Nos. 15-1890, 15-1891 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ________________
UNITED STATES OF AMERICA, Appellee, v. AUSTIN DECOSTER, also known as JACK DECOSTER, Defendant-Appellant.
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UNITED STATES OF AMERICA, Appellee, v. PETER DECOSTER, Defendant-Appellant. ________________
On Appeal from the United States District Court for the Northern District of Iowa (Bennett, J.) ________________
APPELLANTS’ REPLY BRIEF ________________
Stuart J. Dornan DORNAN, LUSTGARTEN & TROIA PC LLO 1403 Farnam Street, Suite 232 Omaha, NE 68102 (402) 884-7044
Peter D. Keisler Thomas C. Green Mark D. Hopson Frank R. Volpe Kwaku A. Akowuah Tobias S. Loss-Eaton SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 (202) 736-8000
Counsel for Peter DeCoster
Counsel for Austin DeCoster
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TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................... ii INTRODUCTION ....................................................................................... 1 ARGUMENT ............................................................................................... 4 I.
The Sentences Violate Due Process. ............................................ 4
II. The Sentences Violate the Eighth Amendment. ....................... 20 III. The District Court Committed Serious Sentencing Errors. ..... 25 CONCLUSION ......................................................................................... 34
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TABLE OF AUTHORITIES Page(s) Cases Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013) .......................................................................... 16 Chapman v. United States, 500 U.S. 453 (1991) .......................................................................... 9, 10 Collins v. City of Harker Heights, 503 U.S. 115 (1992) ................................................................................ 6 Commonwealth v. Koczwara, 155 A.2d 825 (Pa. 1959) ................................................................... 1, 11 County of Sacramento v. Lewis, 523 U.S. 833 (1998) .................................................................... 2, 6, 7, 8 Davis v. City of Peachtree City, 304 S.E.2d 701 (Ga. 1983) ................................................................... 12 Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012) .............................................................. 23 Gander v. Livoti, 250 F.3d 606 (8th Cir. 2001) ................................................................ 27 Graham v. Connor, 490 U.S. 386 (1989) ........................................................................ 5, 6, 8 Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001) ................................................................ 25 Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960) .................................................................. 7 Kerry v. Din, 135 S. Ct. 2128 (2015) ............................................................................ 6
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Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) ........................................................................ 6, 9 Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999) .............................................. 1, 4, 11, 19 Lelles v. United States, 241 F.2d 21 (9th Cir. 1957) .................................................................. 14 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................... 8 Morissette v. United States, 342 U.S. 246 (1952) ................................................................................ 8 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ............................................................................ 8 People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 121 N.E. 474 (N.Y. 1918) ................................................................. 1, 12 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) .................................................................................... 8 Ramos v. Weber, 303 F.3d 934 (8th Cir. 2002) ................................................................ 23 Rich v. United States, 389 F.2d 334 (8th Cir. 1968) ................................................................ 13 Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57 (1910) .................................................................................. 7 Solem v. Helm, 463 U.S. 277 (1983) .............................................................................. 25 State v. Guminga, 395 N.W.2d 344 (Minn. 1986) .......................................................... 1, 12 State v. Young, 294 N.W.2d 728 (Minn. 1980) .............................................................. 12
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United States v. Balint, 258 U.S. 250 (1922) ........................................................................ 15, 25 United States v. Greenbaum, 138 F.2d 437 (3d Cir. 1943) ................................................................. 14 United States v. Haga, 821 F.2d 1036 (5th Cir. 1987) .............................................................. 14 United States v. Higgins, No. 09-403-4, 2011 WL 6088576 (E.D. Pa. Dec. 7, 2011) ................... 13 United States v. Hohensee, 243 F.2d 367 (3d Cir. 1957) ................................................................. 14 United States v. Kaadt, 171 F.2d 600 (7th Cir. 1948) ................................................................ 14 United States v. Kocmond, 200 F.2d 370 (7th Cir. 1952) ................................................................ 14 United States v. Lee, 625 F.3d 1030 (8th Cir. 2010) .................................................. 20, 22, 24 United States v. Lincoln, 956 F.2d 1465 (8th Cir. 1992) .............................................................. 33 United States v. Park, 421 U.S. 658 (1975) ...................................................................... passim United States v. Salerno, 481 U.S. 739 (1987) ................................................................................ 8 United States v. Shapiro, 491 F.2d 335 (6th Cir. 1974) (per curiam) .......................................... 14 United States v. Siler Drug Store Co., 376 F.2d 89 (6th Cir. 1967) (per curiam) ............................................ 14 United States v. Stokes, 750 F.3d 767 (8th Cir. 2014) ................................................................ 30
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United States v. Weis, 487 F.3d 1148 (8th Cir. 2007) .............................................................. 22 V. E. Irons, Inc. v. United States, 244 F.2d 34 (1st Cir. 1957) .................................................................. 13 Zadvydas v. Davis, 533 U.S. 678 (2001) ................................................................................ 7 Statutes and Regulations IOWA CODE § 903.1.2 ................................................................................. 23 Prevention of Salmonella Enteritidis in Shell Eggs During Production, Storage, and Transportation, 74 Fed. Reg. 33,030 (July 9, 2009) ...................................................................... 18, 28 Scholarly and Other Authorities Transcript of Oral Argument, Kansas v. Carr, Nos. 14-449, 14-450 (U.S. Oct. 7, 2015) ................................................ 9 ALI MODEL PENAL CODE § 2.02 ................................................................ 16 J.P. Duguid & R.A.E. North, Egg and Salmonella FoodPoisoning: An Evaluation, 34 J. MED. MICROBIOLOGY 65 (1991) .................................................................................................... 30 Katrice Bridges Copeland, The Crime of Being in Charge: Executive Culpability and Collateral Consequences, 51 AM. CRIM. L. REV. 799 (2014) ............................................................... 23
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INTRODUCTION The government’s brief attempts to shift the conversation away from Appellants’ core argument, as to which the government has no compelling response. No appellate court has held that the Due Process Clause permits a supervisory liability offense to be punished through a prison sentence. In contrast, a number of appellate courts have squarely held that “due process prohibits the state from imprisoning a person without proof of some form of personal blameworthiness more than a ‘responsible relation.’” Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1367 (11th Cir. 1999); see also, e.g., Commonwealth v. Koczwara, 155 A.2d 825, 830 (Pa. 1959); State v. Guminga, 395 N.W.2d 344, 345 (Minn. 1986).
Others not squarely faced with the question
have emphasized that a prison sentence for a supervisory liability offense would raise serious constitutional concerns. E.g., People v. Sheffield Farms-Slawson-Decker Co., 121 N.E. 474, 476 (N.Y. 1918). The government does attempt to distinguish these cases, but fails in that effort and cannot identify a single case that properly falls on its side of the ledger. The sentences on appeal—which the government did not seek but now defends—stand conspicuously alone.
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Unable to meet Appellants’ Due Process challenge, the government principally seeks to persuade this Court that it is not relevant. The government first contends that the Due Process Clause does not apply because the Eighth Amendment is the exclusive source of individual rights with respect to sentencing. That position misreads cases like County of Sacramento v. Lewis, 523 U.S. 833 (1998), which teach that the Due Process Clause has a limited traditional sphere that courts should be “reluctant to expand,” id. at 842, but equally hesitant to contract, id. at 843–45 (rejecting as “unsound” a claim that Fourth Amendment rather than Due Process principles should govern conduct within “the core of the [due process] concept”). In fact, these cases support our position, which is that courts traditionally analyze challenges like Appellants’ under Due Process principles, see Appellants’ Opening Brief (“Br.”) 26–42, and this Court should do the same. The government next urges this Court not to reach Appellants’ core constitutional claims because they must have had a criminally culpable state of mind, in light of their supposed failure to “take even basic steps to mitigate serious risks to public health and safety.” Gov’t Br. 44–45. But the district court did not make any findings establishing
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that Appellants had a criminally culpable mindset, and could not have done so on this record. To prove under established standards that Appellants’ mental state was criminally reckless or negligent based on their conduct, the government would have had to demonstrate that the conduct reflected a “gross deviation from the standard of care.” Although the government offers hindsight-laden characterizations of additional steps Appellants could have taken, it fails even to attempt to show that Appellants’ expert-led response fell below any established standard of care—let alone far below that standard. Moreover, the government’s factual premise—that Appellants must have had a criminally culpable mental state because their conduct was so deficient—is refuted by the government’s stipulations below, including its concession that Appellants took “a number of” steps recommended by their outside experts to address environmental SE contamination. Add. 81. Critically, and contrary to the district court’s clearly erroneous finding, these measures were the same ones Appellants had used to combat SE at their Maine facilities.
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That leaves the government’s bare contention that Appellants could have done more to prevent the outbreak, which does not distinguish this case from other “responsible corporate officer” prosecutions. All such prosecutions rest on proof that the defendant failed to “prevent or correct the prohibited condition,” United States v. Park, 421 U.S. 658, 673 (1975), and thus upon some fateful omission; but more is required to demonstrate a criminally culpable mental state. Appellants’ Due Process and Eighth Amendment claims are therefore squarely presented. The Court should address both and should vacate the prison terms imposed, either on constitutional grounds or because of the sentencing errors committed by the district court. ARGUMENT I.
The Sentences Violate Due Process. The government does not dispute that every appellate court to
squarely consider the question has held that “due process prohibits the state from imprisoning a person without proof of some form of personal blameworthiness more than a ‘responsible relation’” to the violation. Lady J., 176 F.3d at 1367; Br. 26–42. Nor does the government identify any error in the Due Process analysis conducted by these courts, or re-
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fute the scholars who have reached similar conclusions. See Br. 36–38 (citing commentators). Instead, the government makes four arguments: (1) the Due Process Clause does not apply to sentencing challenges; (2) Appellants’ cases are distinguishable because they address “true vicarious liability,” rather than Park-style supervisory liability; (3) courts historically have imposed prison sentences in responsible corporate officer cases; and (4) the facts of this case are such that this Court may affirm without reaching the Due Process question. These arguments do not withstand scrutiny. 1.
The government initially contends that, because Appellants’
arguments “‘implicate[] the safeguards of the Eighth Amendment,’” their claims “are governed” exclusively by that Amendment. Gov’t Br. 45–46 (citing Graham v. Connor, 490 U.S. 386 (1989)). Hence, it is claimed, Appellants “cannot turn to the Due Process Clause for a second bite at the constitutional apple.” Id. at 46. This argument badly misses the mark. Initially, Appellants have not raised the kind of “generalized” substantive Due Process claim considered in Graham. 490 U.S. at 395. The plaintiff in Graham alleged
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that government officials had “used excessive force in making [an] investigatory stop,” id. at 390, and thus invoked the concept of “substantive due process” to assert a “‘liberty’ interest[] other than freedom from incarceration or detention,” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2479 (2015) (Scalia, J., dissenting) (emphasis added); see also Kerry v. Din, 135 S. Ct. 2128, 2132–33 (2015) (plurality) (drawing similar distinction). It is because courts have “always been reluctant to expand the concept of substantive due process” beyond its core domain of restricting the “deprivation of life, liberty or property by a State,” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992), that “‘[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims,’” Lewis, 523 U.S. at 842 (alteration in original) (quoting Graham, 490 U.S. at 395). That concern does not arise when a plaintiff raises a traditional Due Process claim, and thus does not seek to “‘expand the concept of substantive due process.’” Id. at 842 (quoting Collins, 503 U.S. at 125). For example, in Lewis, the Supreme Court rejected as “unsound” the
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contention that Due Process principles were inapplicable to the particular case before it. Id. at 843. The Court reasoned that the case involved a claim for “protection against arbitrary action” by the government, a matter that lies at “the core of the [Due Process] concept.” Id. at 845. Likewise here, Appellants have raised a claim that “lies at the heart of the liberty that [the Due Process] Clause protects”—one asserting a right of “[f]reedom from imprisonment.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). They accordingly do not seek to “expand the concept of substantive due process,” Lewis, 523 U.S. at 842, but to assert a kind of challenge to governmental deprivation that courts traditionally have measured under Due Process standards, see Br. 29–36; ShevlinCarpenter Co. v. Minnesota, 218 U.S. 57, 69–70 (1910) (considering under Due Process a claim that a strict-liability statute punished too harshly by allowing double or treble damages); Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960) (discussing Due Process constraints on strict-liability prosecution). The government’s argument also fails to account for the fact that the constitutional claims raised here are distinct from one another. Appellants’ Due Process claim is that the government may not deprive a
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person of liberty without proving at least one of the two traditional predicates of crime—the “evil-meaning mind” or the “evil-doing hand.” See Morissette v. United States, 342 U.S. 246, 251 (1952); Br. 26–38. Their Eighth Amendment claim is that, given all relevant circumstances, including that they had no knowledge of the criminal offense (the shipment of adulterated eggs) and no intent with respect to that crime, the sentence imposed is disproportionately harsh. Br. 43–45. Nothing in Graham or Lewis, nor any other case the government cites, bars a citizen from asserting that a governmental act violates the Constitution in more than one respect. Indeed, the Supreme Court has entertained such claims frequently—and sometimes has held that the plaintiff was wronged twice over.1 Likewise, a sentence can violate the Eighth Amendment and also, separately, violate the distinct constraints the Due Process Clause imposes on criminal process. The Supreme Court recently emphasized
E.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015) (state marriage restriction violated Due Process and Equal Protection); Loving v. Virginia, 388 U.S. 1, 12 (1967) (same); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986) (distinct First and Sixth Amendment rights of access to court proceedings); United States v. Salerno, 481 U.S. 739, 746–55 (1987) (separately addressing Due Process and Eighth Amendment challenges to pre-trial detention scheme).
1
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that “[t]he language of the[se] two Clauses differs, and the nature of the claims” raised under these provisions “often differs” as well. Kingsley, 135 S. Ct. at 2475. It follows that a party may raise both claims in a single case. Indeed, just days ago, the government told the Supreme Court that both the Eighth Amendment and the Due Process Clause bore on a constitutional sentencing question. See Tr. of Oral Arg. at 18, Kansas v. Carr, Nos. 14-449, 14-450 (U.S. Oct. 7, 2015) (“[T]he constitutional standard is whether evidence or argument resulted in a denial of due process or the deprivation of an individualized sentencing proceeding [under the Eighth Amendment].”). The cases cited by the government confirm this conclusion. They support not only the general proposition that two-prong constitutional attacks are permissible, but specifically confirm that courts may entertain Due Process challenges to criminal sentences. For example, the government declares that Chapman v. United States, 500 U.S. 453 (1991), “rejected a due-process challenge to the length of a custodial sentence,” Gov’t Br. 46. But Chapman rejected that claim on the merits, holding that the sentencing scheme challenged there was supported by “a rational basis,” and thus was not rooted in
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“an arbitrary distinction that would violate the Due Process Clause.” 500 U.S. at 465–68. The clear implication is that a sentence based on an arbitrary classification would violate Due Process. Chapman thus did not adopt the government’s rigid view that the Eighth Amendment provides the exclusive source of limits on criminal punishment. It instead highlights the flaws of the government’s proposed “one bite” rule, which erroneously attempts to eliminate Appellants’ Due Process claim and confine their constitutional challenge to the Eighth Amendment. 2.
The government next attempts to distinguish the cases that
repudiate its position by claiming they concerned a different issue—socalled “true vicarious liability,” in which the acts of employees are “‘imput[ed]’ … to the owners,” Gov’t Br. 51, rather than Park liability, which is based on the defendant’s failure to exercise the power flowing from his corporate position “to prevent the act complained of.” Park, 421 U.S. at 671. But it is unclear that there is any meaningful difference between imputing an employee’s violation to an officer and holding the officer responsible for failing to prevent that violation. Either way, the officer is made liable for something he did not do.
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Regardless, there is no merit to the government’s attempt to distinguish Appellants’ key cases. See Br. 29–34. These cases address the same kind of criminal liability imposed by Park—liability rooted in a corporate officer’s failure to “prevent” a person under his or her charge from breaching a duty imposed by law. Lady J. makes this point unmistakably. There, the Eleventh Circuit repeatedly cited Park, and explained that the ordinance at issue, like the Park doctrine, made the business owner “only responsible for acts and omissions that he has the power to prevent.” 176 F.3d at 1367. That conclusion was key to the court’s decision that it could “leave intact the City’s authority to fine owners for violations committed by their employees,” while invalidating the provisions that purported to authorize prison time. Id. Because the scope of liability mirrored Park, the Eleventh Circuit approved penalties (i.e., light fines) that were in line with those imposed in Park. Id. Appellants’ state-court cases are also on all fours with this one. The Pennsylvania Supreme Court explained in Koczwara, 155 A.2d at 829–30, that the state legislature had “place[d] a very high degree of responsibility upon the holder of a liquor license to make certain that neither he nor anyone in his employ commit any of the prohibited acts up-
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on the licensed premises.” In Davis v. City of Peachtree City, 304 S.E.2d 701, 703 (Ga. 1983), the challenged law was designed to “hold the master liable if he fails to prevent his servant from committing the prohibited conduct.” The Minnesota statute struck down in State v. Guminga, 395 N.W.2d 344 (1986), had been previously interpreted as imposing a duty on an officer in the regulated industry to “control his own business and the men he employs in it.” State v. Young, 294 N.W.2d 728, 730 (Minn. 1980). And the New York statute described in Sheffield Farms imposed on the employer a duty to “neither create nor suffer in his business the prohibited conditions.” 121 N.E. at 476. Any failure by the employer to exercise this “‘power to prevent’” was viewed as a “nonperformance of a nondelegable duty,” rather than “an instance of respondeat superior.” Id. This, too, is the language of supervisory rather than imputed liability.
These cases squarely demonstrate that
courts consistently have viewed prison sentences as a constitutionally invalid punishment for a supervisory liability offense. 3.
The government also contends that there is a “significant
history of responsible corporate officers … serving jail time for FDCA
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violations.” Gov’t Br. 41. The cases cited by the government, however, do not support its claim. Appellants have already explained why the “several recent instances” of incarceration for responsible corporate officers, id. at 41, do not support the sentences here. In particular, United States v. Higgins, No. 09-403-4, 2011 WL 6088576 (E.D. Pa. Dec. 7, 2011), and its companion cases involved an “extended course of intentional and knowing wrongful behavior.” Id. at *10 (emphasis added); see Br. 40–42, 51. No similar findings were made in this case, and the government does not defend the district court’s conclusion that Higgins and this case are factually “analogous.” The government also cites a number of older FDCA cases in which prison terms were imposed. But these cases simply reaffirm that defendants whose personal and intentional misconduct violates the FDCA may be sent to prison. The defendants in these cases sold amphetamine pills, Rich v. United States, 389 F.2d 334, 335 (8th Cir. 1968); marketed “alleged cures of tuberculosis by garlic,” V. E. Irons, Inc. v. United States, 244 F.2d 34, 42 (1st Cir. 1957); went from town to town making “fantastic representations” about the “curative qualities” of their quack
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products, United States v. Hohensee, 243 F.2d 367, 370 (3d Cir. 1957); removed labels that identified their product as horse meat, United States v. Kocmond, 200 F.2d 370, 372 (7th Cir. 1952); concocted and marketed a “worthless” diabetes “cure,” United States v. Kaadt, 171 F.2d 600, 603 (7th Cir. 1948); “operat[ed] a black market prescription drug business,” United States v. Haga, 821 F.2d 1036, 1044 (5th Cir. 1987); were charged “personally as ‘an individual’ to have done an unlawful act,” Lelles v. United States, 241 F.2d 21, 24 (9th Cir. 1957); threatened to shoot federal agents, United States v. Siler Drug Store Co., 376 F.2d 89, 90–91 (6th Cir. 1967) (per curiam) (McAllister, J., concurring); committed probation violations, United States v. Shapiro, 491 F.2d 335, 336 (6th Cir. 1974) (per curiam); or shipped adulterated food, United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943).2 None is founded on a mere supervisory relationship to an FDCA offense, and none holds that a defendant may be sent to prison for failing to prevent a company’s FDCA violation. The FDA Notices of Judgment, see Gov’t Br. 43 n.10, also do not help the government’s case. Some of these agency-prepared abstracts make clear the defendant’s personal involvement in the offense, and others are simply silent on the issue.
2
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The same goes for the cases involving personal violations of strictliability standards imposed by other statutes, in very different circumstances. See Gov’t Br. 49–50 (citing United States v. Freed, 401 U.S. 601, 607 (1971) (possessing unregistered hand grenades); United States v. Balint, 258 U.S. 250, 251 (1922) (selling opium and cocaine); United States v. Wilcox, 487 F.3d 1163, 1169 (8th Cir. 2007) (sexual abuse of a sleeping teenager); United States v. Ransom, 942 F.2d 775, 776–77 (10th Cir. 1991) (statutory rape)). None of these cases supports the government’s position here, which is that—contrary to a century of precedent—a person convicted of failing to prevent another from violating the law may be imprisoned for that failure. 4.
The government also contends that the Court need not con-
front Appellants’ Due Process challenge because they were aware of the risk of SE contamination but “did not take the steps necessary to ensure that Salmonella-contaminated eggs were not shipped in interstate commerce.” Gov’t Br. 25–26. Thus, the government contends, Appellants “had … culpable knowledge and culpable participation relevant to their offenses,” and were not sentenced to prison on a “responsible corporate officer” theory alone. Id. at 28.
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The government does not expressly link its “culpable knowledge” and “culpable participation” claims to any specific body of criminal law, but at points appears to be alluding to the concepts of criminal recklessness and negligence, which in appropriate circumstances permit an inference of criminal mens rea to be drawn from the defendant’s conduct. E.g., id. at 30 (alleging that Appellants “disregarded the risks” of contamination). Appellants do not dispute the general principle that criminal recklessness and negligence, if proved to the trier of fact or admitted by the defendant, may support a term of incarceration consistent with the Due Process Clause. But no such finding was made, or could have been made, below. To establish an inference that a defendant was either criminally negligent or criminally reckless, the government must prove that the defendant’s conduct involved a “gross deviation” from a preexisting standard of care, in the face of “a substantial and unjustifiable risk.” ALI MODEL PENAL CODE § 2.02(2)(c)–(d) (emphasis added); see Bullock v. BankChampaign, N.A., 133 S. Ct. 1754, 1759–60 (2013) (citing this standard).
The government’s accusations against Appellants do not
meet this standard. Indeed, the government did not ask the district
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court to identify any applicable standard of care, and accordingly did not ask the district court to find that Appellants’ conduct departed grossly from such standard. The district court did not make either finding on its own. The district court instead referred repeatedly to Appellants’ “relevant knowledge,” see Add. 24, 25, 28, 30, 32, and otherwise sought to blame Appellants for failing to take steps that the district court itself thought prudent in hindsight, all without looking to whether Appellants violated any applicable standard imposed by law (which they did not) or behaved differently than did other egg producers faced with similar circumstances (as to which there was no record evidence). The district court thus did not conduct any part of the analysis that would have been necessary to support a finding that Appellants acted from a state of mind recognized in the law as criminally culpable, in the traditional sense of being marked by a “gross deviation from the standard of care.” Had the district court considered the question properly, it could not have made a finding of criminal culpability. The key factual premises of the government’s “culpability” argument are that Appellants (1) knew there was a risk of egg contamination based on the presence of SE
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in the environment on Quality Egg’s farms, but (2) failed to respond adequately to that risk, including because they failed to implement in Iowa the same SE containment measures they employed in Maine. The first premise is largely undisputed. Appellants did know that there were some positive environmental SE results—which is consistent with FDA’s acknowledgment that SE is “ubiquitous.”
74 Fed. Reg.
33,030, 33,031 (July 9, 2009). To be clear, however, as the district court twice stated, “there is no evidence that [Appellants] had actual knowledge” of the insanitary conditions described in the 2010 FDA report. Sent. Tr. 155:7–9; accord id. at 155:15. The second premise, as demonstrated by Appellants’ opening brief (Br. 57–59) and below (pp. 26–30) is wholly unsupported. The only affirmative evidence in the record shows that Appellants used the very same SE-prevention measures in both states. To be sure, the results of those efforts were different. There was an outbreak in Iowa, but none in Maine. But that result alone cannot demonstrate that Appellants’ conduct deviated grossly from an established standard of care—which again is the factual predicate necessary to support an inference that a defendant acted with a criminally culpable state of mind.
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The government also misses the mark in claiming that evidence of “culpable participation,” Gov’t Br. 28, sets this case apart from other “responsible corporate officer” prosecutions. The government contends that Appellants participated in the violations because they “exercised decisionmaking responsibility and authority over food-safety matters,” and “assumed an operational duty to ensure the safety of the foods produced by their company.” Id. at 31–32. That contention merely restates the Park doctrine, which applies to any corporate officer who had “responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of.” Park, 421 U.S. at 673–74. Appellants are thus “culpable particip[ants]” in just the same sense as any other corporate officer chargeable under Park. For that reason, the district court’s decision directly raises the question whether the Due Process Clause requires a “form of personal blameworthiness more than a ‘responsible relation’” if a sentence of imprisonment is to be imposed. Lady J., 176 F.3d at 1367 (emphasis added). Like every other appellate court that has faced this question, this Court should hold that Due Process does not permit incarceration on the basis of a “responsible corporate officer” conviction.
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II.
The Sentences Violate the Eighth Amendment. Appellants’ opening brief demonstrated that the district court’s
proportionality analysis departed from Circuit precedent in two respects: (i) it nowhere acknowledged the need to measure a defendant’s “culpability” in terms of his “intent and motive in committing the crime,” and (ii) it failed to recognize that Appellants did not act with any degree of motive or intent with respect to the underlying criminal act, i.e., the shipment of adulterated products. Br. 46 (citing United States v. Lee, 625 F.3d 1030, 1037 (8th Cir. 2010); Henderson v. Norris, 258 F.3d 706, 709 (8th Cir. 2001)). The district court instead focused predominantly on the harm that resulted from the salmonella outbreak. Br. 47. The government disputes neither point, but nonetheless contends, based on arguments largely unsupported by case law, that the sentences imposed by the district court do not violate the Eighth Amendment. 1.
The government first highlights the harm caused by the
salmonella outbreak. Appellants do not seek to minimize that harm— the outbreak affected many people, some of them severely. They do contend, however, that even significant harm does not warrant a term of
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incarceration if the only link between a defendant and the harm is a corporate position and an unknowing failure to use that position to prevent the company from introducing adulterated products into interstate commerce. Id. at 46–47. The government, however, declares prison time permissible because the harm suffered was “caused by [Appellants’] ongoing, systemic” neglect. Gov’t Br. 36. No record citation is provided to support this assertion. What the record really shows—again through a stipulation the government ignores—is that the “actual cause of the salmonella outbreak” was disputed by the parties. Add 86. “Resolution of [that issue],” the parties further stipulated, would have “require[d] weighing of the competing expert testimony.” Add. 87. The district court did not hear from the parties’ experts at sentencing, and accordingly did not choose between their explanations regarding the cause of the outbreak. And the government further stipulated that even “strict adherence” to the measures recommended by Appellants’ experts, or its own expert, may not have prevented the outbreak. Add. 82. What remains, then, is an assertion that was disputed below, is undermined by the government’s concession, and is not supported by any finding of fact.
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2.
The government next contends that the district court
“properly took account of [Appellants’] participation in other wrongful behavior,” including what the government calls Appellants’ “tacit acceptance or negligent disregard” of regulatory violations committed by Quality Egg employees. Gov’t Br. 36–37. The government, however, cites no precedent for its implicit claim that the Eighth Amendment proportionality analysis properly takes account of wrongful conduct committed by others in deciding how the defendant may be punished. Nor does the government acknowledge (in contrast to its affirmative statement below, see Gov’t App’x 204) that Appellants had no knowledge of these additional Quality Egg violations. The government accordingly makes no effort to explain how its proportionality argument could be strengthened by pointing to other, largely unrelated events that were unknown to Appellants when they occurred.3
The government’s proportionality argument also is not advanced by Peter DeCoster’s supposedly “inaccurate representations to Walmart” or Jack DeCoster’s immigration-law misdemeanor. Both are unrelated to Appellants’ offense—their failure to prevent Quality Egg from shipping adulterated eggs in 2010. And contrary to the government’s contention, Gov’t Br. 34 n.6, no decision of this Court contradicts Lee’s unambiguous statement that only “a defendant’s history of felony recidivism” counts. 625 F.3d at 1037 (emphasis added). United States v. Weis, 487 F.3d 1148, 1152–54 (8th Cir. 2007), addressed an Iowa “aggravated 3
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3.
The government next contends that general deterrence ra-
tionales support its proportionality argument. According to the government, “[i]f corporate officers know that jail time is possible, they will be far less likely to treat the prospect of liability as a mere cost of doing business.” Gov’t Br. 39. It is highly doubtful that any corporate executive treats the prospect of a personal criminal conviction punished through fines and probation as a “cost of doing business.” Even without a prison sentence, the personal and professional costs of indictment, prosecution, and conviction are far too high to be casually incurred in the manner the government suggests. Among other collateral consequences, in FDA-regulated industries, a “responsible corporate officer” conviction can effectively end a career. See, e.g., Friedman v. Sebelius, 686 F.3d 813, 816 (D.C. Cir. 2012) (reviewing executives’ 12-year exclusion from federal health care programs); Katrice Bridges Copeland, The Crime of Being in Charge: Executive Culpability and Collateral Consemisdemeanor,” which carries a traditional felony penalty of up to two years in prison. See Iowa Code § 903.1.2. Ramos v. Weber, 303 F.3d 934, 936, 938 (8th Cir. 2002), was a state-habeas case that considered whether it is clearly contrary to federal law for a state to premise a life sentence for manslaughter on a factual finding that the defendant is not likely to be rehabilitated. The state trial court simply looked to misdemeanor conduct to support the finding of fact—no chance of rehabilitation—made relevant by South Dakota law. 23 Appellate Case: 15-1890
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quences, 51 AM. CRIM. L. REV. 799, 803 (2014) (such an “exclusion means that the executive is no longer employable in the health care industry”). Further, general deterrence rationales such as these are not part of the case-specific Eighth Amendment proportionality standard. See, e.g., Lee, 625 F.3d at 1037 (describing test). The government does not contend otherwise, but appears to offer its deterrence argument in an effort to preempt any assertion that a sentence of imprisonment would be categorically unconstitutional as a cruel and unusual punishment for any FDCA misdemeanor offense. See Gov’t Br. 38. Appellants do not raise any such claim. Their argument is limited to offenses charged under a “responsible corporate officer” theory. 4.
What is left is the government’s assertion that “‘intent’ or
‘motive’ is obviously not a constitutional prerequisite to imprisonment,” because (1) crimes involving “a lesser showing of mens rea—such as knowledge, recklessness, or negligence” may be punished through terms of incarceration, and (2) traditional strict-liability crimes are subject to such punishments as well. Gov’t Br. 44. The first point is a strawman. This Court’s firmly established “intent and motive” standard is drawn from the Supreme Court’s decision
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in Solem v. Helm, 463 U.S. 277, 293 (1983); see also Henderson, 258 F.3d at 709 (citing Solem). Solem, in turn, acknowledged that courts may look to a range of recognized criminal mental states, ranging from negligence to maliciousness, in considering appropriate punishment. 463 U.S. at 293. Appellants’ offenses, however, were not characterized by any such mental state, but rather were defined by their “responsible relation” to Quality Egg’s offense of introducing adulterated eggs into interstate commerce. See Park, 421 U.S. at 673–74. The second point, likewise, fails to acknowledge that traditional strict-liability crimes at least punish personal offense conduct by the defendant. It is one thing to punish a person for failing to report a controlled substances transaction. Cf. Balint, 258 U.S. at 252. It is another thing altogether to send someone to prison for failing to ensure that his subordinate fulfills that requirement.
The former has been held permissible.
The latter—
absent factual findings not present here—is grossly disproportionate to the crime, and therefore violates the Eighth Amendment. III.
The District Court Committed Serious Sentencing Errors. The opening brief also showed that the judgment rests on two
clearly erroneous factual findings, i.e., that Appellants (1) failed to com-
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bat SE contamination in Iowa using the measures employed in Maine and (2) otherwise “ignor[ed]” the SE risk, Br. 56–59, and also that the district court gave undue weight to improper factors in reaching its decision, id. at 59–68. The government’s responses are unavailing.4 1.
A
comparison
between
Appellants’
SE
containment
measures in Iowa and Maine requires proof of what was done in each state. Pages 57–58 of the opening brief demonstrate that the only evidence in the record regarding steps taken in Maine lies in the PSRs, which say that in Maine, Quality Egg began (1) “dry cleaning of the layer and pullet houses between flocks,” (2) “vaccinating flocks,” and (3) unspecified “rodent monitoring and control measures.” DCD 85 ¶ 20. The district court cited no other evidence, see Add. 41, and the government does not suggest that any other exists, see Gov’t Br. 12, 29. Thus, to sustain the district court’s finding, it would be necessary to show that As to the unrelated regulatory violations on which the district court relied, Appellants rest on their opening brief, see Br. 59–68, except to contest the government’s claim that they waived this part of their challenge by not objecting to the PSRs with sufficient specificity, Gov’t Br. 58. Appellants’ argument here is not that the relevant facts are erroneous, but rather that the district court gave them undue weight at sentencing. That argument could not have been raised through a presentencing objection to the PSRs. 4
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the record contains evidence sufficient to support the conclusion that Quality Egg failed to take these steps in Iowa. Instead, the record unambiguously shows that Quality Egg did take these same three steps in Iowa. First, the government stipulated that in Iowa too, Quality Egg “dry cleaned [the SE-positive barns] and other barns before placing a new flock in the barns.” Add. 82–83. Because “stipulations by the parties regarding questions of fact are conclusive,” Gander v. Livoti, 250 F.3d 606, 609 (8th Cir. 2001), there is no substance to the government’s suggestion that further proof was needed, see Gov’t Br. 55. The second Maine measure consisted of “vaccinating flocks.” DCD 85 ¶ 20. Here, too, the government stipulated that Quality Egg introduced SE vaccinations in Iowa in 2009. Add. 81–82.5 The third Maine measure was to adopt “rodent monitoring and control measures.” DCD 85 ¶ 20. That too was done in Iowa. Dr. Nolan explained that with his help, Quality Egg adopted a pest and rodent Dr. Hofacre also explained that the 2009 program was administered by the University of Iowa and that, at his recommendation, Quality Egg added a second SE vaccine in 2010. DCD 100 ¶¶ 11, 16. The government quibbles about the record-keeping for the second vaccine, Gov’t Br. 55, but does not dispute that a first vaccine was standard-issue in Iowa, and does not claim that more was done on the vaccine front in Maine.
5
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control system beginning in early 2010. DCD 100-2 ¶¶ 9–11, 14, 15. There is no contrary evidence in the record. The government nonetheless suggests that, because FDA inspectors saw rodents and other pests in mid-2010, Quality Egg could not have implemented a pest control regime like the one in Maine. Gov’t Br. 54. That is mere conjecture—the record does not contain evidence concerning comparative pest or rodent presence in Maine. It is further belied by the FDA inspectors’ report that pest levels in Iowa were falling by mid-2010. Appellants’ App’x 50– 51, 61; see also DCD 100-2 ¶¶ 11, 13. And as FDA acknowledged in the Egg Safety Rule, “rodent control” measures on a farm “may take up to 4 years to be fully effective.” 74 Fed. Reg. at 33,062 (emphasis added). It therefore cannot be inferred from the presence of pests and rodents in Iowa that Quality Egg did not employ there the same control measures that had been used in Maine. The government makes the misleading assertion that Appellants “disavowed” its experts’ declarations describing Quality Egg’s Iowa containment measures. Gov’t Br. 54. But Appellants stipulated only that Drs. Hofacre and Nolan could not “testify that Quality Egg fully and effectively implemented all of [their] recommendations.” Add. 81 (empha-
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ses added). That is not a disavowal. It is a commonsense acknowledgment that there are limits to what an outside consultant can say about day-to-day implementation. This statement must also be read alongside the accompanying stipulation that “a number of [the experts’] recommendations were implemented.”
Add. 81.
This stipulation, too,
binds the government.6 Likewise, although the government argues that the Maine measures must have been different because (unlike in Iowa) Appellants “succeeded in eliminating [SE] from their Maine facilities,” Gov’t Br. 12, there is again a government stipulation to the contrary. The Maine farms continued to “receive some positive environmental SE tests, for several years up to and including 2012.” Add. 81. That reality is consistent with what experts have always said about SE. Contrary to the
The government also says that “Dr. Hofacre’s declarations contain other incorrect or dubious statements,” pointing to his statement that “‘Quality Egg did not start receiving positive environmental results until the Spring of 2010.’” Gov’t Br. 54 n.12. This attack is unfounded. In context, it is clear that Dr. Hofacre was not denying that there had been some positive tests, but meant only what he explained in the same paragraph the government quotes: “[b]efore [early 2010], SE positive results were inconsistent and not necessarily suggestive of any significant SE infections.” See DCD 100 ¶ 14; see also id. ¶ 12 (“prior to Spring, 2010 [the tests] did not register an abnormal amount of SE in the environment” (emphasis added)). 6
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government’s unanchored claims here, the “‘complete elimination [of salmonella] from the environment can never be expected.’” J.P. Duguid & R.A.E. North, Egg and Salmonella Food-Poisoning: An Evaluation, 34 J. MED. MICROBIOLOGY 65, 71 (1991) (emphasis supplied).
And
again, the government conceded below that even “strict adherence” to both parties’ experts’ recommendations might not have stopped the outbreak. Add. 82.7 All relevant record evidence thus shows that Quality Egg employed the same three steps to control SE contamination in both states. The district court’s contrary finding “lacked factual support in the record,” and is therefore clearly erroneous. See United States v. Stokes, 750 F.3d 767, 771 (8th Cir. 2014). 2. The evidence that Quality Egg employed the same program in both Iowa and Maine also refutes the district court’s erroneous conclu-
The government’s “eliminat[ion]” claim rests on Jack DeCoster’s testimony at sentencing that, after Quality Egg implemented its vaccination program, there were “no more … positives in Maine.” Gov’t App’x 303. As the context makes clear, however, he was discussing tests of chickens, not environmental tests. See id. at 302. This testimony cannot reasonably be read to overturn the parties’ stipulation that positive environmental tests continued in Maine.
7
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sion that Quality Egg “deci[ded] to ignore the SE test results” it received in 2010. The government first defends this finding by intimating that the district court’s statement actually referred to pre-2010 conduct. This suggestion is belied by the government’s submissions below, which urged the court to find that Appellants failed to act on their knowledge of contamination risks “between January and August 2010.” DCD 74 at 4 (emphasis added); see id. at 5 (referring to the risk of contamination “during this timeframe”). The district court described the government’s arguments in precisely these terms. See Add. 40. The government then suggests that the district court could have found that Quality Egg “effectively ‘ignore[d]’” the SE test results during 2010. Gov’t Br. 54. This claim is refuted by the government’s concession that Quality Egg implemented “a number of” Dr Hofacre’s and Dr. Nolan’s recommendations in Iowa, Add. 81, as well by the evidence, cited above, that Quality Egg implemented in Iowa all the measures it
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followed in Maine. The finding that Appellants “deci[ded] to ignore” the test results is thus clearly erroneous.8 3.
The opening brief also showed, finally, that the district court
faulted Appellants for failing to “test or divert eggs” prior to the effective date of the Egg Safety Rule, Add. 44, even though—as the government again stipulated—there was “no legal or regulatory requirement” to take those steps at that time, Add. 82. To the government, this is no problem at all. In its view, “the district court did not fault [Appellants] for failing to comply with specific testing regulations,” but rather for “their role in causing the introduction of adulterated eggs into interstate commerce,” that “role” being a failure to “take whatever steps may be necessary to ensure that they do not introduce adulterated foods into interstate commerce.” Gov’t Br. 56–57 (emphases added).9
In fact, Quality Egg did more in Iowa than just the three specific measures discussed above; it increased the level of SE testing, stopped using induced molting, and changed animal feeds. Br. 13–14. And, when the Egg Safety Rule took effect, it implemented egg testing protocols that complied with the Rule, see Appellants’ App’x 41–42; Add. 82.
8
The government again stretches the record in asserting that Quality Egg deviated from written plans that “required” it to divert eggs in the event of environmental positives, citing the FDA’s August 2010 inspection report. Gov’t Br. 32. At that point—after the effective date of the
9
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This “by any means necessary” rationale is problematic, in part, because it does not describe anything different from the Park offense, which itself imposes a criminal law “duty to implement measures that will insure that violations will not occur.” 421 U.S. at 672. This rationale accordingly does not provide any basis for differentiating between one “responsible corporate officer” offender and the next, and is inconsistent with the basic Sentencing Guidelines’ policy of “prevent[ing] ‘double counting’ of offense behavior” at sentencing. See United States v. Lincoln, 956 F.2d 1465, 1469 (8th Cir. 1992). The district court’s approach also fails to provide any predictable guide to whether a “responsible corporate officer” offense—which can be charged against any executive in the chain of command in any FDAregulated company whenever any FDCA misdemeanor occurs—will be punished in the traditional way, through light fines, or breaking with
Egg Safety Rule—it is stipulated that Quality Egg’s conduct was consistent with the Rule, which required producers to either test or divert eggs after a positive environmental test. Add. 82. Quality Egg’s August 2010 plans likewise “outline[d] the procedure for egg testing in the event a SE environmental positive is obtained,” and “describe[d]”—but did not require—“diversion of eggs in the event of a SE environmental positive.” Appellants’ App’x 40. To the extent the government is intimating that a prior version of Quality Egg’s plans “required” diversion, the cited document provides no support for that claim. 33 Appellate Case: 15-1890
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history, by imposing prison sentences. An approach to sentencing that required the district court to consider specific regulatory standards would at least give executives fair notice of the conduct that could result in imprisonment, and would allow agencies—rather than trial judges and prosecutors—to set standards based on relevant scientific background, industry practices, and input from stakeholders. See Br. for Amici Curiae Pharmaceutical Research & Mfrs. of Am. & Chamber of Commerce of the U.S.A. at 18–28 (describing risks of over-deterrence created by the government’s preferred approach). At a minimum, the Court should hold that the district court erred in resting its sentencing decision on its own post-hoc views of what Quality Egg should have been done, rather than on any prevailing legal or regulatory standard. CONCLUSION The judgments entered by the district court should be modified by striking the terms of imprisonment. In the alternative, the sentences should be vacated and the case remanded for resentencing.
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Respectfully submitted, /s/ Peter D. Keisler Peter D. Keisler Thomas C. Green Mark D. Hopson Frank R. Volpe Kwaku A. Akowuah Tobias S. Loss-Eaton SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 (202) 736-8000
Stuart J. Dornan DORNAN, LUSTGARTEN & TROIA PC LLO 1403 Farnam Street, Suite 232 Omaha, NE 68102 (402) 884-7044
Counsel for DefendantAppellant Peter DeCoster
Counsel for DefendantAppellant Austin DeCoster
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CERTIFICATE OF COMPLIANCE 1.
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,998 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in fourteen-point Century Schoolbook font.
3.
This brief has been scanned with antivirus software and is virusfree.
Date: October 9, 2015
/s/ Peter D. Keisler Peter D. Keisler SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 (202) 736-8000 Counsel for DefendantAppellant Austin DeCoster
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CERTIFICATE OF SERVICE Undersigned counsel hereby certifies that on October 9, 2015, a copy of the foregoing brief was filed with Court’s CM/ECF system, which will serve copies on all registered counsel.
/s/ Peter D. Keisler Peter D. Keisler SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 (202) 736-8000 Counsel for DefendantAppellant Austin DeCoster
Appellate Case: 15-1890
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Date Filed: 10/13/2015 Entry ID: 4325493
