The two brothers charged in one of the nation’s most deadly outbreaks of foodborne illness will return to U.S. District Court in Denver on Oct. 22. Their trial is scheduled to begin Dec. 2. In the end, their fate may rest on the routes their cantaloupe took once it became part of interstate commerce. Since being arraigned Sept. 26 on six federal criminal misdemeanor charges each, entering not-guilty pleas and being released on unsecured $100,000 bonds, brothers Eric and Ryan Jensen have found out a lot about the government’s case and the court’s rules. Jaime A. Pena, assistant U.S. attorney for Colorado, has shared factual details of the case against the defendants in a document known as a “404B Notice.” Such notices are supposed to set forth the facts and evidence the prosecution intends to use at trial, thereby protecting the defendants’ rights under 5th and 6th Amendments to the U.S Constitution. In its 404B Notice, the government details actions the brothers allegedly took that caused their cantaloupe to be contaminated with Listeria and then to spread illness and death in 28 states. In the notice, Pena wrote that the outbreak resulted in 33 deaths and a miscarriage, in addition to “ten other deaths not attributed to listeriosis that occurred among persons infected with an outbreak-associated subtype.” It also states that the brothers were “the primary principals” in Jensen Farms with position and authority to give orders to regular and seasonal employees, including those who set up and maintained a conveyor system for packing cantaloupe. The system was used at the processing center where “cantaloupes from the field were transported along a conveyor system.” It was supposed to clean and cool the cantaloupe before they were packaged for distribution throughout the U.S. The cantaloupe should have been washed with sufficient anti-bacterial solutions “so that the fruit was not adulterated in the process,” says the notice. The brothers entered into an agreement to purchase the conveyer system from Pepper Equipment Co. on May 16, 2011, and it was to have included a specially built “catch pan” for a “chlorine spray” that was never hooked up. The next key date mentioned by the government is July 25, 2011. That’s the day when a food-safety inspector subcontracted by Primus Labs was hired by the Jensen brothers from a list of auditors and “audit schemes” supplied by Frontera Produce to conduct an audit of the Jensen packing facility. It received a “superior” score of 96 percent. On the same day, Jensen Farms continued its agreement to have Frontera broker its cantaloupe as “Frontera Fresh Cantaloupe.” “Accordingly, Frontera Produce purchased, marketed and sold cantaloupes from Jensen Farms and arranged shipping directly from the Jensen Farms packing facility,” the government states. It further states that the brothers knew that their cantaloupes, under the Frontera arrangement, would enter interstate commerce. And while much of the 404B information concerns aspects of the U.S. Food and Drug Administration (FDA), CDC, and State of Colorado investigations that have been previously reported, connecting specific deaths to specific shipments in interstate commerce is new. By July 29, 2011, the notice states that interstate trucking companies were delivering pallets of “cantaloupe adulerated with the bacterium Listeria monocytogenes” from Jensen Farms to distribution centers in Littleton, Denver, Colorado Springs, Thornton, Parker, Pueblo and Fruita, CO. Cantaloupes from those distribution centers are directly related to nine deaths, it states, providing the following scenario: On Aug. 1, 2011, the poisoned cantaloupe crossed the first state border to Cheyenne, WY, and led to a death in the Cowboy State. Next the cantaloupe made it to distribution centers in Corinne, UT, and Idaho Falls, ID, “thereby causing or contributing to” two more deaths. On the same day, trucks bearing contaminated cantaloupe unloaded produce for some of the nation’s best-known retail stores in the Southwest, including Albuquerque, Hobbs, and Gallup, NM, and Cortez, CO, bringing death to six more people. And a truck with pallets of cantaloupe from Jensen Farms made it to East Dallas, TX, on Aug. 1, delivering the first death by cantaloupe to Texas. The next day, two more would get their deadly dose as the trucks reached Houston and Beaumont, TX, and Bossier City, LA. By Aug. 3, the cantaloupe deliveries would reach distribution centers in Kansas, Nebraska, and Missouri, resulting in at least another seven deaths. A second round of deliveries to Denver and Colorado Springs carried cantaloupe that led to three more deaths. Deliveries on Aug. 4 brought contaminated cantaloupe to Mustang, OK, causing one death. On Aug. 10, deliveries to Kansas City resulted in a death in that state. An Aug. 14 delivery to Valparaiso, IN, and an Aug. 15 delivery to Baton Rouge, LA, were each linked to one death. And two deaths occurring after cantaloupe deliveries to Buffalo, NY, on Aug. 26 fill out the deadly distributions. The government’s alarm bells did not go off about the surging number of Listeria cases across the country until Sept. 2, 2011, first at the Colorado Department of Public Health and Environment and then at FDA. On Sept. 10, 2011, as the national outbreak was rapidly growing, state and federal investigators would arrive at Jensen Farms, where they were met by the brothers. While awaiting trial, the Jensen brothers have given up their passports and must get court permission to leave Colorado. Ryan Jensen has already asked for, and been granted, one exception to that rule. Every week, he drives about 20 miles into Kansas to pick up supplies and equipment for his current employer.