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July 1, 2017

Amish farmer sentenced to six year in federal prison for regulatory offenses and obstruction

GirodpictureThis local article reports on a notable federal sentencing that seemed driven, at least in part, by the defendant's disinclination to respect the federal government. The article is headlined "Amish farmer sold herbal health products. He’s going to prison for 6 years." Here are some of the details:

An Amish man was sentenced Friday to six years in prison for obstructing a federal agency and for making and selling herbal health products that were not adequately labeled as required by federal law. Samuel A. Girod of Bath County, a member of the Old Order Amish faith, was convicted in March on 13 charges, including threatening a person in an attempt to stop him from providing information to a grand jury.

U.S. District Judge Danny Reeves repeatedly asked Girod in court if he wished to make a statement but Girod refused. Girod, who represented himself, does not acknowledge that the court has jurisdiction. “I do not waive my immunity to this court,” Girod told the judge. “I do not consent.”

Girod has become a cause for some who see him as a victim of the federal government. More than 27,000 people have signed an online petition seeking to have him released from jail. About 75 supporters of Girod, including many Amish, gathered near the federal courthouse on Barr Street in downtown Lexington before and after the sentencing.

“We still have a country where people still come together to help each other,” said Emanuel Schlabach, 27, an Amish man from Logan County. As assistant U.S. attorneys left the courthouse after the sentencing, Girod supporters jeered them. “Shame on you!” shouted one supporter.

One non-Amish supporter, Richard Mack of Arizona, said after the sentencing that, “This is a national disgrace and outrage. ... He is being punished for being stubborn.” Mack, a former Arizona sheriff and political activist, said he and others will ask President Donald Trump to issue a pardon to Girod. Mack said he has used Girod’s chickweed salve with no ill effects.

Girod operated a business in Bath County that made products to be used for skin disorders, sinus infections and cancer. One product called TO-MOR-GONE contained an extract of bloodroot that had a caustic, corrosive effect on human skin, according to an indictment.

A federal court in Missouri had barred Girod from distributing the products until he met certain conditions, including letting the U.S. Food and Drug Administration inspect his business. But when two agents tried to inspect the plant in November 2013, Girod and others blocked them and made them leave, the indictment charged. Federal prosecutors said in a sentencing memorandum that Girod knowingly and intentionally sold misbranded products to customers and did not tell any of them about the injunction.

At trial, customers testified that they would not have purchased his products if they had known about the injunction. Girod argued that his products weren’t subject to Federal Drug Administration oversight because they were herbal remedies, not drugs. He also argued that requiring FDA approval of his products infringed on his religious freedom. Old Order Amish seek to insulate themselves from the modern world, including modern pharmaceuticals, he said.

Federal jurors rejected Girod’s defense, convicting him of conspiring to impede federal officers; obstructing a proceeding before a federal agency; failing to register with the FDA as required; tampering with a witness; failing to appear before a hearing; and distributing misbranded drugs....

In documents filed June 19, Girod argued that the charges in the indictment “do not apply to me.” “I am not a creation of state/government, as such I am not within its jurisdiction,” Girod wrote. He added later: “The proceedings of the ‘United States District Court’ cannot be applied within the jurisdiction of the ‘State of Kentucky.’”

Girod’s supporters outside the courthouse said his case is an example of overreach by the federal government. “I don’t need the FDA to protect me from an Amish farmer,” read a sign held by T.J. Roberts, a Transylvania University student from Boone County. “I feel what happened here is an example of judges making the law,” Roberts said. “What the FDA did here is an example of executive overreach in which they are choosing what Americans can put in or on their own bodies. I struggle to find where the victim is in this and where the crime was committed.”

But Judge Reeves said Girod brought the trouble on himself “because he steadfastly refused to follow the law.” To Girod, Reeves said, “You refused to follow anyone but yourself.”

I always have a negative reaction to any use of prison time in response to what seem like non-violent regulatory offenses by a person who would appear to present no genuine threat to public safety.  And this case especially caught my eye not only because a lot of federal prison time was imposed, but also because this critical report about the sentencing from a political blog indicates that the applicable federal guideline range here was 63-78 months.  In other words, the sentencing judge here though the defendant needed and deserved a sentence significantly above the bottom of the applicable guideline range in this case.  Also of note, the judge who decided a six year prison term was necessary in this case, U.S. District Judge Danny Reeves, happens to be the newest member of the US Sentencing Commission.

July 1, 2017 at 12:39 PM | Permalink

Comments

That political blog speaks of some "king" but last I checked, we didn't have one. The Congress passed a law and then regulations are passed under it. The president (sic) alone isn't the one involved here. If five years plus is too much here, okay, but that is ultimately on Congress.

As to the "bottom range," the floor is sixty three months. He received 72. I guess nine months is "significant." So, why did he do that? The details of the article suggest various aggravating details including interference with regulators.

Anyway, the non-violent regulatory offense here is argued to "present no genuine threat to public safety." But, the very point of the FDA is to regulate public safety. The person refused to allow basic safety inspections of his product used by the public. The article says in part "One product called TO-MOR-GONE contained an extract of bloodroot that had a caustic, corrosive effect on human skin, according to an indictment."

I'm again curious what exactly "public safety" means if it doesn't include stopping the sale of products that cause "caustic, corrosive effect on human skin." A certain narrow meaning is being given there it seems to me. What if someone sells a sham cancer cure that people take thinking it will treat their children's condition? The child dies. Is this a threat to public safety? The word "safe" is normal in regulations of food, drugs and related products. Is this ironically misleading labeling? If the argument is that this concoction is not actually as unsafe as alleged, that would be a matter of factual dispute. The jurors found otherwise.

Also, the article says he was charged with "threatening a person in an attempt to stop him from providing information to a grand jury." I tend to have a negative reaction to that sort of thing. Anyway, I think we can say public safety was involved here while being concerned with the length of the sentence.

Posted by: Joe | Jul 1, 2017 2:18:59 PM

Looking into this, including skimming a ruling on the case, it also seems that being his own counsel did him no favors.

Posted by: Joe | Jul 1, 2017 2:21:37 PM

I saw no mention of a harmed customer.

The Worldly Cousins should bring street justice to all the enemies of freedom in this case.

Posted by: David Behar | Jul 1, 2017 3:00:11 PM

I almost refrained from clicking on that blog link but I am glad I did..

"I’ve seen people play Dungeons & Dragons and the point system is similar. For example, counts 4 through 11, the counts for misbranded drugs were grouped into a class. Roll the dice to get a base of 18 points. Then add +2 for the number of violations, +2 for prior convictions (the Missouri ruling against Sam?), +2 for sophisticated means, and +2 for obstruction of justice to get a total of 26 points. "

That...that is creative. I've never thought about it in those terms before. It is amusing to imagine Justice Breyer parked in a lounge chair by his pad in the Virgin Islands with sexy woman lying on the beach drinking pina colada while he mummers to himself, "now is that an enhancement +3 Against Evil or a Prison Curse -3 for Government Cooperation?"

Posted by: Daniel | Jul 1, 2017 3:36:58 PM

Respect even for give us earned. Pretty much nothing out government has done deserves respect and most of their actions in that time actually deserve nothing but utter contemp!
As for more about a so-called harmful ingredient...the devil is in the details. Since there was no long line of people harmed by his product. It leave me to believe this one is one of the 1,000a of items our nanny state government has decided to be harmful when it actually is only harmful to maybe 1 out of a Million people or higher.

Posted by: rodsmith3510 | Jul 1, 2017 3:47:40 PM

Our nanny state should get the respect which it earns which is none, including the federal prosecutor(s) and the judge in this case.

Only mind-rotting lawyers cannot see this, but then, who would butter their bread.

Posted by: albeed | Jul 1, 2017 4:04:43 PM

The indictment can be found here: http://www.davidgumpert.com/wp-content/uploads/2016/02/151001-Indictment-counts-1-12.pdf

Also, since so many of the hits are pro-Girod, here is another view:

https://www.justice.gov/usao-edky/pr/bath-county-man-convicted-obstructing-justice-and-selling-misbranded-products

Note, e.g., how he was told to stop via court order but continued anyway. Is his breach of a court order part of the him being targeted allegedly for being "stubborn"? And, I don't know how many people harmed (for products in part promoted for use by babies) is enough.

Posted by: Joe | Jul 1, 2017 4:31:30 PM

Joe, is there any evidence that anyone was harmed here?

Even if not, I share your concern about persons selling a kind of snake oil and making fraudulent claims about their product. But that can and should be, as a matter of first resort, addressed in civil proceedings. That was how this got started, and then the misbehavior continued, which makes me comfortable with the start of criminal proceedings. But 6 years in federal prison as the sentence that is "sufficient but not greater than necessary"? Would not a year to two do the trick?

Obviously, in this case a respected judge decided 6 years was necessary, but that some come to think such a long time in prison is required in this kind of case is one of many reasons the US prison population is so large.

Posted by: Doug B. | Jul 1, 2017 9:53:55 PM

Professor,

If it were only the regulatory offenses you might well be right, but his 'real' crime was likely his scoffing at the legal system. I doubt that judges look kindly on pretty much anyone who deliberately ignores an already issued injunction or that commits witness tampering. I would not be at all surprised if those offenses cranked the criminal score far more than the regulatory non-compliance.

Posted by: Soronel Haetir | Jul 1, 2017 11:35:16 PM

"I share your concern about persons selling a kind of snake oil and making fraudulent claims about their product."

Once again, the remedy is technical. Your legal system is in utter failure. In this instance, and in the case of all of contracts under $1 million, the most effective and efficient remedy is internet ratings.

Where is the defense here? Bruce, your specialty sucks. You suck worse than the prosecution. Both of you dickheads are more fraudulent and worthless than this defendant's products.

"Zealous" is a duty, you moron, not a choice. Destroy the adversaries of the client, from investigators to filthy, tyrannical judge. Stop collaborating with the other side, you dirty traitor. Start with total e-discovery. Refer all child porn on their appliances, to the FBI for thorough investigation. Post the rest to the internet. You then have an affirmative duty to report each and every of their violations of the Rules of Conduct, of Evidence, of Criminal Procedure to the Disciplinary Counsel. The latter has jurisdiction over federal attorneys. To deter.

Posted by: David Behar | Jul 2, 2017 3:05:54 AM

"...convicting him of conspiring to impede federal officers; obstructing a proceeding before a federal agency; failing to register with the FDA as required; tampering with a witness; failing to appear before a hearing; and distributing misbranded drugs...."

Those are not crimes. Those are patriotic duties, to resist government tyranny.

The judge failed to protect the rights of this pro se litigant. I may file a complaint against him.

Posted by: David Behar | Jul 2, 2017 9:27:09 AM

I consider the FDA to be a threat to the public health. They are the proximate cause for high drug prices, where half or more of drug costs go into worthless regulatory bullshit. A quarter goes into advertising, which is not necessary, and a complete waste. So cutting edge, expensive medication should cost a quarter of what it does, and profits would still be tremendous. The rest is just total waste for rent seeking bureaucrats.

They have delayed treatment availability. They rake in $500 million in fees from drug company reviews. Their budget comes from drug companies, and they have an irremediable conflict of interest. So alternative treatments are stonewalled. Stuff that will threaten drug company rackets treating chronic conditions with high priced drugs will be blocked, electricity, CRISPR/cas 9 treatments, or will be made very expensive.

The staff and the review committees are composed of academic assholes with no clinical experience or values. They do nothing all day, but slurp coffee, and chat up the secretaries.

None of those assholes attended Day 1 of high school statistics reviewing coin tosses. They believe that group statistics described by the bell shaped curve, to be applied to bigger populations have any relevance to clinical care. Clinical care is better described by the binomial statistics, covered Day 1 of high school statistics. None knows that. Assuming parametric statistics (from th bell shaped curve) have some value to screen for effective treatment, they allow exclusion criteria. The most fundamental requirement of parametric statistics is random selection. You are not even allowed to perform a calculation of a parametric statistic after allowing exclusion criteria. This subject is covered later in high statistics class. I think, those idiots skipped class the entire year.

In one case, they placed a black box warning on anti-depressants as causing suicide in kids. Result? Pediatricians were intimidated, and stopped prescribing them. Child psychiatrists completely ignored the fatheads. Result? Tens of thousands of kids were taken off anti-depressants. Result? Hundreds committed suicide. The trend of a rapidly dropping suicide rate from adequate treatment stopped, turned, and surged up. I demanded they all resign. If a decision I made at work killed hundreds of kids, I would resign. They did not, and the black box warning remains. The suicide rate continues to trend upward.

Alternative to the FDA? Shut it down. Use internet ratings of treatments, for free, instantaneous, and more statistically valid, since there would be no exclusion criteria. If you do not trust the public, then have separate internet ratings of doctors' experiences with patient responses. This is frickin' 2017, not 1917 anymore.

Posted by: David Behar | Jul 2, 2017 10:12:14 AM

"Joe, is there any evidence that anyone was harmed here?"

The product, e.g., was cited as "had a caustic, corrosive effect on human skin." HAD. It is in the indictment. If it didn't have that effect, the person could have shown otherwise. Doesn't appear like he did. What sort of evidence do you want?

If caustic, corrosive effect on human skin, on a product in part promoted for diaper rash, is not enough, again, what exactly does public safety mean? You suggest civil relief would have been better there. Fine enough. Civil means are repeatedly used to protect public safety. A civil order of condemnation, even before a single person was harmed (and not having the record, I'm not granting nothing was shown there in this case), of a building is surely a matter of public safety.

Your citation of the breadth of the sentence is noted but the floor is over five years. We are talking nine months there. And, there are grounds for aggravation. As you readily note the "misbehavior" (that THREATENED PUBLIC SAFETY -- it wasn't like it was gambling or something; it had direct danger on public health) continued. Part of said "misbehavior" was interference with the grand jury. This "scoffing at the legal system" probably factored in.

I said that I'm open to concern with the length of time. But, the minimum here wasn't one or two years. He already ignored a court order. He interfered with the grand jury. The substance wasn't just some harmless herbal concoction that turns out not to do anything that many take. It corrodes the skin etc. and is partially used for babies.

So, if the prosecution used this specific law to bring criminal charges, I'm not really sure why it is reasonable to go so substantially below the floor. Sounds like you wanted the prosecutor to use another grounds for prosecution. That isn't the judge's doing.

Posted by: Joe | Jul 2, 2017 12:49:07 PM

Joe, after a little weeding last weekend, I can tell you all about poison ivy having a "caustic, corrosive effect on human skin" and so too can a lot of OTC meds for some people if you look at the warning label. Again, I am not defending this guy's behavior if/when he was selling dangerous snake oil, but I surmise he was peddling a home remedy largely in good faith and then did not want to stop when the FDA told him he must stop.

Meanwhile, the "floor" is 63 months only if you treat the guidelines as gospel; the real "floor" is probation because Congress has not put any mandatory minimum in place for these offenses. Starting from the real floor of zero months in prison, I see wisdom in the conclusion, largely for the reasons you and Soronel set forth, that it is necessary to give this guy some time in the graybar hotel. But a year or two strikes me "sufficient" and six years in prison --- until year 2023 --- strikes me as "greater than necessary."

In the end, I am complaining --- as I am often heard to do --- about a judge being drawn for a non-violent offender to a longer prison term when a shorter one would seem likely to provide the same utilitarian benefits. I read the parsimony provision of federal law as providing support for my "less is more" instincts, and that is the heart of my criticism of how this case played out. (And it is ultimately on the judge, and only the judge, to actualize parsimony at the time of sentencing.)

Posted by: Doug B. | Jul 2, 2017 2:18:35 PM

Which begs the question, Doug, regarding how you feel about a non-parsimonious judge being appointed to the Sentencing Commission.

Anyway, FWIW I also tend to think that this sentence is excessive given the nature of the crime BUT I also understand the frustration a judge must feel having one those these "sovereign citizens" showing upon his doorstep. I suspect, though I don't know, that if this guy had used his public defender, ate some crow, and generally given the system its pound of flesh he would be looking at a much shorter sentence. To some degree I agree that he is being punished for being "stubborn" but then as the old country song has it "you gotta know when to fold 'em".

Posted by: Daniel | Jul 2, 2017 4:53:19 PM

Great news. I have been banned from Facebook, yet again. That means a whole more time available for comments here.

Does this have something to do with sentencing law and policy?

Yes, it does.

I want Facebook and all other traitor corporations seized in civil forfeiture, sold off, with the proceeds to the government. These include Google, Microsoft, Twitter, Snapchat. Seize them. Sell them. To deter.

Posted by: David Behar | Jul 2, 2017 5:18:53 PM

Daniel,

Well, if he weren't so stubborn he would have accepted responsibility for the offense and had a bunch knocked off right there, as well as likely having several of the charges simply vanishing.

Posted by: Soronel Haetir | Jul 2, 2017 5:20:44 PM

Doug B., you spoke of "public safety," and I repeatedly explained how regulations by the FDA addresses that. We don't even seem to be in disagreement -- you just want in various cases to use civil means. As I said, using the building example, that can entail things quite dangerous to public safety. A building collapse can kill lots of people.

You then move on to specific harm. I don't have the records of the investigation there, so really can't say specifically. But, the alleged salve here in one charge in the indictment was alleged to cause harm. I'm just confused by your citation of poison ivy. I'm not saying ANYTHING that might cause harm (lots of things can do that) are actionable.

That was just cited as an example. You note something might say that on the warning label. But, this is getting ridiculous really, the WHOLE POINT here is that he is charged for not properly following such rules and regulations. Finally, you speak of good faith. FINE. I thought we were agreed here. Once he broke the civil court order, he no longer was acting in good faith. THEN, that can't be much of a defense.

Moving on, you have strawman about taking sentencing guidelines as "gospel." I don't. But, the person not only broke the law here -- you yourself said that once he broke the court order some sort of CRIMINAL punishment was warranted (or maybe you weren't serious) -- but there were various aggravating factors. I don't think the guidelines are "gospel," but factoring everything, if the usual floor is 63 weeks, yes, 12 or so seems a tad little. If that is where we are, again, sounds like the prosecutor should have used something less to prosecute in the first place.

Finally, you highlight he is a "non-violent offender." Such labels can mislead. A person who ignores a court order to fix a building and the result was an oven burned a child -- but hey s/he could have burned his hand at the Fourth of July barbecue right? -- would be 'non-violent' too by those terms. I personally think refusing -- not innocently -- to follow a court order and interference with a grand jury involving the regulation of substances that was shown to harm people, including babies, is not handwave stuff.

This isn't tax invasion or regulation of fisheries or something. You are going out of your way to diminish things. The picture makes him look like a nice family man but the safety of my family and myself relies on regulation by the FDA, respecting court orders and not interfering with grand juries. Anyway, since I think even violent offenses often don't warrant six years, all of this stuff is needless confusion as I said upfront.

Posted by: Joe | Jul 2, 2017 7:35:36 PM

[I said "weeks" but I meant months.]

Posted by: Joe | Jul 2, 2017 7:38:42 PM

@joe

Yes, you are correct. One thing I seriously dislike is the whole shtick of the "country boy never meaning no harm" made popular by the Dukes of Hazard show. A lot of these country boys /do/ mean harm and the idea this guy should get cut a break because he is Amish is wrong. But that is the ironic point. If he had played up the innocent babe aspect he probably would have gotten a lighter sentence because the judge wouldn't have wanted to appear cruel. Instead, he got muleheaded and threw away the biggest advantage he had--his white good ol' boy privilege.

So while I tend to agree that six years seems excessive the larger amusement in this case for me is watching people of privilege throw away that privilege because they are too good for it.

Posted by: Daniel | Jul 2, 2017 9:01:46 PM

Joe. Can you specify a specific harm in this case? Why can't you answer a simple question.

Sassing a judge and blocking governmental investigation is a patriotic duty, not a crime. Dude deserves a medal. That judge needs to be driven from the state. Start with a boycott by all service and product providers, including doctors. The legal immunity of the prosecutor and of the judge justify violence in formal logic. The latter has greater certainty than the laws of physics, if any of you took the subject in high school.

It is the judge and prosecutor who are immunized quacks. Criminal procedure is itself quackery to defraud the tax payer of money. There is no legal recourse to stop these quacks. It employs quack 13th Century superstitions. You may not punish a quack using quackery. Worse, none of it has any validation outside enforcement by men with guns.

Posted by: David Behar | Jul 2, 2017 11:28:56 PM

Joe. I want you to read this big government justification by a Harvard asshole. It is total bullshit. 25 pages.

https://dash.harvard.edu/bitstream/handle/1/16162449/Hamburger%20Review%20--%20SSRN.pdf?sequence=1

Then read this. 600 pages of delineation of the tyranny of lawyers, and their stupid running dogs, people like you.

https://www.amazon.com/Administrative-Law-Unlawful-Philip-Hamburger/dp/022632463X/ref=sr_1_1?ie=UTF8&qid=1499052880&sr=8-1&keywords=hamburger+administrative+law

Once you are done, report back, and rewrite your idiotic, pro-government tyranny comment.

Posted by: David Behar | Jul 2, 2017 11:36:36 PM

@David

LOL. Phillip Hamburger is a troll a low level con man, which you well know. Still, this type of shitposting is a new low, even for you.

Posted by: Daniel | Jul 3, 2017 10:23:53 AM

I wish I could be excited by detail or compelled to enumerate reasons point by point. I can't anymore.

I see this as the expected outcome of an all inclusive conspiracy charge with a defendant who chose to exercise his sixth amendment Right to Trial. Because of the power granted to those who charge - the sixth amendment is a right you should not exercise.

Posted by: beth | Jul 3, 2017 2:55:41 PM

"I could be excited by detail or compelled to enumerate reasons point by point."

With respect, in this case, such detail makes him a tad less sympathetic.

Posted by: Joe | Jul 3, 2017 8:34:29 PM

Daniel. Personal remarks are surrender in the traverse. Make a point of fact or of logic. I want you to rewrite your comment without personal insult.

Hamburger won the Bradley Prize, with $250,000 unrestricted cash. It is for innovative scholarship. Someone thought the book had value.

Are you retired or something? If you were doing anything productive, even bagging groceries, you would be feeling the heavy weight of lawyer oppression on your shoulders. You would be ready to do violence to the tyrants that infiltrated and now control the three branches of our government.

Posted by: David Behar | Jul 4, 2017 12:26:07 AM

Joe. Let me and my forensic friends have an hour with your laptop. I will have you facing decades in federal prison, and $millions in fines. Never mind any nasty pictures. Fear copyright infringement.

https://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229

Posted by: David Behar | Jul 4, 2017 12:30:46 AM

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