Newstrack: DeCosters plan to appeal egg salmonella case to U.S. Supreme Court

Background

A federal appeals court in July upheld three-month prison terms for father-and-son egg executives convicted of introducing adulterated food into interstate commerce after eggs from their Iowa farms were linked to a 2010 national salmonella outbreak that sickened thousands.

U.S. District Court Judge Mark Bennett sentenced Austin 'Jack' DeCoster, 83, of Turner, Maine, and Peter DeCoster, 53, of Clarion, on April 13, 2015, to three months in prison. He also required them to complete a year of probation and pay $100,000 each. Quality Egg was fined almost $6.8 million.

The DeCosters paid the fines and restitution but appealed the prison time, arguing they were being punished for actions of their employees.

Tony Wasmund, a former marketing manager for the DeCosters, admitted in 2012 to conspiring with at least one other Quality Egg employee to bribe U.S. Department of Agriculture inspectors to release for sale eggs that failed to meet federal standards.

A panel of the 8th Circuit Court of Appeals, which voted 2-to-1 to uphold the prison term, disagreed the DeCosters were blameless.

'Because the DeCosters were negligent, their liability is not vicarious,' Judge Raymond Gruender wrote in the July decision. 'Instead, they are responsible for their own failures to exercise reasonable care to prevent the introduction of adulterated food. The law is clear that a defendant can be sentenced to imprisonment based on negligence — or, for that matter, based on strict liability stemming from his own conduct.'

What's happened since?

The DeCosters, still free on bail, asked Sept. 14 for a rehearing of their appeal by the entire 8th Circuit, which includes 10 judges.

That request was denied 6-to-3 on Sept. 30, with Judge Jane Kelly not participating. Kelly, a former federal public defender in the Northern District of Iowa, has not ruled on cases from her former district since she was confirmed to the circuit in 2014, said 8th Circuit Clerk of Court Michael Gans.

The court also denied the DeCosters' request for a rehearing by a three-judge panel.

On Oct. 5, the DeCosters' attorneys filed a motion asking the appeals court to wait to sign a mandate, which would require them to serve their prison time, so they can appeal to the U.S. Supreme Court.

'Appellants Austin and Peter DeCoster respectfully move to stay issuance of the mandate pending disposition of a petition for a writ of certiorari,' wrote the DeCosters' legal team.

The men argued that because their prison term is so short, they likely would have already served it before the Supreme Court had a chance to decide on the case, which could make the court less likely to take the case.

'A sentence that has been fully served can no longer be challenged. ' wrote the DeCosters' legal team.

The appeals court granted the stay Oct. 11.

A midweek Supreme Court docket search did not show a DeCoster petition, but the men have until Dec. 29 to file. A decision on whether justices will hear the case would likely take 90 to 120 days after a petition is filed, Gans said.