The government’s plea agreement with Austin (Jack) DeCoster, his son Peter, and Quality Egg LLC  leaves it “to the the Court’s discretion whether to impose a sentence of incarceration, home confinement, or probation,” according to a newly available court document. That disclosure came in the government’s brief filed Monday in advance of next week’s sentencing of the three defendants, who have already pleaded guilty under an agreement with the government. They were charged after an investigation found a nationwide 2010 Salmonella outbreak was linked to contaminated eggs produced by their two giant Iowa egg farms, which sickened thousands and also resulted in a recall of more than a half-billion shell eggs. The sentencing brief discloses information from the government’s investigation that has not previously been made public. jackandpeterDeCoster_406x250According to the brief, Quality Egg personnel were aware of the potential for significant Salmonella contamination at the company’s Iowa facilities at least as early as Jan. 12, 2006, when necropsies on chickens confirmed the presence of Salmonella, as well as other contaminants, in the organs of Quality Egg’s laying hens. That was more than four years before the U.S. Centers for Disease Control and Prevention (CDC) identified a four-fold increase in reports of Salmonella Enteritidis (SE) and linked it to contaminated eggs produced and sold by the DeCosters. The SE outbreak ran from April through August 2010, peaked in May, and didn’t return to normal levels until November. At the time, when major egg producers were not required to do environmental testing for Salmonella, the Iowa egg farms continued to find Salmonella contamination. In 144 days in which testing was conducted between July 2008 and May 2010, Salmonella was found on 47 percent of those testing dates. The government sentencing brief states that both Jack and Peter DeCoster were generally aware of the positive Salmonella test results as they were received. “Yet, prior to July 2010, the receipt of a positive environmental Salmonella result did not prompt Quality Egg to test or divert eggs,” it states. The DeCosters did hire pest and poultry disease experts, and some measures were recommended, but they did not eradicate the Salmonella or prevent the 2010 outbreak. “Defendants Jack and Peter DeCoster were responsible corporate officers over a company that routinely disregarded important food safety standards and practices,” Assistant U.S. Attorney Peter E. Deegan Jr. wrote in the sentencing brief. Footnotes in the brief also disclose just how risky it was to eat DeCoster eggs by 2010. The U.S. Food and Drug Administration (FDA) figured the incidence rate for SE from DeCoster-produced eggs was 39 times greater than the national incidence rate. Put another way, FDA figured that an individual’s chance of becoming infected with Salmonella was 1 in 20,000 among eggs nationwide. But for DeCoster-produced eggs, the odds dramatically dropped to 1 in 516. At the time of the 2010 outbreak, some media and industry sources believed that Jack DeCoster was America’s largest egg producer. (Since 2010, the DeCosters have largely gotten out of the egg business.) The sentencing brief states that Quality Egg personnel had a unique way of handling those independent audits required by large customers: They faked their way through the audits. “Quality Egg personnel made significant misrepresentations regarding its food safety and sanitation practices and procedures, and manufactured false documents required by the audits,” the government’s brief states. “These included misrepresentations regarding cleaning and maintenance efforts, pest control measures, and purported ‘flock testing’ — which was never done — to identify and control Salmonella.” Further, the government calls Quality Egg’s Hazard Analysis and Critical Control Points (HACCP) plan “a sham.” HACCP provisions stating that trucks were cleaned and inspected between shipments to entry to egg barns being controlled are contained in the plan, but it was all fiction, according to the brief. There was no retesting if Salmonella was found during environmental sampling of cleaned laying barns, and there was no pest control, it states. The government states that Peter DeCoster, his attorney, and another Quality Egg employee even traveled to Arkansas to pitch Walmart with promises about the Iowa egg producer’s “flock testing policy,” its HACCP plan, and its audits, all part of a “Safe Quality Food Institute.” “In fact, Quality Egg had no SQF program in place in Iowa in 2008 and had not achieved SQF certification at least through the time of the August 2010 recall,” the sentencing brief states. Keegan goes on to acknowledge that Peter DeCoster insists he did not make a fraudulent presentation to Walmart, but had the case gone to trial, a staff member from the giant retailer was prepared to testify that they did get the bogus sales job. Further, the government states that Quality Egg “routinely failed to comply with — and unlawfully thwarted — USDA regulations governing the quality of shell eggs being sold and shipped to its customers.” On at least two occasions, the brief states, Quality Egg personnel paid bribes to a now-deceased USDA egg inspector, who, on each occasion, then released “red-tagged” eggs that were being retained for failing to meet minimum quality grade standards. Deegan acknowledges that “there is conflicting evidence regarding when and how defendants Jack and Peter DeCoster first learned of the bribes. In any event, the bribes occurred on defendants Jack and Peter DeCoster’s watch, and serve to illustrate the contempt Quality Egg has shown for USDA’s role in enforcing minimum quality standards for eggs.” While the government also could not prove the DeCosters knew it, Quality Egg was allegedly also misbranding eggs with false processing and expiration dates. The misbranding kept state regulators and consumers in the dark. The sentencing brief also reports that in 2003, Jack DeCoster was sentenced to concurrent terms of five years’ probation on two counts of Continuing Employment of Unauthorized Aliens. “The convictions were based upon defendant’s aiding and abetting the pattern and practice of continuing to employ aliens, unauthorized for employment in the Untied States, at his egg production facilities in Iowa,” according to the sentencing brief. It also states that DeCoster was convicted in 1976 for Falsifying a Driver’s Log in Maine and fined $14,000. Deegan did not include any discussion in the sentencing brief of civil fines paid by DeCoster companies for various labor and environmental infractions. He does urge the court to “consider the need to afford adequate deterrence in fashioning appropriate sentences.” “The sentences imposed should account for the need to adequately incentivize similarly situated corporate officials to act responsibly when it comes to food safety,” he states. Jack and Peter DeCoster each pleaded guilty to the misdemeanor charge of introducing adulterated eggs into interstate commerce. “These are strict liability offenses premised upon each defendant’s position as a responsible corporate officer at defendant Quality Egg,” the sentencing brief states. It notes that the court may want to take into account the “mitigating circumstance” in the cases, but weigh it against the defendants’ responsibility for the Salmonella outbreak. Quality Egg pleaded guilty to one felony count of bribing of a public official and one felony count of introducing misbranded food into interstate commerce. The only question now about the sentencing — set for Monday, April 13, in Sioux City, IA — is whether either DeCoster will face any kind of “incarceration, home confinement, or probation.” Quality Egg is, per the agreement, likely to be fined $6.8 million for the two felony convictions, and the DeCosters individually are looking at $100,000 each for the misdemeanors. U.S. District Court Judge Mark W. Bennett allowed Jack DeCoster to file a sealed response to the sentencing brief, which prevents public access to the document. Peter DeCoster briefly requested permission to file a sealed reply, but then withdrew the request and went public with his. The younger DeCoster is asking for “restorative justice” based on his being a father of six, his education and employment history, role in his community, and involvement with his church ministry in the Third World.