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Top Appellate Lawyer Will Try and Keep the DeCosters From Going to Jail

Whether Austin “Jack” and Peter DeCoster can be jailed under Park Doctrine prosecutions — meaning where the government did not have to show they had any knowledge or intent, let alone negligence, regarding food safety infractions involving their businesses — will get a big test starting Monday in St. Louis.

The opening briefs from the defendant appellants are due then and doing the writing for “Jack” DeCoster will be Peter D. Keisler, a former acting Attorney General of the United States who is widely viewed as one of the country’s top appellate litigators.

8thCircuitSt.Louis_406x250For at least the past two years, warning letters from the U.S. Food and Drug Administration have informed company executives that they can be held strictly liable under the U.S. Supreme Court’s Park Doctrine for unlawful acts that occur “within their organization,” including those of third-party contractors, manufacturers and distributors.

Whether this “strict liability” approach involves just the levying of a fine or whether it can extend to imposing jail time on food industry corporate officials is what the U.S. Court of Appeals for the Eighth Circuit is being asked to decide.

Keisler, now a partner with Chicago-based Sidley Austin LLP, was acting Attorney General from Sept. 18 to Nov. 9, 2007, and in charge of the U.S. Department of Justice (DOJ) between the time when George W. Bush’s Attorney General Alberto Gonzales resigned and Michael Mukasey was appointed and confirmed to that office.

He’s taken over DeCoster’s appeal from the U.S. District Court for Northern Iowa of sentences imposed after the defendants pleaded guilty to one count each of introducing adulterated food into interstate commerce. In April, District Court Judge Mark W. Bennett sentenced both the DeCosters to serve three months in federal custody and then one year of supervised probation.

Once the guilty pleas were entered, each of the defendants filed a motion asking the trial court judge to rule that the imposition of a custodial sentence would be unconstitutional. Bennett disagreed and handed down the prison sentences. However, the judge has allowed both men to remain free until their appeal is decided.

Peter DeCoster’s trial attorney, Stuart J. Dornan of Omaha’s Dornan, Lustgarten & Troia PC, will continue to represent him in the appeal. DOJ’s Civil Division appellate staff, led by Jeffrey E. Sandberg, will represent the federal government.

According to the schedule, the defendants appellants’ opening brief is due Monday, the government’s answering brief is due Sept. 18, 2005, and the appellants’ reply briefs are due Oct. 9, 2015.

The 81-year-old “Jack” DeCoster and his 51-year-old son, Peter, were sentenced for the roles they played in allowing contaminated eggs to reach consumers in 2010. Two Iowa egg production facilities they owned, Wright County and Hallandale egg farms, were responsible for a Salmonella Enteriditis outbreak that led to the largest shell egg recall in U.S. history — more than one half-billion eggs.

In pleading guilty, the DeCosters and their Quality Egg LLC accepted fines totaling $7 million and another $83,008 in restitution, but they appealed the short jail sentences. Quality Egg LLC pleaded guilty to two felony charges, including one for giving a cash bribe to a USDA egg inspector, and for having the intent to defraud by introducing misbranded eggs into interstate commerce. The company also pleaded guilty to the same misdemeanor as the DeCosters.

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