FDA Sends KY Amish Farmer Sam Girod to Prison for 6 Years for Misbranding Herbal Salve
[Note from Sally: if you've been following the story of KY Amish farmer Sam Girod, the chickweed salve-maker being hounded by the FDA, the sentencing was Friday and here's what happened. If you don't know the story, click here for the condensed version, then there are links to the more complete story in the sidebar, plus notes from the trial. This report was written by the same friend who was in the courtroom for the trial.]
You've probably heard, but Sam Girod was sentenced to six years in federal prison for making herbal salve without the king's permission, plus $1300 in what are essentially court costs, plus over $14,000 in restitution to his victims*. He will also have three years of supervised release, is barred from owning firearms, and is barred from making any product regulated by the FDA. Sam will not be forced to undergo court ordered drug testing.
Victims? There are no victims. Not a single individual came forward and claimed they were harmed by Sam's salves. The FDA said there were victims but were never able to produce a single one. The witnesses against Sam all had to be subpoenaed and were hostile to the prosecution, both legally and visibly. Except for the two agents at the last "search" who lied on the stand -- if you believe the Sheriff's deputy who also testified. I know it's a well-used expression but you seriously cannot make this stuff up.
Local News Coverage
All of the media coverage was reasonably good. The WTVQ coverage did by far the best job of conveying the liberty perspective that resonates throughout this case. The Lexington Herald Leader (Kentucky.com) was surprisingly good as well.
Here's the federal government's statement on this case: https://www.justice.gov/usao-edky/pr/bath-county-man-sentenced-misbranding-drugs-and-obstructing-justice
This account is based on hastily scribbled notes (without benefit of legal training) because no recording devices were allowed in the courtroom. Hopefully there are no substantive errors.
After a few brief opening remarks, judge Danny Reeves described the sentencing procedure. It's not a simple nor straight forward procedure. It seemed deliberately complicated, which in the federal government domain can also be interpreted as providing places to hide abuse of power while maintaining the illusion of following procedures.
Judges have enormous latitude in sentencing. The sentencing guidelines include a convoluted calculation. The various counts are grouped by class. Sam apparently had five classes. For each class, points are totaled. I've seen people play Dungeons & Dragons and the point system is similar. For example, counts 4 through 11, the counts for misbranded drugs were grouped into a class. Roll the dice to get a base of 18 points. Then add +2 for the number of violations, +2 for prior convictions (the Missouri ruling against Sam?), +2 for sophisticated means, and +2 for obstruction of justice to get a total of 26 points. This total essentially overrode the lesser totals in the other classes and was used to determine sentencing. Despite the procedural detail, the assignment of points seemed to be sufficiently arbitrary that almost any outcome could be produced.
The sentencing guidelines called for 63-78 months in prison, 1-3 years of supervised release after prison, and $25,000 to $250,000 in fines.
Sam was given an opportunity to explain why the court should be lenient in sentencing, but his only reply was "I do not consent."
The federal prosecutor, Kate Smith, was given an opportunity to explain why the state wants a harsh sentence and she did not pass on the opportunity. She asked for a fine of $25,000 as well as jail time, specifically citing Sam's "Sovereign Citizen" claims and his refusal to admit guilt. The judge made similar comments throughout the sentencing.
The judge then stated, "There have been a lot of incorrect statements made about this case." He said that it's not about salve. It's about refusing to follow the law. Misbranding. Interstate commerce. Jury tampering.
"There have been some wild claims during the case."
He said that Sam refused to listen to anyone but himself... and others who have been giving him advice - bad advice. The case is not about Big Pharma. He then called Sam "obstinate" and accused him of "continuous and blatant disregard for the rule of law."
Of course, the law he was referring to is actually some rules that were written by unelected bureaucrats at the FDA that are enforced as if they were laws enacted by our elected legislators.
This administrative law is thousands of pages and it's enforced in a completely arbitrary manner. Sam had repeatedly tried to obey the rules the FDA were forcing upon him, but it was never good enough. The FDA kept telling him that he was in violation of new rules. Seeing the futility in this, Sam invited them to make suggestions that were acceptable to them and was told that it's not the FDA's job to design his labeling for him and it was his responsibility to comply with the law, aka their secret rules that keep changing. It was an impossible situation for Sam.
The judge then passed sentence on Sam. Six years in federal prison. Three years of supervised release. No ownership of firearms. No manufacturing or selling products regulated by the FDA. $1300 ($100 per count) in what are essentially court costs. $14,239.08 in restitution to be paid immediately to Sam's victims.
The judge did not impose any fine as requested by the federal prosecutor, stating that he believed a fine would impose an undue hardship on Sam's family. The judge also did not order any court mandated drug testing while Sam is on supervised release.
The judge stated that deterrence is a difficult matter in this case because the defendant has demonstrated that he refuses to abide by the law.
The judge ordered the court clerk to file an automatic appeal on Sam's behalf at the 14 day deadline if Sam hasn't filed the form himself, recognizing that Sam has had no legal representation and probably wouldn't know to file the form. He also had the court clerk provide the written instructions and read the explanation of the appeals process and filing requirements to Sam. He asked Sam if he understood and Sam said that he does not consent.
Michael Fox, the public defender, seemingly without any direction from Sam, asked the judge if he could request that Sam serve his sentence at the federal corrections facility in Ashland, Kentucky. The judge said that he would need to know if this was Sam's desire before he could make such a recommendation. He asked Sam and Sam replied that he does not consent.
So Sam will probably do his time at a medium security facility someplace like Texas. Presumably prisoners are sent wherever there is room, but there are theories that prisoners are placed far from home to discourage visitations from family and friends.
I later learned that the Ashland facility, actually in the suburb of Summit, is a minimum security facility known as "The Camp" where they don't bother to lock the doors.
"FCI Ashland has a satellite camp which Forbes magazine ranked as one of the best places to go to prison in the United States. The camp holds a "wellness" program including aerobic exercise and stress reduction programs."
Observations & Commentary
The restitution is one of the most perverse aspects of this case. It was clear from their testimony that Sam's suppliers, wholesale distributors and customers all loved Sam and his products. They clearly felt victimized by an out-of-control federal government that was interfering in their ability to trade with Sam, and they were very upset at being compelled to be the FDA's hostile witnesses to testify against Sam. Their stress at this compelled testimony was palpable. It was like watching a mother forced to lie and implicate her husband in a crime he didn't commit so the state thugs would stop torturing her daughter. And now those coerced testimonies are being used to add a sense of legitimacy to this kangaroo court with the appearance that the court is protecting some actual victims of some real crime by securing restitution for them, even though the only victims in this case were victimized by various federal agents.
During the trial, one of Sam's suppliers became visibly perturbed by the questioning designed to coerce answers for the prosecutor and he departed from the question and answer format. He started railing against the entire process that forced him to appear in the court. The hostile witness became a VERY hostile witness and was summarily dismissed with no further questions.
Another hostile witness, Mrs. Miller, a young Amish woman from out of state and the proprietor of a dry goods store appeared so distraught that I was concerned that she was going to suffer a nervous breakdown on the witness stand. The prosecutor had deliberately put her in a position where she was forced to either lie about the facts, or tell the factual truth knowing that it would create such a false impression that it was tantamount to a lie.
Any competent cross examination would have allowed these witnesses to testify on Sam's behalf, as they obviously wanted to do. It was clear that these people considered Sam to be their friend and they couldn't believe the federal government was forcing them to testify against Sam. These coerced testimonies were brutal often to the point of being inhumane. They were very difficult to watch. These are the people the court is now claiming are Sam's victims.
Having seen their forced testimony and the internal struggles playing across their faces, I think to a person, they'd identify the federal government as their tormentor. They all felt sympathy for Sam. I can't imagine any of them seeing themselves as Sam's victim. The prosecutor and the judge know these witnesses are Sam's friends and the depiction of them as Sam's victims is a bizarre and blatant fraud.
As much as the judge tried to appear as if the sentencing guidelines dictated the sentence and he was some sort of unbiased arbiter, it seems likely that if not for the significant public attention drawn to this case, Sam would have received a far harsher sentence. Hopefully that can provide some comfort to a few people.
I'd concur with the judge when he stated that this case wasn't about salve. I'd probably agree that it wasn't about Big Pharma, at least not directly. This case was about Sam not doing what he was told. This trial was about power and authority. Sam's crime was that he strongly believed that he had the right to make and sell herbal remedies and these transactions should be regulated by market interactions between himself and his customers, and not the federal government.
How can the Food and Drug Administration regulate his products when they are neither food nor drugs? Unfortunately, that's now a dangerously naive belief.
The judge and the prosecutor have repeatedly leveled allegations that amount to, "He was told not to do this and he did it anyway." If the state claims the ability to regulate your activities, then you have no right of refusal. They stated this as if it was an obvious and incontrovertible fact.
This trial was a clash of cultures, with KY Amish farmer Sam Girod near the extreme limit of the Amish beliefs in individual liberty and self determination subject only to their religious beliefs, and the federal judge and federal prosecutor near the extreme limit of authoritarian state power.
It was difficult to watch these proceedings without concluding that these two parties had such divergent beliefs that they were unable to communicate beyond the most rudimentary ideas. Any complex concepts had no common understanding as a basis for communication. They talked past each other. Sam insisted that he hadn't harmed anyone. The state argued that Sam hadn't followed their rules. There seemed to be two separate trials occurring in the same space, each orthogonal to the other, never intersecting nor influencing the other.
As a court observer, the experience would be similar to going to a basketball game where one team is playing tiddlywinks and the other team is weaving traditional Chilean baskets. It didn't make any sense, so it's no surprise that justice wasn't served.
From a practical standpoint, Sam should have availed himself fully of the public defender, Michael Fox. Sam had insisted that he wanted to defend himself, but Mr. Fox became so incensed by the blatant lies of the prosecutor's first witness that he asked Sam if he'd like for him to cross examine the witness and Sam agreed. Despite not being able to prepare, Mr. Fox extemporaneously demolished the witness, proving that he had perjured himself at least twice in his brief testimony.
The prosecutor objected to the cross examination. Apparently, she had been promised that she could try her case against an elderly Amish farmer and Sam receiving an actual legal defense must have seemed very unfair to her. The judge ruled that Sam could not employ a hybrid defense. He'd need to choose whether he'd employ the public defender or whether he'd defend himself. Sam chose to defend himself and sealed his fate.
Sam's defense consisted of nothing but asking witnesses if anyone was harmed by his products, and a rambling closing statement with the only salient point being that, once again, nobody was harmed by his products. While an injured party would certainly be the central issue in a common law case, it was completely irrelevant to the various "didn't follow the rules" counts that Sam was facing.
It would be understandable to refuse to admit guilt and try to make a point by articulating an argument in favor of individual liberty. It wouldn't succeed in court, but it might advance a liberty agenda on a broader scale.
But that's not what Sam did. In essence, he offered no defense at all and placed his faith in a divinely just outcome. As a result, Sam received a six year sentence and will probably serve five years and a few months of that sentence in a federal prison.
It's a real American tragedy.
It must have been very frustrating for Mr. Fox to sit next to Sam and suffer through that slow motion train wreck of a trial, knowing the inevitable outcome and being unable to convince Sam to do any of the things he should do to help himself.
The night before the sentencing, there was a rumor that the prosecutor had offered Sam a plea deal involving a $25,000 fine with no time in prison other than the six months he's already served in the Fayette County Detention Center. This rumor made no sense at all. Plea deals are not offered after a jury renders a guilty verdict on all 13 counts.
Nevertheless, there were assurances that the Girod family had this plea deal in writing. This rumor originated with a friend of the family who had apparently been visiting when Sam called from the jail. If so, Sam and his family may have been expecting Sam to walk out of court a free man at the sentencing. That's a demonstration of how confused and strange the communications have been. Perhaps the sentencing guidelines were misread as a plea bargain offer... after a guilty verdict.
Oddly, after offering essentially no defense throughout the trial, Sam attempted a version of the Sovereign Man defense at his sentencing hearing. All he would say in answer to any question put to him was "I do not consent" and at one point, "I am a living man" and "I am not the defendant."
Not recognizing the court's jurisdiction has probably temporarily stymied some courts when they didn't know how to proceed with such a fundamentally uncooperative defendant, but I don't think it's a winning strategy in the long term. It was an odd and definitely counterproductive closing gambit at Sam's sentencing hearing.
The judge and prosecutor repeatedly referred to the fact that Sam refused to admit his guilt. The notion of the defendant confessing his sins and begging for leniency evokes images of The Spanish Inquisition.
"Now, old man. You are accused of heresy on three counts - heresy by thought, heresy by word, heresy by deed, and heresy by action - *four* counts. Do you confess?"
Sam refused to recant and beg for mercy, so he was judged to be a heretic and sentenced accordingly. Any protestations of your innocence will be counted against you.
That part was Orwellian. The state needed to know that they had not merely coerced Sam into falsely admitting his guilt, but to actually believe in his own guilt. The judge and prosecutor were very upset that they had gone to the trouble of arranging a kangaroo court and the defendant wasn't convinced of his wrongdoing. American courts are probably not accustomed to defendants with such a strong internal sense of right and wrong. For most Americans living in a country where we inadvertently commit three felonies a day, guilt and innocence are much more relativistic.
The judge and prosecution were careful to limit Sam's ability to appeal, but it does seem that there may be cause for appeal based on the judge's ruling that Sam couldn't employ a hybrid defense, defending himself at times while allowing the public defender to cross examine witnesses. Even though the judge repeatedly made it clear that choosing to defend yourself cannot be used to later claim that you were inadequately defended, even a cursory glance at the court transcript would show without any doubt that Sam had essentially no defense throughout the trial.
The entire sentencing hearing was a spectacle, both inside and outside the courthouse.
The Department of Homeland Security vehicles and personnel were stationed outside, presumably to quell any Amish domestic terrorism or armed insurrection.
The bomb sniffing dog was used to sniff out any possible explosives in the raised flower planter in the plaza in front of the district court.
Fayette County sheriff Kathy Witt was outside watching, along with three deputies and a German shepherd.
The usual gaggle of US Marshals were peering out the doors of the federal courthouse at the peaceful crowd of protesters outside.
There were eleven presumably armed security agents in the tiny courtroom.
A lot of tax dollars were spent for this show of force.
Meanwhile, security theater was alive and well. Everyone entering the federal courthouse was herded through a metal detector and deprived of cameras, tape recorders and cell phones, but an aluminum cane that could easily contain a hidden sword or single shot rifle or shotgun was passed around the metal detector.
Everyone had to show a government issued photo ID to enter... except the Amish. I asked how security is enhanced by forcing some people to show ID but not others. I was told the Amish don't usually have photo ID. Derp. Kind of missed the point. I tried again and was told in a very authoritarian voice that it was already explained to me and if I didn't like it I could leave.
I gave up trying to ask my question that was intended to cause some introspection or actual thought, as we seemed to be rapidly approaching the point where I'm face down on the floor and handcuffed.
Cue that Lee Greenwood song about being glad to be an American, because at least I know I'm free.