United States v. LaGrou Distribution Systems, Inc. , 466 F.3d 585 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3361
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAGROU DISTRIBUTION SYSTEMS, INCORPORATED,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 605—Harry D. Leinenweber, Judge.
____________
ARGUED FEBRUARY 14, 2006—DECIDED OCTOBER 20, 2006
____________
Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Based on severe rodent infestation
and sanitary problems at a LaGrou Distribution Systems
warehouse, LaGrou was convicted of three felony counts:
the knowing improper storage of poultry products, 21 U.S.C.
§§ 458(a)(3) and 461(a) (Count Three); the knowing im-
proper storage of meat products, 21 U.S.C. §§ 610(d) and
676(a) (Count Four); and the knowing improper storage of
food products, 21 U.S.C. §§ 331(b), 333(a)(2), and 342(a)(4)
(Count Five). LaGrou was sentenced to a five-year term of
probation, ordered to pay a total restitution of $8.2 million,
jointly and severally with co-defendants, and sentenced
with a total fine of $2 million. LaGrou now appeals its
2 No. 05-3361
convictions and sentence. We affirm LaGrou’s convictions
on Counts Three, Four, and Five and its sentence for
Counts Three and Four. We vacate and remand the sen-
tence for Count Five.
I. Background
The conditions at LaGrou’s cold storage warehouse at
2101 Pershing Road in Chicago were enough to turn even
the most enthusiastic meat-loving carnivore into a vegetar-
ian. The Pershing Road warehouse was a cold storage
facility that stored raw, fresh, and frozen meat, poultry, and
other food products. LaGrou did not own most of the
products that it stored at the facility. Rather, LaGrou’s
business consisted of storing products owned by its custom-
ers. As much as 2 million pounds of food went in and out of
the Pershing Road warehouse on a daily basis.
The record is unclear as to how long the rodent problems
existed, but based on the trial testimony of LaGrou’s
manager, David Smith, it is clear that LaGrou was aware
of the problem in 1999. In January of 1999, Smith (a co-
defendant who pleaded guilty to misdemeanor charges) was
hired as the manager of the Pershing Road warehouse.
When he started, he noticed a rodent problem at the
facility. Specifically, Smith learned that LaGrou workers
found rodent droppings and occasionally caught rats in
traps throughout the warehouse. Soon after, Smith ap-
proached LaGrou’s president, Jack Stewart (an individual
co-defendant at trial), about the rodent problem at
the warehouse. Smith and Stewart discussed the rodent
problem about three times per week, with the frequency
of these discussions increasing as time went on.
Unfortunately, the rat problem only worsened. According
to Smith, in 2001 LaGrou employees were catching more
rats and finding more rodent droppings. Smith testified that
in late 2001 or early 2002, LaGrou warehouse workers
No. 05-3361 3
regularly caught rats (at least one to two rodents per day),
and discovered rat droppings and rodent-gnawed products
in the warehouse. Rodent-damaged product was coming
from all over the warehouse, with the bulk of the damaged
product coming from the basement. Smith testified that
although employees would destroy the product that had
been gnawed, LaGrou did not conduct any tests to make
sure that other boxes that appeared okay were not similarly
contaminated by rodents.
Eventually, the rat problem became so bad that LaGrou
assigned warehouse employees to “rat patrols” to search for
rats and rat droppings, to put out traps, and to report back
about the number of rats they were removing from traps
each day. According to trial testimony, at one point the “rat
patrols” tallied as many as 50 trapped rats. LaGrou employ-
ees even tried various makeshift pest control remedies,
including fashioning their own rat traps and pouring papier
mâché and brine on the floor of the warehouse.
Stewart and Smith met with representatives from
McCloud, LaGrou’s pest control company, to discuss the
rodent problem at LaGrou’s warehouse. Although McCloud
recommended that LaGrou make certain changes to the
warehouse, including rodent proofing dock doors, cementing
holes in walls, and sealing sewer lids, Stewart did not give
Smith authorization to implement these recommendations
because he concluded that the project was too expensive.
Despite improvised solutions to the rodent problem, the
situation at the Pershing Road warehouse worsened. For
example, in February 2002, LaGrou had particular prob-
lems with rats getting into the beef brisket held in the
basement cooler area of the warehouse. LaGrou arranged to
ship the beef brisket from its Pershing Road warehouse to
its Hammond facility. Before LaGrou shipped the brisket,
its employees inspected the boxes, separated boxes that
appeared to have rodent damage, and the boxes that
4 No. 05-3361
appeared to be undamaged were returned to inventory. But,
the LaGrou employees were not completely successful in
discarding all of the rodent-damaged product: a driver
picking up some of this beef brisket from the Hammond
facility refused to take the product because blood was
dripping from the boxes and it looked as if the brisket had
been “chewed” by rats.
Although LaGrou usually noted product damage on
outgoing bills of lading to customers, LaGrou did not tell its
customers that the damage was caused by rodents. Instead,
LaGrou’s practice was to tell the customer that the product
had been thrown out because of warehouse damage, such as
from torn boxes or forklift mishaps. LaGrou employees
started writing “MM” (short for “Mickey Mouse”) on outgo-
ing bills of lading to differentiate the rodent damage from
other warehouse-related damage. Upon discovering that
LaGrou employees were using the “MM” notation for
rodent-damaged product, Stewart instructed them to stop
doing so because he did not want customers asking what
“MM” meant.
Many customers did make claims for damaged product.
One customer asked LaGrou if it had a rodent problem
because the customer had received rodent-damaged meat
from LaGrou’s warehouse on several occasions, specifically,
boxes with gnaw marks and holes. In response, LaGrou sent
a letter explaining that there was a small area of the
basement with rodent activity and that it would move the
product out of the basement to be stored somewhere else in
the facility. Despite the letter, the customer’s product was
still stored in the basement of the warehouse.
Ronda Dunson, a quality assurance manager for LaGrou
customer Aurora Foods, came to the Pershing Road ware-
house to check on her products in the spring of 2001.
Dunson discovered “excessive droppings,” what looked like
a feeding area for rodents, ceiling and wall damage, exposed
No. 05-3361 5
cork, mold growth, and pest harborage. In later correspon-
dence between Stewart and Aurora Foods, LaGrou refused
to pay a claim from Aurora Foods for product damage.
Further, Stewart represented to Aurora Foods that the pest
control company only “found two totes with old mouse
droppings” and “no other signs of infestation,” and that a
recent American Sanitation Institute (“ASI”) inspection did
not find any problems. This information provided by
LaGrou was not true; as the ASI representative testified at
trial, one of the “critical” issues ASI found was rodent
activity. Moreover, a report from McCloud, LaGrou’s pest
control company, had previously informed LaGrou of the
vast rodent problems.
On May 25, 2002, Hugh McCauley, a United States
Department of Agriculture (“USDA”) food safety inspector
went to the Pershing Road warehouse. At the time, LaGrou
employees were processing hams for freezing without the
benefit of USDA inspection. In addition, the hams were
uncovered. McCauley notified other USDA officials, and
Vella Kay Holmes, a USDA compliance official, went to the
Pershing Road warehouse on May 29, 2002. Holmes noticed
that in the warehouse freezer where the hams were being
stored, the walls were deteriorating, the ceiling and struc-
tures were rusty, and the paint was flaking. Holmes was
concerned that due to these conditions in the freezer, the
hams that had been processed and were uncovered could
have been contaminated. Because of these concerns, Holmes
detained the hams.
On May 29, 2002, Holmes and McCauley conducted
a more detailed examination of the conditions in the
Pershing Road warehouse. Holmes observed holes in the
walls with glue boards in front of them, fresh rat droppings
on the floor of the food storage areas, and a box of beef
product that had been gnawed by rats and was dripping
blood. Holmes advised Smith that no food products would be
allowed to come into or leave the basement of the ware-
6 No. 05-3361
house. Holmes also advised LaGrou officials that the USDA
inspectors would return the next morning to inspect the
entire facility.
After the USDA inspectors left, Stewart advised Smith to
start cleaning up the warehouse. Consistent with this
discussion, Smith and approximately 20 LaGrou employees
cleaned the Pershing Road warehouse and threw out
meat, boxes, and pallets.
The following morning, 14 USDA officials arrived at the
warehouse to begin an intensive inspection. Prior to
arriving at the Pershing Road warehouse, USDA officials
advised representatives from other federal, state, and local
health agencies about the conditions at the warehouse. As
a result, officials from the Food and Drug Administration
(“FDA”), the Illinois Department of Public Health, the
Chicago Department of Public Health, and the Illinois
Department of Agriculture assisted in the inspection. When
the officials arrived, they observed and photographed
dumpsters and tow bins full of meat, ice, debris, pallets,
and packaging material. These findings were discussed with
Smith, who acknowledged that he and other LaGrou
employees had been there all night cleaning the warehouse
in anticipation of the morning’s inspection.
According to Dr. Bonnie Rose, the USDA microbiologist
who testified, LaGrou’s warehouse was the “worst case” she
had seen in her 28 years with the USDA. The inspectors
found and photographed the following conditions at the
Pershing Road warehouse: rat droppings and rat nesting
material throughout the warehouse, including next to and
on product; rodent-gnawed meat, poultry, and other food
products; live rodent sightings; blood from meat product on
the floor mixed with rodent droppings and rat tail marks;
dirt and debris on meat product; potential rodent access
points, including open sewer drains and openings under
doors; holes in ceilings, walls, and floors; ice buildup on the
No. 05-3361 7
ceilings directly above stored product and water dripping
from the ceilings onto the product; mold and filth on the
walls and ceilings; several inoperable bathrooms, which
forced warehouse workers to use broken toilets and “flush”
them with buckets of water; and raw sewage and standing
water on the floors.
In addition to the photographs and observations gener-
ated by the inspection, representative samples of food
products and packaging were collected and sent to the
USDA and FDA labs for testing. The testing confirmed
adulteration of food products, including rodent gnawing,
rodent hair, and rodent feces on several products. Dr. Rose
testified that rodents transmit numerous bacterial, viral,
parasitic, and fungal pathogens, including E. coli and
salmonella. These pathogens could be transmitted by rodent
urine, fecal matter, or saliva, or could simply be transported
by rodents walking over product. In humans, these patho-
gens manifest themselves in a variety of illnesses and
symptoms, including gastrointestinal, respiratory, or even
neurological. Dr. Rose further explained that given the
ventilation system in the warehouse, many of these patho-
gens and viruses, which could survive for months and are
not visible to the naked eye, could have become airborne. In
addition, leaking roofs, condensation from overhead pipes
and ceilings, and dripping pipes could also carry food-borne
pathogens.
On May 30, 2002, all 22 million pounds of the meat,
poultry, and food products at the warehouse were ordered
detained and LaGrou was issued a notice of non-compli-
ance. On May 31, LaGrou’s Pershing Road warehouse
was shut down. In July 2002, the government filed a civil
action seeking to seize and condemn all of the food products
stored in the warehouse. The 22 million pounds of food
products stored in the warehouse were either destroyed or
were subjected to a strict decontamination procedure.
8 No. 05-3361
II. Analysis
A. Jury Instructions
LaGrou argues that the district judge’s jury instruc-
tions improperly subjected LaGrou to strict liability for
felony offenses. The Court reviews the district court’s
decision as to jury instructions for abuse of discretion.
United States v. Graham, 431 F.3d 585, 588 (7th Cir. 2005).
We review de novo whether an instruction accurately
summarizes the law or if it is legally erroneous. United
States v. Stewart, 411 F.3d 825, 827 (7th Cir. 2005).
Judge Leinenweber instructed the jury that to sustain
charges against LaGrou for adulteration of poultry products
(Count Three), meat products (Count Four), and food
products (Count Five), the government must prove that
(1) from on or about October 1998 and continuing to on
or about May 30, 2002 LaGrou knowingly did any
act that had the effect of causing any poultry products,
meat products, or food products to become adulterated;
(2) the poultry, meat and food products were capable of
use as human foods; and (3) the poultry, meat, and food
products were being held for sale after transportation
in commerce.
In addition, Judge Leinenweber instructed the jury that for
Counts Three and Four, the government was required to
prove that “defendant’s conduct involved either the intent
to defraud, or any distribution or any attempted distribu-
tion of such adulterated poultry products.” For Count Five,
the jury needed to find that “defendants committed the act
with the intent to defraud or mislead.”
The trial judge also gave the jury the definition for
“knowingly” from the Seventh Circuit Pattern Jury Instruc-
tions:
When the word “knowingly” is used in these instruc-
tions, it means that the defendant realized what he
No. 05-3361 9
was doing and was aware of the nature of his conduct,
and did not act through ignorance, mistake, or accident.
Knowledge may be proved by the defendant’s conduct,
and by all the facts and circumstances surrounding the
case. You may infer knowledge from a combination of
suspicion and indifference to the truth. If you find that
a person had a strong suspicion that things were not
what they seemed or that someone had withheld some
important facts, yet shut his eyes for fear of what he
would learn, you may conclude that he acted knowingly,
as I have used that word. You may not conclude that
the defendant had knowledge if he was merely negli-
gent in not discovering the truth.
SEVENTH CIRCUIT PATTERN JURY INSTRUCTION 4.06.
Since LaGrou was a corporate defendant, Judge
Leinenweber also gave the jury the Seventh Circuit Pattern
Jury Instruction explaining that a corporation acts only
through its agents and employees who are authorized or
employed to act for the corporation. The district court also
instructed the jury that to be qualified as an agent of a
corporation, the person must be explicitly or implicitly
authorized to act for the principal. Further, an agency
relationship may be implied by the conduct, actions, or
communications of the principal.
Finally, the judge instructed the jury on the legal defini-
tion of an adulterated meat, poultry, or food product:
(1) it consists in whole or in part of any filthy, putrid, or
decomposed substance or is for any other reason un-
sound, unhealthful, unwholesome, or otherwise unfit for
human food; or (2) it has been prepared, packed, or held
under insanitary conditions whereby it may have
become contaminated with filth, or whereby it may
have been rendered injurious to health.
This definition of adulterated food products is consistent
with definitions set forth in the meat, poultry, and food
10 No. 05-3361
statutes. See 21 U.S.C. §§ 342(a)(3), 342(a)(4), 453(g)(3),
453(g)(4) and 601(m)(4). LaGrou offered a separate jury
instruction based on a Tenth Circuit case from 1991. Re-
lying on United States v. Agnew, 931 F.2d 1397 (10th Cir.
1991), LaGrou proposed the following jury instruction:
The crimes charged in Counts Three, Four, and Five
require proof of intent before the defendant can be
convicted. To establish intent, the government must
prove that the defendant knowingly did an act which
the law forbids. Such intent may be determined from
the facts and circumstances surrounding the case.
Judge Leinenweber rejected LaGrou’s proposed instruction
because the defendant in Agnew was convicted of the sale of
adulterated beef products, which was a different charge
than LaGrou faced.
Contrary to LaGrou’s representations, the supersed-
ing indictment and jury instructions not only made clear
that the jury was required to find that LaGrou (and the
agents and employees acting on its behalf) knew that the
conditions of the warehouse were insanitary, but also, the
jury instructions closely tracked the corporate liability law
in the Seventh Circuit. See United States v. One Parcel of
Land Located at 7326 Highway 45, 965 F.2d 311 (7th Cir.
1992). Judge Leinenweber instructed the jury that
[a] corporation acts through its agents . . . . [and]
‘knows’ through its agents . . . To distinguish knowledge
belonging exclusively to an agent from knowledge
belonging to the corporate principal, courts rely on
certain presumptions. Where a corporate agent obtains
knowledge while acting in the scope of agency, he
presumably reports that knowledge to this corporate
principal so the court imputes such knowledge to a
corporation.
The instructions in this case explained that in order to
convict LaGrou, the jury had to find that an authorized
No. 05-3361 11
agent or employee of LaGrou knowingly stored products
under insanitary conditions. Since 1999, LaGrou’s Presi-
dent, managers, and several employees were aware of the
insanitary conditions in the Pershing Road warehouse.
LaGrou was aware of the rodent infestation from formal
reports, such as from the ASI and McCloud, LaGrou’s pest
control company, and from informal reports, such as
LaGrou employee rat patrols and the employees’ necessary
sorting of rat-infested product from supposedly clean
product.
A crucial charge in these three offenses is that LaGrou
knowingly stored these products under insanitary condi-
tions, which states the requisite mens rea for the charges.
We have long held that a court need not recite the differ-
ences between general and specific intent. United States v.
Markowski, 772 F.2d 358, 365 (1985); United States v.
Arambasich, 597 F.2d 609, 611 (7th Cir. 1979). LaGrou’s
argument that the prosecutor’s passing claim during
rebuttal turned the case into a strict liability prosecution is
wrong. While the prosecution explained in rebuttal that the
quantity of food in this case does not matter, and even went
so far as to claim that one bad hamburger would be enough
to convict, read in context, the prosecutor’s rebuttal re-
sponded to an inaccurate claim by LaGrou in closing
argument, which incorrectly argued that the government
needed to prove that LaGrou stored a specific amount of
adulterated food product.
Finally, LaGrou turns to the Supreme Court’s recent
decision in Arthur Andersen LLP v. United States, 544 U.S.
696 (2005), as support for its contention that the jury
instructions did not properly define the requisite intent
involved. The argument, however, is misplaced. Arthur
Andersen involved jury instructions that charged defen-
dants with “knowingly . . . corruptly persuad[ing] another
person with intent to . . . cause that person to withhold
documents from, or alter documents for use in, an official
12 No. 05-3361
proceeding.” Id. at 703 (internal quotations omitted). In
Arthur Andersen, the Court held that the instruction
failed to convey the requisite consciousness of wrongdo-
ing because it allowed a conviction for an act of persua-
sion which was itself innocuous and not inherently
malign. Id. at 703-04. While LaGrou and Arthur Andersen
were both charged with corporate liability, the similarities
in the two cases end there. Here, LaGrou was charged
with knowingly storing meat, poultry, and food products
in insanitary conditions. This corporate culpability is a
stark contrast to Arthur Andersen, where in an obstruction
of justice case, the government needed to prove that
corporate agents corruptly persuaded others to withhold
or alter documents. In this case, the government needed
to prove that agents of the LaGrou corporation knowingly
stored meat, poultry, and food products under insanitary
conditions. LaGrou’s president, Jack Stewart, and the
Pershing Road warehouse manager, David Smith, were both
well aware of the rodent infestation problem and other
insanitary conditions at the warehouse, yet persisted in
storing and distributing meat, poultry, and food products
there. The district court accurately summarized the law and
did not abuse its discretion in its jury instructions.
No. 05-3361 13
B. Restitution
LaGrou next argues that the district court’s imposition of
the $8.2 million restitution order violated the Sixth Amend-
ment under Apprendi and Booker, and that the order was
not reasonable. United States v. Booker, 543 U.S. 220(2005); Apprendi v. New Jersey, 530 U.S. 466 (2000). We
review a district court’s order of restitution for abuse of
discretion. United States v. Chay, 281 F.3d 682, 686 (7th
Cir. 2002).
LaGrou concedes that this Court has consistently held
that restitution is a civil remedy, not penal, and therefore
the Sixth Amendment and Booker do not apply. United
States v. Danford, 435 F.3d 682, 689 (7th Cir. 2006); United
States v. George, 403 F.3d 470, 473 (7th Cir. 2005). None-
theless, LaGrou urges us to reconsider this position. We
reiterate: restitution is not a penalty for a crime for
Apprendi purposes since “restitution for harm done is a
classic civil remedy” that is administered for convenience by
the courts that have entered criminal convictions. United
States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000).
LaGrou gives us no reason to reconsider our well-settled
Circuit precedent.
We next consider LaGrou’s contention that the district
court’s restitution order was unreasonable. Based on the
horrendous conditions at LaGrou’s Pershing Road ware-
house, on May 30, 2002, the USDA detained all 22 million
pounds of the meat, poultry, and food products on the
premises. The evidence at trial and sentencing showed that
the conditions on every floor of the warehouse were insani-
tary and the USDA considered product stored on every floor
adulterated. In July of 2002, the government seized and
condemned all of the food products stored in the warehouse.
Thereafter, the 22 million pounds of food products stored in
the warehouse were either destroyed or were treated
through strict decontamination procedures.
14 No. 05-3361
While LaGrou argues that the infested area was limited
to the warehouse basement, the evidence illustrated that
the situation at the warehouse was dire. The USDA and
other government agencies found dangerous conditions
throughout the Pershing Road facility. Dr. Rose testified
that LaGrou’s warehouse was the “worst case” she had seen
in her 28 years with the USDA. She further explained that
given the ventilation system in the warehouse, the patho-
gens and viruses could have become airborne. In addition,
the leaking roofs, condensation from overhead pipes and
ceilings, and dripping pipes found throughout the ware-
house could have also carried food-borne pathogens.
In an effort to salvage the products, LaGrou customers
worked with scientists and public health officials to create
a process to decontaminate or recondition certain food
products. This process was performed on products that were
in sealed packages that showed no signs of contamination
and the process consisted, among other things, of applying
a bio fog sanitizing agent to the sealed packages. LaGrou’s
customers paid over $2 million for this service. As a result
of the decontamination process, LaGrou customers were
able to salvage over 12 million pounds of products stored at
LaGrou’s warehouse, and the remaining product was
destroyed. The district court ordered LaGrou to pay a total
restitution of $8.2 million based on the wholesale price of
the 8 million pounds of product that had to be destroyed
(approximately $5.5 million), and the cost of reconditioning
and decontaminating approximately 12 million pounds of
meat, poultry, and food products stored at the warehouse
(approximately $2.7 million).
At the sentencing hearing, Judge Leinenweber noted that
if the government had not rehabilitated the meat, poultry
and food products at the Pershing Road warehouse, they
would have destroyed $20 million worth of food. In his
opinion, “[i]t certainly was to the benefit of LaGrou . . . to
have . . . approximately 12 million pounds of product
No. 05-3361 15
rehabilitated at a cost of $2 million.” We agree, and there-
fore conclude that the restitution amount ordered by the
district court was reasonable.
C. LaGrou’s Sentence
The district court sentenced LaGrou to a total of
$2 million in fines. We review fines imposed on criminal
defendants for reasonableness. Booker, 543 U.S. at 260-63.
At sentencing, the district court extensively discussed
that, under the advisory Sentencing Guidelines, LaGrou’s
fine could be anywhere from $12 million to $25 million.
Pursuant to 18 U.S.C. § 3571, an organizational defendant
that has been found guilty of a felony offense may be
sentenced to pay a maximum statutory fine of not more
than the greater of (a) $500,000; (b) twice the gross gain; or
(c) twice the gross loss. 18 U.S.C. § 3571(c)(3), (d). Noting
that the Guidelines were advisory, Judge Leinenweber
declined to impose a fine within the Guideline range and
instead imposed a fine of $2 million. After further discus-
sion from the parties, Judge Leinenweber sentenced
LaGrou to a fine of $500,000 on Count Three, $500,000 on
Count Four, and $1 million on Count Five—for an aggre-
gate fine of $2 million. As to Counts Three and Four, we
find that the sentences are reasonable.
As to Count Five, however, the default statutory maxi-
mum was $500,000 but the district court levied a fine for $1
million. The defendant argues that, absent a jury finding
beyond a reasonable doubt, the district court had no
authority to sentence LaGrou in excess of the default
statutory maximum of $500,000. We agree.
The Sixth Amendment requires that any fact (other than
the fact of prior conviction) that increases the maximum
“penalty” for a crime beyond the prescribed statutory
maximum must be proved to a jury beyond a reasonable
16 No. 05-3361
doubt. Apprendi, 530 U.S. at 490. Here, the problem is that
the district court did not give a special interrogatory with
the jury instructions or verdict form asking the jury to find
a loss amount. Thus, at sentencing, it was the district judge
using a preponderance of the evidence standard to find the
loss amount, not a jury finding loss amount beyond a
reasonable doubt. This is error, and we remand to the
district court for resentencing.
Accordingly, while we AFFIRM LaGrou’s convictions on
Counts Three, Four, and Five, and AFFIRM LaGrou’s
sentence as to Counts Three and Four, we VACATE LaGrou’s
sentence on Count Five and REMAND for proceedings
consistent with this opinion. AFFIRMED in part and RE-
MANDED in part.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-20-06