Two raw dairy farmers–Richard Hebron and David Hochstetler–have been ordered to appear before a federal grand jury in Detroit in connection with what an assistant U.S. attorney calls a “federal criminal investigation.”

The investigation may well have been plotted in early 2009, during a phone conference call involving state and federal regulators.

Richard HebronGrand jury investigations are considered very serious affairs, and are usually held in tight secrecy. While the U.S. Constitution’s Fifth Amendment is generally identified with prohibiting self incrimination and double jeopardy, it begins, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” So we’re talking here about “a capital, or otherwise infamous crime…”

Moreover, witnesses called before such a jury of one’s peers have few of the rights that apply at a regular trial, including the right to be represented by a lawyer, or limits on the kind of evidence that can be introduced.  

The need for re-scheduling of an appearance by Hebron and Hochstetler, scheduled for yesterday, the day before Thanksgiving, led to a testy exchange between an assistant U.S. attorney, Ross Goldstein, and Aajonus Vonderplanitz, operating in his role as executive director of Right to Choose Health Food. Hochstetler, an Amish farmer and the owner of Forest Grove Dairy in Middlebury, IN, has a leasing agreement with Right to Choose Healthy Food whereby his farm supplies food to members of the organization who belong to Midwest food clubs.

Vonderplanitz in August was denied by a federal judge any role in representing another Amish farmer, Daniel Allgyer. The U.S. Food and Drug Administration is seeking a permanent injunction against Allgyer shipping raw milk to the Grassfed on the Hill food club in Maryland. It conducted a year-long undercover investigation of the food club prior to seeking the injunction.

Goldstein, the assistant U.S. attorney in Michigan, said in an email on Wednesday to Vonderplanitz, who was seeking confirmation of the re-scheduling of the two farmers to Dec. 8: “As Judge Stengel explained in his order denying your motion for intervention in United States v. Allgyer, No. 11-02651 (E.D. Pa. Jul. 18, 2011), ‘Mr. Vonderplanitz is not an attorney and cannot represent others in federal court . . . .’  Although your email of this morning implies that you represent the legal interests of other individuals or entities, you may not lawfully do so.  Accordingly, the substance of your communication…is of no moment and is being disregarded in toto. Moreover, I can see no reason why you should have any need to further discuss this matter with the United States at this juncture.”

To which Vonderplanitz responded, just as huffily, “You wrote with the authority of a judge yet you are a prosecutor. As a U.S. attorney, shouldn’t you know more about law, especially the U.S. Constitution than you reveal? The decision by Judge Stengel in the Allgyer case does not set precedence in that case or any other case. I am simply waiting for the case to be resolved in Judge Stengel’s court so that I can appeal the decision.

“I and all members of Right To Choose Healthy Food club members contracted for ownership of the animals at those farms to produce the food we need for our health. We have the most righteous legal interest. Just because one judge made a bad ruling does not make it right or precedence. It is not over until all appeal processes have been exhausted, in at least 5 years from the date it is over in the lower court.

“I do not purport to represent anyone as an attorney however, if you study the U.S. Constitution, anyone can assist anyone of his or her choosing. Since I have contractual legal interest in the activities you are trying to end, I have every right in the world to assist the innocent people and farmers you harass and try to prosecute to deprive them of life, liberty, well-being and livelihood. My email stands as your notification for Mr. Hebron and Hochstetler that the Grand Jury Hearing set for today was postponed by you in your conversation with Mr. Hebron, and that any other Grand Jury Hearing will have to begin from a new process.

“You will hear from me anytime you try to harass or stop a farmer with whom I have a PRIVATE club contract to produce healthy food for me and members of our private clubs. You have no legal jurisdiction over private clubs. Your jurisdiction is with the public.”  

Richard Hebron had a major skirmish with Michigan regulators five years ago. In October 2006, his pickup truck laden with raw dairy and other products was pulled over by state police on its way to drop off food with an Ann Arbor food club, and $7,000 worth of goods confiscated. The case was sent by the Michigan Department of Agriculture to a county prosecutor who, after six months of receiving protest letters and other objections from consumers and local politicians, sent the case back to MDA, which let Hebron off with a $1,000 fine. 

David Hochstetler, who supplies milk to several food clubs overseen by Hebron, received official attention in 2010, when his farm’s milk was identified with an outbreak of a dozen cases of campylobacter. Followup lab testing is understood to have come up with no sign of campylobacter. Hochstetler is a sometime attendee at national Weston A. Price Foundation conferences.

But shortly after that 2010 episode, when there were indications of possible legal action by the FDA, Hochstetler joined up with Vonderplanitz’s Right to Choose Healthy Food organization.

Both Hebron and Hochstetler were mentioned in email accounts of meetings between FDA and state regulators from around the Midwest–emails obtained in an open-records request by activist Max Kane in 2009. A February 2009 email with the subject, “FDA Raw Milk Conference Call,” summarized the call from DATCP’s perspective. The call had included four DATCP officials, nine FDA officials, two representatives from the Indiana Board of Animal Health, three from the Illinois Department of Public Health, and one from the Michigan Department of Agriculture.

I quoted from one of the emails at the time:  “Scott MacIntire [District Director] and Bill Weissinger [Chicago District Special Assistant] discussed FDA-CHI activities. They have done some Internet searching and identified about 20 milk clubs in Illinois. They prefer to address one person or group at a time and want to start with Richard Hebron, Family Farm Co-op, in Michigan who may be picking milk up at the Hochstetler Farm in Indiana for delivery in the Chicago area. Hebron has been prosecuted in Michigan for raw milk sales. Hochstettler was sent a warning letter for FDA Detroit for interstate delivery of raw milk.” (Hebron was never prosecuted.)

Sounds prescient, doesn’t it?