Key Takeaways

• U.S. Customs and Border Protection issued recent orders barring the importation of certain Chinese goods believed to have been produced with forced or prison labor.

• The U.S. House of Representatives also just passed bi-partisan legislation targeting such goods from the Xianjiang region of China.

• Federal prosecutors have a variety of tools they can use to charge companies criminally for not just importing but also buying, selling, transporting or even facilitating certain conduct with respect to goods that entered the U.S. “contrary to law.” That means companies can be held responsible for their supply chains.

• Felony criminal violations can be based on knowledge or conscious avoidance of knowledge, and misdemeanor liability can attach on a strict liability theory.

• The Department of Justice has provided helpful corporate guidance for setting up compliance programs to avoid customs and trade violations in the supply chains and these same policies can help in the fight against slave labor.

Weeks ago, on September 14 2020, the Trump Administration made news by announcing a ban on the importation of certain products made in China’s Xinjiang region, where widespread human rights abuses—including slave labor work practices—are alleged to be taking place. That import ban fits within an ongoing policy arc to employ trade enforcement tools to dismantle and disrupt U.S. companies’ supply chain reliance on foreign products made under abhorrent labor conditions or using repugnant practices.

Throughout 2020, U.S. Customs and Border Protection (CBP) has issued a series of Withhold Release Orders (Orders) prohibiting the import into the United States of merchandise believed to be made with forced or prison labor from specific producers in China. The Orders cover several products and companies. The most recent action, from September 14, includes five Orders covering, for example, all products from Lop County No. 4 Vocational Skills Education and Training Center in Xinjiang and cotton from Xinjiang Junggar Cotton and Linen Co., Ltd.¹

Additionally, on September 22, 2020, in a remarkable bi-partisan 406-3 vote, the U.S. House of Representatives passed the Uyghur Forced Labor Prevention Act (H.R. 6210). H.R. 6210, if passed by the Senate and signed into law by the President, would impose an import ban on all products mined, produced or manufactured—in whole or in part—in the Xinjiang region. Furthermore, this legislation creates reporting requirements for U.S. securities issuers engaged in manufacturing activities in the Xinjiang region, as well as transactions involving companies that “engaged in activity” with entities assisting with surveillance systems or detention facilities in this region. Following that, on September 30, 2020, the House passed by a vote of 253-163 the Uyghur Forced Labor Disclosure Act (H.R. 6270), which would go further with the reporting requirement, mandating that all issuers report annually whether they manufactured goods with materials sourced from that region.

A broader ban, through Presidential action or legislation, would have a massive impact on the international supply chains for U.S. companies that deal in product from Xinjiang, such as clothing and textiles, food products, wigs, and electronics. What may be less apparent, however—and what U.S. companies must consider carefully—is the possibility that a cotton ban and similar trade orders designed to combat human abuses or other slave-related practices could create criminal liability for any U.S. company that “receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation”, so long as the supply-chain actor “knew” that the merchandise entered the country “contrary to law.” As we have recently explained, telltale signs suggest that federal prosecutors are gearing up to fight slave labor and other customs and trade practices. One of the key tools that they are expected to use in that fight is 18 U.S.C. § 545, which is “the nation’s most powerful criminal enforcement statute as it relates to merchandise entering the United States ‘contrary to law.’”² Our previous OnPoint on the topic noted that “Section 545’s potency rests with its flexibility.”³ This OnPoint further unpacks Section 545’s potency and flexibility.

Prioritizing China Trade Enforcement

From its earliest days, the Trump administration has made clear that it would vigorously monitor our nation’s imports and exports. One of President Trump’s early executive orders, issued in the Spring of 2017, emphasized that unfair trade practices “expose United States employers to unfair competition and deprive the Federal Government of lawful revenue.”⁴ Federal prosecutors and other law enforcement partners were thus ordered to make vigorous enforcement of the nation’s trade laws a “high priority.”⁵ Consistent with that policy, the order directed the Department of Justice and its law enforcement partners, Homeland Security Investigations and CBP, to “develop and implement a strategy and plan for combating violations of United States trade and customs laws for goods and for enabling interdiction and disposal, including through methods other than seizure, of inadmissible merchandise entering through any mode of transportation.”⁶ And the order directed the Secretary of the Treasury and the Secretary of Homeland Security “[t]o ensure the timely and efficient enforcement of laws protecting Intellectual Property Rights (IPR) holders from the importation of counterfeit goods,” specifically through greater information sharing with rights holders.⁷

A companion executive order issued the same day directed the Secretary of Commerce and the U.S. Trade Representative to submit a report to the President on the foreign trading partners with which the U.S. had significant trade deficits. In particular, the report was to “address the major causes of the trade deficit, including, as applicable, differential tariffs, non-tariff barriers, injurious dumping, injurious government subsidization, intellectual property theft, forced technology transfer, denial of worker rights and labor standards, and any other form of discrimination against the commerce of the United States or other factors contributing to the deficit.”⁸ Additionally, the report was required to assess whether these trading partners were unfairly discriminating against U.S. commerce and if the trade relationship has weakened the production capacity and strength of the United States’ industrial base.⁹

The Trump administration implemented these early orders through a series of escalating actions over the past several years in the context of a trade war with China. The U.S. government has been using its full panoply of trade tools against China, and CBP is on alert to inspect and question imports from China to ensure compliance with the various measures. The CBP Orders prohibiting the import of merchandise derived from alleged forced labor in China and proposed H.R. 6210 and H.R. 6270, which would extend those measures, are the latest developments in this policy trajectory. On July 31, 2020, the Treasury Department’s Office of Foreign Assets Control (OFAC) added Xinjiang Production and Construction Corps (XPCC) to its Specially Designated Nationals (SDN) list as a result of XPCC’s reported human rights abuses against ethnic minorities in the Xinjiang region. Placement of XPCC on the SDN list prohibits U.S. firms from directly or indirectly conducting business with XPCC, and its subsidiaries, who collectively have a sprawling footprint throughout China (Xinjiang in particular). The Commerce Department also has added many Chinese parties to its Entity List, imposing U.S. export bans on entities alleged to be perpetrating human rights violations in Xinjian. That means U.S. companies cannot provide their technology to those entities to facilitate contract manufacturing for their supply chain.

The intersection between human rights violations in China and U.S. companies’ supply chains is likely to be an enforcement priority for the foreseeable future—regardless of who wins the upcoming presidential election. This is a topic that receives strong bipartisan support, in Congress, and either a Trump or Biden administration would likely continue along this policy arc. As noted above, H.R. 6210 received bipartisan support and passed the House with an almost unanimous vote, with less overwhelming but still strong bipartisan support for H.R. 6270. Furthermore, the CBP Orders, sanctions and export ban designations are based on inter-agency U.S. government determinations involving many career officials—and those types of decisions usually are politically neutral. Although President Trump has made trade enforcement a prominent component of his administration, the actions taken in furtherance of such enforcement are structured to have lasting impact into the next presidency and beyond.

Federal Statutes Barring Forced Labor Create Broad Criminal Liability

CBP’s recent Orders are based on 19 U.S.C. § 1307. That statute prohibits the importation into the U.S. of “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions.” Administratively, any such merchandise is subject to exclusion and/or seizure, meaning CBP may deny entry and either reject the import or take possession and destroy the goods. Section 1307 does not itself provide for criminal penalties.

However, two criminal statutes found in Title 18, working in tandem, achieve criminally what Section 1307 achieves administratively. Namely, 18 U.S.C. § 545, grants prosecutors sweeping authority to prosecute “those who import merchandise contrary to law” as well as anyone in the supply chain who “receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation,” knowing the same to have entered the country “contrary to law.” The penalty for violating this provision is up to 20 years in prison, in addition to the forfeiture of the “merchandise introduced into the United States in violation of this Section, or the value thereof, to be recovered from any person” in the supply chain who falls within the scope of the prohibition.¹⁰

And the “law” that federal prosecutors could use in tandem with Section 545, is another powerful, albeit not-very-well-known criminal statute, 18 U.S.C. § 1589. That prohibition provides that “[w]hoever knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by,” among other things, “means of force, threats of force, physical restraint, or threats of physical restraint” commits a felony punishable by up to 20 years’ imprisonment.¹¹ If the violation results in death to the victim, or includes “kidnapping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill,” a term of imprisonment up to and including life imprisonment may be imposed.¹²

The “potency” and “flexibility” of Section 545 is that it imposes criminal liability not just on those who bring merchandise into the United States contrary to law—say, the importers of record—but on anyone who “receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.” Thus, Section 545 targets not just supply-side companies that actually engage in prohibited practices like using forced labor, but also demand-side companies that use (in manufacturing or otherwise), or even just transport merchandise they know to have been imported illegally. And the definition of “merchandise” captures nearly everything that makes its way into the United States, including “goods, wares, and chattels of every description . . . includ[ing] merchandise the importation of which is prohibited.”¹³

Thus, the government can in effect prosecute the entire supply chain of imported goods. Moreover, it can use this latitude to target domestic companies and individuals, who are more readily available targets than companies and individuals located abroad. Indeed, the government can avoid the challenges of extradition and actually seize attachable assets thereby bringing added bite to an already powerful and versatile combination of criminal statutes. And Section 545 is not an island with respect to criminal “Customs” offenses. Although it may be the first among equals, Section 545 is surrounded by a variety of other criminal customs statutes that can serve as the necessary predicate “law” for a Section 545 prosecution against a company or individual. Immediately below is a list of its neighboring trade-related criminal offenses, many of which offer viable predicates for a Section 545 prosecution:

§ 541. Entry of goods falsely classified
§ 542. Entry of goods by means of false statements
§ 543. Entry of goods for less than legal duty
§ 544. Relanding of goods
§ 545. Smuggling goods into the United States
§ 546. Smuggling goods into foreign countries
§ 547. Depositing goods in buildings on boundaries
§ 548. Removing or repacking goods in warehouses
§ 549. Removing goods from customs custody; breaking seals
§ 550. False claim for refund of duties
§ 551. Concealing or destroying invoices or other papers
§ 552. Officers aiding importation of obscene or treasonous books and articles
§ 553. Importation or exportation of stolen motor vehicles, off-highway mobile equipment, vessels, or aircraft
§ 554. Smuggling goods from the United States
§ 555. Border tunnels and passages

Ordinary “Knowledge” Is All That Is Required to Criminally Punish Those Who Transact in Merchandise Made with Slave and Forced Labor

As we have written previously, the standard for proving a company or individual’s “knowledge” of slave or forced labor practices in the supply chain is not a particularly high one. Actual direct knowledge is not required, so long as there are red flags that a company or individual can be said to have willfully ignored. As has frequently been the case with prosecutions under the Foreign Corrupt Practices Act and other criminal statutes, the government can prove “willful blindness”—which is legally equivalent to actual knowledge—from circumstantial evidence, such as general information about the market for the goods in question, prior public statements about similar enforcement actions involving the same products or companies, or even evidence that the price paid by the defendant for the goods was simply too good to be true.

Indeed, a variety of indirect evidence could potentially be used to meet that standard. Using the Seventh Circuit’s pattern criminal jury instructions on knowledge as an example, a jury “may find that the defendant acted knowingly if [it] find[s] beyond a reasonable doubt that [the defendant] believed it was highly probable that” the relevant fact or facts were present and that the defendant “took deliberate action to avoid learning” those facts.¹⁴ Thus, the Seventh Circuit has identified the following categories of evidence for the willful blindness jury instruction: “evidence of ‘overt physical acts,’ and evidence of ‘purely psychological avoidance, a cutting off of one’s normal curiosity by an effort of will.’”¹⁵ In other words, in the latter case, intentionally not wanting to know something “by cutting off one’s normal curiosity by an effort of will” is the same as actually knowing it. That is because, as we have written previously, the law does not distinguish between actual knowledge and willful blindness, as many other federal appellate courts have recognized.¹⁶

Criminal Trade Liability Extends Beyond Slave and Forced Labor

Furthermore, 18 U.S.C. § 545 creates criminal liability for companies well beyond just the slave and forced labor context highlighted by the recent Presidential and Congressional actions relating to the Xinjiang region of China. Because the statute permits prosecution for any merchandise imported contrary to any law, it can be used to prosecute companies or individuals who have knowingly been involved with goods tainted by, among other things:

• tariff and anti-dumping-duty avoidance;
• counterfeiting activities;
• violations involving country-of-origin markings, product substitutions, and product labeling violations;
• food fraud; and
• intellectual property theft.

For example, a 2013 prosecution of several food companies used 18 U.S.C. § 542, prohibiting importation of goods using “fraudulent or false” statements, as the predicate for the Section 545 prosecution.¹⁷ Also, as further proof of its versatility, a 2012 Section 545 prosecution of a turbo blower manufacturer relied on 19 U.S.C. § 1304, which requires imports to “be marked in a conspicuous place… [with] the English name of the country of origin of the article.”¹⁸ The statute does not restrict the government’s discretion to select the particular “law” that the subject goods were imported “contrary to,” although there is currently a circuit split among the Fourth, Ninth, and Eleventh Circuits “on the key question as to what [type of] ‘law’ must be violated for importation to be ‘contrary to law.’”¹⁹
On that score, and as we noted in an earlier OnPoint, the appellate courts have adopted different views. The Ninth Circuit has narrowly construed the phrase “contrary to law” to require the underlying “law” to be either a criminal statute or regulation that “specifies that violation of that regulation is a crime.”²⁰ The Fourth Circuit has adopted a more expansive reading of the phrase and held that “18 U.S.C. § 545 criminalizes importation in violation of any regulation having the force and effect of law.”²¹ And the Eleventh Circuit has adopted a hybrid approach that turns on the rule of lenity.²²

In short, companies need to be aware that there are many ways that their supply chains can be compromised which could potentially result in criminal liability. For example:

1. Illegal Transshipment: Merchandise is transshipped when it is sent from a country of origin to a different country of intermediate destination, which is then mislabeled as the country of origin, and then ultimately passed through a custom house at the port of final destination and entered into the United States.

2. Misdeclaration Schemes: Merchandise becomes an illegally misdeclared product when it is imported and entered into the United States as originating from a country other than its true country of origin, even if not transshipped.
3. Product Substitution Schemes: Similarly, merchandise imported and entered into the United States as a product other than the actual, real product, is also considered an illegally misdeclared product.

In addition to avoiding the recent CBP Orders, another motivation for these various schemes is that the United States assesses antidumping duties on a variety of merchandise originating from China. Illegally transshipped, mislabeled, and misdeclared Chinese-origin merchandise seek to avoid these duties and fees (or “tariffs”), in violation of U.S. law. Furthermore, illegally transshipped, mislabeled, and misdeclared merchandise can create a two-tier pricing structure for these products: higher prices for buyers and sellers unwilling to transact in transshipped, mislabeled, and misdeclared merchandise and cheaper prices for those willing to do so or who are otherwise indifferent.²³

Supply chains are complex, and federal prosecutors have a variety of options to pursue criminal liability theories that can be lurking in a variety of places.

Federal Prosecutors Can Also Bring Criminal Charges Against Supply Chain Actors Based on the Food, Drug, and Cosmetic Act (FDCA), Title 21 U.S.C. § 331

Although not necessarily a tool to fight slave, forced, and child labor practices, another federal statute with criminal penalties, 21 U.S.C. § 331, punishes supply chain actors who transact in merchandise that would also violate Section 545.

Specifically, Section 331 imposes liability not just for those who (i) introduce any adulterated or misbranded “food, drug, device, tobacco product, or cosmetic” into interstate commerce, but also those who (ii) receive such products, (iii) deliver them, (iv) proffer their delivery (whether commercially or otherwise), (v) are engaged in their manufacturing, or (vi) alter, mutilate, destroy, obliterate, or remove in “whole or any part of the labeling” of such products under certain conditions, among other options.

For instance, below are four key provisions in Section 331 that illustrate how Section 331 can work alongside Sections 545 and 1589:

The following acts and the causing thereof are prohibited:

(a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded.
. . .
(c) The receipt in interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise.
. . .
(g) The manufacture within any Territory of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded.
. . .
(k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, tobacco product, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded.²⁴

When done “with intent to defraud or mislead” any of these crimes are felonies punishable by up to three years in prison.²⁵ But, unlike the criminal customs statutes, Section 331 contains its own juggernaut provision—a strict liability clause that removes the mens rea requirement altogether, and imposes misdemeanor criminal liability against anyone “who violates a provision of section 331.”²⁶ A misdemeanor, of course, is punishable by up to one year imprisonment.²⁷

Moreover, the Supreme Court’s decision in United States v. Park endorsed such “strict liability” prosecutions, at least in some circumstances. That seminal 1975 case gave birth to what is commonly known amongst practitioners in this space as the “Park doctrine” or the “Responsible Corporate Officer doctrine.”²⁸ In Park, the Court held that while the defendant in that case was unlikely to be in a position to directly supervise all of the company’s 30,000 employees to ensure that all acted in compliance with the FDCA, Section 331 imposes on senior corporate executives a “duty to implement measures that will insure that violations will not occur” and failure to do so imposes personal criminal liability on that executive (albeit a misdemeanor) because of the strong “public interest in the purity of its food.”²⁹

To borrow a phrase, to whom much is given, much is expected: Under the Park doctrine, those with “responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of” and who “fail[] to do so,” may be criminally prosecuted.³⁰ It bears noting, however, that the doctrine has been the subject of persistent questions about whether it permits imprisonment based on a strict liability offense and thereby violates due process.³¹ Some commentators have argued that most crimes require a culpable state of mind—that is, intent or recklessness.³²

And the FDCA can be used civilly or criminally. So, for example, in the very recent civil case of Fortune Food Product Inc., a company agreed to a consent decree and injunction (civil remedies) that prohibited it from violating Section 331 with adulterated sprouts and soy products.³³ Among other things, the company agreed to retain a food safety expert at its own expense to develop a safety plan for its sprouts. And, years earlier also in Chicago, one partner on this OnPoint successfully prosecuted criminally what Bloomberg Businessweek described as “the largest food fraud in U.S. history,” relying on 18 U.S.C. § § 545, 542, and 1519 as well as 21 U.S.C. §§ 331(a) and 333(b), among other statutes.³⁴ Those cases still stand as the largest customs fraud, international trade fraud, and food fraud cases ever prosecuted in U.S. history, with 27 defendants charged, $260 million in losses, and all apprehended defendants convicted of felonies.

Thus, a wide range of companies, including their executives and employees, could potentially be criminally liable for their knowing (or, under the Park doctrine, even unknowing ) involvement with goods produced using slave or forced labor, or that are otherwise incompatible with or brought into the United States in violation of U.S. law. Thus, for purposes of Section 545 or even Section 331, distributors, packers, wholesalers, retailers, industrial end-users, transporters, and others could be subject to criminal prosecution if they knowingly (or in the case of Section 331, unknowingly) transact in imported merchandise that illegally entered the country in violation of applicable federal law and the prohibitions these laws impose.

Supply Chain Compliance

Once a company is aware of the potential criminal liability for violations of the law occurring in its supply chain, the question becomes how it can ensure that its compliance program can detect and prevent such violations. The good news is that the government has provided specific and detailed guidance for how such a compliance program should be constructed, structured, and monitored, in two seminal criminal prosecutions handled by one of the partners on this OnPoint when he was a federal prosecutor in Chicago.³⁵

In resolving one criminal case against a company that admitted to causing losses of nearly $80 million and another case against a different company that admitted to causing losses of nearly $35 million, the Department of Justice insisted these companies agree to the government’s first-ever Corporate Compliance Program based on supply-chain traceability. That “Compliance Program,” attached to each of these corporate defendants’ deferred prosecution agreements (DPAs) as “Exhibit B,” had an explicit stated purpose to “ensure” that a corporate defendant “maintains supply chain integrity and conducts reasonable, good-faith country-of-origin inquiries reasonably designed to ensure that [the defendant] is able to track and trace its domestic and imported products, as well as avoid transacting in illegally transshipped, illegally misdeclared, and unsafe or unwholesome products.”³⁶

Furthermore, “[t]o prevent and address deficiencies in its policies and procedures regarding full compliance with U.S. importation and customs laws, the FDCA and FSMA [Food Safety Modernization Act], and other federal laws relating to [food] and other products (collectively, the ‘traceability and food laws’),” the government’s Compliance Program required those defendants to “continue to conduct, in a manner consistent with all of its obligations under this Agreement, appropriate reviews of its internal controls, existing policies, and procedures.”³⁷

In addition, under the Compliance Program, “[w]here necessary and appropriate, [the defendant] agree[d] to adopt new or to modify existing policies and procedures to ensure that it maintains a rigorous compliance code, standards, and procedures designed to detect and deter violations of the traceability and food laws.”³⁸ “At a minimum, this should include, but not be limited to, [ten stated] elements to the extent they are not already part of [the defendant’s] existing policies and procedures:”

• A clearly articulated corporate policy against violations of the traceability and food laws.
• Compliance standards and procedures applicable to all directors, officers, executives, and employees, and outside parties acting on behalf of or for the benefit of the company.
• A risk assessment that takes into account market conditions at the time of any given transaction as well as supply chain inquiries, including into the imported product’s paperwork and conditions of import.
• Periodic review and revision of compliance standards and procedures.
• Mechanisms designed to ensure that policies, standards, and procedures regarding traceability and food laws are effectively communicated to employees and agents, including periodic training and annual certifications.
• An effective system for receiving, reporting, handling, and addressing suspected criminal conduct and/or violations of the compliance policies.
• Appropriate disciplinary procedures to address violations of the traceability and food laws and the compliance code.
• Appropriate due diligence and compliance requirements pertaining to the retention and oversight of agents, including (a) informing them of the commitment to abiding by traceability and food laws the ethics and compliance standards and (b) seeking a reciprocal commitment from them.
• Standard provisions in agreements with all agents that are reasonably calculated to prevent violations of the traceability and food laws, including: (a) traceability representations and undertakings relating to compliance with the traceability and food laws; (b) rights to conduct supply chain audits; and (c) rights to terminate an agent as a result of any breach of the traceability and food laws.
• Educating customers of corporate policies and procedures regarding the traceability and food laws.³⁹

Similarly, piggybacking off of the Department of Justice’s traceability and food laws, some seven years later, the U.S. Departments of Commerce, Homeland Security, State, and Treasury (the U.S. and law enforcement agencies with responsibility for import, export, and sanctions regulation) also issued a joint Xinjiang Business Supply Chain Advisory on July 1, 2020 advising companies operating in China on the government’s due diligence expectations to avoid products made with forced labor.⁴⁰

Conclusion

We predict that the emerging anti-slave labor and trade fraud initiative could be as transformational as the growth in Foreign Corrupt Practices Act (FCPA) prosecutions over the past few decades. Some 30 years ago, the FCPA was an obscure statute largely known only by trade lawyers and ignored by virtually all—including the government. But here, as there, the telltale signs are in place that in cooperation with its fellow law enforcement agencies, the Department of Justice is ready to act and make slave labor and trade, customs, and even food fraud practices a top DOJ prosecutorial priority, as ordered by the President in 2017 in its Executive Orders. If we are right, then time is of the essence for every global company to “adopt new or to modify existing policies and procedures to ensure that it maintains a rigorous compliance code, standards, and procedures designed to detect and deter violations of the traceability and food laws.”

For at least thirteen years, the DOJ has put the corporate community on notice that failure on the part of companies to do so can have serious criminal ramifications similar to those that arise under the FCPA. But, unlike the FCPA, which deals with the harmful practice of bribes to foreign officials, the topic at issue here is even more deplorable and abhorrent: slave, forced, and child labor practices that allow for merchandise to be made cheaply overseas and entered into the United States, where these products are sold in the American stream of commerce. DOJ is likely to have little—to no—tolerance for such conduct, especially with a seven-year lead time for global companies to get their respective houses in order.

Footnotes

1) See Department of Homeland Security, DHS Cracks Down on Goods Produced by China’s State-Sponsored Forced Labor (Sept. 14, 2020).
2) Andrew S. Boutros et al., Dechert OnPoint: Corporate America Can Be A Powerful Force For Good To Root Out Modern-Day Slavery (Aug. 12, 2020). 3) Id.
4) President Donald J. Trump, Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Laws, 82 FR 16719 (Apr. 5, 2017).
5) Id.
6) Id.
7) Id.
8) President Donald J. Trump, Omnibus Report on Significant Trade Deficits, 82 FR 16721 (Apr. 5, 2017).
9) Id.
10) 18 U.S.C. § 545.
11) 18 U.S.C. § 1589.
12) Id.
13) 19 U.S.C. § 1401(c).
14) Seventh Circuit Pattern Criminal Jury Instruction 4.10.
15) United States v. Carrillo, 435 F. 3d 767, 780 (7th Cir. 2006) (internal citations and quotation marks omitted).
16) See supra n.2, at 53.
17) See United States v. Groeb Farms, Inc., No. 13 CR 137 (N.D. Ill. Feb. 12, 2013), at Dkt. 1.
18) See United States v. Lee, 937 F.3d 797 (7th Cir. 2019).
19) See United States v. Izuerieta, 710 F.3d 1176 (11th Cir. 2013); United States v. Alghazouli, 517 F.3d 1179 (9th Cir. 2008); United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994).
20) Alghazouli, 517 F.3d at 1187.
21) Mitchell, 39 F.3d at 470.
22) Izuerieta, 710 F.3d at 1179.
23) See, e.g., United States v. Groeb Farms, No. 13 CR 137, Dkt. 7 Ex. B (N.D. Ill. Feb. 20, 2013); United States v. Honey Holding I, Ltd., No. 13 CR 138, Dkt. 11 Ex. B (N.D. Ill. Feb. 20, 2013).
24) 21 U.S.C. § 331(a), (c), (g), (k) (emphases added).
25) 21 U.S.C. § 333(b) (If any person “commits such a violation with the intent to defraud or mislead, such person shall be imprisoned for not more than three years or fined not more than $10,000, or both.”).
26) Id. § 333(a).
27) Id.
28) 421 U.S. 658 (1975).
29) Id. at 671, 672.
30) Id. at 674.
31) See, e.g., Petition for a Writ of Certiorari, DeCoster v. United States, at *23-26 (filed Jan. 10, 2016).
32) See Daniel G. Gurwitz, The Park Doctrine & Prosecution of Misdemeanor Violations Under the Federal Food, Drug & Cosmetic Act (Or… Farmer Bill Goes to Jail), STATE BAR OF TEXAS: 10TH ANNUAL AGRICULTURAL LAW COURSE, ch. 2.2 (2016).
33) No. 20-cv-5356, Dkt. #8 (N.D. Ill. Sept. 15, 2020).
34) Susan Berfield, The Honey Launderers: Uncovering the Largest Food Fraud in U.S. History, BLOOMBERG (Sept. 20, 2013).
35) United States v. Groeb Farms, No. 13 CR 137, Dkt. 7 Ex. B (N.D. Ill. Feb. 20, 2013); United States v. Honey Holding I, Ltd., No. 13 CR 138, Dkt. 11 Ex. B (N.D. Ill. Feb. 20, 2013).
36) Groeb Farms, No. 13 CR 137, Dkt. 7 Ex. B p.1; Honey Holding, No. 13 CR 138, Dkt. 11 Ex. B p.1.
37) Groeb Farms, No. 13 CR 137, Dkt. 7 Ex. B p.1; Honey Holding, No. 13 CR 138, Dkt. 11 Ex. B p.1.
38) Groeb Farms, No. 13 CR 137, Dkt. 7 Ex. B p.2; Honey Holding, No. 13 CR 138, Dkt. 11 Ex. B p.2.
39) Groeb Farms, No. 13 CR 137, Dkt. 7 Ex. B pp. 2-4; Honey Holding, No. 13 CR 138, Dkt. 11 Ex. B pp. 2-4. The entire detailed guidance document is available here.
40) See, Department of Commerce, Xinjiang Supply Chain Business Advisory (July 1, 2020).