America’s former egg king is not going to jail, according to his defense attorneys from Sidley Austin LLP in Washington, D.C. Attorney Frank R. Volpe has filed a motion on behalf of Austin (Jack) DeCoster in U.S. District Court for Northern Iowa, with a mostly secret legal argument claiming that, if the 71-year-old defendant is incarcerated or confined, it would violate the U.S Constitution. The motion “requests that this Court rule that a sentence of incarceration, including intermittent, community, or home confinement, or restriction on liberty other than probation, would violate Mr. DeCoster’s due process right under the U.S. Constitution.”

This basic move Volpe took to keep his client out of jail comes as no surprise. The defense team announced in June that they planned to raise constitutional arguments to keep DeCoster unconfined. However, the legal case they are making is just as murky now as it was in June. That’s because, so far, U.S. District Judge Mark W. Bennett has allowed DeCoster’s attorneys to keep their legal theories secret. Bennett plans to make Volpe’s “Memo in Support of Unconstitutional Confinement” public on Oct. 15 unless the defense attorney can persuade the judge to again keep it under seal. From his motion, it is expected that Volpe will say that DeCoster’s offense is based on strict liability and therefore is itself of uncertain constitutionality. With the absence of mens rea (meaning “the act is not culpable unless the mind is guilty”), he argues, “the only appropriate sentence in this case is a fine/and or term of probation.” DeCoster and his son, Peter DeCoster, 51, are currently free while they await sentencing. They both pleaded guilty on June 3 to one federal misdemeanor count each of adulteration or misbranding. Quality Egg LLC, a DeCoster family trust, pleaded guilty to two of the misdemeanor counts and to one federal felony of bribing a public official. All the charges stem from an investigation into the 2010 Salmonella outbreak that brought the recall of a half-billion eggs from two DeCoster-owned egg-production facilities in Iowa. Both men and the trust have plea bargains with the government, which, at a minimum, require Bennett’s signoff at sentencing. The defendants have agreed to fines totaling $7 million, with the majority — $6.8 million — to be paid from the trust. But getting to sentencing has turned complicated. In addition to the constitutional arguments, the defendants and the government are disputing contents of the Presentence Investigative Reports, which are also sealed. The government has suggested consolidating the sentencing hearings for the three defendants so any testimony heard would not have to be repeated. While defense attorneys for Peter DeCoster have no problem with that, Jack DeCoster’s team objects. They are getting to make their arguments, also under seal. USA v. Quality Egg LLC et al, Pending Counts Disposition 18:201(b)(1) BRIBERY OF PUBLIC OFFICIALS AND WITNESSES with Forfeiture Allegation (1) 21:331(a) and 333(a)(2) ADULTERATION OR MISBRANDING OF ANY FOOD, DRUG (2) 21:333(a)(1) and 331(a) – VIOLATION OF SEC. 331 OF THIS TITLE (3)