milk nor a now out of date container of eggnog (gives me an idea of when it was purchased...) has a "do not sell after" date, only a "sell by" or just a date. But if stores were to sell them after those dates, they would be breaking consumer protetion laws.

So, what am I missing here? Didn't this defendant seek to mislead, to lie to consumers? And there must have been some law on which to indict him, right?

So, was it the AUSA's imprecise and misleading language which persuaded the judge? Or lack of evidence?

It seems there was evidence that the defendants did sell "salad dressing with fake expiration dates that made the bottles appear fresher than they were," per the article quoted above. That would tick me off.

Just checked my stash: All the Henri's bottles have dates on them. How old were the bottles these guys relabeled? From before the days of dating?

I must say this post has made me reconsider the validity of labels....

: reconsider the validity of labels (none / 0) (#30)
by CST on Wed Mar 18, 2009 at 03:42:25 PM EST

When in doubt - use your senses.
You can usually tell when something doesn't pass the smell/sight test. If it looks bad, and/or it smells bad, it probably is bad. Food is usually pretty good at telling us when it's bad.

: Difference (none / 0) (#31)
by squeaky on Wed Mar 18, 2009 at 03:59:05 PM EST

With what you have given as examples than the example in the case.

"best-when-purchased date"
or best when used by 3/12. IOW there is no expiration date.

there might possibly (none / 0) (#26)
by Bemused on Wed Mar 18, 2009 at 02:40:39 PM EST

be a statute he violated or a regulation he criminally consprired to violate but that isn't the issue before the court in this case.

The issue here was whether the government's proof suffieced to etablish the elements of the crime with which he was charged. Those facts according to the opinion were limited to changing "best by" dates (not expiration dates required by law) on bottles of salad dressing where the government failed to show those dates were were required, based on any health or safety considerations or a matter of fact as opposed to opinion of the manufacturer, or articulate any legitmate theory as to how his act violated that statute.

quick decision (none / 0) (#29)
by txpublicdefender on Wed Mar 18, 2009 at 03:36:56 PM EST

I just noticed that this case was only argued on Feb. 17, which means they turned around the opinion in less than a month. That's another indication of how clearly they saw this case.