The U.S. Court of Appeals for the Eighth Circuit in St. Louis has received the final reply brief filed on behalf of Austin (Jack) DeCoster and his son, Peter DeCoster, by their legal team led by Peter D. Keisler. Keisler and his colleagues from the prominent Washington, D.C., law firm of Sidley Austin LLP, are appealing the DeCoster’s three-month jail sentences imposed this past April by U.S. District Court Judge Mark Bennett in Sioux City, IA. If successful, the appeal could also end the government’s power to use prison time to punish so-called supervisory liability offenses by corporate officials.

The next step in the DeCoster appeal will likely be oral arguments before a panel of appeal court judges, which the Eighth Circuit is now working to schedule with lawyers involved in the case. Jack DeCoster, 81, and Peter DeCoster, 51, were both sentenced for the roles they played in allowing contaminated eggs to reach consumers in 2010. At the time, DeCoster’s Quality Egg LLC owned more table egg production than any other entity in the country. Two Iowa egg farms it owned, known as Wright County Egg and Hillandale Farms, were responsible for a Salmonella Enteriditis outbreak involving the largest shell egg recall in U.S. history — more than a half-billion eggs. In pleading guilty, the DeCosters and their Quality Egg LLC accepted fines totaling $7 million and another $83,008 in restitution, but they appealed the short jail sentences. Quality Egg LLC pleaded guilty to two felony charges, including one for giving a cash bribe to a USDA egg inspector and for having the intent to defraud by introducing misbranded eggs into interstate commerce. Also, the limited liability corporation and each of the DeCosters individually pleaded guilty to the single misdemeanor charge of allowing adulterated product to enter commerce. In the reply brief, the DeCoster attorneys argue that a Park Doctrine prosecution based on a strict liability infraction cannot result in any jail time. Strict liability means there is no showing of knowledge or intent. Such charges have typically been used as a way for corporate officials to accept responsibility for something that happens on their watch, and the penalties have stopped with fines. Eric and Ryan Jensen, the Colorado growers whose cantaloupe crop was responsible for a 2011 deadly Listeria outbreak, did not appeal their sentences involving six months of home detention after they each pleaded guilty to a half-dozen strict liability offenses. “No appellate court has held that the Due Process Clause permits a supervisory liability offense to be punished through a prison sentence,” Keisler writes in the reply brief. “In contrast, a number of appellate courts have squarely held that ‘due process prohibits the state from imposing a person without proof of some form of personal blameworthiness more than a ‘responsible relation.’” He says the government cannot identify a single case that “falls on its side of the ledger.” “The sentences on appeal — which the government did not seek but now defends — stand conspicuously alone,” he continues. The Sidley Austin team says that the government tries to avoid the “core constitutional claims” of the DeCosters with arguments that the pair “had a criminally culpable state of mind” due to their failure to “take even basic steps to mitigate serious risks to public health and safety.” But, the defense attorneys claim that the district court made no such finding and is refuted by the government stipulations on what the DeCosters did to address the Salmonella problems. “That leaves the government’s bare contention that Appellant could have done more to prevent the outbreak, which does not distinguish this case from other ‘responsible corporate officer’ prosecutions,” Keisler states. “All such prosecutions rest on proof that the defendant failed to ‘prevent or correct the prohibited condition’ and thus upon some fateful omission; but more is required to demonstrate a critically culpable mental state.” The reply brief asserts that the Appellants’ Due Process and Eighth Amendment rights are “squarely presented” and that the prison terms should be vacated either on constitutional grounds or because of sentencing errors made by the district court.

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