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Government gets extra time to respond on DeCosters’ rehearing

The 8th U.S. Circuit Court of Appeals wants the government to have sufficient time to respond before it decides whether to grant a rehearing on the jail sentences for 82-year-old Austin “Jack” DeCoster and his 53-year-old son Peter DeCoster, the egg men implicated in a nationwide Salmonella outbreak in 2010.

Once the U.S. Department of Justice’s response is filed, the appeals court has three choices. It could grant a rehearing en banc, meaning the case would be reheard before all judges in the circuit. It could assign the case to another panel of judges for rehearing. Or, it could let the original appeals panel ruling stand.  There is no right to either form of rehearing, be it before some, or all, the judges.

stlouiscourt_406x250The circuit set Sept. 14 as the response deadline for attorney Jeffrey E. Sandberg of the Civil Division of the Justice Department.

The DeCosters each pleaded guilty to one count of introducing food into interstate commerce in violation of federal law as part of a plea agreement with the government.

U.S. District Court Judge Mark W. Bennett sentenced each DeCoster to three months in jail on April 13, 2015. Both sentences have been stayed pending the outcome of the appeal process.

The DeCosters and their Quality Egg Co. did not contest $7 million in fines that were also part of the sentences Bennett imposed. The fines and possibilities of jail terms were all part of the duo’s plea agreement.

A three-judge appeals panel upheld the jail sentences July 6 in a 2-1 ruling. Each judge wrote their own opinion. Judges Diane Murphy and Raymond Grounder agreed the jail sentences were procedurally and substantively reasonable and consistent with the Fifth and Eighth Amendments to the U.S. Construction. Judge C. Arlen Beam dissented, finding that jail time is inconsistent with he Due Process Clause of the Fifth Amendment.

At issue is whether a corporate official may be imprisoned upon conviction for a so-called strict liability misdemeanor without having any prior knowledge or intent regarding the crime. The U.S. Food and Drug Administration, which has jurisdiction for the federal Food, Drug, and Cosmetic Act, changed its policy in 2010 and began pursuing such prosecutions.

whiteeggs_406x250Business organizations, led by the U.S. Chamber of Commerce, National Manufacturers Association and others, have sided with the DeCosters out of concern that the practice might be used to harass corporate executives. The issue has also come up in sentencing reform discussions in Congress.

The request for a rehearing, or rehearing in en banc, was filed on behalf of the DeCosters on Aug. 3. Sandberg’s response was originally due Aug. 15. The extra time was granted to give him time to coordinate with FDA attorneys and officials around vacation schedules.

The guilty pleas by the DeCosters stemmed from the Aug. 13 and 18, 2010, shell egg recalls by Wright County Egg and the Aug. 20, 2010, recall by Hillandale Farms, another egg producer controlled by Quality Egg. Together the recalls added up to more than half-a-billion shell eggs.

The massive shell egg recall was associated with a Salmonella Enteritidis outbreak which state and national public health laboratories had identified a month earlier. The DeCosters knew they had a problem with Salmonella contamination and claim to have take measures to control it, but they acknowledged that not all the steps taken proved effective.

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