barsLast term, in the now-infamous Yates case, the U.S. Supreme Court rejected the Department of Justice’s outrageous contention that an undersized Red Grouper thrown overboard by a commercial fisherman in the Gulf of Mexico was a “record, document, or tangible object” under the “anti-shredding” provision of the Sarbanes-Oxley Act.  By so doing, the Court prevented a law passed in the wake of corporate accounting scandals at Enron and WorldCom from becoming an all-purpose hammer for prosecutors.  Yates quickly became the poster child for the “overcriminalization” phenomenon.

Unfortunately, it appears that DOJ has not learned its lesson.  Although the phrase “tangible object” at issue in Yates was overbroad and ambiguous, in other cases the problem of overcriminalization arises when the government seeks to attribute a new, nonobvious meaning to long-understood, perfectly plain statutory language.  Nowhere is that problem better epitomized than in the federal government’s utterly bizarre ongoing criminal prosecution of FedEx, which is slated for trial next month in federal court in San Francisco.

Federal prosecutors have accused FedEx of knowingly shipping illegal drugs in interstate commerce and laundering money by merely doing its job:  delivering packages (in this case, from online Internet pharmacies) to their intended recipients and getting paid for the service.  The case is the first known criminal prosecution against a legitimate courier delivery service for allegedly shipping illegal medications.  Not only does FedEx deny that it knowingly delivered illegal medications, but it also maintains that it dedicates precious company resources every year to assisting the government in identifying (and prosecuting) rogue Internet pharmacies that use FedEx to ship their product.

On the eve of trial, perhaps the biggest remaining legal issue in the case concerns the scope of longstanding and commonsense exemptions for common carriers found in the Controlled Substances Act (CSA) and the Food, Drug, & Cosmetic Act (FDCA).  To avoid the very sort of “gotcha” prosecution at issue here, Congress inserted exceptions for common carriers in each of the relevant statutes.  A common carrier is one who is engaged in the business of transporting people or property and offers its services to the general public.  Both statutes explicitly provide that common carriers may lawfully transport prescription medications governed under the Acts so long as they do so in the “usual course of business.” These provisions effectively grant immunity from prosecution to common carriers by reason of their receipt, carriage, and delivery of all drugs covered under the Acts.

Although no prior case authoritatively interprets either of the common-carrier exemptions (the need to do so had never presented itself because no prosecutor had ever dared to bring such a dubious indictment in the previous 45 years of the CSA’s existence), an entity’s “usual course of business” includes the normal duties undertaken by that entity compared to similarly situated participants in the relevant industry.  Quite naturally, FedEx has maintained all along that the indictment’s allegations are fully covered by these exemptions.  That is, FedEx contends that the common-carrier exemptions mean exactly what they say: if a common carrier is acting like a common carrier (i.e., accepting packages from the public at large to deliver to the addressee in exchange for a fee), then its actions are lawful under the CSA and FDCA.

Rather than accept these statutory exemptions at face value, the government has conjured up its own highly idiosyncratic, alternative interpretation of the common-carrier exemptions.  According to federal prosecutors, the common-carrier exemptions apply only if the carrier in question was shipping medication dispensed “within lawful channels” or the carrier’s possession was “otherwise lawful.”  The problem with this line of argument is that it asks the court to read words into the relevant statutes that Congress never put there.

As Washington Legal Foundation demonstrated in our amicus brief in Yates, due process requires that a criminal statute provide the world with “fair warning” of what conduct will run afoul of the law.  Because vague, ambiguous language in a criminal statute often deprives law-abiding citizens of the requisite notice necessary to comply with the law, the Supreme Court has repeatedly and consistently held that criminal defendants are entitled under the U.S. Constitution’s Due Process Clause to know precisely what conduct the law forbids.  Novel interpretations of criminal statutes give inadequate guidance to law-abiding companies, and they invite arbitrary and discriminatory application of federal law by law enforcement agents and prosecutors.

Serious constitutional problems would also arise if the district court were to adopt the prosecutors’ convenient re-write of these statutes.  That’s because when a federal court construes a statute, it “explain[s] its understanding of what the statute has meant continuously since the date when it became law.”  Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994).  Consequently, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law.”  Bouie v. City of Columbia, 378 U.S. 347, 353 (1964).  Article I, Section 9 of the U.S. Constitution explicitly prohibits passing ex post facto criminal laws, but prohibitions on judicial ex post facto decisionmaking stem from the guaranty of due process.  The Supreme Court has thus squarely held that “due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.”  United States v. Lanier, 520 U.S. 259, 266 (1997).

Once a court interprets a statute so as to render a defendant’s conduct criminal, it may not apply that interpretation retroactively against that defendant unless “the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.”  Id. at 267.  This formulation provides courts with the needed flexibility to ensure that the law may evolve, see Rogers v. Tennessee, 532 U.S. 451, 462 (2001), while ensuring fundamental fairness by requiring that the prosecution and punishment of particular conduct be foreseeable.  A judicial ruling that is both unexpected and novel deprives a criminal defendant of those important protections.

In FedEx’s case, even if the government’s newfound, elastic construction of the common-carrier exemptions were deemed valid for all future prosecutions, due process precludes retroactively applying such a novel construction in this case where it would operate to expand the scope of previous conduct subject to prosecution.  At the time of the indictment, FedEx had no indication that the delivery of packages from Internet pharmacies would constitute shipping illegal drugs in interstate commerce under federal law.  No other federal court anywhere has so ruled, nor has any court construed the common-carrier exemptions found in the relevant statutes so narrowly.

Given the government’s novel and wholly unexpected construction of the CSA and the FDCA, FedEx cannot be criminally punished.  The sooner federal prosecutors abandon this deeply flawed criminal prosecution, the better.  Otherwise, if this case has to go all the way to the Supreme Court before being corrected, the FedEx case—DOJ’s west coast version of Yates—will replace Yates as the single worst instance of criminalization run amok.

Also published by on WLF’s contributor page.