Briefing on almond milk labeling

On March 9, 2018, on behalf of the Good Food Institute, Nigel Barrella submitted an amicus (friend-of-the-court) brief in Painter v. Blue Diamond Growers, a lawsuit alleging that Blue Diamond’s almond milk is misbranded under federal law. Attorneys for the plaintiff have argued that almond milk should be labeled “imitation milk.” The district court judge had rejected this argument, and the plaintiff appealed that ruling to the Ninth Circuit Court of Appeals.

In the brief, GFI argues that the Food Drug and Cosmetic Act’s “imitation” provision was not intended to reach distinct products like almond milk, and that the history of FDA’s regulation confirms this. GFI also argues that the plaintiff’s reading of the law leads to absurd results and could even be unconstitutional.  You can read the full brief here.

You can also read the other briefs in this case: Painter’s Opening Brief, Blue Diamond’s Brief, and Painter’s Reply Brief.

One unusual aspect of this case is that the plaintiff did not agree to GFI’s intervention, which forced GFI to file a motion for leave to file the brief. For more information, see that motion, the plaintiff’s opposition, and GFI’s reply. As is the practice of the Ninth Circuit, the panel deciding the case will also decide whether GFI’s brief should be filed and considered by the panel.

A decision in the case is anticipated next year. This post may be updated.

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Defending due process in the DC Court of Appeals

On September 21, 2017, a panel of the DC Court of Appeals ruled unanimously in favor of Nigel Barrella’s client, who had been convicted of driving with a revoked license, even though the DC DMV never sent him notice of the revocation. Nigel had argued his client’s case before the court in October 2016.

In this case, the DC government had argued that because operating after revocation is a so-called “strict liability” crime, it did not matter whether the DMV had sent him notice that they were revoking his license, or whether he received that notice. The government maintained that all it had to prove for a conviction was that his license was revoked and that he was driving in DC.

Nigel argued that the regulations required the DMV to send notice, and that due process (i.e. the Fifth Amendment to the Constitution) also requires it. The Court of Appeals agreed that the DMV’s regulations required them to send notice, and the court also held that failure to receive notice could be treated as a defense to operating after suspension or revocation.

In future cases when motorists are charged with this crime, the DMV should be prepared to prove that they provided notice of their action revoking or suspending the license. DMV regulations already required record-keeping of notices sent to motorists.

Anecdotes from many motorists suggest that the DC DMV frequently has not been sending notices in the manner required by regulation. Going forward, the Court’s ruling creates an important incentive for the DMV to carry out its duties in a manner consistent with due process.

Bottom line: if the DC DMV does not send notice to motorists, it should not expect to be able to prosecute the motorists who are (unknowingly) driving without a valid license. That’s not just common sense anymore — it’s the law.

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To err is human — not a crime

On March 17, 2016, a panel of the DC Court of Appeals delivered a unanimous decision in favor of Nigel Barrella’s client. Nigel had argued this case before the court on September 22, 2015.

In this case, Nigel’s client had been charged with missing his court date, though he testified that he had made a simple mistake — getting the court date confused. And although the trial judge appeared to believe his excuse, she also believed the law required a guilty finding. The government had argued that he was guilty simply because he did not double-check to make sure what his court date was.

Rejecting the government’s argument, the Court of Appeals reversed. The law at issue makes “willful” violations a crime, and the court made clear that “willful” means “knowing, intentional, and deliberate” — not inadvertent or accidental. After clarifying the law, the court sent the case back to the trial judge for reconsideration.

Subsequently, on August 11, 2017, the trial judge entered a verdict of not guilty.

Going forward, this precedential ruling of the Court of Appeals helps reinforce a bedrock principle of criminal law: the government should be required to prove criminal intent (with rare, limited exceptions). Innocent mistakes should not be the stuff of criminal prosecutions.

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DCCA on Drug Paraphernalia, Proof Beyond Reasonable Doubt

I haven’t written a DCCA criminal case summary in a long time, partly because PDS came along and started writing them all up (and doing it better than I ever did). But I simply couldn’t resist writing about this one, as a lovely demonstration that legal standards like “proof beyond a reasonable doubt” and “sufficiency of evidence” have meaning, have teeth — at least sometimes. It also doesn’t hurt that this case involves an extensive discussion of something called a “Bob Marley grinder.”


The opinion of the court, written by Judge McLeese (the most recent appointee to the DCCA), reverses one man’s conviction of possessing drug paraphernalia. The alleged paraphernalia was the “Bob Marley grinder.” Which, apparently, is a metal tobacco/herb/spice grinder, with “a picture of Bob Marley on the front.” (Looks like they’re for sale on Amazon, just like everything else under the sun.) Which — of course — we can assume is being used to grind up marijuana, even though the defendant had no marijuana when he was arrested. I mean, come on! It has a picture of Bob Marley on it!

But that “of course” isn’t enough to meet the standard for a criminal conviction — proof beyond a reasonable doubt. And as the opinion notes:

drug use and drug trafficking are associated with a wide array of items, including spoons, needles, syringes, ziplock bags, microwave ovens, cigarette rolling papers, razor blades, pipes, foil, mirrors, straws, scissors, measuring cups, strainers, and scales.

Grinders, too, have lawful uses. Who’s to say beyond a reasonable doubt that the defendant wasn’t using the grinder for tobacco (or, less likely, cilantro)? The prosecution would have to do more — like show traces of marijuana inside this particular grinder.

The court compares this to a situation in which the prosecution insists — without other evidence — that a single silver spoon is being used for heroin. Of course, it’s not quite the same situation — but the difference between that situation and this case is only a “difference in degree.” That doesn’t warrant a different conclusion when analyzing whether the evidence is sufficient, beyond a reasonable doubt, that this grinder was possessed for drug-related purposes.

Overall, an excellent (and easy to read) opinion that illustrates what meaningful appellate review looks like. Kudos to Jamison Koehler for representing his client (with obvious excellence) in this appeal.

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4th Circuit flags possible misreading of Eighth Amendment precedents

An interesting opinion from the U.S. Court of Appeals for the Fourth Circuit this week all but invites a future challenge to some of that court’s Eighth Amendment case law.

The case involved a teenager sentenced to a fifteen-year mandatory minimum that many people would view as disproportionate to the crime committed. (The trial judge, and probably all the judges on the appeals panel, viewed it this way.) One way of challenging a disproportionate sentence is through the Eighth Amendment, as a violation of the prohibition on “cruel and unusual” punishment.

The court ultimately did not reach this challenge by the defendant — a different challenge was more clear-cut. The defendant was not given his Miranda rights before being interrogated in a situation which, the court found, was “custodial” — in other words, a situation in which a reasonable person would not feel free to leave. This constitutional violation demanded a new trial without the fruits of this interrogation.

Judge Wilkinson, writing for the court, found it unnecessary to reach the merits of the Eighth Amendment argument, but did make this comment:

[T]his was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant’s conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.

Even more interestingly, Judge King wrote separately to call into question some of the Circuit’s Eighth Amendment cases. And he did so in no uncertain terms, calling the rule in such cases “a misperception of the law in this Court.” (Another persuasive opinion by Judge Gregory had made a similar argument when the full court denied en banc review.) The question is whether Eighth Amendment challenges are available for sentences less than life imprisonment.

It started with a case called Polk, in which the court declined to exercise Eighth Amendment review, noting that it was not required to do so in cases involving sentences less than life. But in later cases, panels of the Fourth Circuit began citing Polk for the proposition that such review was unavailable for sentences less than life.  (Examples: Ming Hong, Lockhart.) This, he argues, is a misunderstanding of what Polk said: not being required to do something is not the same as not being allowed to do it. Other circuits do not follow this rule, and Supreme Court precedent calls it into question.

It would probably require full-court review to change course at this point — but Judge King’s opinion in this case all but invites such a review when an appropriate case arises.

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