text:
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D.C. Law Library - § 47–1274. Interest and penalties.
↪ Chapter 12D. Stevie Sellows Quality Improvement Fund; ICF-IDD [ICF-IID] Assessment.
↪ § 47–1274. Interest and penalties.
§ 47–1273. Assessments on ICF/IID.
§ 47–1275. Confidentiality; audit; determination of assessment.
§ 47–1274. Interest and penalties.
(a)(1) If an ICF-IDD [ICF-IID] fails to pay the full amount of an assessment by the date required by this chapter, or by rules issued pursuant to § 47-1277, the unpaid balance shall accrue interest at the rate of 1.5% per month or any fraction thereof which shall be added to the unpaid balance.
(2) The Chief Financial Officer of the District of Columbia may arrange a payment plan for the amount of the assessment and interest in arrears.
(c)(1) If an ICF-IDD [ICF-IID] that knowingly provides false information in a report required by this chapter, or by rules issued pursuant to § 47-1277, it shall be subject to a penalty of up to $10,000.
(2) Any action brought to enforce this subsection shall be brought in the Superior Court of the District of Columbia by the Attorney General for the District of Columbia in the name of the District of Columbia.
(2) The priority of a secured creditor.
This section is referenced in § 47-1271, § 47-1272, and § 47-1276.
The 2012 amendment by D.C. Law 19-169 substituted “ICF-IDD” for “ICF-MR” wherever it appears in the section; and substituted “ICF-IDD’s” for “ICF-MR’s” in (b).
The 2013 amendment by D.C. Law 20-61 repealed (b).
For temporary (90 days) amendment of this section, see § 5022(d) of the Fiscal Year 2014 Budget Support Emergency Act of 2013 (D.C. Act 20-130, July 30, 2013, 60 DCR 11384, 20 DCSTAT 1827).
For temporary (90 days) amendment of this section, see § 5022(d) of the Fiscal Year 2014 Budget Support Congressional Review Emergency Act of 2013 (D.C. Act 20-204, October 17, 2013, 60 DCR 15341, 20 DCSTAT 2311).
Section 5021 of D.C. Law 20-61 provided that Subtitle C of Title V of the act may be cited as the “Stevie Sellows Intermediate Care Facility Quality Improvement Act of 2013”.


Order Denying Extradition From Foreign Tribunal Is NOT a Basis for Motion to Dismiss Indictment in U.S.
Extradition: Order Denying Extradition From Foreign Tribunal Is NOT a Basis for Motion to Dismiss Indictment in U.S.
This appeal requires us to consider the collateral estoppel effect, if any, of findings made by foreign courts in extradition proceedings.
Back in May 1998 defendant Kashamu was one of fourteen persons charged in an indictment returned by a federal grand jury in Chicago with conspiracy to import and distribute heroin in violation of 21 U.S.C. § 963. He was indicted both in his own name and under what the government believed to be two aliases that he used: “Alaji” and “Kasmal.” But he could not be found.
He had not been arrested; he did not jump bail; his whereabouts simply were unknown. The government did not ask that he be tried in absentia. The case proceeded against the other defendants and all of them were convicted.
In December 1998 Kashamu surfaced in England and was arrested at our government’s request. Justice Department lawyers, working with their English counterparts, sought his extradition to the United States to stand trial. The English Judge, (referred to as a magistrate, as we will refer to him in this opinion) decided not to order him extradited.
In February 2009, Kashamu filed a motion in the district court in Chicago to dismiss the indictment against him on the ground that the English magistrate had found that he was not “Alaji” and the finding should be given collateral estoppel effect in the criminal proceeding and that if this was done he could not be convicted and therefore shouldn’t have to stand trial. The district judge denied the motion, precipitating this appeal.
The government argues that we have no jurisdiction because a finding made in an extradition proceeding can never be given collateral estoppel effect and so clear is this that Kashamu’s challenge to the denial of his motion to dismiss the indictment should not be deemed even “colorable.” An appeal that is not colorable—that is frivolous—should simply be dismissed.
Normally, it is true, the denial of a motion to dismiss an indictment cannot be appealed immediately if the ground of the motion can be reasserted if and when the defendant is convicted, as in such cases as Midland Asphalt Corp. v. United States, 489 U.S. 794, 799-800 (1989).
But there is an exception when the ground is double jeopardy and the double jeopardy clause has been held to incorporate the doctrine of collateral estoppel. Yeager v. United States, 129 S. Ct. 2360, 2366-67 (2009).
As long as the indictment against Kashamu remains pending, the government can seek to extradite him from any country that has an extradition treaty with the United States. If the United States succeeds in extraditing Kashamu it will put him on trial, and even if he is acquitted he will have lost a right that he claims the collateral estoppel doctrine gives him.
There is an analogy to the right to appeal, under the collateral order doctrine, a denial of a motion made before trial to dismiss a suit on grounds of official immunity. Such a denial is an interlocutory order. Mitchell v. Forsyth, 472 U.S. 511, 525-30 (1985).
So we have appellate jurisdiction and turn to the question whether it is true as the government argues that a ruling rejecting a request for extradition can never have collateral estoppel effect.
Ordinarily the preclusive effect of a judicial order is determined under the law of the jurisdiction that issued the order, but that is by virtue of the Constitution’s full faith and credit clause and its implementing statute. 28 U.S.C. § 1738. When the order is issued by a foreign court, a domestic court is not bound by the full faith and credit clause or statute to comply with the foreign jurisdiction’s preclusion rules.
So what should the domestic court (in this case the federal district court in Chicago) do? There is no consensus.
Comity is a doctrine of deference based on respect for the judicial decisions of foreign sovereigns. When the foreign judiciary is respected, as in the case of the United Kingdom’s judiciary, and the rule on which the finding sought to be given preclusive effect is based doesn’t offend a strong U.S. policy, the federal courts should defer to that finding. This suggests that the district court should have applied the United Kingdom’s concept of collateral estoppel in deciding what weight to give the ruling of the English magistrate, provided that concept does not offend U.S. policy.
But we are not sure the suggestion is correct, given the peculiarity of this case. The English judiciary had and has very little interest—maybe no interest—in it. Our government asked England to extradite a Nigerian who does not, and doubtless has no right to, reside in England. It would hardly matter to England whether Kashamu is tried in the United States.
But set that point to one side and assume that we should apply the English doctrine of collateral estoppel to this case. The English doctrine (which the English call “issue estoppel”) is similar to the American, but there are differences. One is that it cannot be used against a nonparty to the case in which the determination sought to be used as an estoppel was rendered.
A second and critical one is that English law does not apply the doctrine to criminal cases. Regina v. Humphrys, 1977 A.C. 1, 21 (H.L.).
The English further insist that the ruling sought to be given preclusive effect be final. Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), 1 A.C. 853, 918 (H.L. 1966). The English judges have intimated that their determinations in Kashamu’s extradition hearings (there were two hearings) were not final.
So the defendant loses under English law even if an English court would recognize collateral estoppel in a criminal case. But earlier we expressed doubt whether the English rule of collateral estoppel should bind us in this unusual case. Furthermore the parties haven’t mentioned the English rule. They have assumed that U.S. law, specifically the federal common law rule of collateral estoppel (the rule applicable when the finding in question was made by a federal court), governs.
Ordinarily a court will enforce the choice of law rule selected by the parties, no questions asked, unless they select a foreign law that would be too difficult for the federal court to apply. Tomic v. Catholic Diocese, 442 F.3d 1036, 1042 (7th Cir. 2006).
So while in the absence of agreement to apply U.S. law we might apply the foreign law of collateral estoppel in this case,we shall bow to the parties’ tacit agreement and decide the case under federal common law.
In that law collateral estoppel is available to defendants in criminal cases. Ashe v. Swenson, supra, 397 U.S. at 442-44; United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916) (Holmes, J.). But the government argues that the rule cannot apply to extradition determinations because the rejection of a request for extradition is always provisional—it is not a final order. Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981). It is like a magistrate’s ruling that there isn’t probable cause to hold a person whom the police have arrested; the person goes free but can be rearrested. Fed. R. Crim. P. 5.1(f).
Likewise, when a request for extradition is denied, the prosecutors can renew the request (they may have obtained additional evidence), United States ex rel. Rutz v. Levy, 268 U.S. 390, 393 (1925), the extradition proceeding is deemed not to have placed the defendant in jeopardy. And when a person sought to be extradited has moved from the country that first denied extradition to another country, there is nothing in U.S. law to prevent our prosecutors from asking that country to extradite him—which is not to say that the country will grant the request.
But the lack of finality of a denial of extradition is not conclusive of whether the denial should be given collateral estoppel effect. In Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961) .
Ordinarily an attempt to give collateral estoppel effect to a finding made in a hearing on a request for extradition would be blocked because that hearing, like a preliminary hearing for an arrested person, would not have been full and fair (particularly not full), as the doctrine of collateral estoppel requires. But while extradition hearings, like preliminary hearings, are normally summary, they aren’t always—they weren’t in this case.
Collins v. Loisel, 262 U.S. 426, 430 (1923) (Brandeis, J.), held that while “discharge . . . on the first petition for habeas corpus . . . does not operate as res judicata . . . a judgment in habeas corpus proceedings discharging a prisoner held for preliminary examination may operate as res judicata . . . that he was at the time illegally in custody, and of the issues of law and fact necessarily involved in that result.” This holding is authority for regarding findings made in extradition hearings as eligible to be given collateral estoppel effect, at least in special circumstances—so let us consider whether such circumstances are present in this case.
Our government had not presented enough evidence to convince the English magistrate that Kashamu was Alaji, but Kashamu had not presented enough evidence to convince the magistrate that he was not Alaji.
The only findings that the magistrate made that could possibly be entitled to collateral estoppel effect in a trial of Kashamu for participation in the drug conspiracy were that Kashamu had a brother who bore a striking resemblance to him, the brother was a member of the conspiracy that the government thinks was led by Kashamu. These findings if admissible would bolster his defense but would not require an acquittal, and thus would not require the dismissal of the indictment.
A reasonable jury might find that Kashamu had exploited the resemblance to his brother to create doubt about his (Kashamu’s) being Alaji. In light of these possibilities the magistrate was quite right not to find that Kashamu wasn’t Alaji.
f for example the finding that Kashamu and his brother bear a striking resemblance to each other were given collateral estoppel effect, then in a trial in the United States the prosecution would not be permitted to contest the proposition that they bear a striking resemblance to each other.
We don’t think it could be doubted that there was probable cause to commit Kashamu for trial (and for that matter probable cause to believe he’s Alaji—for he may well be, and that is enough to establish probable cause). The magistrate turned what would normally have been a summary proceeding to determine probable cause into a trial of who is more likely to be Alaji, Kashamu or his brother? All that was necessary for the denial of extradition was the magistrate’s determination that he had been given insufficient evidence to satisfy him that Kashamu was Alaji—not his finding that the two brothers look alike (or his other findings which we mentioned), though that finding supported his determination.
Only findings that are necessary to a court’s decision (in this case as in our hypothetical case of a decision quashing an arrest) are entitled to preclusive effect. Bobby v. Bies, 129 S. Ct. 2145, 2152-53 (2009) For if they are not necessary, neither party has an incentive to challenge them in the litigation in which they are made. Moore v. Mahone, No. 09-3515, 2011 WL 2739771, at *1 (7th Cir. July 15, 2011).


Reversing the lower court, the U.S. Court of Appeals for the Ninth Circuit recently ruled that the plaintiff in a putative class action properly alleged he suffered economic injury, and thus had standing to sue under California's Unfair Competition Law, Fair Advertising Law, and the Consumer Legal Remedies Act, where the plaintiff alleged that he purchased merchandise on the basis of false discounted-price information and would not have made the purchase but for the misrepresentation.
The Court also denied the defendant retailer's motion for certification to the California Supreme Court, ruling that the motion was untimely as raised after the submission of briefs and the conclusion of oral argument, and opining that the request for certification may have been part of an attempt to find a favorable forum.
A copy of the opinion is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/21/11-55793.pdf.
Plaintiff ("Purchaser") purchased a number of items at a retail department store ("Retailer") that operates a national chain of stores. Purchaser bought the items supposedly in reliance on allegedly deceptive advertisements indicating that the items were substantially reduced from their "original" or "regular" prices when in fact Retailer allegedly routinely sold the items at the advertised "sale" prices rather than at the purported "regular" prices.
Purchaser filed a putative class action complaint against Retailer in California Superior Court asserting causes of action under California's Unfair Competition Law ("UCL"), Fair Advertising Law ("FAL"), and Consumer Legal Remedies Act ("CLRA").
Retailer removed the action to federal court under the federal Class Action Fairness Act. The federal district court dismissed the UCL and FAL claims, reasoning that Purchaser lacked standing under those statutes, as they require a plaintiff to have "lost money or property" as a result of a defendant's false advertising, and Purchaser had bought the merchandise he wanted at the advertised price thus obtaining the "benefit of the bargain."
After the California Supreme Court issued its opinion in California Supreme Court in Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011), a case involving false advertising and a plaintiff's standing as having suffered actual injury, the lower court denied Purchaser's motion for reconsideration, later granted Retailer's motion for judgment on the pleadings, and dismissed Purchaser's remaining CLRA claim, concluding that Purchaser lacked standing because he was unable to show that he had suffered "any damage" as a result of Retailer's false advertising.
Purchaser appealed. The Ninth Circuit reversed and remanded.
As you may recall, the UCL provides consumers with a cause of action against businesses that engage in "unfair competition," which is defined in part as: "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . . . " Cal. Bus. & Prof. Code § 17200.
The UCL incorporates the FAL's prohibition on unfair advertising, which in turn provides in part: "No price shall be advertised as a former price of any advertised thing, unless the alleged former price was the prevailing market price . . . within three months next immediately preceding the publication of the advertisement or unless the date when the alleged former price did prevail is clearly, exactly and conspicuously stated in the advertisement." Cal. Bus. & Prof. Code § 17501.
Moreover, to have standing under the UCL or FAL, persons alleging UCL or FAL claims must have "suffered injury in fact and ha[ve] lost money or property as a result of unfair competition." Cal. Bus. & Prof. Code §§ 17024, 17535.
Finally, the CLRA prohibits "[m]aking false or misleading statements of fact concerning reasons for, existence of, or amounts of price reductions." Cal. Civil code § 1770(a)(13). See also Cal. Civil code § 1780(a)(providing a cause of action to consumers who suffer "any damage" resulting from practices prohibited under section 1770).
Applying the standard set forth by the California Supreme Court in Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011), the Ninth Circuit noted that there are "innumerable ways" that a consumer can show "some form of economic injury" to show injury in fact as a result of his transactions with the defendant, and explained that Purchaser had sufficiently alleged economic injury to have standing in this case.
Specifically, the Ninth Circuit pointed out that Purchaser satisfied Kwikset's standing requirement by alleging that: (1) the advertised discounts conveyed false information about the merchandise he purchased, namely that the goods were sold in the recent past at a substantially higher price at Retailer and/or in the prevailing market; and (2) Purchaser would not have bought the product but for the misrepresentation. In so concluding, the Ninth Circuit rejected Retailer's assertion that Purchaser's complaint needed to state at what price he would have purchased the goods had their "original" or "regular" price not been misrepresented, noting that Kwikset explicitly rejected that argument.
Criticizing the lower court for limiting Kwikset to "factual misrepresentations about the composition, effects, origins, and substance of advertised products," the Ninth Circuit pointed out that misrepresenting the "regular" price of merchandise often creates an impression of savings and enhances a customer's perceived value and willingness to purchase a product. In so doing, the Ninth Circuit explained that the lower court's standing test would preclude consumers from bringing UCL and FAL actions based on false marketing claims that have nothing to do with a product's "composition, effects, origin, and substance," including claims such as: "available for a limited time only"; and "not available in stores."
The Ninth Circuit similarly rejected the lower court's "benefit of the bargain" argument that Purchaser had suffered no economic injury, pointing out that such a defense is only permissible if the misrepresentation that the consumer relied on was not material. While noting that the test for a representation's materiality is whether a "reasonable consumer would attach importance to it or if the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action," the Court also pointed out that both state and federal law specifically prohibit retailers from advertising false "sales" as Retailer allegedly did here.
With regard to Purchaser's CLRA claim, the Ninth Circuit employed the same reasoning in rejecting the lower court's determination that Purchaser had not suffered "any damage" as a result of Retailer's false advertising. See Meyer v. Sprint Spectrum L.P., 200 P.3d 295, 299, 302-03 (Cal. 2009)(ruling that the CLRA's "any damage" requirement includes pecuniary damage and opportunity and transaction costs resulting from deceptive marketing).
The Court thus ruled that Purchaser had satisfied the standing test articulated in Kwikset as to his UCL, FAL, and CLRA claims.
Notably, the Ninth Circuit also denied Retailer's motion to certify the questions in this matter to the California Supreme Court, reasoning that Retailer's request was untimely. In so doing, the Court raised questions as to Retailer's motives for raising the possibility of certification after the submission of briefs and the conclusion of oral argument. As the Ninth Circuit stated, "we strongly disfavor a party that prevailed below requesting certification for the first time after it becomes apparent at oral argument that it is not likely to prevail in federal court."


COMMONWEALTH vs. CLIFFORD F. VANDERPOOL, THIRD.
Supreme Judicial Court of Massachusetts, Hampden.
Margaret D. McGaughey for the defendant.
William W. Teahan, Jr., Special Assistant District Attorney, for the Commonwealth.
The defendant was convicted of murder in the first degree and appeals pursuant to G.L.c. 278, §§ 33A-33G. He contends that the trial judge erred (1) in not instructing the jury that they could find the defendant guilty of manslaughter, (2) in refusing to allow the defendant to explain his behavior following an incident at the trial, and (3) in refusing to sequester the witnesses. He also urges that we exercise our powers under § 33E and reduce his conviction to murder in the second degree or manslaughter. Although we find no legal error, we are convinced that justice will best be served by reducing the conviction to murder in the second degree.
The evidence in this case was conflicting. Based on their verdict, it is apparent that the jury believed the prosecution version of the facts. Briefly, the jury could have found that the defendant and other members of a club, the Outcast Renegades, were involved in an altercation with the victim at a bar early in the afternoon after which the defendant spent the remainder of the day visiting other bars with various members of the club. At some point, he heard a rumor that the victim planned to press criminal charges as a result of the earlier fight, and the defendant and one Antonio Torres went looking for him to determine if the rumor were true. Torres had a gun in his possession, the same gun a member of the club, possibly the defendant, told him to get earlier in the day.
The defendant and Torres proceeded to the National Cafe where the victim was watching a card game in the back room. The defendant entered through the rear door, confronted the victim and asked him if the rumor were true. When the victim admitted that he intended to apply for a warrant for the defendant’s arrest, the defendant responded, “[W]e’ll get you,” and punched the victim, whereupon two shots were fired, one of them killing the victim.
It is undisputed that Torres actually fired the shots. Torres testified that he was drunk and high on “acid” and did the shooting at the urging of the defendant, who yelled, “Shoot him, Tony, shoot him, Tony.” None of the eyewitnesses to the shooting testified to hearing the defendant’s alleged statement, but otherwise their testimony essentially corroborated that of Torres.
The defendant’s testimony as to the events on the day of the homicide differed sharply from the testimony of Torres and other witnesses for the prosecution. The defendant claimed that he was no longer a member of the Outcast Renegades and that he was in disfavor with members of the club. He testified that he interceded in the earlier fight between the victim and members of the club in order to act as a peacemaker.
He stated that he went to the National Cafe alone to get one last drink before going home. On his arrival, he observed the victim and approached him regarding the rumor because of his desire to clear up the matter and prevent further trouble. When the victim stated that he planned to press charges and called the defendant by his brother’s name,1 an argument ensued. The defendant and the victim swung at each other, but since both were somewhat intoxicated, neither landed any blows. Suddenly, the defendant heard a shot, imagined himself back in Viet Nam2 and fled. He returned home, where he was later questioned and arrested by police.
1. There was no error in the trial judge’s refusal to charge the jury on manslaughter. While it is true that “[i]n a homicide case, the trial judge should charge on the issue of manslaughter where any view of the evidence will permit a finding that the offence is manslaughter and not murder,” Commonwealth v. LePage, 352 Mass. 403, 419 (1967), it is also well settled that the judge may not charge on a hypothesis not supported by the evidence. Commonwealth v. Campbell, 352 Mass. 387, 392 (1967). Commonwealth v. Costa, 360 Mass. 177, 184 (1971). Commonwealth v. Caine, 366 Mass. 366, 375 (1974).
In deciding whether a manslaughter instruction is supported by the evidence, all reasonable inferences must be resolved in favor of the defendant. “The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon…. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.” Commonwealth v. Campbell, supra, at 398, quoting from People v. Carmen, 36 Cal.2d 768, 773 (1951). In this case, however, even accepting the defendant’s version of the facts, there was no basis for a charge on either voluntary or involuntary manslaughter.
Voluntary manslaughter is “a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.” Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). Accord, Commonwealth v. Hartford,346 Mass. 482, 490 (1963); Commonwealth v. Caine,366 Mass. 366, 375 (1974). There is no evidence here from which the jury could have found the defendant guilty of voluntary manslaughter. The evidence is undisputed that both the defendant and the deceased were somewhat intoxicated. Even if the jury had believed that the parties swung at each other, no blows were ever landed, and the situation could not have objectively met the requirements of “combat,” “passion” or “heat of blood.” See Commonwealth v. Leate,352 Mass. 452, 457-458 (1967). Similarly, the jury could not have found reasonable provocation, as we have often repeated that words alone do not constitute adequate provocation. Commonwealth v. Webster, 5 Cush. 295, 305 (1850). Commonwealth v. Hartford, supra, at 491. Commonwealth v. Leate, supra, at 458. Accordingly, there was no error in the judge’s refusal to charge the jury on voluntary manslaughter.
Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct. Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). Commonwealth v. Campbell, 352 Mass. 387, 397 (1967). Commonwealth v. McCauley, 355 Mass. 554, 560 (1969). Commonwealth v. Kinney, 361 Mass. 709, 712 (1972). On the record before us, there is no view of the evidence which would justify a finding of involuntary manslaughter, and there was no error in the trial judge’s refusal to charge otherwise.
2. In the course of the testimony by one Leo Derosiers, a prosecution witness, the defendant became ill and vomited when a loud noise was heard in the court room.3 A recess was called and the defendant was examined by a doctor who found him able to continue with the trial. The defendant asked that the statement of the physician, explaining the defendant’s reaction, be read to the jury but the trial judge refused subject to the defendant’s exception. There is no merit to the defendant’s contention that the judge’s failure to allow an explanation of the incident was error.
“A display of emotion in one charged with a crime is not unnatural; it is as consistent with innocence as with guilt.” Commonwealth v. Favulli, 352 Mass. 95, 116 (1967). Thus, it was not an abuse of discretion for the judge to refuse the defendant’s request to explain the incident.
We note, however, that where there is any real danger that, in reaching their verdict, the jury may consider some extraneous factor, and not only the evidence properly presented, it is desirable for the trial judge to give cautionary instructions. See Commonwealth v. Brownell, 145 Mass. 319, 323 (1887); Commonwealth v. Brown,364 Mass. 471, 479-480 (1973); Commonwealth v. Caine,366 Mass. 366, 372 (1974). Cf. Commonwealth v. Mutina,366 Mass. 810 (1975). The content and timing of such instructions are within the judge’s discretion as incident to his control over the conduct of the trial. See Commonwealth v. Coyne, 228 Mass. 269, 270 (1917); Commonwealth v. Fleming,360 Mass. 404, 409 (1971). In the instant case, the judge, in his final charge to the jury, stated, “The case must be decided by you on the evidence presented right here in this courtroom and upon nothing else.” This served as a clear instruction to the jury that they were not to consider the illness of the defendant as it occurred in the court room. There is no indication that the verdict was “otherwise than on the facts and the applicable law.” Commonwealth v. Favulli, supra.
There is no merit to the defendant’s further contention that the incident tended to impeach his credibility and thus entitled him to rehabilitate himself by way of explanation. The cases cited in support of this theory, Commonwealth v. Smith,329 Mass. 477 (1952), Commonwealth v. Fatalo,345 Mass. 85 (1962), and Commonwealth v. Kerrigan,345 Mass. 508 (1963), all involved impeachment on cross-examination and are not relevant to the instant case.
3. There was no error in the refusal by the judge to sequester the witnesses. It is well settled that sequestration of witnesses lies within the sound discretion of the trial judge. Commonwealth v. Blackburn,354 Mass. 200, 205 (1968). Commonwealth v. Therrien,359 Mass. 500, 508 (1971). Commonwealth v. Bettencourt,361 Mass. 515, 518 (1972). Although the better practice in capital cases is to allow such a procedure, we cannot say that failure to do so in this case was an abuse of discretion.
4. We have determined that there was no error in the conduct of the trial. Nevertheless, we have the further duty under G.L.c. 278, § 33E, to consider the whole case broadly to determine whether justice requires a change in the verdict. Commonwealth v. Jones,366 Mass. 805, 806-807 (1975), citing Commonwealth v. Williams,364 Mass. 145, 150 (1973). “If upon our examination of the facts, we should, in our discretion, be of opinion that there was a miscarriage of justice in convicting the defendant of murder in the first degree, and that a verdict of guilty of murder in the second degree or of manslaughter would have been more consonant with justice, it is now our power and duty so to declare.” Commonwealth v. Williams, supra, quoting from Commonwealth v. Baker,346 Mass. 107, 109 (1963). We are fully aware that our powers under § 33E are to be used with restraint. Commonwealth v. Lannon,364 Mass. 480, 486 (1974).
“In Commonwealth v. Williams, 364 Mass. 145 (1973), we held that, although the jury were warranted in their verdict, the thrust of the evidence required a reduction of a verdict of murder in the first degree to murder in the second degree to avoid a miscarriage of justice.” Commonwealth v. Jones, supra, at 808. In the instant case, while we think that the evidence may have been sufficient to warrant a verdict of murder in the first degree, we believe that on the weight of the evidence it would be more consonant with justice to reduce the verdict to murder in the second degree.
The facts reveal that all those involved in the homicide were under the influence of alcohol or drugs. In approaching the victim, the defendant’s apparent intention was to settle a conflict, not to intensify it. There is no indication that the defendant left the first altercation with the idea of revenge and thereafter proceeded to carry out his plan. On the contrary, the undisputed evidence indicates that the defendant, prior to the killing, had the intention of merely explaining his position and reconciling his difficulties with the victim. The matter was further complicated by the victim’s apparent confusion of the defendant’s name with that of his brother. In this aspect, this case is distinguishable from those cases where we have declined to reduce a verdict, Commonwealth v. Pratt,360 Mass. 708, 715 (1972); Commonwealth v. Nordstrom,364 Mass. 310, 311-312 (1973), for in each of those cases, “there appears to have been a period of reflection and premeditation after the original difficulties between the parties and before the ultimate homicide.” Commonwealth v. Stillwell,366 Mass. 1, 6 (1974).4 We can find no such period of reflection or premeditation in this case. In all the circumstances the killing here may be described as “senseless.” Commonwealth v. Jones, supra, at 808.
In addition to the evidence discussed above, the following facts, although not decisive, have received our consideration. The defendant did not fire the fatal shot, the shooting having been done by Torres, who was the crucial witness against the defendant. Torres had not been tried or sentenced for his role in the homicide at the time of the defendant’s trial. He was thereafter allowed to plead guilty to murder in the second degree. Additionally, the defendant, who testified in his own behalf, was twenty-two years old, married with two small children, and suffered from disabling injuries as a result of his service in the Viet Nam war. “There was no evidence introduced of any prior criminality on the part of the defendant…. G.L.c. 233, § 21. We assume there was none.” Commonwealth v. Jones, supra, at 808.
To conclude, we believe that the defendant’s “criminal involvement was not of the nature that judges and juries, in weighing evidence, ordinarily equate with murder in the first degree.” Commonwealth v. Williams, 364 Mass. at 152.
5. The case is remanded to the Superior Court where the verdict of guilty of murder in the first degree and the sentence previously imposed are to be vacated. A verdict of guilty of murder in the second degree shall be entered and sentence imposed thereon.
1. In the course of this confrontation, the victim addressed the defendant as Chuck. When the defendant told the victim that Chuck was his brother and that he was Cliff, the victim responded by calling the defendant a liar.
2. The defendant testified regarding his military service during the Viet Nam war. He had been wounded on two occasions and was hospitalized and treated for shell shock. He reacted to loud noises and had to give up two jobs after his military discharge because of his reactions to noises at work.
3. It is unclear from the record how much of this incident occurred in the presence of the jury.
4. Commonwealth v. Deeran, 364 Mass. 193 (1973), and Commonwealth v. Rooney, 365 Mass. 484 (1974), also cited in Stillwell as examples of cases where we refused to reduce a verdict, were both convictions of murder in the second degree. In those cases, it is apparent that the jury did not find the reflection and premeditation necessary for a conviction of murder in the first degree, and there was no occasion for this court to take the action we take here.


For questions regarding this document contact the Center for Food Safety and Applied Nutrition (CFSAN) at 240-402-1642).
The Food and Drug Administration has prepared this Small Entity Compliance Guide in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act (P.L. 104-121). This guidance document restates in plain language, the legal requirements set forth in 21 CFR part 120 concerning the safe and sanitary processing of fruit and vegetable juices. The regulations at 21 CFR part 120 are binding and have the force and effect of law. However, this guidance document represents the agency's current thinking on this subject and does not, itself, create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
On January 19, 2001, the FDA published a final rule in the Federal Register that requires processors of juice to develop and implement HACCP systems for their processing operations (66 FR 6138). For all but small and very small businesses, the Juice HACCP regulations (21 CFR part 120) became effective on January 22, 2002. For small businesses regulations became effective on January 21, 2003, and for very small businesses, the regulations will become effective on January 20, 2004.
This guidance focuses on key aspects of the juice HACCP regulations to assist small and very small businesses in implementing the regulations. The "Draft Juice HACCP Hazards and Controls Guide" is another source of information that small and very small businesses may find helpful in meeting the requirements of the regulations.
1. What types of juice and juice products are covered by the regulations?
The regulations apply to juice sold as such or used as an ingredient in beverages. Juice means the aqueous liquid expressed or extracted from one or more fruits or vegetables, purees of the edible portions of one or more fruits or vegetables, or any concentrates of such liquid or puree as defined in § 120.1(a). Juice produced by a person who operates a retail establishment as defined in § 120.3(e) is not covered by the regulations.
The regulations require that processors apply HACCP principles if they make juice or juice concentrates for subsequent beverage use. Any processor making a product that could be labeled as 100 percent juice or a concentrate of that juice for subsequent beverage use must apply HACCP principles. For beverages containing less than 100 percent juice, only the juice ingredient must be made applying HACCP principles.
2. When do I need to comply with the juice HACCP regulations?
FDA encourages all juice processors to begin to comply with the regulations as soon as possible. The effective date was January 22, 2002. However, if your firm meets the definition for a small business, the effective date was January 21, 2003. If your firm meets the definition of a very small business, the effective date is January 20, 2004.
3. What are the definitions of a small business and a very small business?
Small businesses employ fewer than 500 persons (§120.1(b)(1)). Very small businesses meet one of the following three criteria: annual sales of less than $500,000, total annual sales greater than $500,000 but total food sales less than $50,000, or operations that employ fewer than an average of 100 full-time equivalent employees and sell fewer than 100,000 units of juice in the United States (§120.1(b)(2)). The size of the business is determined by the magnitude of the corporate operation, not of the business unit.
4. If my juice is sold only within my state, do I need to comply with the new regulations?
Yes. These regulations apply equally to juices produced and sold within the same state as well as juices sold in interstate commerce.
5. If I pasteurize my juice, do I need to comply with the regulations?
Yes. All juice processors (except retail processors as defined in the regulations) must comply with part 120 for each type of juice they produce.
6. I am a dairy processor who purchases pasteurized apple juice concentrate to make a 5% apple juice beverage and a 15% apple juice beverage. Am I required to comply with the juice HACCP regulations, including the 5-log reduction?
Because you are not making juice as defined by § 120.1(a), you are not required to produce your juice beverage under a HACCP system, although it is highly recommended. However, the juice ingredient (i.e., the pasteurized apple juice concentrate) must have been made under a HACCP program (including compliance with § 120.24).
7. Do these regulations cover fruit and vegetable purees?
The regulations apply to products sold as juice or used as an ingredient in beverages, including fruit and vegetable purees that are used in juices and beverages.
8. Are non-beverage foods that contain juice as an ingredient, e.g., a fruit flavored candy, required to be produced under a HACCP system?
No. The juice HACCP regulations apply to the processing of juice that is sold either as juice or sold for use as a beverage ingredient. Thus, a fruit flavored candy that contains juice as an ingredient is not required to be produced under a HACCP system.
9. Are food ingredients, other than juice, that are derived from fruit, e.g., citrus oil, required to be produced under a HACCP system?
No, the juice HACCP regulations apply only to the aqueous extract of fruits and vegetables that is sold either as juice or for use as an ingredient in beverages and not to other fruit or vegetable by-products such as citrus oil.
10. Would pulp from a fruit or vegetable used to make a juice or diluted juice beverage be considered juice under the juice HACCP regulations?
Yes. As noted, fruit and vegetable purees used as a juice ingredient are considered "juice" under the regulations. Pulp (i.e., pressed edible fruit or vegetable matter) is often a part of the aqueous liquid stream expressed or extracted from fruits and vegetables (e.g., citrus juice) and is comparable to puree except that it may not undergo the same degree of maceration. Pulp in a juice or a diluted juice beverage is considered juice or a juice ingredient; with a diluted juice beverage, processors are only required to comply with part 120 when making the juice ingredient (e.g., the pulp).
11. Would juice concentrates intended for uses such as flavors or sweeteners in foods other than beverages be subject to the regulations?
Juice concentrates intended for use as flavors, sweeteners, or similar uses in products that are not beverages are not subject to the regulations. However, because there may be problems segregating product used in beverages from that used in other foods, prudent juice concentrate processors should consider implementing HACCP for all of their juice products, not just those products that will be made into juice or used in beverages.
12. If a retailer decides to pasteurize his apple cider, does he need to have a HACCP system?
Retail producers of juices are not covered by the regulations and would not be required to establish a HACCP system regardless of whether they pasteurize their products.
A retail establishment is an operation that only provides juice directly to consumers. "Provides" includes storing, preparing, packaging, serving, and vending. A retail establishment does not include an establishment that sells or distributes juice to other business entities as well as directly to consumers. FDA's Food Code provides guidance to retail producers for making safe products.
13. Do the regulations cover apple cider that I make from my own apples and sell over the Internet directly to consumers? What about apple cider that I make from my own apples and sell at a farmers market?
If you make cider from your own apples (or apples that you have purchased) and only sell it directly to consumers (e.g., internet sales, farmers markets), you are considered a retailer and thus, your cider does not need to be processed under a HACCP system.
14. If I hire someone to make cider from my apples and I sell this cider at my roadside stand, is this juice producer required to have a HACCP system?
Yes. Only retail establishments are exempt from the regulations. Under the regulations, a retail establishment stores, prepares, packages, serves, and vends its product exclusively and directly to consumers. If someone else processes juice for a retail establishment, that processor is required to operate under HACCP principles.
15. Do FDA's "Current Good Manufacturing Practices" (CGMP) regulations in 21 CFR Part 110 apply to firms that are subject to the juice HACCP regulations? Does compliance by these firms with the juice HACCP regulations replace the need to comply with the CGMP regulations?
Firms covered by the juice HACCP regulations are still subject to the CGMP regulations in Part 110. In fact, CGMP's are an essential foundation for a successful HACCP system.
16. What is a hazard analysis?
The hazard analysis is an evaluation of potential microbiological, chemical, and physical hazards associated with a particular product and process and is used to determine which hazards are reasonably likely to occur and, if they occur, how they can best be controlled. The regulations require that the hazard analysis be written.
17. Who should conduct the hazard analysis?
The regulations require that a trained individual, whether an employee or consultant, conduct the written hazard analysis that juice processors (except retail processors) are required to have for their process.
18. What is a "hazard that is reasonably likely to occur?"
A food hazard that is reasonably likely to occur is defined in § 120.7(a)(2) as one for which a prudent processor would establish controls to reduce to acceptable levels, prevent, or eliminate the hazard because experience, illness data, scientific reports, or other information provide a basis to conclude that there is a reasonable possibility that, in the absence of those controls, the food hazard will occur in the particular type of product being processed.
A potential hazard that has a severe, acute public health impact (e.g., injury caused by ingestion of glass fragments) and that presents a significant risk, even at an extremely low frequency of occurrence, should be identified as a hazard that is reasonably likely to occur. A hazard that requires long-term (chronic) exposure to cause harm would need to occur at a higher frequency to be identified as a hazard that is reasonably likely to occur. The mycotoxin, patulin, which can occur at high levels in apple juice made from damaged, moldy or rotten apples, is an example of a chronic exposure hazard that could occur at such a frequency that it may need to be controlled through a HACCP plan if drops, i.e., apples that have fallen from the tree to the ground, are used to make juice or if apples are stored inappropriately prior to use for juice production.
19. What is the best way to begin a hazard analysis?
(See "Hazard Analysis and Critical Control Point Principles and Application Guidelines," Journal of Food Protection, Vol. 61, No. 6, pp. 762-775).
Although FDA is not specifically requiring that juice processors use the preliminary steps, these steps will aid them in focusing on their specific product and process.
Flow diagrams that identify each significant step in the process are particularly helpful in conducting a hazard analysis, by facilitating determination as to whether a hazard may be introduced or controlled at each process point.
20. How do I conduct a hazard analysis?
(1) List all potential physical, chemical, and biological hazards that might occur in your juice.
(2) For each of the hazards identified in step 1, assess the likelihood of occurrence and the severity of health consequences in the absence of control. Then, determine, based upon the information gathered, whether each hazard is reasonably likely to occur in your product. You do not have to include hazards in your HACCP plan that are not reasonably likely to occur.
(3) Identify the measures that you can apply to control the food hazards identified in step 2 as reasonably likely to occur.
(4) Review the current process to determine whether modifications are needed.
(5) Identify critical control points for hazards determined in step 2 to be reasonably likely to occur.
21. What is a control measure?
A control measure is any action or activity to prevent, reduce to acceptable levels, or eliminate a hazard (§ 120.3(c)). Control measures are further discussed in the next section.
22. What is a critical control point?
A critical control point (CCP) is a point, step, or procedure in a food process at which a control measure can be applied and at which control is essential to reduce an identified food hazard to an acceptable level (§ 120.3(d)).
23. When am I required to implement a HACCP control measure?
You are required to implement a HACCP control measure if you determine in your hazard analysis that a food hazard (e.g., a microbial pathogen, potentially hazardous levels of patulin, glass shards) is reasonably likely to occur in a juice product you produce.
24. What are some examples of HACCP control measures?
Examples of control measures include thermal processing of juice and culling produce to eliminate visibly moldy, rotten, or damaged fruit.
25. If a grower implements FDA's "Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables," also referred to as FDA's Good Agricultural Practices (GAP) guidance document, is it considered a HACCP control measure?
No. However, juice processors are encouraged to work with the growers of the produce that they use to produce juice to evaluate and modify agricultural practices consistent with FDA's GAP guidance.
26. If I sell juice in bulk to company X for final processing and packaging of a diluted juice product, who is responsible for determining whether HACCP controls for chemical and physical hazards are needed for the juice?
Both firms are responsible for ensuring that the products they make are safe. However, only juice processors must comply with the juice HACCP regulations. Therefore, you must conduct a hazard analysis and determine whether there are chemical, physical, and microbial hazards that are reasonably likely to occur. You are responsible for controlling in your HACCP plan all hazards that are reasonably likely to occur. As a processor of a diluted juice beverage, company X is not a juice processor as defined by the HACCP regulations, and thus, is not required to have a HACCP system. However, company X must ensure that the juice ingredient used in the diluted juice beverage complies with part 120.
27. What is the 5-log pathogen reduction performance standard?
Performance standard requirements in general are goals that processors should achieve but provide flexibility on how processors accomplish them. The 5-log pathogen reduction performance standard required by the regulations means that you must treat your juice (or citrus fruit if using surface treatments) using a process that will achieve at least a 100,000 fold decrease in the number of microorganisms (see next question). Juice processors must apply controls (e.g., heat, UV light) to achieve the 5-log reduction required by the regulations.
28. Does a 5-log reduction in the bacterial plate count (i.e., aerobic plate count or total plate count) of a juice sample meet the performance standard requirement?
No. Under the rule, the 5-log reduction must be targeted to the "pertinent pathogen." The "pertinent pathogen" is the most resistant microorganism of public health concern that may occur in the juice. The pertinent pathogen may vary with the type of juice and the type of treatment used, though typically it would be Salmonella, Escherichia coli O157:H7 or Cryptosporidium parvum.
29. What times and temperatures should I use to pasteurize my juice?
Precise times and temperatures depend on the type of juice you make and your process. Scientific literature is an excellent source of information.
30. How can I achieve a 5-log reduction without pasteurizing the product?
You can achieve a 5-log reduction by using control measures that have been shown to be effective in reducing the number of microorganisms. You can use one control measure that has been shown to reduce the pertinent microorganism by at least 5-log (e.g., high pressure) or a combination of control measures that have a cumulative effect of a 5-log reduction. Citrus juice processors may use surface treatments of the fruit to contribute towards attaining the 5-log reduction. All other juice processors must apply the 5-log process to the juice.
31. May I do the 5-log reduction on the fruit before extracting the juice?
32. May cleaning (i.e., washing of the produce) and culling (i.e., removal of damaged produce) be included among the control measures used to meet the 5-log reduction requirement?
No. All produce used for making juice must be cleaned and culled prior to extraction or, in the case of surface treated citrus fruit, prior to control measures used to meet the 5-log reduction requirement. For surface treated citrus, culled fruit is undamaged, tree-picked fruit.
33. May juice be treated in one processing facility to achieve part of a 5-log pathogen reduction, i.e., a 2-log reduction, and then transported to another facility for treatment to achieve the remainder of the 5-log reduction?
No. The entire 5-log reduction must be accomplished within a single production facility operating under CGMP's.
34. May I use fruit that has fallen from the tree to the ground (i.e., drops) to make juice?
You may use fallen apples if the fruit is cleaned and culled (i.e., damaged fruit removed) and the 5-log treatment is applied to the extracted juice. Citrus juice manufacturers using surface treatments must use undamaged tree-picked fruit.
35. I make shelf-stable juice that receives over a 10,000-log reduction. Am I still required to have microbial control measures in a HACCP plan? What about juice concentrates that are processed with over a 100-log reduction?
If you make thermally processed juice that is shelf stable or thermally processed juice concentrate, you are not required to include control measures in the HACCP plan for achieving the 5-log pathogen reduction. However, you must include a copy of the thermal process in your hazard analysis.
36. If I use a heat treatment process on my juice, can I assume that the process meets the 5-log pathogen reduction requirement of the HACCP regulations?
No. Except for processors of thermally processed shelf stable juices and juice concentrates, juice processors must establish and meet critical limits to ensure that the heat process is effective and consistently fulfills the 5-log reduction standard. Critical limits are the maximum or minimum values to which a physical, biological, or chemical parameter must be controlled at a critical control point to prevent, eliminate, or reduce to an acceptable level the occurrence of the identified food hazard.
37. If a juice product is treated by a means other than heat to meet the 5-log pathogen reduction requirement, is FDA approval required for the treatment?
Food additive regulations are required for treatments that use irradiation (e.g., pulsed light, UV light, ionizing radiation) and may be required for the use of certain chemicals. You are responsible for ensuring that all treatments, regardless of compliance with food additive regulations, achieve the 5-log pathogen reduction for your juice and process.
38. Does each processor handling a juice have to do a 5-log reduction?
Each processor handling the juice (except retail processors) must conduct a hazard analysis to determine whether there are hazards, including microbial hazards, that are reasonably likely to occur. Each processor must have controls for microbial hazards. This may be assurances that the juice will be given the required 5-log treatment at another processing location.
39. In the past, some processors have added a small amount of untreated juice to pasteurized juice for flavor enhancement. May I do this?
No. All ingredients of the juice must have received a 5-log reduction. Pathogens may be present in untreated juice and could contaminate the treated juice.
40. Can a flavor essence recovered during a juice concentration operation be added back to a juice after the juice has received a 5-log pathogen reduction treatment without requiring an additional 5-log treatment?
If you can demonstrate that the recovery process used to capture the flavor essence achieved the 5-log reduction, you can add the essence to the treated juice and you will have complied with § 120.24. Otherwise, the flavor essence must undergo a 5-log reduction process before it is added to treated juice or the juice with the flavor essence must undergo a 5-log reduction to comply with § 120.24. If the essence is not treated along with the juice, you must ensure that the process by which the essence is added to the juice does not allow for contamination.
41. Are there any mandatory HACCP control measures for chemical hazards such as patulin or lead?
HACCP controls for specific chemical hazards such as patulin and lead are required when a processor determines that the presence of the chemical in the juice is a hazard that is reasonably likely to occur. In conducting a hazard analysis, a juice processor must consider all potential hazards and determine whether any of these hazards are reasonably likely to occur. If a hazard is reasonably likely to occur, a processor must include controls for that hazard in its HACCP plan.
42. I am a dairy processor who also makes juice using my milk processing equipment. Should I be concerned about milk residues (allergenic proteins) being present in the juice? What are the controls to prevent possible allergen cross-contamination (cross-contact) in this situation, and should these controls be included in my HACCP Plan?
Yes, when using milk processing equipment to process juice, cross-contact of milk protein into the juice is a concern. Allergens, such as milk, soy (soy milk), or egg (egg nog) should be considered chemical hazards that need to be addressed in your hazard analysis. Controls to prevent cross contact may include a rigorous sanitation regime in between a production run of milk products and a production of juice products. In addition to sanitation, production scheduling can have a large impact on minimizing cross-contact from shared equipment. Processors should try to schedule all non-allergen containing products first, followed by allergen containing products, with a full clean-up before again running a non-allergen product. Depending on the outcome of the hazard analysis, sanitation and production scheduling may be managed through Sanitation Standard Operating Procedures (SSOPs) or as part of the HACCP plan.
See Compliance Policy Guide 555.250 for the list of common food allergens recognized by the Agency.
43. Are HACCP control measures required for any specific physical hazards such as glass?
HACCP controls for specific physical hazards, e.g., glass, are required under the juice HACCP regulations when the processor determines in its hazard analysis that the specific physical hazard is reasonably likely to occur in the juice.
44. What types of records will I be required to maintain to document my HACCP system?
General requirements and documentation requirements for records are included in §§ 120.12 (b) and (c).
45. How long must I keep the required HACCP records?
A processor of perishable or refrigerated juices and an importer of such juices must retain required HACCP records at the processing facility (processors) or at the importer's place of business in the United States (importers) for at least 1 year after the date that the products were prepared. A processor of frozen, preserved, or shelf stable products and an importer of such products must retain the required records at the processing facility (processors) or at the importer's place of business in the United States (importers) for 2 years or the shelf life of the product, whichever is greater, after the date that the products were prepared.
46. Are juice processors required to make all of their records related to juice available to FDA inspectors?
Only those records that are specifically required under § 120.12 must be made available for review and copying by FDA at reasonable times. These records are listed in the response to question 44.
47. What records are necessary to show that consumer complaints have been reviewed?
You must make a record that documents that you have performed a review of the consumer complaints that you have received. However, you are not required to show consumer complaints to FDA.
48. What specialized training is needed to establish a HACCP system?
Certain key aspects of HACCP require training in HACCP principles. Individuals who perform certain functions related to the development of the hazard analysis and HACCP plan, and the verification, validation, corrective action, and record review requirements of the regulations must be trained (see § 120.13(a)). Training must be equivalent to a standardized curriculum that FDA recognizes as adequate. Job experience may qualify an individual to perform these functions if it has provided knowledge at least equivalent to that provided through the standardized curriculum. The Juice HACCP Alliance developed a standardized curriculum with input from FDA. The guidance document and the first edition of the Juice HACCP Training Curriculum can be accessed at: www.iit.edu/~ncfs/juice/JUICE HACCP First Edition.pdf.
49. Does the person(s) doing the key aspects of the HACCP system need to be an employee(s) of the juice processing firm?
No, the trained individual need not be an employee of the processor. However, regardless of who the trained individual is, the firm processing the juice is ultimately responsible for the safety of the juice and for compliance with part 120.
50. Does imported juice that will only be used as an ingredient in beverages have to be produced in compliance with part 120?
Yes. All imported juice, even if the juice is for use as an ingredient in a beverage, must comply with the juice HACCP regulations.
51. What are the responsibilities of juice importers under the juice HACCP regulations?
In brief, importers of juice either must ensure that all juice they offer for entry into the U.S. has been processed in compliance with Part 120, or import such juice from a country that has an appropriate memorandum of understanding (MOU) with the U.S. In addition, importers must maintain records that document the performance and results of the affirmative steps taken to demonstrate compliance with the regulations. Requirements for importers of juice are set out in § 120.14.
52. Do the regulations apply to juices and juice concentrates produced in the U.S. and intended for export either as bulk shipment or in consumer packages?
Is not sold or offered for sale in domestic commerce.
53. Are there any established memoranda of understanding (MOUs) for juice? How does someone go about establishing an MOU?
Examples of FDA MOUs can be found at the Food and Drug Administration International Cooperative Agreements web page.
54. If I want to label my product as pasteurized, what criteria do I need to meet?
Pasteurization is a heat treatment sufficient to destroy pathogens. Therefore, to be labeled as "pasteurized," a juice must be heat treated to destroy pathogens.
55. May I use the warning label statement on my products in lieu of implementing a HACCP system?
Generally speaking, use of the juice label warning statement is not an alternative to compliance with the HACCP regulations. All juice that is not appropriately treated to achieve a 5-log reduction in the pertinent pathogen is required to comply with the warning statement regulations; in the case of HACCP, all juice processors are required to comply with the regulations according to the staggered effectiveness dates (§ 120.1(b)) except retail establishments as defined by the regulations. Juice required to be produced under a HACCP system that is not so produced will be considered adulterated.
56. How can I label my apple cider that is processed using ultraviolet (UV) light ? Can I label it as "pasteurized" or "UV treated?" Can it be called "fresh?"
As discussed above, pasteurization is a heat treatment sufficient to destroy pathogens. Therefore, use of the term "pasteurized" on products that have been treated with UV light to attain the 5-log reduction is misleading and the product would be considered to be misbranded under section 403(a) of the Food, Drug, and Cosmetic Act. Possible terms you may use that would convey to consumers that the product has been treated with UV to control pathogens are "treated with UV light to control pathogens," "treated with UV light to control harmful bacteria," or "UV treated." Juice processed using UV light cannot be labeled "fresh."


text:
In 2006, Cansica Holdings Inc. mandated its lawyers to recover amounts it had loaned to third parties (Debtors). The loans granted totaled $276,300 and were secured, among other things, by an immoveable hypothec.
Although they took some steps to recover this debt, Cansica’s lawyers only filed suit on February 17, 2011, after the claim became prescribed on May 5, 2007. The lawyers’ fault was therefore admitted, seeing as they recognized having failed to take timely action to interrupt the limitation period of Cansica’s right of action.
Owing to this fault, Cansica was claiming, in addition to the value of the loan’s capital, over $500,000 in interest and additional indemnity and the fees paid to its lawyers to carry out the mandate, which the parties had set at $15,000.
The Superior Court specified at trial that, to succeed in its claim, Cansica had to show on the balance of probabilities the amount it would have recovered on its loans had it not been for its lawyer’s fault. The Superior Court also held that the damages had to be assessed on the date on which the fault was committed, namely the date on which the right of action became time-barred.
Based on these premises, the trial judge concluded that even if its lawyers had acted in due time, Cansica would only have recovered $67,247.67 on the execution of the immoveable hypothec securing the loans seeing as, in the Superior Court’s opinion, out of all the property in the debtor’s estate only the sale of that immoveable would be likely if the debt were to be realized.
The Superior Court therefore ordered the lawyers to pay $67,247.67 and a further $15,000 in reimbursement of the fees paid, with interest at the legal rate and additional indemnity as of the date of the demand letter.
Dissatisfied with the value of this award, Cansica appealed to have it increased to $812,779.77. Essentially, Cansica argued that the trial judge should have applied the notion of “loss of chance” when determining the damages suffered and thus indemnify it for the chance lost. In other words, Cansica was asking to be indemnified for the “lost chance” to recover the debt, even if there was less than a 50% probability of recovering the debt against the other property making up the Debtor’s estate.
In this case, the Court of Appeal had to determine which approach to adopt when assessing damages incurred in the context of a loss of “legal”4 chance in a matter involving a lawyer’s professional liability.
After analyzing the impugned decision, the Court of Appeal concluded that the traditional Quebec approach recognized by the Supreme Court in Laferrière v Lawson5 must be privileged, namely that of indemnifying actual damages rather than the chance of their realization.
Consequently, in all situations similar to this theoretical example, the judge would have to decide based on pure statistical chance due to the lack of factual context in which to evaluate the likely result.8 The court does not, however, specify how to actually go about evaluating damages based on statistical chance alone. It must also be concluded that in all other cases, including this one, the loss of chance theory should not be used to supply a causal link between fault and damage.
In the Court of Appeal’s opinion, the trial judge therefore did not err when she applied the traditional approach and concluded that Cansica would only have recovered the proceeds from exercising the hypothecary right against the immoveable belonging to the Debtor, there being little chance that the other means for collecting the debt might be realized under the circumstances.
In other words, the damages caused by the “legal” loss of chance can only be indemnified when the probability of collecting the debt against the Debtor’s estate is 50% + 1. After analyzing all of the possibilities of recovering the debt against the debtor’s estate, the indemnifiable damages must correspond to the amount which, on the balance of probabilities, is likely to be recovered.
In the absence of any manifest and over-riding error, the Court of Appeal dismissed Cansica’s appeal and upheld the trial judgment.
In this decision, the Court of Appeal reaffirms that the loss of chance doctrine only applies exceptionally under Quebec law, especially in matters of professional liability. In the end, it is the damages actually suffered that may be indemnified, not the lost chance.
To summarize, professionals who commit a fault that causes their client to lose an opportunity to realize a profit or avoid a loss may be held liable for the actual damages they cause. The client must therefore demonstrate, on a balance of probabilities, that the profit would have been realized or that the loss would have been avoided had it not been for the professional’s fault. If this burden is met, the indemnifiable damage will be equal to the loss of revenues or profit, and not the fictional value ascribed to the lost chance.
The authors wish to thank Ione Deda Alves, a law student, for her assistance in preparing this legal update.
1 Cansica Holding Inc. v. Boidman, 2018 QCCA 2130.
2 Therefore, “[TRANSLATION] in the event that, had it not been for the fault, the probability that the chance might arise stood at 40%, a court might decide to indemnify up to 40% of that portion of the chance” (Lemieux v. Aon Parizeau inc., 2018 QCCA 1346, para. 78).
3 Laferrière v. Lawson, 1991 1 SCR 541, 601.
4 Patrice Deslauriers and Emmanuel Préville-Ratelle, “La responsabilité des avocats”, École du Barreau du Québec, Responsabilité, Collection de droit 2017-2018, Vol. 3, Cowansville (Qc), Yvon Blais, 2017, 109, p. 116 and 117.
5 Laferrière v. Lawson, supra, note 3.
6 Cansica Holding Inc. v. Boidman, supra, note 1, para. 18, citing Laferrière v. Lawson, supra, note 3, 603.

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The IRS has issued guidance on the waiver of the 60-day period for rollovers to an IRA or qualified plan. Under the new guidance, effective August 24, 2016, a participant may self-certify that the conditions for a waiver are met, and the plan administrators and IRA trustees may rely on the self-certification in accepting and reporting receipt of a rollover. See Revenue Procedure 2016-47 for complete details. In addition, the IRS issued answers to frequently asked questions about the waiver at this link.
Action Needed Now: Administrators of plans that accept rollovers may want to review their administrative procedures to address how they will treat a rollover accompanied by a self-certification. In addition, plan administrators may want to review language in their summary plan descriptions and other participant communications to inform participants of the availability of self-certification for distributions that they receive from the plan that are not contributed to an eligible retirement plan within the 60-day period.
Code §§ 402(c)(3) and 408(d)(3) provide that any amount distributed from a qualified plan under § 401(a) or an individual retirement plan under § 408(a) or § 408(b) is excluded from income if it is transferred (i.e., "rolled over") to an eligible retirement plan1 no later than the 60th day following the day of receipt. A similar rule applies to § 403(a) annuity plans, § 403(b) tax sheltered annuities, and § 457 eligible governmental plans. Generally, a plan administrator or IRA trustee that accepts a rollover contribution beyond the 60-day period (without a waiver or ruling from the IRS) risks loss of plan qualification.
Prior to Rev. Proc. 2016-47, a taxpayer (e.g., a participant) that missed the 60-day period had to use the letter-ruling procedure under Rev. Proc. 2003-16 to apply to the IRS for an individual waiver of the 60-day rollover requirement.2 The letter-ruling procedure required that a user fee be paid to the IRS before the request would be considered. Starting in 2016, the required user fee was increased to $10,000 and was not refundable if the request was considered and denied.
Cheiron Observation: The $10,000 user fee effectively made it uneconomical for taxpayers with relatively small amounts to request a waiver.
Rev. Proc. 2016-47 permits a taxpayer to make a self-certification to a plan administrator or an IRA trustee3 using the procedure's model letter word for word, or a substantially similar letter. The taxpayer should keep a copy of the certification in his or her files and make it available if requested on an audit. The taxpayer may report the contribution as a valid rollover unless later informed otherwise by the IRS following examination.
No prior denial by the IRS. The IRS must not have previously denied a waiver request with respect to a rollover of all or part of the distribution to which the contribution relates.
the party making the distribution to which the rollover relates delayed providing information that the receiving plan or IRA required to complete the rollover despite the taxpayer's reasonable efforts to obtain the information.
Contribution as soon as practicable; 30-day safe harbor. The contribution is made to the plan or IRA as soon as practicable after the reason or reasons listed in the certification no longer prevent the taxpayer from making the contribution. This requirement is deemed satisfied if the contribution is made within 30 days after the reason or reasons no longer prevent the contribution.
Except in instances where the plan administrator or IRA trustee has actual knowledge that is contrary to the taxpayer's self-certification, the plan administrator or IRA trustee may rely on the self-certification in determining whether the taxpayer has satisfied the conditions for waiver of the 60-day rollover requirement.
The self-certification permitting waiver of the 60-day rollover period provides practical relief for taxpayers who have legitimate reasons for failing to complete rollovers within the 60-day period.
Cheiron consultants can help you modify your administrative procedures and plan documents to implement this self-certification.
1 An eligible retirement plan, under Code § 402(c)(8)(B), means a qualified plan or an individual retirement plan.
2 The Secretary of the Treasury can waive the 60-day rollover requirement in the event of disasters, terroristic or military action, or other events beyond the reasonable control of the individual; and Rev. Proc. 2003-16 provides for automatic approval for a waiver of the requirement due to an error on the part of a financial institution.
3 The IRS intends to modify the instructions to Form 5498 to require that an IRA trustee that accepts a rollover contribution after the 60-day deadline report that the contribution was accepted after the 60-day deadline.