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Prosecution: Court Needs More Testimony Before Sentencing the DeCosters

Pre-sentencing investigative reports (PSIRs) for America’s one-time king of egg production, Austin (Jack) DeCoster, his son Peter, and their Quality Egg LLC business, have turned into a legal mess.

While the PSIRs themselves are sealed, the public now knows a little more about details of the disputed information from a new motion that’s been filed with a potential solution for working through the controversy.

Jack (left) and Peter DeCoster

Jack DeCoster was one of the most dominant figures in U.S. egg production before a 2010 Salmonella outbreak, which sickened thousands of people, was linked to two of his large Iowa egg production facilities.

It resulted in more than a half-billion eggs being recalled, the largest market withdrawal involving shell eggs in history. Peter DeCoster ran the northern Iowa egg farms. The two men pleaded guilty to one misdemeanor count each of introducing adulterated food into interstate commerce.

In addition, their corporate entity, Quality Egg, pleaded guilty to one felony count of bribery of a public official and to two misdemeanors — one count of introducing misbranded food and one count of introducing adulterated food into interstate commerce.

A federal judge in Sioux City, IA, accepted those pleas last June 3, but the dispute over the PSIRs is turning out to be more than a legal speed bump. The assistant U.S. attorney prosecuting the case, Peter E. Deegan, wants to consolidate the sentencing proceedings for a possible weeklong evidentiary hearing. Separate sentencing hearings would then follow.

According to Deegan, defense attorneys are split over his plan. He says that Stuart J. Dornan, the Omaha, NE-based defense attorney for Peter DeCoster, “has no objection to the relief sought in this motion.” However, Thomas C. Green, the Washington, D.C.-based defense attorney for Jack DeCoster and Quality Egg does “object to the relief sought ….”

Under the plea agreement they have with the government, the DeCosters were to each pay a $ 100,000 fine for their misdemeanor pleas, and Quality Egg agreed to a $ 6.8-million fine. Sentencing is mostly about whether either man will serve any jail time.

In late August, first the government filed objections to the PSIRs. Then Green filed objections for Jack DeCoster and Quality Egg. The most recent objections were filed Sept. 18 on behalf of Peter DeCoster.

Government and defense attorneys have agreed that sentencing guideline calculations will have to be approved by the court. The defense apparently finds much of the “offense conduct” section of the pre-sentence investigative reports to be either irrelevant or “not otherwise supported by the evidence.”

In his pitch to the court, Deegan says that the “greatest difference of any significance” among the parties concerns the write-ups about how “Julian dates” were changed and then the misbranded eggs were sold into commerce.

“Despite this difference in the Draft PSIRs, the government submits that the fact Quality Egg sold old eggs is relevant to the circumstances surrounding the Salmonella Enteritis contamination at issue with regard to Count 3, and therefore all three sentencings,” Deegan wrote.

The assistant U.S. attorney argues that since disputed facts among the three defendants are consistent, one hearing would be the most efficient for the court and prevent witnesses from having to testify three times.

“A consolidated evidentiary hearing would not appear to cause prejudice to any defendant or other interested party,” Deegan added. “To the extent defendants Quality Egg and Jack DeCoster are concerned that certain evidence may prove to be irrelevant to one sentencing or the other, the Court would be able to make such a determination after a consolidated hearing.”

Deegan said it might even be more appropriate for the court to make such determinations after hearing the evidence.

Food Safety News

Wisconsin Raw Milk Dairy Farmer’s Business Improves After Prosecution

What’s Wisconsin’s “raw milk outlaw” been up to since the state appeals court upheld his misdemeanor conviction on July 17 and imposed a $ 1,000 fine?

Well, according to a recent profile by the Wisconsin State Journal, Vernon Hershberger is back home on the farm with his 10 children building up membership in his raw milk buyers club called Grazin Acres LLC.

Since the Loganville, WI, raw milk dairy farmer was found not guilty 13 months ago of producing milk, operating a dairy plant, and selling food in a retail establishment, all without licenses, his raw milk business has increased by 25 percent to about 325 families.

All the charges stem from a 2010 raid on his dairy farm, including breaking the holding order the state Department of Agriculture, Trade, and Consumer Protection placed on products. That’s the only charge that resulted in a conviction by the Sauk County jury, and Hershberger lost on appeal.

Hershberger credits his business growth with the relationships he built while the state pursued charges against him, including jurors, sheriff’s deputies, and others. The State Journal reported that Hershberger has emerged from his confrontation with prosecutors as “the face of the growing raw milk industry in Wisconsin and the nation.”

The newspaper states that raw milk advocates believe there has been a dramatic fall-off in enforcement actions since the Hershberger trial. Because he was acquitted on the licensing counts, Hershberger came out against Rep. Sen. Glenn Grothman’s bill to ease restrictions on licensed raw milk dairies.

Food Safety News

Prosecution Must Show Parnell Had Knowledge of Crimes Charged

Patrick H. Hearn, one of the trial attorneys from the U.S. Department of Justice’s Consumer Protection Branch, has turned in the government’s view of the importance of knowledge in the crimes with which Stewart Parnell is charged.

“Knowledge is an element of the crimes that defendant Stewart Parnell has been charged with in the indictment,” Hearn wrote in a short statement prosecutors have been allowed to file because they claimed one of Parnell’s defense attorneys had misstated the law.

Parnell’s defense team claims the government is just confused.

Hearn’s statement filed April 28 amounts to the last word in proceedings that have taken about two months to lay the groundwork so that U.S. District Court Judge W. Louis Sands can make a pre-trial ruling about whether an expert witness can testify for Parnell.

Parnell and three other former executives of the now-defunct Peanut Corporation of America are scheduled for a jury trial later this summer on 76 federal felony counts stemming from the 2008-2009 nationwide Salmonella outbreak that killed nine and sickened at least 700 people.

Defense attorneys for Parnell want to call as an expert witness at trial the neuropsychologist who claims Parnell suffers from Attention Deficit Hyperactivity Disorder (ADHD). Government attorneys say that Dr. Joseph C. Conley, Jr., does not merit that expert designation. It is up to Sands to make the call.

In his filing on the legal debate, Hearn points out that jury instructions dictated by the U.S. Court of Appeals for the 11th Circuit require proving that the defendant had knowledge for several of the most important crimes charged. These include conspiracy, interstate shipments fraud, wire fraud, adulteration and misbranding fraud, and obstruction of justice.

In addition to Hearn, DOJ trial attorney Mary M. Englehart and assistant U.S. Attorney for the Middle District of Georgia K. Alan Dasher are prosecuting the former peanut company executives.

Food Safety News

Plea Agreement Will End Jensen Farms Prosecution on Oct. 22nd

Eric and Ryan Jensen have requested a “change of plea hearing” from the U.S. District Court in Denver, announcing through their attorneys that a disposition has been reached in the case. The two brothers are charged in connection with one of the most deadly outbreaks of foodborne illness in U.S. history.

The request means that instead of going through a jury trial in December, the defendants will enter a plea agreement that they’ve reached with government attorneys that, if approved by Court, will likely see each of them pleading guilty to one or more of the six federal misdemeanor charges they face in exchange for much lighter prison sentences and fines reduced from what they would face if convicted by a jury.  The plea hearing will be held Tuesday, Oct. 22nd.

Attorneys for the owners of the now defunct Jensen Farms filed the requests for change in plea hearings and notices that disposition in the case had been reached with the federal court on Tuesday.

On Sept. 26, the two men were arrested and charged with federal misdemeanor charges of introducing adulterated food into interstate commerce and aiding and abetting. The charges stem from the 2011 Listeria outbreak in 28 states that sent nearly 150 to hospitals and resulted directly or indirectly in some 43 deaths. The outbreak strain was traced back to the Jensen’s packing facility in Granada, CO.

Details of a federal plea bargain typically do not become public until filed with the Court. A jury conviction on each misdemeanor count carries the potential of one year in jail and a fine up to $ 250,000. The plea agreement will likely guarantee the brothers will receive much reduced penalties from those theoretical maximums

Food Safety News

Plea Agreement Will End Jensen Farms Prosecution on Oct. 22nd

Eric and Ryan Jensen have requested a “change of plea hearing” from the U.S. District Court in Denver, announcing through their attorneys that a disposition has been reached in the case. The two brothers are charged in connection with one of the most deadly outbreaks of foodborne illness in U.S. history.

The request means that instead of going through a jury trial in December, the defendants will enter a plea agreement that they’ve reached with government attorneys that, if approved by Court, will likely see each of them pleading guilty to one or more of the six federal misdemeanor charges they face in exchange for much lighter prison sentences and fines reduced from what they would face if convicted by a jury.  The plea hearing will be held Tuesday, Oct. 22nd.

Attorneys for the owners of the now defunct Jensen Farms filed the requests for change in plea hearings and notices that disposition in the case had been reached with the federal court on Tuesday.

On Sept. 26, the two men were arrested and charged with federal misdemeanor charges of introducing adulterated food into interstate commerce and aiding and abetting. The charges stem from the 2011 Listeria outbreak in 28 states that sent nearly 150 to hospitals and resulted directly or indirectly in some 43 deaths. The outbreak strain was traced back to the Jensen’s packing facility in Granada, CO.

Details of a federal plea bargain typically do not become public until filed with the Court. A jury conviction on each misdemeanor count carries the potential of one year in jail and a fine up to $ 250,000. The plea agreement will likely guarantee the brothers will receive much reduced penalties from those theoretical maximums

Food Safety News

Plea Agreement Will End Jensen Farms Prosecution on Oct. 22nd

Eric and Ryan Jensen have requested a “change of plea hearing” from the U.S. District Court in Denver, announcing through their attorneys that a disposition has been reached in the case. The two brothers are charged in connection with one of the most deadly outbreaks of foodborne illness in U.S. history.

The request means that instead of going through a jury trial in December, the defendants will enter a plea agreement that they’ve reached with government attorneys that, if approved by Court, will likely see each of them pleading guilty to one or more of the six federal misdemeanor charges they face in exchange for much lighter prison sentences and fines reduced from what they would face if convicted by a jury.  The plea hearing will be held Tuesday, Oct. 22nd.

Attorneys for the owners of the now defunct Jensen Farms filed the requests for change in plea hearings and notices that disposition in the case had been reached with the federal court on Tuesday.

On Sept. 26, the two men were arrested and charged with federal misdemeanor charges of introducing adulterated food into interstate commerce and aiding and abetting. The charges stem from the 2011 Listeria outbreak in 28 states that sent nearly 150 to hospitals and resulted directly or indirectly in some 43 deaths. The outbreak strain was traced back to the Jensen’s packing facility in Granada, CO.

Details of a federal plea bargain typically do not become public until filed with the Court. A jury conviction on each misdemeanor count carries the potential of one year in jail and a fine up to $ 250,000. The plea agreement will likely guarantee the brothers will receive much reduced penalties from those theoretical maximums

Food Safety News