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DOJ is OK with Supreme Court review of DeCoster sentences

Government attorneys who just days ago were on the verge of sending Austin “Jack” DeCoster and his son Peter DeCoster to federal prison have now agreed the egg men should remain free long enough to allow the U.S. Supreme Court to consider the case.

supremecourtofus_406x250On behalf of the DeCosters, Peter D. Keisler, the former acting Attorney General of the United States, has filed an unopposed motion “to stay the mandate pending disposition of a petition for Certiorari.” A petition for Writ of Certiorari, often called a Cert Petition, is the document the losing party files with the Supreme Court to ask for review of a lower court’s ruling.

In a Sept. 30 ruling, the 8th U.S. Circuit Court of Appeals denied a rehearing of motions by the DeCosters that came after they lost an appeal 2-to-1 by a panel of judges who upheld their jail sentences as imposed by a district court judge.

But the DeCosters are not giving up.

“The petition will ask the Supreme Court to address questions that are highly significant to the administration of criminal law and that this court has resolved in a manner that the DeCosters believe conflicts with other federal and state appellate decisions,” Keisler contends.

The issue of when and whether a responsible corporate official can be jailed for something they did not know about has come up in several venues. Numerous amicus briefs were filed in support of the DeCosters by business and industry groups. In addition, its come up in discussions over federal sentencing reform.

In his motion, Keisler also argues for a stay of the 8th Circuit’s decisions because “the mootness doctrine” might come into play if the DeCosters finished their jail sentences before the Supreme Court could finish with their case.

The attorney says the stay is required to preserve the Supreme Court’s authority.

jackandpeterDeCoster_406x250The three-judge panel upheld the sentencing of the DeCosters by U.S. District Court Judge Mark W. Bennett, including fines of $100,000 each and three-month federal prison terms for each.

The DeCosters both pleaded guilty to allowing adulterated food into interstate commence in their capacities as “responsible corporate officials” of Quality Egg LLC. The company separately pleaded guilty and paid a $6.8 million fine for its role in infecting as many as 56,000 people with Salmonella poisoning in 2010.

“The court should stay its mandate because this case presents an important constitutional issue on which courts are now divided, and because, absent a stay, the case will likely become moot, depriving the Supreme Court of the opportinty to consider the validity of the sentences..”  says the recently released motion dated Oct. 5.

Whether there is “a reasonable probability that the Supreme Court will grant certiorari, whether there is a fair prospect that the movant will prevail on the merits, whether the movants are likely to suffer irreparable harm in the absence of a stay, and the balance of the equities, including the public interest” are factors the court should consider,according to the motion.

Keisler says it is “likely” the DeCosters’ certiorari petition will be favorably considered because it involved significant issues of federal law with competing views by various circuit courts. He also says there is a “fair” prospect the high court will rule that jail sentences imposed in such instances are unconstitutional.

“The DeCosters can never win back the freedom they wold surrender if they are forced to serve the sentence they wish to challenge,” he contends.

The timing is right if the 8th Circuit wants to green light the DeCoster case for the Supreme Court. The deadline for filing a petition “for Cert” for 2017 is Dec. 29, 2016.

The issue of when and whether a responsible corporate official can be jailed for something they did not know about has come up in several venues. Numerous amicus briefs were filed in support of the DeCosters by business and industry groups. In addition, its come up in discussions over federal sentencing reform.

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