Fault Lines
9 November 2018

FedEx Charges Tossed Despite Prosecutor’s Blame

Mar. 24, 2016 (Mimesis Law) — While I may have originally missed that the United States Attorney for the Northern District of California Melinda Haag indicted FedEx on drug trafficking and conspiracy to launder money, I sure didn’t miss the arrogance in her office’s argument this month when faced with the dismissal of the bulk of the charges alleging FedEx was criminally liable for the contents they delivered from dubious online pharma companies.

According to the Associated Press, prosecutors argued it was FedEx’s duty to correct the government’s error. Talk about burden shifting! The Constitution requires the government, in seeking criminal convictions, bear the burden of proving each and every element in their accusations against any defendant. In this case, Judge Charles Breyer determined that the government named the wrong corporate entity and failed to correct their mistake prior to the statute of limitations[1] expiring.

To understand the government’s position, it’s important to look at what transpired. Apparently, the government entered into several agreements with FedEx to “toll” the statute of limitations; that is, to give the government more time to investigate and file its charges. Then, after the limitations period expired, the government filed charges against FedEx Corp. and a couple subsidiaries.

The government had drafted the agreements and had failed to properly identify the entities it sought to bind in its agreement. The government blames FedEx for not revealing its error before the charging period ended. Finally, the government sought to substitute the right entity name for the wrong entity named in their agreement. That’s arrogance! That’s the government failing to do its job and then blaming the accused for not helping by pointing out the error. Since when is a defendant supposed to help the government secure a charge against him? Since when is the defendant responsible for anticipating what the government actually meant in their agreement?

At least the judge understood the burden and the government’s attempt to shift it to the accused. In his order dismissing charges, Judge Breyer stated,

[T]he government argues that FedEx should have perceived that the government intended to bind a different defendant to the agreement, and thus FedEx should have corrected the government’s mistake. The government appears to have forgotten that in a criminal prosecution, the defendant is not required to make the government’s case.

You may be wondering why FedEx was even charged in the first place. (I know I was.) Bill Frezza at Forbes writes how the U.S. Attorney liked going after companies for their money. The argument is apparently that companies should know every detail about every transaction, or else they may face criminal charges for doing business. Because FedEx is in the shipping business, they are being held responsible for the particular items they have been hired to ship. Internet pharmaceutical companies used FedEx services to ship their products to their customers. FedEx is supposed to be responsible for knowing whether or not these pharmacies were offering legitimate services.

But, if the government has probable cause and believes it can prove FedEx knowingly participated in illegal activities, more power to them. Just don’t expect FedEx to do your work for you. In its argument against dismissal, prosecutors argued that FedEx should have properly identified the correct entity (or subsidiary), or at least notified the government of its own error. Why would any criminally accused assist the government? Especially when, as Judge Breyer noted, numerous public websites clearly and correctly identified FedEx’s corporate structure.

The Melinda Haag’s arrogance is just plain offensive. Here, they blame the accused for not pointing out their own errors. They want the accused to be responsible for their conduct. But, they want exceptions and special treatment for their own conduct. With all the resources of the federal government, law enforcement, and grand juries, they hold all the cards and power. With that power comes responsibility, not excuses.

[1] Statute of limitations is the period of time within which the government must file their indictment or complaint against a person or corporation. Time limits vary from offense to offense, but establish the maximum period of time between the commission of the “crime” and commencement of prosecution.

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