When he sentenced a father and son to three months each, the federal judge in a criminal trial about an egg-related Salmonella outbreak said he was imposing the jail time unless someone could tell him federal law specifically prohibited him from doing so. With a 2-1 vote made public Wednesday, a federal appeals panel said U.S. District Court Judge Mark W. Bennett was indeed within the law April 13, 2015, when he sentenced Austin “Jack” DeCoster and his son Peter DeCoster to serve time for their responsibilities related to the outbreak, which triggered the recall of more than half a billion eggs in 2010. Bennett has allowed the DeCosters to remain free while their appeal runs its course. Also, to avoid constraining their business activities, the father and son will be allowed to serve their sentences separately, if their appeal efforts fail completely. If the DeCosters are imprisoned, it will be at a federal prison camp on the campus on a former Yankton, SD, state college that is known during the summer months for its many flowers and lush grounds. It’s a prison where visiting hours are many and prison violence and other perils are reportedly non-existent. Bennett imposed the DeCosters’ three-month sentences in relation to the 2010 Salmonella Enteritidis outbreak that sickened a minimum of about 1,940 people — and possibly as many as 56,000 — according to the U.S. Centers for Disease Control and Prevention. The three judges from the U.S. Court of Appeals for the 8th Circuit in St. Louis, who heard oral arguments in the DeCosters’ appeal on March 17, were divided in their opinions. Judges Diana Murphy and Raymond Gruender upheld Bennett’s sentencing, while Judge Clarence Arlen Beam dissented. The ruling, however, does not mean action in the case is over. The clerk of court has provided instructions for filing for a re-hearing to DeCoster attorney Peter D. Keisler of the Washington, D.C., firm of Sidley & Austin. Keisler is one of the nation’s best-known attorneys and a former acting U.S. Attorney General. Inquiring business minds want to know The issue raised by the DeCoster appeal — whether a “responsible corporate officer” can be sentenced to prison for misdemeanor violations that were outside their knowledge or control — has raised concern in the broader business community. The U.S. Chamber of Commerce, the National Association of Manufacturers, and numerous other business and enterprise groups have taken up the DeCosters’ cause by filing amicus briefs in the case. Two Iowa egg farms owned by 82-year-old Jack DeCoster’s company Quality Egg LLC were under 53-year-old Peter DeCoster’s day-to-day management as chief operating officer when they were implicated in the nationwide Salmonella outbreak, making the DeCosters “responsible corporate officers,” according to prosecutors. The two farms were part of the DeCosters’ vast egg-producing holdings that stretched from Iowa to Maine. A criminal investigation ultimately resulted in Quality Egg Inc. pleading guilty to two felonies — bribing a USDA egg inspector and introducing misbranded eggs into interstate commerce with the intent to defraud. The corporate entity also pleaded guilty to the misdemeanor of introducing adulterated eggs into interstate commerce. The corporation paid a $6.8-million fine. The DeCosters each pleaded guilty as corporate officers to the misdemeanor violation. “In their plea agreements, the DeCosters stated that they had not known the eggs were contaminated at the time of shipment, but stipulated that they were in positions of sufficient authority to detect, prevent and correct the sale of contaminated eggs had they known about the contamination,” Murphy wrote for the majority.

“The district court explained that the record supported the inference that the DeCosters had ‘created a work environment where employees not only felt comfortable disregarding regulations and bribing USDA officials, but may have even felt pressure to do so,’” Murphy wrote. “The district court accordingly concluded that this was not a case involving ‘a mere unaware corporate executive.’”

Plea agreement v. appeal The DeCosters appealed the prison sentences as unconstitutional under the Fifth Amendment’s Due Process Clause and the Eighth Amendment. However, Murphy pointed out the father and son stipulated in their plea agreement “that the DeCosters’ advisory guideline range was 0 to 6 months imprisonment, and both defendants agreed to be sentenced based on facts the sentencing judge found by a preponderance of the evidence.” Murphy’s majority opinion makes a distinction between “vicarious liability,” where a supervisory party is held liable “for the actionable conduct of a subordinate” and the responsibilities of corporate officers under the Food Drug and Cosmetic Act (FDCA), where food company executives have the responsibility to”prevent or remedy” conditions. “Neither of the DeCosters claim to have been ‘powerless’ to prevent Quality Egg from violating the FDCA,” the majority opinion states, adding that the DeCosters “knew or should have known” of the risks imposed by the insanitary conditions at Quality Egg in Iowa. The majority on the 8th Circuit panel cited and agreed with a 3rd Circuit ruling — U.S. v. Greenbaum — that the legislative intent of the FDCA is to “dispense with mens rea as an element of (a misdemeanor)” because such offenses can involved widespread injury. Mens rea is a Latin term for the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused. For that reason, the judges said the jail sentences did not constitute a violation of the Due Process Clause. In his dissent, Beam wrote that while it “might be possible to concoct an actionable interpretation that omits a mens rea requirement, Congress has no power to enact a federal statute that violates the Fifth Amendment Due Process Clause.” “The court and the district court cite cases that they contend support a rationale that a criminal sentence of imprisonment is sometimes valid without proof of mens rea, or, a guilty mind,” Beam wrote. “But, the cases advanced by the government and the courts cannot bear the load placed upon them, both as matters of fact and law.” Beam contends there “is no precedent” that supports imprisonment “without establishing some measure of a guilty mind on the part of these two individuals, and none is established in this case.” (To sign up for a free subscription to Food Safety News, click here.)