Though Peanut Corp of America has been cited for responsibility in nine deaths and more than 700 illnesses from Salmonella in its peanut butter, its president, Stewart Parnell, has remained seemingly immune from prosecution nearly three years after the fact.
Same with Austin “Jack” DeCoster of Wright County Egg, which was linked to as many as 1,700 illnesses from Salmonella in its eggs in 2010.
But a relatively small 2010 Midwest outbreak of 25 illnesses (and no deaths) from Campylobacter in raw milk seems to have brought the ire of law enforcement down on the owners of two tiny farms in Indiana and Michigan. A federal grand jury in Detroit is investigating bringing criminal charges against an Amish farmer in Indiana who produced the milk, and a Michigan farmer who helped distribute it to several private food clubs.
Under the U.S. Constitution’s Fifth Amendment. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” What might the “capital, or otherwise infamous crime” be in this case?
No one can say for sure, of course, since grand jury proceedings are highly secretive affairs. The names of jury members aren’t released, witnesses subpoenaed don’t have the right to have a lawyer present, and all involved on the prosecution side are cautioned not to disclose information about the events.
One thing that is known about grand juries in general is that prosecutors usually get their way. Quips one former assistant U.S. attorney now in private practice: “We used to joke, if a prosecutor asked a grand jury to indict a ham sandwich, they would.”
According to this former assistant U.S. attorney, the federal prosecutor in the Midwest raw milk case could be looking at a number of options leading to criminal indictments. Felony violations of the 1938 Federal Food, Drug and Cosmetic Act include adulterating or misbranding a food, along with putting an adulterated or misbranded food into interstate commerce.
Convictions “with the intent to defraud or mislead” are punishable by up to three years in jail, plus a fine of up to $10,000 on each count. “They could add conspiracy, aiding and abetting, fraud, money laundering, and other things,” he says.
If criminal felony indictments come from the grand jury, they could represent the harshest federal action yet taken against individual farmers in the six-year government war against raw milk, and possibly the harshest against any food producer associated with outbreaks of illness in recent memory.
Even though the grand jury proceedings are secret, several key aspects of the case have become known since the two farmers — David Hochstetler, owner of Forest Grove Dairy, Middlebury, IN, and Richard Hebron, owner of Family Farms Cooperative in Vandalia, MI –were originally ordered to testify last Wednesday, the day before Thanksgiving. The questioning was postponed at the last minute, and a new date is now being arranged. But the list of documents each farmer was asked to produce indicates the interest of prosecutors:
– “Any and all documents relating to or concerning the sale, purchase, delivery, receipt, production, packaging, transfer, disposal, marketing, promotion, furnishing, sharing, labeling, manufacturing, distribution, shipment, or transportation of milk…” from 2007 to 2010.
– “Any and all documents relating to laboratory testing of milk…” during the time in question.
– “Any and all documents relating to, or reflecting communications with, FDA…”
– “Any and all documents relating to, or reflecting communications with, Right to Choose Health Food or Aajonus Vonderplanitz…” Right to Choose Healthy Food is a network of private food clubs that enters into leasing arrangements with small producers of raw milk, pastured eggs, grassfed beef, and other items on behalf of food club members.
Hebron and Hochstetler first came to public attention in October 2006, when the Michigan Department of Agriculture confiscated $7,000 worth of raw milk and other food from Hebron, while he was on his way to deliver the products to Ann Arbor food club members. Michigan was the first state in the country to require pasteurization of all milk, in the late 1940s, and all raw milk sales and distribution were illegal at the time.
The Hebron case was referred to a local prosecutor, who after several months of investigation and an outcry by Michigan raw milk consumers, declined to prosecute. The MDA in early 2007 levied a $1,000 fine on Hebron, and Michigan’s attorney general approved herd share arrangements as a means for allowing raw milk distribution.
Since Hochstetler’s farm had produced the milk Hebron was distributing, the farm was visited by FDA agents in November 2006. Shortly after that, Aajonus Vonderplanitz of Right to Choose Healthy Food wrote a letter to the FDA, explaining that Hochstetler’s milk had been produced as part of private contracts: “We, Mr. Hochstetler and Cooperatives, have been accused by FDA employees of selling and buying raw milk. That is not possible. Since January 2006, Mr. Hochstetler leased the herd to Right To Choose Healthy Food’s Family Farms Cooperative (herein called “Cooperatives”). According to current law, lease is ownership. Therefore, Cooperatives’ sovereign members own all of the milk production at Forest Grove Dairy Farm. Additionally, Cooperatives contracted Mr. Hochstetler’s services of boarding, tending, milking, bottling and processing the milk production for Cooperative’s sovereign members to their standards established in our signed agreements and contracts.
“Cooperatives compensate Mr. Hochstetler for all of his many services by the volume of milk that he handles for Cooperatives…Since the club members own all of the milk produced by Cooperatives’ herd that Mr. Hochstetler boards and tends for Cooperative, there is no commerce involved. As Mr. Hochstetler explained when you visited his farm, since no commerce of buying or selling milk to the public is involved, the FDA has no jurisdiction over the production and use of the sovereign members’ own dairy consumed only by its members from Forest Grove Dairy Farm. Therefore, based on the facts that the milk is privately owned, and no milk is sold or given to the public, Mr. Hochstetler and Right To Choose Healthy Food’s Cooperatives’ members are not in violation of any laws of commerce.”
The FDA’s only response was to issue Hochstetler a warning letter in February 2007, asking him to discontinue raw milk shipments across state lines.
In 2009, FDA officials discussed in a conference call singling out Hochstetler and Hebron for legal action. Both Hebron and Hochstetler were mentioned in email accounts of meetings between FDA and state regulators from around the Midwest — emails obtained in an open-records request by Wisconsin food rights activist Max Kane in 2009. A February 2009 email with the subject, “FDA Raw Milk Conference Call,” summarized the call from the view of a participant from the Wisconsin Department of Agriculture, Trade and Consumer Protection. The call had included four DATCP officials, nine FDA officials, two representatives from the Indiana Board of Animal Health, three from the Illinois Department of Public Health, and one from the Michigan Department of Agriculture.
According to one email: “Scott MacIntire [District Director] and Bill Weissinger [Chicago District Special Assistant] discussed FDA-CHI activities. They have done some Internet searching and identified about 20 milk clubs in Illinois. They prefer to address one person or group at a time and want to start with Richard Hebron, Family Farm Co-o
p, in Michigan who may be pi
cking milk up at the Hochstetler Farm in Indiana for delivery in the Chicago area. Hebron has been prosecuted in Michigan for raw milk sales. Hochstetler was sent a warning letter for FDA Detroit for interstate delivery of raw milk.” (As noted previously, Hebron was never prosecuted.)
In March 2010, an outbreak of 25 illnesses from Campylobacter in Michigan, Indiana, and Illinois again focused attention on Hochstetler and Hebron. Public health authorities in those states used epidemiological evidence to pin the blame on Hochstetler’s dairy. However, extensive testing of milk, both from that preserved by victims of illness and by Hochstetler, showed no signs of Campylobacter.
According to a report (Hochstetler-MDCH Summary Report March 2010.pdf) from the Michigan Department of Community Health, “We were unable to confirm the presence of Campylobacter in any of the seven unpasteurized dairy products that were collected for testing, despite having the samples tested in three labs.” (Hochstetler-CDC and IEHA Reports.pdf) The testing included PFGE testing for Campylobacter “fingerprints” at a U.S. Centers for Disease Control lab.
During the 2010 outbreak, Hochstetler shut down his dairy for a week to conduct his own tests for Campylobacter. Those all came back negative as well, he says.
Hochstetler was also visited by FDA inspectors at the time of the illnesses. Shortly afterwards, the farmer says agency representatives engaged in negotiations with him, via the Farm-to-Consumer Legal Defense Fund, about a possible agreement whereby Hochstetler would withdraw from supplying food clubs in Illinois and Michigan.
“They (the FDA) wanted me to go away,” says Hochstetler. “We came very close” to an agreement whereby he would limit his production to Indiana, he says. One sticking point was that the FDA wouldn’t commit to granting him immunity for any possible past transgressions, such as those raised in the agency’s 2007 warning letter.
Without an FDA commitment to leave him be, Hochstetler says, there was no reason he could see to discontinue his normal operations, which he always felt were legal to begin with. “We felt because of our private contracts (with buying clubs and their members), geographical barriers did not pertain to private contracts.”
Hebron did not return a call seeking comment for this article.
According to Hochstetler, the November 23 subpoena before the grand jury was put off when it was communicated to prosecutors that “we were going to go with no records and plead our Fifth Amendment rights.” The grand jury appearance has now been re-scheduled for December 8, he says. Witnesses who fail to produce requested records can potentially be held in contempt of court, and jailed for the duration of a grand jury’s term, which typically extends for 18 months.
The cancellation of the November 23 grand jury appearance led to a testy email exchange between Vonderplanitz and Ross Goldstein, an assistant U.S. attorney in Michigan.
Goldstein suggested that Vonderplanitz shouldn’t be involved in advising Hochstetler because Vonderplanitz last August was denied by a federal judge any role in representing another Amish farmer, Daniel Allgyer. The U.S. Food and Drug Administration is seeking a permanent injunction against Allgyer shipping raw milk out of state, to a Maryland food club. It conducted a year-long undercover investigation of the food club prior to seeking the injunction.
Goldstein said in an email on Wednesday to Vonderplanitz, who was seeking confirmation of the re-scheduling of the two farmers to Dec. 8: “As Judge Stengel explained in his order denying your motion for intervention in United States v. Allgyer, No. 11-02651 (E.D. Pa. Jul. 18, 2011), ‘Mr. Vonderplanitz is not an attorney and cannot represent others in federal court . . . .’ Although your email of this morning implies that you represent the legal interests of other individuals or entities, you may not lawfully do so. Accordingly, the substance of your communication…is of no moment and is being disregarded in toto. Moreover, I can see no reason why you should have any need to further discuss this matter with the United States at this juncture.”
To which Vonderplanitz responded, just as huffily, “You wrote with the authority of a judge yet you are a prosecutor. As a U.S. attorney, shouldn’t you know more about law, especially the U.S. Constitution than you reveal? The decision by Judge Stengel in the Allgyer case does not set precedence in that case or any other case. I am simply waiting for the case to be resolved in Judge Stengel’s court so that I can appeal the decision.
“I and all members of Right To Choose Healthy Food club members contracted for ownership of the animals at those farms to produce the food we need for our health. We have the most righteous legal interest. Just because one judge made a bad ruling does not make it right or precedence. It is not over until all appeal processes have been exhausted, in at least 5 years from the date it is over in the lower court.
“I do not purport to represent anyone as an attorney however, if you study the U.S. Constitution, anyone can assist anyone of his or her choosing. Since I have contractual legal interest in the activities you are trying to end, I have every right in the world to assist the innocent people and farmers you harass and try to prosecute to deprive them of life, liberty, well-being and livelihood. My email stands as your notification for Mr. Hebron and Hochstetler that the Grand Jury Hearing set for today was postponed by you in your conversation with Mr. Hebron, and that any other Grand Jury Hearing will have to begin from a new process.
“You will hear from me anytime you try to harass or stop a farmer with whom I have a PRIVATE club contract to produce healthy food for me and members of our private clubs. You have no legal jurisdiction over private clubs. Your jurisdiction is with the public.”
David Gumpert is a raw milk advocate and author of “The Raw Milk Revolution: Behind America’s Emerging Battle Over Food Rights” (Chelsea Green, 2009). His blog is www.thecompletepatient.com.