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Jensen Brothers Plead Not Guilty to Six Federal Counts in Cantaloupe Case

UPDATE: Brothers Eric and Ryan Jensen were brought into federal court in Denver on Thursday afternoon in shackles, but they walked out their arraignment as free men, at least until their trial. The two men pleaded not guilty on all counts and were released on a $100,000 unsecured bond, meaning that they don’t have to put up any money unless they violate bail conditions imposed by the court.

Their trial date was set for Dec. 2, and government attorneys said they will need two weeks to present their case.

Eric, 37, and Ryan, 33, are charged with six federal criminal misdemeanor charges related to the 2011 Listeria outbreak blamed on their cantaloupe. It was one of the most deadly outbreaks of foodborne illness in U.S. history, killing at least 33 people and sending 150 to hospitals across the country.

Jensen Farms, owned by the brothers, already went bankrupt because of the numerous civil actions filed after the outbreak. They are accused of aiding and abetting in the introduction of adulterated food into interstate commerce.

If convicted on all six counts, each brother could potentially face a maximum penalty of six years in federal prison and a $1.5 million fine.

Jennifer Exley, the daughter of Herb Stevens, who died in July from outbreak-related complications, attended the arraignment, saying she wanted to see the Jensen brothers for herself.

DENVER–Eric Jensen, 37, and Ryan Jensen,  33, the brothers who owned and operated Jensen Farms, located in Granada, Colorado, surrendered to U.S. Marshals in Denver today in connection with one of the most deadly outbreaks of foodborne  illness in U.S. history.

They were taken into custody on federal charges of introducing adulterated food into interstate commerce stemming from the 2011 multi-state Listeria outbreak sourced to cantaloupe grown in southeast Colorado near the Kansas border.

The federal misdemeanor charges were brought by the U.S. Attorney’s Office with the Food and Drug Administration’s Office of Criminal Investigation, specifically by U.S. Attorney John Walsh and FDA’s Office of Criminal Investigations Special Agent in Charge Patrick Holland.

The defendants are scheduled to make their initial appearance at 2:00 p.m. (MDT) before U.S. Magistrate Judge Michael E. Hegarty. At that hearing, they will be advised of their rights as well as the charges pending against them.

The government is not seeking pre-trial detention.

According to the six-count Information filed under restriction on Sept. 24, 2013, as well as other court records, Eric and Ryan Jensen allegedly introduced adulterated cantaloupe into interstate commerce.

Specifically, the cantaloupe bore the poisonous bacteria, Listeria monocytogenes. The Information further states that the cantaloupe was prepared, packed and held under conditions that rendered it injurious to health.

Each of the six misdemeanor counts carries a penalty of up to one year imprisonment and fine of up to $250,000.

Court documents state that the defendants set up and maintained a processing center where cantaloupes were taken from the field and transferred to a conveyor system for cleaning, cooling and packaging. The equipment should have worked in such a way that the cantaloupe would be washed with sufficient anti-bacterial solutions so that the fruit was cleaned of bacteria in the process.

In May 2011, the Jensen brothers allegedly changed their cantaloupe cleaning system. The new system, built to clean potatoes, was installed and was to include a catch pan to which a chlorine spray could be included to clean the fruit of bacteria. The chlorine spray, however, was never used.

The defendants were aware, according to the charges, that their cantaloupes could be contaminated with harmful bacteria if not sufficiently washed. The chlorine spray, if used, would have reduced the risk of microbial contamination of the fruit.

Investigation by FDA and the Centers for Disease Control (CDC) determined that the defendants failed to adequately clean their cantaloupe. Their actions allegedly resulted in at least six shipments of cantaloupe contaminated with Listeria monocytogenes being sent to 28 different states.

CDC tracked the outbreak-associated illness and determined that people living in 28 states consumed contaminated cantaloupe, resulting in 33 deaths and 147 hospitalizations. Further, one woman pregnant at the time of her outbreak-related illness had a miscarriage. Ten additional deaths not attributed to Listeriosis occurred among persons who had been infected by eating outbreak-related cantaloupe.

“As this case so tragically reminds us, food processors play a critical role in ensuring that our food is safe,” said U.S. Attorney John Walsh. “They bear a special responsibility to ensure that the food they produce and sell is not dangerous to the public.  Where they fail to live up to that responsibility, and as these charges demonstrate, this office and the Food and Drug Administration have a responsibility to act forcefully to enforce the law.”

“U.S. consumers should demand the highest standards of food safety and integrity,” said Special Agent in Charge Patrick J. Holland of FDA’s Office of Criminal Investigations, Kansas City Field Office. “The filing of criminal charges in this deadly outbreak sends the message that absolute care must be taken to ensure that deadly pathogens do not enter our food supply chain.”

FDA’s Office of Criminal Investigations, CDC and the State of Colorado Department of Public Health and Environment investigated the case. Assistant U.S. Attorney Jaime Pena is prosecuting.

© Food Safety News
  • J T

    “a chlorine spray could be included to clean the fruit of bacteria.” NO, this is NOT why chlorine or any other antimicrobial is used in produce washing. The ONLY accepted purpose of the antimicrobials is to prevent CROSS CONTAMINATION, not to clean produce that may already be contaminated.

    • Mike

      I took that statement as that it could reduce the bioburden of the organism on the surface of the fruit. In anything that can be contaminated with bacteria, doing anything to reduce the bioburden helps. These guys had a way to potentially do just that, and failed to use it. If that is not being negligent, then I don’t know what is.

    • Trevor Gowe

      That’s false JT.

      • J T

        Trevor, it’s not false. But, if you have proof to the contrary, please feel free to include a link to a research article or something similar. I’m sure that the chlorine rinse DOES kill SOME bacteria on produce, but that does not really mean anything when it comes to what is considered adulterated. Just because something may kill some bacteria on a product does not mean the product may now be considered sanitized.

  • MicrAgro

    This is a joke. …And we wonder why no farmer wants any of his animals tracked to his farm. This is gov’t regulation going way overboard.

    • Yes, how rude for 33 people to die. Don’t they know that people dying can impact on business?

  • farmber

    And what about the liability of the Audit company who inspected Jensen Farms operation shortly before the outbreak — and gave them a Top Rating…??? Or is it all smoke and mirrors and the fall-guy goes to jail?

  • asneij

    as a medical doctor with some experience in gardening , plants and vegetables, I DOUBT the accuracy of the charges in this case. If Listeria existed on the surface of the cantaloupes, then washing it must remove the germs , period. It seems to me that the FDA is over-reaching and WRONG 100%.There must be another side to the story. There was one case where the patient had “cancer”. and Listeria was brought to the front as the killer. I would eat same contaminated cantaloupes and prove the FDA to be wrong

    • J T

      Once the product is contaminated, you cannot simply wash it to remove germs. Especially with canteloupe, the skin is very porous/rough, where “germs” can safely hide from the cleaning solutions. Any small scar or blemish can allow bacteria to enter the fruit.

      • BioEd

        It’s pretty obvious that none of you know anything about contamination control. Food Safety Czar has the only good point. Listeria is already on the product and is everywhere. In effect, it’s all contamintated. The chlorine is definitely used to kill existing bacteria on the fruit.

        • J T

          BioEd, It may be used to kill SOME existing bacteria ON the fruit, but that does not mean the fruit is clean. It DOES mean that it is preventing that surface bacteria from being transferred to OTHER non-contaminated fruit. Even if it is killing existing bacteria ON the fruit, that does not mean the fruit is now safe to eat. The fruit is likely to have bacteria IN it as well, where the chlorine cannot reach. Once there is harmful bacteria on the fruit, the fruit must be considered adulterated, and there is no corrective action that can bring that fruit back into compliance, aside from cooking it.

    • Washing it removes the germs…why do I find it highly unlikely that you are a doctor?

  • Food Safety Czar

    What about our supply chain where listeria could have been introduced? It’s everywhere, and can be picked up everywhere. This will be interesting to watch.

    • JP

      The Listeria found in the cantaloupe was matched by PFGE analysis to the Listeria found at Jensen’s.

  • Gazelle

    I, for one, am happy to see the FDA showing some teeth.

    • Trevor Gowe

      The FDA just did the investigation. The U.S. attorney’s office is the one showing teeth.

  • nsgrower

    not true, Walmart was named in the suit to the tune of $6 million, get your facts straight

    • farmber

      that’s liability not criminality’…there’s no federal action to JAIL Wal Mart Executives — and $6million is chump change for the WalMartians…

      …and Oh again — Jensen Farms was also GAP certified — I don’t see them being held criminally responsible either….

      • MFP Maineiac

        GAP would only indicate they had the system in place to mitigate the risk potential. If they failed to follow the proper system SSOP they are at fault, not the GAP auditors. Remember these audits are just a snapshot in time, the farms know they are being audited and put the best face on it possible.

  • Russell La Claire

    Those who have lost a family member due to the food they ate, I assure you, this is no joke. If your product injures or kills end users you should absolutely be held responsible.

    • MicrAgro

      It is a joke. Let’s say a cow from your farm happens to be infected with E. coli O157:H7. You don’t know it, no one knows it. That cow goes to slaughter, someone buys its meat and they and maybe others are infected, get sick and perhaps some die. Using your reasoning, the farmer who raised and sold the cow should be held responsible and prosecuted. Sorry, but that is completely unreasonable. Individuals must take responsibility in their own kitchens and when dining out. Individuals need to be make the effort to clean and process and/or cook their food in a safe manner. After all, food (meat, veges, etc) all originate from an outdoor environment. The potential for foods to be contaminated with pathogens is there, regardless of what safeguards are in place. It is very sad that these things happen, but suing and prosecuting the folks that produce our food is not the answer. We need solutions to prevent the pathogens from being there in the first place – from the farm all the way to consumption and all points in between.

      • Russell La Claire

        We should be trying to eliminate the pathogens absolutely. However, “gee, I’m sorry my food product killed your child, but thats just to damned bad” doesn’t work.

      • Your analogy is flawed beyond salvation.

        For one, meat is randomly tested and held back if E. coli is found. Meat producers are required to follow procedures to ensure safety, and there are USDA inspectors to enforce the procedures.

        True, we’re told not to rely on these procedures, because meat is an inherently risky food source. However, we do have the power to ensure safety with meat: cooking it to the proper temperature.

        We don’t have that luxury with something like cantaloupe. We typically don’t cook cantaloupe, and washing it in our sinks isn’t an effective sanitation technique. In addition, the FDA does not maintain inspectors at fruit processing plants, enforcing regulations. Instead, there are rules in place, such as using an anti-bacterial wash, that producers are _required_ to follow.

        These men not only used equipment they knew was designed for a different type of produce, they didn’t use it correctly. Most importantly, according to the charges, they were _aware_ that they weren’t using the equipment in such a way as to lessen risk of contamination.

        Don’t dump this on the consumer, as a convenient scapegoat. Producers also have to accept their responsibilities.

        • db

          I could’t have said it better. I realize these two men are not likely monsters and are undoubtedly feeling a sense of remorse whether admitted or not. That doesn’t change the fact they failed to follow known requirements that affected hundreds of lives. To me it’s no different than a person who chooses to ignore the law drive drunk and kill someone. Had they used the right equipment, used correctly and the outbreak still ocurred than Id have to agree with the contrary, but that’s not what happened us it….

      • MFP Maineiac

        Your example is invalid and shows your ignorance of the subject. The E. Coli does not live in the meat of the animal, the E. Coli would have to be introduced onto the meat via fecal contamination at the time of slaughter and processing. Thus the slaughter facility/meat plant in your example would be responsible for causing a foodborne disease that could have and should have been prevented if they had followed proper handling protocols included in their mandatory HACCP plans. The farmer would not share any blame in this scenario.

        • MicrAgro

          My example is not flawed, nor am I ignorant of the subject. I work with this subject of food borne pathogens every day. The example I gave is where the animal ID system would take the investigation into the contamination. We know that the origins of E. coli is the farm. We also know that, yes, at the slaughter facility cross contamination occurs. No matter how clean or how good a job we do looking for contamination, it will occur. If you only rely on HACCP to do the job, the problem will always exist. HACCP is only a part of a much larger picture of food safety that must be addressed.

  • redbone

    Overzealous prosecutors, inept regulation and a public that will not allow for irradiation of fresh foods (which incidentally does not leave residual radiation). Two men running a family farm whose lives are already ruined knowing the number of people that got sick and died on their products. Prosecuting them and throwing them in jail is unjust and a huge waste of tax payer resources. How about hiring some scientists and regulators with common sense.

    • Yes, it’s not as if their lives were ruined because a loved one died. Or anything like that.

  • valhalla

    Do you eat the skin? NO. So how do you use the fruit? You put a knife thru it. Now if it’s a contaminated piece of fruit, the knife just spread the listeria into the flesh! Whoala! (sp?) we all see dead people. These guys took short cuts for financial gains and hurt people in the process. They deserve jail and a bunch of it.

  • Karen G Lyke

    There’s an enormous amount of posturing in legal action against mere human beings. A lot of it is to make the ‘law’ look as if they’re actually doing something, catching minnows while leaving the whales to go free. In this instance, melon farmers get nailed while CAFOs and GMOs and pesticide based agri-mining (not culture) pollute soil and generate produce low enough in nutrient content that it attracts pathogens. If the melons — and other foods — were grown in healthy soil, rich with humus & beneficial microbes that facilitate uptake of minerals and various other nutrients to the plants, the plants would be able to produce their own PSM — plant secondary metabolites — to generate plants that can resist disease, that actually nourish, and do NOT attract noxious pathogens. (Details on how plants provide their own protection is a beautiful study in itself; Acres USA magazine discusses it regularly.) It’s more likely that the melons were grown in contaminated soil — possibly by manure from CAFOs, which made them susceptible to microbial infestation, or in soil so depleted by dependence on NPK additions that the melons had no nourishment to offer other than to noxious microbes. Pathogens show up only to break down tissue that is not healthy. Microbes just like any other critters follow the food. If it isn’t something they can eat, they leave it alone — this applies to plants and animals and humans. Rinsing produce with chlorine only removes what’s there at the time; if conditions are right, some other microbe will move in once it dissipates. People with healthy immune systems — who eat nutrient dense food — are able to recover from exposure to noxious microbes. (Not all microbes are noxious; many are actually beneficial.) Better we should put our energies into growing nutrient dense, high Brix — a measure of nutrient content — food, and implementing real solutions, not dissipating our resources with self-righteous blame and dividing the world into presumably perfect good guys and hopelessly evil bad guys in order to shine light away from our own failings.

  • Cary

    This will be interesting to watch unfold. I agree with JT’s comment in that the chlorine is only intended to reduce the risk of contamination of the pathogen because until we cook cantaloupe, wash systems can only reduce or maintain the level of L.M in the wash water and on the product. But I wanted to briefly respond to the comment made by DWW33, because produce pack houses use chlorine as the sanitizer of choice in organic wash systems, it just has to be maintained at < 4-5 ppm and this can still be labeled as "organic."

  • asneij

    I would like to see the full medical history(s) of all those” 33 dead” there is more , untold , to this story.

  • Lisa Gene Cox

    I think that since the Jensens are being held liable for their irresponsibility, it will present a good precedent for others to be more responsible in supplying us with produce properly prepared.

  • A R J

    This is why we need to let our kids play in dirt. Not wash their hands every once in a while before they eat. Not use hand sanitizer as much as we do. Not rush to the doctor when we have a cold. Bottom line, we need to build up strong immune systems and allow our bodies to do their jobs. Starting to feel sick? Go for a jog! We, naturally, have bacteria living inside us, which is the good kind. If we start to kill that, there won’t be any left to kill the bad bacteria. Don’t get me wrong, I strongly believe that if you are feeding people, you need to be responsible, and provide safe products. Keep in mind folks, if it comes from the ground, it will come with pathogens. Pathogens are naturally in the soil – after all, that’s how we’re here!

  • Billy

    The FDA is a joke, so is using bleach to kill pathogens . Hydrogen peroxide and maybe a person prepping the food instead of a machine ? Nah that’s too expensive. Jobs are bleeding from
    The economy and people are dying because of it . Why are simple solutions so hard? Thy aren’t ! FDA can stop this but they don’t want to