                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-1890
                       ___________________________

                            United States of America

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                     Austin DeCoster, also known as Jack

                     lllllllllllllllllllll Defendant - Appellant

                            ------------------------------

    National Association of Manufacturers; Cato Institute; Washington Legal
Foundation; Chamber of Commerce of the United States; Pharmaceutical Research
                         and Manufacturers of America

                lllllllllllllllllllllAmici on Behalf of Appellant(s)
                         ___________________________

                               No. 15-1891
                       ___________________________

                            United States of America

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                                 Peter DeCoster

                     lllllllllllllllllllll Defendant - Appellant
                              ------------------------------

National Association of Manufacturers; Cato Institute; Washington Legal Foundation

                  lllllllllllllllllllllAmici on Behalf of Appellant(s)
                                        ____________

                    Appeals from United States District Court
                   for the Northern District of Iowa - Ft. Dodge
                                  ____________

                             Submitted: March 17, 2016
                                Filed: July 6, 2016
                                 ____________

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

       Austin "Jack" DeCoster and Peter DeCoster both pled guilty, as "responsible
corporate officers" of Quality Egg, LLC, to misdemeanor violations of 21 U.S.C.
§ 331(a) for introducing eggs that had been adulterated with salmonella enteritidis
into interstate commerce. The district court1 sentenced Jack and Peter to three months
imprisonment. The DeCosters appeal, arguing that their prison sentences and 21
U.S.C. § 333(a)(1) are unconstitutional, and claiming in the alternative that their
prison sentences were procedurally and substantively unreasonable. We affirm.




      1
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.

                                           -2-
                                         I.

       Jack DeCoster owned Quality Egg, LLC, an Iowa egg production company.
Jack's son Peter DeCoster served as the company's chief operating officer. Quality
Egg operated six farm sites with 73 barns which were filled with five million egg
laying hens. It also had 24 barns which were filled with young chickens that had not
yet begun to lay eggs. Additionally, the company owned several processing plants
where eggs were cleaned, packed, and shipped.

       Jack also owned and operated several egg production companies in Maine, and
Peter worked at those facilities. In 2008, salmonella enteritidis ("salmonella") tests
conducted at the Maine facilities came back positive. The DeCosters succeeded in
eliminating salmonella from their Maine facilities by following the recommendations
of hired consultants, including poultry disease specialist Dr. Charles Hofacre and
rodent control expert Dr. Maxcy Nolan.

       Periodically the DeCosters also tested the Iowa hens and facilities for
salmonella. Some of these tests came back positive in 2006, and the positive test
results increased in frequency through the fall of 2010. Until the USDA adopted its
new egg safety rule in July 2010, Quality Egg was not legally obligated to conduct
salmonella tests of its eggs after receiving positive environmental test results.
Nevertheless, Quality Egg tested its eggs in April 2009 after being notified that a
Minnesota restaurant purchaser had had a salmonella outbreak. The sample of its
eggs tested negative for salmonella.

       Other than conducting the single egg test in April 2009, Quality Egg did not
test or divert eggs from the market before July 2010 despite receiving multiple
positive environmental and hen test results. In 2009 the DeCosters hired Dr. Hofacre
and Dr. Nolan to consult on the company's Iowa operations. The consultants
recommended implementing the same measures in Iowa as had been used in Maine.

                                         -3-
Although the DeCosters claim they adopted all of the recommendations, the
precautions implemented by Quality Egg failed to eradicate salmonella. The Centers
for Disease Control and Prevention estimated that about 56,000 Americans fell ill
with salmonellosis in 2010 after consuming contaminated eggs. In August 2010,
federal and state officials determined that the salmonella outbreak had originated at
Quality Egg's facilities. In response Quality Egg recalled eggs that had been shipped
from five of its six Iowa farm sites between May and August 2010.

       The FDA inspected the Quality Egg operations in Iowa from August 12–30,
2010. Investigators discovered live and dead rodents and frogs in the laying areas,
feed areas, conveyer belts, and outside the buildings. They also found holes in the
walls and baseboards of the feed and laying buildings. The investigators discovered
that some rodent traps were broken, and others had dead rodents in them. In one
building near the laying hens, manure was found piled to the rafters; it had pushed a
screen out of the door which allowed rodents into the building. Investigators also
observed employees not wearing or changing protective clothing and not cleaning or
sanitizing equipment.

        The FDA concluded that Quality Egg had failed to comply with its written
plans for biosecurity and salmonella prevention. One government expert reported
that "there were minimal to no records from the poultry [] barns to indicate that
company personnel [had] implemented the written plans [to eliminate salmonella]."
The agency also discovered that the company's eggs tested positive for salmonella
at a rate of contamination approximately 39 times higher than the current national
rate, and that the contamination had spread throughout all of the Quality Egg
facilities. In October 2010 the FDA instructed Quality Egg to euthanize every hen,
remove the manure, repair its facilities, and disinfect its barns to prevent the risk of
another outbreak.




                                          -4-
       The government then began a criminal investigation of the company's food
safety practices and ultimately filed a criminal information against Quality Egg and
both of the DeCosters. The investigation revealed that Quality Egg previously had
falsified records about food safety measures and had lied to auditors for several years
about pest control measures and sanitation practices. Although its food safety plan
stated that Quality Egg performed flock testing to identify and control salmonella,
no flock testing was ever done. Quality Egg employees had also bribed a USDA
inspector in 2010 to release eggs for sale which had been retained or "red tagged" for
failing to meet minimum quality grade standards. Quality Egg also misled state
regulators and retail customers by changing the packing dates of its eggs and selling
the misbranded eggs into interstate commerce. The parties additionally stipulated that
one Quality Egg employee was prepared to testify at trial that Jack DeCoster had once
reprimanded him because he had not moved a pallet of eggs in time to avoid
inspection by the USDA. The investigation also revealed that in 2008 Peter DeCoster
had made inaccurate statements to Walmart about Quality Egg's food safety and
sanitation practices.

       Quality Egg pled guilty to: (1) a felony violation of 18 U.S.C. § 201(b)(1) for
bribing a USDA inspector, (2) a felony violation of 21 U.S.C. § 331(a) for
introducing misbranded eggs into interstate commerce with intent to defraud and
mislead, and (3) a misdemeanor violation of 21 U.S.C. § 331(a) for introducing
adulterated eggs into interstate commerce. Jack and Peter each pled guilty to
misdemeanor violations of 21 U.S.C. § 331(a) as responsible corporate officers under
the Food Drug & Cosmetic Act (FDCA). In their plea agreements, the DeCosters
stated that they had not known that the eggs were contaminated at the time of
shipment, but stipulated that they were in positions of sufficient authority to detect,
prevent, and correct the sale of contaminated eggs had they known about the
contamination. The parties also stipulated that the DeCosters' advisory guideline
range was 0 to 6 months imprisonment, and both defendants agreed to be sentenced
based on facts the sentencing judge found by a preponderance of the evidence.

                                         -5-
       Before sentencing, the DeCosters argued that sentences of incarceration would
be unconstitutional because they had not known that the eggs were contaminated at
the time they were shipped. The district court denied the motions, imposed $100,000
fines on both Jack and Peter DeCoster and sentenced them to three months
imprisonment. See 21 U.S.C. § 333(a)(1) (explaining that anyone who violates
section 331 "shall be imprisoned for not more than one year or fined not more than
$1,000, or both"); 18 U.S.C. § 3571(b)(5) (setting maximum fine of $100,000 for
class A misdemeanor not resulting in death). The court determined that although
nothing in the record indicated that Peter and Jack had actual knowledge that the eggs
they sold were infected with salmonella, the record demonstrated that their safety and
sanitation procedures were "egregious," that they ignored the positive salmonella
environmental test results before July 2010 by not testing their eggs, and that they
knew that their employees had deceived and bribed USDA inspectors. The district
court explained that the record supported the inference that the DeCosters had
"created a work environment where employees not only felt comfortable disregarding
regulations and bribing USDA officials, but may have even felt pressure to do so."
The district court accordingly concluded that this was not a case involving "a mere
unaware corporate executive."

      The DeCosters appeal, arguing that their prison sentences under 21 U.S.C.
§ 333(a)(1) are unconstitutional under the Due Process Clause and the Eighth
Amendment. In the alternative they claim that their sentences were procedurally and
substantively unreasonable.

                                         II.

       Under the FDCA responsible corporate officer concept, individuals who "by
reason of [their] position in the corporation [have the] responsibility and authority"
to take necessary measures to prevent or remedy violations of the FDCA and fail to
do so, may be held criminally liable as "responsible corporate agents," regardless of

                                         -6-
whether they were aware of or intended to cause the violation. United States v. Park,
421 U.S. 658, 673–74 (1975). The FDCA "punishes neglect where the law requires
care, or inaction where it imposes a duty" because according to Congress, the "public
interest in the purity of its food is so great as to warrant the imposition of the highest
standard of care on distributors." Id. at 671 (internal quotation marks omitted). A
corporate officer may avoid liability under this doctrine by showing that he was
"powerless to prevent or correct the violation." Id. at 673 (internal quotation marks
omitted).

       The DeCosters argue that their prison sentences violate due process and the
Eighth Amendment. The government contends that because the DeCosters raise an
Eighth Amendment claim, their case is governed exclusively by that amendment. See
Albright v. Oliver, 510 U.S. 266, 273 (1994). The Supreme Court has explained 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." Id. (internal quotation marks omitted).

       The DeCosters raise two separate constitutional claims. They first argue that
their sentences are not proportional to their crimes as required by the Eighth
Amendment. See Graham v. Florida, 560 U.S. 48, 60 (2010). They also argue that
the penalty of incarceration of any length for this misdemeanor offense would violate
substantive due process. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also
United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943) (concluding that three
month prison sentence for corporate officer's FDCA misdemeanor violation did not
violate due process); United States v. Higgins, 2011 WL 6088576, at *10 (E.D. Pa.
Dec. 7, 2011) (same for nine month prison sentence).

     We review de novo a substantive due process claim. United States v.
Clemmons, 461 F.3d 1057, 1061 (8th Cir. 2006). The DeCosters argue that their

                                           -7-
prison sentences are unconstitutional because they did not personally commit
wrongful acts. They analogize this case to others where courts have determined that
due process is violated when prison terms are imposed for vicarious liability crimes.
See Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1367 (11th Cir.
1999); State v. Guminga, 395 N.W.2d 344, 346 (Minn. 1986); Davis v. City of
Peachtree City, 304 S.E.2d 701, 703–04 (Ga. 1983); Commonwealth v. Koczwara,
155 A.2d 825, 830 (Pa. 1959). The Eleventh Circuit explained in Lady J. that "due
process prohibits the state from imprisoning a person without proof of some form of
personal blameworthiness more than a 'responsible relation.'" 176 F.3d at 1367.

        Officer liability under the FDCA, however, is not equivalent to vicarious
liability. See Park, 421 U.S. at 674–75. Under vicarious liability, a supervisory party
is held liable "for the actionable conduct of a subordinate . . . based on the
relationship between the two parties." Liability, Black's Law Dictionary (10th ed.
2014). Under the FDCA, in contrast, a corporate officer is held accountable not for
the acts or omissions of others, but rather for his own failure to prevent or remedy
"the conditions which gave rise to the charges against him." See Park, 421 U.S. at
675. Thus, "some measure of blameworthiness" is "import[ed]" directly to the
corporate officer. Id. at 673.

       Here, as owner of Quality Egg, Jack decided which barns were subject to
salmonella environmental testing, and as chief operating officer, Peter coordinated
many of the company's salmonella prevention and rodent control efforts. Neither of
the DeCosters claim to have been "powerless" to prevent Quality Egg from violating
the FDCA. See id. Despite their familiarity with the conditions in the Iowa facilities,
they failed to take sufficient measures to improve them. On this record, the district
court reasonably found that "the defendants 'knew or should have known,' of the risks
posed by the insanitary conditions at Quality Egg in Iowa, 'knew or should have
known' that additional testing needed to be performed before the suspected shell eggs
were distributed to consumers, and 'knew or should have known' of [] proper remedial

                                         -8-
and preventative measures to reduce the presence of [salmonella]." The FDCA
"punishes neglect where the law requires care." Id. at 671 (internal quotation marks
omitted). We conclude that the record here shows that the DeCosters are liable for
negligently failing to prevent the salmonella outbreak. See id. at 678–79 (Stewart,
J., dissenting) (reading majority opinion in Park as establishing a negligence
standard).

       The DeCosters argue that their prison sentences also violate the Due Process
Clause because they did not know that the eggs the company distributed had
salmonella. We have explained that "the imposition of severe penalties, especially
a felony conviction, for the commission of a morally innocent act may violate" due
process. See United States v. Enochs, 857 F.2d 491, 494 n.2 (8th Cir. 1988). The
elimination of a mens rea requirement does not violate the Due Process Clause for a
public welfare offense where the penalty is "relatively small," the conviction does not
gravely damage the defendant's reputation, and congressional intent supports the
imposition of the penalty. See Staples v. United States, 511 U.S. 600, 617 (1994)
(citing Morissette v. United States, 342 U.S. 246, 256 (1952)); Holdridge v. United
States, 282 F.2d 302, 309–10 (8th Cir. 1960).

       The three month prison sentences the DeCosters received were relatively short.
See Staples, 511 U.S. at 617. We have previously determined that even a maximum
statutory penalty of one year imprisonment for a misdemeanor offense is "relatively
small" and does not violate due process. See United States v. Flum, 518 F.2d 39,
43–45 (8th Cir. 1975) (en banc), cert. denied, 423 U.S. 1018 (1975); 21 U.S.C.
§ 333(a)(1); cf. United States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985)
(concluding that a felony conviction which carried a penalty of a maximum of two
years imprisonment was not relatively small).

      The DeCosters' misdemeanor convictions also do not gravely damage their
reputations. In Flum, we explained that a misdemeanor conviction under a federal

                                         -9-
law which provided for a maximum imprisonment of one year did not gravely
"besmirch" the defendant's reputation because it did not brand him as a "felon or
subject him to any burden beyond the sentence imposed." See 518 F.2d at 43; cf.
Wulff, 758 F.2d at 1125 (felony conviction would irreparably damage a defendant's
reputation because a felon loses his civil rights). Similarly in this case, the DeCosters
will not be branded as felons, and the record does not identify any additional civil
sanctions they may be subject to beyond their sentences. Finally, the elimination of
criminal intent under 21 U.S.C. § 333(a) did not violate due process because, as the
Supreme Court has explained, "Congress has seen fit to enforce the accountability of
responsible corporate agents dealing with products which may affect the health of
consumers by penal sanctions cast in rigorous terms." Park, 421 U.S. at 673.

       The dissent argues that we must treat the FDCA, 21 U.S.C. §§ 331(a),
333(a)(1), as requiring a defendant to know he violated the statute in order to be
subject to its penalties because the statute has "no express congressional statement"
to omit a mens rea requirement. We rely however "on the nature of the statute and
the particular character of the items regulated to determine whether congressional
silence concerning the mental element of the offense should be interpreted as
dispensing with conventional mens rea requirements." Staples, 511 U.S. at 607. The
FDCA regulates services and products which affect the health and well being of the
public. For this reason, Congress has not required "awareness of some wrongdoing"
in order to hold responsible corporate agents accountable for violating the statute.
Park, 421 U.S. at 672–73 (internal quotation marks omitted). Although the
"requirements of foresight and vigilance imposed on responsible corporate agents [in
21 U.S.C. § 331(a)] are beyond question demanding, and perhaps onerous, [] they are
no more stringent" than required to protect the unknowing public from consuming
hazardous food, such as salmonella infected eggs. Id. at 672. The language in the
FDCA and Supreme Court precedent interpreting the statute support the conclusion
that defendants are not required to have known that they violated the FDCA to be
subject to the statutory penalties.

                                          -10-
       As the Third Circuit explained in United States v. Greenbaum, "[t]he
constitutional requirement of due process is not violated merely because mens rea is
not a required element of a prescribed crime." 138 F.2d 437, 438 (3d Cir. 1943). In
Greenbaum, the court affirmed a corporate president's three month prison sentence
for introducing adulterated eggs into interstate commerce in violation of the same
statute at issue in this case. Id. at 439. The Greenbaum court explained that "the
legislative intent to dispense with mens rea as an element of [a misdemeanor FDCA]
offense has a justifiable basis" because such offenses "are capable of inflicting
widespread injury, and [] the requirement of proof of the offender's guilty knowledge
and wrongful intent would render enforcement of the prohibition difficult if not
impossible." Id. at 438. For the same reasons, we conclude that the DeCosters'
sentences do not violate the Due Process Clause even though mens rea was not an
element of their misdemeanor offenses.

      The DeCosters also claim that their sentences violate the Eighth Amendment.
We review this issue de novo. United States v. Martin, 677 F.3d 818, 821 (8th Cir.
2012). The Eighth Amendment bars prison sentences that are "grossly
disproportionate for a particular defendant's crime." Graham v. Florida, 560 U.S. 48,
60 (2010). To determine whether a specific sentence is grossly disproportionate we
weigh "the harshness of the penalty" against "the gravity of the offense," and we also
consider the "harm caused or threatened to the victim or to society, and the culpability
and degree of the defendant's involvement." United States v. Lee, 625 F.3d 1030,
1037 (8th Cir. 2010) (internal quotation marks omitted).

       On this record, the DeCosters' three month prison sentences are not grossly
disproportionate to the gravity of their misdemeanor offenses. When defining the
statutory penalties in the FDCA, Congress recognized the importance of placing the
burden on corporate officers to protect consumers "who are wholly helpless" from
purchasing adulterated food products which could make them ill. See United States
v. Dotterweich, 320 U.S. 277, 285 (1943). "[T]he public has a right to expect" a

                                         -11-
heightened degree of foresight and care from "those who voluntarily assume positions
of authority in business enterprises whose services and products affect the health and
well-being of the public that supports them." Park, 421 U.S. at 672. The 2010
salmonella outbreak may have affected up to 56,000 victims, some of whom were
hospitalized or suffered long term injuries. For one example, a child hospitalized in
an intensive care unit for eight days was saved by antibiotics which damaged his
teeth, causing them to be capped in stainless steel.

       We conclude this is not "the rare case in which a threshold comparison of the
crime committed and the sentence imposed leads to an inference of gross
disproportionality." United States v. Spires, 628 F.3d 1049, 1054 (8th Cir. 2011)
(internal quotation marks omitted). Moreover, the DeCosters' three month prison
sentences fell at the low end of the prescribed statutory range of 21 U.S.C. § 333(a)
(one year maximum), and we have "never held a sentence within the statutory range
to violate the Eighth Amendment," United States v. Vanhorn 740 F.3d 1166, 1170
(8th Cir. 2014). We decline to do so here as well. We conclude that the district
court's sentences in this case do not violate the Eighth Amendment.

                                          III.

        Finally, the DeCosters argue that their sentences are procedurally and
substantively unreasonable. "When analyzing a sentence for procedural error, we
review a district court's interpretation and application of the guidelines de novo and
its factual findings . . . for clear error." United States v. Callaway, 762 F.3d 754, 759
(8th Cir. 2014). We review the substantive reasonableness of a sentence for abuse of
discretion. Id. at 760.

      The DeCosters claim that their sentences are procedurally unreasonable
because the court relied on clearly erroneous facts. See United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009). First, the DeCosters argue that the court erred by

                                          -12-
stating that they had "ignore[d]" the positive environmental salmonella tests before
2010. During sentencing a district court may rely on facts it finds by a preponderance
of the record evidence. See United States v. Nassif, 921 F.2d 168, 170 (8th Cir.
1990). Here, the court found that while the DeCosters cleaned their barns and
administered a second salmonella vaccine to their chickens in 2010, they did not test
or divert eggs until July 2010 even though they had reason to suspect their
contamination. The court did not clearly err by determining that the actions or
inactions of the DeCosters was insufficient and blameworthy under these
circumstances. See Park, 421 U.S. at 672 (explaining that corporate officers may be
held liable for failing to "devise whatever measures are necessary to ensure
compliance with the [FDCA]").

       The DeCosters also argue that the district court erred by finding that they
"failed to follow" the methods they had previously used to eliminate salmonella in
their Maine facilities. They concede however that they previously stipulated that no
expert had a basis to testify about whether Quality Egg "fully" and "effectively"
implemented all of the specialist recommendations in Iowa. They also agree with the
probation office determination that they had not effectively implemented the methods
used at their Maine facilities. The district court did not clearly err in interpreting the
evidence to show that the DeCosters had failed to follow all of the expert
recommendations.

       The DeCosters also argue that their sentences are substantively unreasonable
because the district court gave substantial weight to prior offenses and regulatory
violations committed by Quality Egg employees even though the DeCosters had not
sanctioned those actions and the violations were unrelated to the salmonella outbreak.
The sentences here are presumptively reasonable because they are within the
stipulated guideline range of 0 to 6 months imprisonment for each defendant. See
Callaway, 762 F.3d at 760. Furthermore, the district court did not abuse its discretion
by considering the Quality Egg employees' pattern of deceiving the FDA. A

                                          -13-
sentencing court may consider "'any information concerning the background,
character, and conduct of [a] defendant.'" See United States v. Rogers, 423 F.3d 823,
828 (8th Cir. 2005) (quoting USSG § 1B1.4). Here, the court considered such
background information and found that the DeCosters had "created a work
environment where employees not only felt comfortable disregarding regulations and
bribing USDA officials, but may have felt pressure to do so." In fact, one employee
alleged that Jack DeCoster had once reprimanded him because he had not moved a
pallet of eggs in time to avoid inspection by the USDA. Peter DeCosterwas similarly
personally implicated in the company's violations because of inaccurate statements
he made to Walmart about Quality Egg's food safety and sanitation practices.

      We conclude that the district court properly considered relevant past conduct
and imposed substantively reasonable sentences on the DeCosters.

                                          IV.

      For these reasons the judgments of the district court are affirmed.

GRUENDER, Circuit Judge, concurring.

       The DeCosters do not challenge either the constitutionality of § 331(a) or the
sufficiency of the factual basis for their pleas. Rather, they claim that due process
concerns prevent them from being sentenced to prison for a crime involving no mens
rea on their part because it is based solely on their positions as responsible corporate
officers—i.e., vicarious liability. I agree with the dissent that imprisonment based on
vicarious liability would raise serious due process concerns. However, because the
district court found the DeCosters negligent, they were not held vicariously liable for
violations committed by others, and this case thus does not implicate these concerns.
I therefore concur in the judgment and join Judge Murphy’s opinion to the extent that



                                         -14-
it recognizes that the DeCosters were negligent.1 I write separately in order to make
clear my view that Park requires a finding of negligence in order to convict a
responsible corporate officer under § 331.

     The DeCosters pleaded guilty to misdemeanor violations of 21 U.S.C. § 331(a),
which provides:

      The following acts and the causing thereof are prohibited:

      (a) The introduction or delivery for introduction into interstate
      commerce of any food . . . that is adulterated or misbranded.

A misdemeanor violation of § 331 is punishable by up to one year’s imprisonment.
§ 333(a)(1). On its face, § 331(a) appears to impose strict liability on defendants who
introduce or cause to be introduced into interstate commerce any adulterated food.
Cf. United States v. Carlson, 810 F.3d 544, 555 (8th Cir. 2016) (applying strict
liability standard to defendant convicted of misdemeanor violation of § 331 where
defendant personally participated in violations). Nothing in the statute clearly states
that a corporate officer can be imprisoned for acts committed solely by a subordinate.
However, the Park Court read § 331 to hold corporate officers liable for “causing”
violations committed by their subordinates. See United States v. Park, 421 U.S. 658,
673-74, 678-79 (1975).2 The question, then, is whether § 331 applies vicarious


      1
       I also join Judge Murphy’s opinion in rejecting the DeCosters’ Eighth
Amendment challenge and their claims that the sentences are procedurally and
substantively unreasonable.
      2
       The dissent attempts to distinguish Park from this case by pointing out that the
defendant in Park was convicted under § 331(k), not § 331(a). Yet the theory
underlying Park prosecutions—that the executive “caused” the violation by breaching
the duty of care to ensure compliance with the FDCA—comes from language that
applies to all of § 331.


                                         -15-
liability to corporate officers or whether corporate officers can only be in violation
when they negligently fail to prevent their subordinates’ violations. For three
reasons, I read Park to require a showing of negligence before exposing a responsible
corporate officer to imprisonment for the acts of a subordinate.

       First, the language from Park strongly suggests—if not outright asserts—that
the Supreme Court adopted a negligence standard for a § 331 conviction. The Court
noted that the FDCA “punishes ‘neglect where the law requires care, or inaction
where it imposes a duty.’” Park, 421 U.S. at 671 (quoting Morissette v. United
States, 342 U.S. 246, 255 (1952)). A corporate officer is liable where he could have
prevented a violation “with no more care than society might reasonably expect and
no more exertion than it might reasonably exact from one who assumed his
responsibilities.” Id. (quoting Morissette, 342 U.S. at 256). According to the Court,
the FDCA “imposes not only a positive duty to seek out and remedy violations when
they occur but also, and primarily, a duty to implement measures that will insure that
violations will not occur.” Id. at 672. This language establishes negligence as the
standard. See Black’s Law Dictionary (10th ed. 2014) (defining negligence as “[t]he
failure to exercise the standard of care that a reasonably prudent person would have
exercised in a similar situation; any conduct that falls below the legal standard
established to protect others against unreasonable risk of harm”). Moreover, the Park
dissent expressly concluded that the Court had articulated a negligence standard. See
id. at 678-79 (Stewart, J., dissenting) (interpreting the majority opinion as
establishing a negligence standard but concluding that the jury instructions “did not
conform to the standards that the Court itself sets out today”). Tellingly, the Park
Court did not contest the dissent’s claim that the standard it had described amounted
to negligence.

      Second, I read the language from Park as establishing a negligence standard
as a matter of constitutional avoidance. See Union Pac. R. Co. v. U.S. Dep’t of



                                        -16-
Homeland Sec., 738 F.3d 885, 892-93 (8th Cir. 2013). The few courts that have
considered the question all agree that imprisonment based on vicarious liability
violates substantive due process. Lady J. Lingerie, Inc. v. City of Jacksonville, 176
F.3d 1358, 1367-68 (11th Cir. 1999); Davis v. City of Peachtree City, 304 S.E.2d 701,
703 (Ga. 1983); State v. Guminga, 395 N.W.2d 344, 345 (Minn. 1986).3 Section
333(a) imposes up to one year’s imprisonment for any misdemeanor violation of
§ 331. For this reason, I would interpret Park not to impose vicarious liability on
executives under § 331. See, e.g., Clark v. Martinez, 543 U.S. 371, 380-81 (2005)
(“[W]hen deciding which of two plausible statutory constructions to adopt, a court
must consider the necessary consequences of its choice. If one of them would raise
a multitude of constitutional problems, the other should prevail—whether or not those
constitutional problems pertain to the particular litigant before the Court.”).

      Finally, reading Park to require negligence is consistent with the Supreme
Court’s practice of interpreting statutes that fail to state a specific mens rea in a way
that avoids “criminaliz[ing] a broad range of apparently innocent conduct.” See
Liparota v. United States, 471 U.S. 419, 426 (1985). Here, given the broad range of
conduct that would be criminalized under a vicarious liability standard—essentially
all conduct committed by corporate officers that falls short of eliminating every
possible FDCA violation—I instead read Park as providing that a corporate officer
“causes” a subordinate’s violation of § 331 only when the violation resulted from the
corporate officer’s negligence.

      I concur in the judgment because the DeCosters were negligent in failing to
prevent the FDCA violations. Both pleaded guilty to failing to prevent the
introduction of adulterated food into interstate commerce despite holding “position[s]

      3
       See also Commonwealth v. Koczwara, 155 A.2d 825, 830 (Pa. 1959) (holding
that imprisonment for vicarious liability crime violated due process under
Pennsylvania Constitution).


                                          -17-
of sufficient authority . . . to detect, prevent, and correct the sale” of the eggs.
Further, I agree with Judge Murphy that the district court found sufficient facts to
support the conclusion that the DeCosters were negligent.4 In particular, the court
concluded that the DeCosters “knew or should have known” about the risks presented
by the insanitary conditions at Quality Eggs’s Iowa facilities and about the proper
preventative and remedial measures that they should have taken in response. See
Park, 421 U.S. at 671 (“The accused, if he does not will the violation, usually is in
a position to prevent it with no more care than society might reasonably expect and
no more exertion than it might reasonably exact from one who assumed his
responsibilities.” (quoting Morissette, 342 U.S. at 255)). The DeCosters’ challenge
to their sentences relies on the premise that they were held vicariously liable for their
subordinates’ violations—that is, liability was imputed to them based solely on their
positions in the company. But because the DeCosters were negligent, their liability
is not vicarious. 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. See Staples v.
United States, 511 U.S. 600, 607 & n.3 (1994); Morissette, 342 U.S. at 251 n.8. I
therefore concur in the judgment and join Judge Murphy’s opinion to the extent that
it relies on the DeCosters’ negligence in affirming their sentences of imprisonment.




      4
       The DeCosters agreed to have the district court sentence them based on facts
found at sentencing. While the DeCosters objected at sentencing to potential
imprisonment on Sixth Amendment grounds, see Apprendi v. New Jersey, 530 U.S.
466 (2000), they do not argue this point on appeal and therefore waive this objection.
See United States v. Cowan, 696 F.3d 706, 709 n.2 (8th Cir. 2012).


                                          -18-
BEAM, Circuit Judge, dissenting.

      Austin (Jack) and Peter DeCoster, entered pleas of guilty because their
corporation sold eggs contaminated by a strain of salmonella enteritidis bacteria
during a period of time extending "[b]etween about the beginning of 2010 and in or
about August 2010." The government contends that these were federal misdemeanor
offenses under 21 U.S.C. § 331(a) and § 333(a)(1). As noted by the district court,1
they were at the time of the alleged offenses the two ranking corporate officers of
Quality Egg, LLC (Quality Egg)–Jack being the trustee of the trust that owned
Quality Egg and Peter, his son, being the Chief Operating Officer of this multistate
corporate enterprise.

        At all relevant times, Quality Egg operated six Iowa farms with 73 barns filled
with 5 million laying hens and 24 barns filled with young chicks that had not begun
to lay eggs. Quality Egg also had several processing plants where eggs were cleaned,
packed, and shipped. Jack also owned several other egg-production companies in the
state of Maine where Peter apparently spent part of his working time. Collectively,
these were large, diverse, and labor-intensive agricultural operations requiring several
levels and areas of management, as well as a substantial number of "hands-on"
production workers.

      At the outset, it is compelling to discern that the DeCosters' pleas of guilty and
waiver of trial by jury in defense of these criminal misdemeanor charges were
substantially cabined by a series of factual and procedural stipulations by the


      1
       I admit to advancing a measure of factual redundancy by way of this dissent.
However, I do so to lay a foundation for some additional evidentiary emanations
crucial to an adequate understanding of the management of this complex business
operation insofar as such management relates to the criminal prosecution of these two
corporate executives.


                                         -19-
prosecutors and the DeCosters pursuant to Federal Rule of Criminal Procedure 11,
all of which were accepted by and binding upon the district court.

       The record discloses that salmonella contamination of eggs sold by Quality Egg
was the sole basis for adulteration claims under § 331(a) concerning the DeCosters
as individuals. Given such factual predicate, the government stipulated that "[t]o
date" (April 18, 2014), "the government's investigation has not identified any
personnel employed by or associated with Quality Egg, including the defendant[s],
who had knowledge during the [charged] time frame from January 2010 through
August 12, 2010, that eggs sold by Quality Egg were, in fact, contaminated with
Salmonella [Enteritidis]. Further, the government conceded that the criminal
complaint against the DeCosters as executives of Quality Egg was animated by
salmonella-prevention regulations published by the FDA on July 9, 2009, but not
placed in force until July 9, 2010, through adoption of an Egg Safety Rule. The
government also stipulated that "until adoption of the Egg Safety Rule in July 2010,
there was no legal or regulatory requirement" for Quality Egg to comply with these
regulations. The record also establishes that, given the state of the art of poultry-
sanitation management, egg-safety difficulties, especially involving salmonella
contamination, are inherent in such operations.2


      2
       Respectfully, I do not agree that Park, 421 U.S. 658, casts a long, dark
incarceration shadow over the DeCosters as contended by the court's opinion and the
separate concurrence, especially in view of the more recent Supreme Court
jurisprudence emerging from Zadvydas, Staples, and Torres. The opinions should
note that Park's sentence actually amounted to $250 in fines and no incarceration.

       It is also unfair for the concurrence to contend that the DeCosters negligently
failed to prevent a salmonella outbreak within the broad reach of their corporate
operations. After all, the government fully conceded in the plea agreements used to
obtain the convictions that neither the DeCosters nor any other Quality Egg
employees were aware of any salmonella contamination at any times relevant to the


                                        -20-
       In short, large numbers of employees and supervisors were needed and
employed by Quality Egg in an attempt to avoid problems with this ubiquitous
pathogen. Thus, the misdemeanor convictions found and imposed by the district
court in response to the DeCosters' very limited guilty pleas amounted to crimes and
sentences based upon almost wholly nonculpable conduct.

        On the record and the stipulated facts, it is also clear that the DeCosters lacked
the necessary mens rea or "guilty mind," that is "[t]he state of mind that the
prosecution, to secure a conviction, must prove that a defendant had when committing
a crime," Mens Rea, Black's Law Dictionary (10th ed. 2014). This mens rea
requirement is especially applicable when the crime, as here, is punished by
imprisonment. Although § 333(a)(1) purports to authorize a criminal misdemeanor
sentence of "imprison[ment] for not more than one year," the DeCosters' presentence
motions to preclude any such sentence of imprisonment based upon the vicarious-
liability standard the district court applied should have been granted.

       The Fifth Amendment Due Process Clause forbids the government from
depriving any person of liberty without due process of law. "Freedom from
imprisonment–from government custody, detention, or other forms of physical
restraint–lies at the heart of the liberty that Clause protects." Zadvydas v. Davis, 533
U.S. 678, 690 (2001). Such a due process violation as attends the DeCosters' prison
sentence is well illustrated in Staples v. United States, 511 U.S. 600 (1994). Under
the National Firearms Act, 26 U.S.C. §§ 5801-5872, any fully automatic weapon is
a "firearm" within the meaning of the statute. Staples, 511 U.S. at 602. The Act, in


misdemeanor violations charged in the criminal informations. It is likewise
inequitable in my view for the court and the concurrence to credit the government's
inflammatory sentencing rhetoric received by the district court to support corporate-
officer incarceration especially since such pleas were obtained through benign factual
stipulations of criminal liability fully agreed upon by the parties.


                                          -21-
turn, makes it a crime to possess a firearm that is not registered. Id. at 602-03.
Staples possessed an unregistered semi-automatic rifle that, unbeknownst to him, had
been modified to permit automatic firing. Id. at 603. Upon prosecution under the
Act, the district court ruled that the government did not have to prove that Staples
knew the weapon fired automatically because of the modification by someone else.
Id. at 604. He was convicted and sentenced to prison. Id.

       On appeal, the Supreme Court reversed, saying "we must construe [an
imprisonment] statute in light of the background rules of the common law in which
the requirement of some mens rea for a crime is firmly embedded." Id. at 605
(citation omitted). While the government argued, as it does in this case, that a
presumption of the need for a finding of mens rea did not apply in Staples, the
Supreme Court rejected the argument and reversed, holding that Staples's lack of
knowledge of the weapon's capability of automatic fire prohibited his conviction and
prison sentence. Id. at 619. And, the Supreme Court's more recent and perhaps more
forceful iteration of this state-of-mind requirement came in Torres v. Lynch, 136 S.
Ct. 1619 (2016). The Court, amplifying on Staples, stated:

             Consider the law respecting mens rea. In general, courts interpret
      criminal statutes to require that a defendant possess a mens rea, or guilty
      mind, as to every element of an offense. That is so even when the
      "statute by its terms does not contain" any demand of that kind. In such
      cases, courts read the statute against a "background rule" that the
      defendant must know each fact making his conduct illegal. Or otherwise
      said, they infer, absent an express indication to the contrary, that
      Congress intended such a mental-state requirement.


Torres, 136 S. Ct. at 1630-31 (citations omitted) (first quoting United States v. X-
Citement Video, Inc., 513 U.S. 64, 70 (1994); next quoting Staples, 511 U.S. at 619).




                                         -22-
      There is, of course, no express congressional statement to the contrary
contained in § 331(a) or § 333(a)(1). While it might be possible to concoct an
actionable interpretation of § 333(a)(1) that omits a mens rea requirement, Congress
has no power to enact a federal statute that violates the Fifth Amendment Due Process
Clause.

       This court and the district court cite cases that they contend support a rationale
that a criminal sentence of imprisonment is sometimes valid without proof of mens
rea, or, a guilty mind. But, the cases advanced by the government and the courts
cannot bear the load placed upon them, both as matters of fact and law. United States
v. Dotterweich, 320 U.S. 277 (1943), a case substantially predating Zadvydas,
Staples, and Torres, provided an opinion fashioned to remedy an unexpected jury
verdict. Dotterweich, who was the president and general manager of a pharmacal
company, was charged, along with his corporation, with three misdemeanor counts
of violation of the Federal Food, Drug and Cosmetic Act under § 331(a) and
§ 331(a)(1). Dotterweich, 320 U.S. at 278. The jury found the corporation not guilty
but convicted Dotterweich, fining him $500 on each of the three misdemeanor counts
and imposing 60 days of probation. Id.; see United States v. Buffalo Pharmacal Co.,
131 F.2d 500, 501 (2d Cir. 1942), rev'd, Dotterweich, 320 U.S. 277. There was no
incarceration. The circuit court reversed the conviction and sentence but the Supreme
Court reversed on the facts involved. Dotterweich, 320 U.S. at 285. Four justices
dissented from Justice Frankfurter's reversal opinion. Id. at 293.

      Both courts also advance the holding in United States v. Park, 421 U.S. 658
(1975). As an initial matter, it must be noted that Park was charged with 21 U.S.C.
§ 331(k), whereas the purported DeCoster violations involve § 331(a). Id. at 660.
And, Park was individually charged as President of Acme Markets, Inc., and tried and
convicted by a jury on five counts of violating subsection (k). Id. at 660, 666. He
was, however, sentenced to $50 per count for a total of $250.00. Id. at 666. There



                                          -23-
was no incarceration. Incarceration of Dotterweich or Park, as we now know, would
have violated Supreme Court precedent as clearly established in Zadvydas, Staples,
and Torres.

       In fashioning sentences or affirmances of such sentences today, the court and
the district court opinions complain at length that Quality Egg between 2006 and
2010 failed to sufficiently test eggs for salmonella and perform other corporate
activities in connection with its consumption-egg production and marketing. But, the
government's individual criminal-activity allegations at issue here are bottomed upon
acts occurring only in late July and early August of 2010.

       The basis for the court's affirmance of the district court is fully encapsulated
as follows:

             Here, as owner of Quality Egg, Jack decided which barns were
      subject to salmonella environmental testing, and as chief operating
      officer, Peter coordinated many of the company's salmonella prevention
      and rodent control efforts. Neither of the DeCosters claim to have been
      "powerless" to prevent Quality Egg from violating the FDCA. Despite
      their familiarity with the conditions in the Iowa facilities, they failed to
      take sufficient measures to improve them. On this record, the district
      court reasonably found that "the defendants 'knew or should have
      known,' of the risks posed by the insanitary conditions at Quality Egg in
      Iowa, 'knew or should have known' that additional testing needed to be
      performed before the suspected shell eggs were distributed to
      consumers, and 'knew or should have known' of [] proper remedial and
      preventative measures to reduce the presence of [salmonella]." The
      FDCA "punishes neglect where the law requires care." We conclude
      that the record here shows that the DeCosters are liable for negligently
      failing to prevent the salmonella outbreak.


Ante at 8-9 (alterations in original) (citations omitted).


                                         -24-
       Thus, the court validates the district court's prison sentence based upon the
DeCosters' supposed negligence in performing executive functions on behalf of
Quality Egg. However, there is no precedent that supports imprisonment without
establishing some measure of a guilty mind on the part of these two individuals, and
none is established in this case. The government concedes in the DeCosters' plea
agreements that they did not know that any eggs distributed by Quality Egg at any
relevant times "were, in fact, contaminated with Salmonella [Enteritidis]." Indeed,
the plea agreements explicated above further concede that no person associated with
Quality Egg had knowledge of salmonella contamination at any relevant time. And
when first alerted to the problem by the FDA in August of 2010, Quality Egg
immediately, and at great expense, voluntarily recalled "hundreds of millions of shell
eggs produced at Quality Egg's facilities." This is hardly the stuff of "guilty minds."

       Finally, I concede that the court cites two cases in which individual prison
sentences were imposed for violations of § 331(a) and § 333(a)(1). They are United
States v. Greenbaum, 138 F.2d 437 (3d Cir. 1943), and United States v. Higgins,
No. 09-403-4, 2011 WL 6088576 (E.D. Pa. Dec. 7, 2011). Neither case is apposite
here for reasons of fact or law. Greenbaum is clearly wrong given Supreme Court
precedent established since 1943, especially that found in Zadvydas, Staples, and
Torres. And defendant Higgins, contrary to the DeCosters, "personally participated
in the decisions to proceed with unauthorized clinical trials to test the safety and
efficacy of [adulterated compounds] on humans." Higgins, 2011 WL 6088576, at
*13.

       There is no proof that the DeCosters, as individuals, were infected with a
"guilty mind" or, perhaps, even with negligence. Clearly, the improvident prison
sentences imposed in this case were due process violations.

      I respectfully dissent.

                       ______________________________


                                         -25-
