The sole question remaining before the 8th Circuit Court of Appeals is whether the federal jail sentences imposed on Austin “Jack” DeCoster and Peter DeCoster are lawful in light of the findings at sentences.

In a newly filed response to the DeCosters’ request for a rehearing on their three-month sentences, government attorneys say the sentences “are amply supported by those now-undisputed findings, (and) the rehearing petition should be denied.” If the appellate court agrees, it means the 82-year-old Jack DeCoster and his 52-year-old son Peter DeCoster would have to begin serving three months each. The sentences were originally imposed in April 2015 by U.S. District Court Judge Mark W. Bennett in Sioux City, IA. Prior to 2010, the elder DeCoster likely was America’s largest egg producer and his son was the chief operating officer for at least two Iowa egg farms that were found to be the source of a nationwide Salmonella outbreak which sickened as many as 56,000 Americans in 2010. The two men agreed to plead guilty to one federal count each of introducing adulterated food into interstate commerce. They also agreed to each pay $100,000 fines, but opted to appeal the three-month jail sentences that were referenced in their plea agreements. The DeCoster’s appeal gathered support from numerous business groups because of the question of whether jail time can be imposed for a misdemeanor where “mens rea” proof isn’t required. Mens rea is a latin term meaning evidence of a guilty mind, or intent. Still, the DeCoster’s attorneys failed to convince a three-judge appellate panel, which voted 2-1 to uphold the three-month jail sentences. The defendants have since asked for a rehearing on the appeal, either by another panel or by all judges in the circuit, which is known as an “en banc” hearing. “At sentencing, the district court found that defendants had known for years of widespread Salmonella contamination throughout their company’s facilities, including inside the bodies of egg-laying hens,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer. “The court found that defendants understood the risk that this contamination posed to the safety of their eggs, and knew the remedial measures needed to resolve it.” Mizer, who heads up the government prosecution in the appeal, said the defendants “chose not to take those known measures to address Salmonella contamination.” “They also generally decided not to test their eggs or divert them to pasteurization, even though their policies required such diversion in the event of environmental contamination,” Mizer argues in the government’s response brief. “Concluding that defendants were not ‘mere unaware corporate executives,’ but instead had personally engaged in blameworthy conduct, the district court sentenced each defendant to three months’ imprisonment.” Mizer said the 8th Circuit panel agreed that the sentences were “neither unconstitutional nor unreasonable.” He also said the defendants’ sentences were “predicated on their own culpable conduct.” The government argues the case “arises from criminal violations of the federal Food Drug and Cosmetic Act (FDCA). “Recognizing the industrial scale of modern commerce, the FDCA imposes legal duties not merely on the low-level employees who physically produce, package and ship a covered product, but also on the corporate officials who control the production and distribution process,” the government contends. Mizer goes on the cite the “Park Doctrine,” a U.S. Supreme Court precedent from 1975 allowing “responsible corporate agents” to be held responsible if, by reason of their position in the corporation, they have the “responsibility and authority” to prevent or remedy FDCA violations. “To establish liability, the government need not prove that a corporate officer intended to violate the FDCA,” Mizer added. “Nor need it prove the officer knew of the violation.” DeCoster ‘s Quality Egg LLC was found guilty of both the felony of bribing a USDA inspector and placing adulterated and misbranded eggs into interstate commerce. A guilty plea was entered on behalf of the corporation and it paid a fine of $6.8 million. (To sign up for a free subscription to Food Safety News, click here.)