00-1523, 00-2679 U.S. v. Bhutani

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“While the plain language of the FDCA clearly prohibited the failure to establish or maintain records, criminal penalties were not clearly imposed. Nevertheless, we agree with the reasoning found in the former set of cases rather than the latter because strictly reading and applying the FDCA as it was at the time of the offense in question would put the plain language at odds with the statute’s purpose and intent. There is no indication in the legislative history that in amending the FDCA Congress intended to eliminate the penalties. The Law Revision Counsel of the House of Representatives, who prepares and publishes the U.S. Code, even placed a footnote in the 1988 edition of the U.S. Code in sec. 331(e) after the proscription on failing to keep records under sec. 355(k), and noted that sec. 335(j) had been redesignated as sec. 355(k). Thus, it seems that the failure to cross-reference the sections was interpreted as a mere typo by the Law Revision Counsel.

Also, we agree with the government that Congress would not have eliminated the penalties for failing to establish or maintain records in this part of the statute while retaining the penalties for failing to do so under other sections.

Furthermore, the government points out that the 1984 amendments broadened the recordkeeping requirements in the redesignated sec. 355(k), and that Congress would not have intentionally broadened the requirements and at the same time have eliminated the penalties for not complying with the requirements.”

Appeals from the United States District Court for the Northern District of Illinois, Grady, J., Bauer, J.