It won’t get either of the DeCosters a better place in the lunch line or relief from working a shift in the laundry, but their case has made the “Top Ten” of October-term certiorari petitions the Supreme Court should have granted.

The annual list by the 40-year-old Washington Legal Foundation (WLF), which advocates for “a sound free market economy, a reasonable legal system, competent and accountable government and a strong national defense,” showed a tie for the No. 10 spot between DeCoster v. United States and the similar case of Farha V. United States.

Austin “Jack” DeCoster and his son Peter DeCoster contend their three-month sentences for their role in a 2010 Salmonella outbreak are out of line. In that outbreak, there were 1,939 lab-confirmed victims, but the Centers for Disease Control and Prevention estimated as many as 56,000 people were sickened in the outbreak traced to the DeCosters’ eggs.

“Jack and Peter DeCoster and Todd Farha sit in federal prison because the Supreme Court refused to hear these important cases dealing with the proof required to convict a criminal defendant,” WLF’s Mark Chenoweth wrote.

“The Eighth Circuit approved a conviction of the DeCosters (for shipment of adulterated eggs) under the Park doctrine, which tolerates personal criminal liability based on a defendant’s mere position in a company regardless of his knowledge or participation in the actual violation.

“The Eleventh Circuit approved a conviction of Mr.Farha despite a jury instruction that permitted a finding of deliberate indifference to satisfy proof of knowledge under the federal healthcare-fraud statute, which requires ‘knowingly and willfully execut[ing] a fraud,’ ” according to Chenoweth’s Top 10 list.

“The Due Process Clause prohibits imposing terms of imprisonment for responsible corporate office, and the court should overrule United States v. Park at this next opportunity — or at a minimum clarify that (responsible corporate office) convictions are ineligible for jail time. Likewise, the court must rein in courts of appeals that invest upon watering down statutory mens rea.”

Since the Supreme Court denied their petitions for certiorari, Peter DeCoster, 54, and Farha, 49, have been incarcerated. DeCoster is scheduled to be released from the Federal Medical Center at Rochester, MN, on Oct. 23. Farha is scheduled to be freed from the minimum security federal prison camp at Montgomery, AL, on Oct. 17, 2018.

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Austin “Jack’ DeCoster, 82, is being allow to remain free until his son Peter is released. He is then under court order to surrender and serve his 90-day sentence.

At the time of their original sentencing, the DeCosters asked not to serve their sentences at the same time in the interest of continuity for their continuing business endeavors. The trial judge granted their request.

After a federal investigation of the 2010 nationwide Salmonella outbreak that was traced to egg production facilities owned by the DeCoster family’s company Quality Egg LLC, attorneys for the egg men worked out a plea agreement requiring a total payment of $7 million in individual and corporate fines. Individually they each paid about $100,000.

However, the federal Judge Mark W. Bennett in Sioux City, also imposed jail sentences of three months for both of the DeCosters. They paid the $7 million in fines, but appealed the jail sentences to the 8th U.S. Circuit Court of Appeals where they lost 2-1, and to the Supreme Court, which denied their petition for review on May 22.

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