What if a store clerk sells a product that, unbeknownst to him, is illegal? Can the clerk be convicted of a crime, despite not knowing the product was illegal and not intending to sell an illegal product? On January 14, 2016, the Eighth Circuit answered that question with a resounding yes, upholding the criminal conviction of Joseph Gellerman for selling a misbranded drug in violation of the Food Drug & Cosmetic Act (FDCA).
Joe was a clerk in a store that sold drugs—drugs that came to the store through interstate commerce. Law enforcement officers went to the store and bought drugs. Joe was the clerk who made the sale. As the officers suspected, the drugs were misbranded synthetic drugs. They brought criminal charges against the store owner, Joe, and another clerk.
At the trial in federal court, the judge instructed the jury that they could find Joe guilty of violating the FDCA if he had in any way aided or abetted in selling the drugs. The jury found him guilty: he was, after all, the clerk who sold the drugs.
Joe appealed his misdemeanor FDCA conviction to the Eighth Circuit, arguing that he shouldn’t be convicted without evidence the he knew the drugs were misbranded or intended to sell a misbranded product. The Eighth Circuit wasn’t impressed. It ruled that because the sale of misbranded drugs is a strict liability offense, the government needn’t prove knowledge or intent. If Joe was the clerk handling the sale—and he clearly was—he was guilty. Case closed.
The case is U.S. v. Gellerman, No. 14-3242 (8th Cir. Jan. 14, 2016).
