MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS PRIOR TO SENTENCING
TABLE OF CONTENTS
I. INTRODUCTION.922
II. THE DEFENDANTS’ MOTIONS PRIOR TO SENTENCING .924
III. FACTUAL BACKGROUND.. CO to cn
A. Quality Egg Provided False Information and Documents CO co <1
B. Quality Egg Bribed a USDA Official. CO to oo
C. Quality Egg Changed the “Julian Dates” on Packages of Eggs and Sold Misbranded Eggs into Interstate Commerce .... CO to co
D. Quality Egg Failed to Meet FDA Regulatory Standards CO 00 i —
TV ISSUES . .934
V. DISCUSSION. CO 00
A. Whether The Sixth Amendment Was Violated By My Factual Findiny At The Defendants’ Sentencing Hearing. CO C5
1. Defendants ’ Arguments. 'sT CO 05
2. IQ CO 05
3. Analysis .. ■. CD CO 05
B. Whether the Eighth Amendment Permits a Sentence of Imprisonment for the Defendants’ Strict Liability Offenses CO CO CO
1. Defendants ’ Arguments. CO 00 CD
2. Prosecutors’ Arguments. CO CO CO
3. Analysis . CD ^ H
C. Whether The Fifth Amendment Permits a Sentence of Imprisonment for the Defendants’ Strict Liability Offenses CO rfx <3
1. Defendants’Arguments. CO -3
2. Prosecutors’Arguments. CO ^ CO
3. Analysis. CO cn h-
VI. CONCLUSION. .958
I. INTRODUCTION
Gilead is a fictional novel based in the small town of Gilead, Iowa. The main character, Reverend John Ames, is dying from heart complications and, in a Ciceronian fashion,
My mother took a great deal of pride in her chickens, especially after the old man was gone and her flock was unplun-dered. Culled judicially, it throve, yielding eggs at a rate that astonished her. But one afternoon a storm came up and a gust of wind hit the henhouse and lifted the roof right off, and hens came flying out, sucked after it, I suppose, and also just acting like hens. My mother and I saw it happen, because when she smelled the rain coming she called me to help her get the wash off the line.
It was a general disaster...
Marilynne Robinson, Gilead 66-67 (2004).
In August 2010, a disaster on a much larger scale than the one described in Gilead occurred. At that time, “a storm came up and a gust of wind hit the hen-house,” so to speak, when thousands of people across the country were sickened by adulterated eggs sold at restaurants and grocery stores. It was determined that the eggs carried Salmonella Enteritidis (SE) bacteria, and the eggs were traced back to an Iowa-based company, Quality Egg, LLC (Quality Egg). That company, for several years prior to 2010, owned and operated egg production and processing facilities in small towns, like the Actional town of Gilead, across Iowa, including: Galt, Clarion, Alden, and Dows.
The two executives of Quality Egg, Austin and Peter DeCoster, were later charged with shipping and selling shell eggs that contained SE across state lines as responsible corporate officers under 21 U.S.C. §§ 331(a) and 333(a)(1).
II. THE DEFENDANTS’ MOTIONS PRIOR TO SENTENCING
A sentencing matter arose from motions filed by the two individual defendants, Austin DeCoster and Peter DeCoster (referred to jointly below as the DeCosters or the defendants), prior to their sentencing hearing. Austin DeCoster filed his Motion That A Sentence Of Incarceration Or Confinement Is Unconstitutional (docket no. 64) on October 6, 2014. A memorandum in support of Austin Decoster’s motion was filed two days later (docket no. 67). On October 22, 2014, Peter DeCoster submitted a motion (docket no. 71), which relied on Austin DeCoster’s memorandum and adopted the same arguments and constitutional challenges.
The core of the defendants’ contention was that for their “strict liability offense, a sentence of incarceration, including intermittent, community, or home confinement, or other restriction on liberty other than probation, would be unconstitutional” on due process grounds. Austin DeCoster’s Memorandum at 2-3. This is because the defendants “had no knowledge of the violation and no knowledge of the conduct underlying the offense.” Id. at 1.
In reply, the prosecutors filed a resistance brief on October 23, 2014 (docket no. 74). The prosecutors requested that I “deny the defendants’ motions” and “impose the sentences that [I] find[ ] appropriate in light of the evidence.” Resistance Brief at 2. The prosecutors’ argument was two-fold: (1) the defendants knew about the insanitary conditions at Quality Egg, and, therefore, had knowledge that there was an increased risk of their eggs being adulterated; and (2) even if proof of mens rea is absent, a sentence of incarceration would not be unconstitutional based on either the due process clause of the Fifth Amendment or the Eighth Amendment. Id. at 4, 6.
III. FACTUAL BACKGROUND
On June 2, 2014, the DeCosters pleaded guilty before United States Magistrate Judge Leonard T. Strand to selling adulterated food into interstate commerce in violation of the FDCA, 21 U.S.C. § 331(a), which is a misdemeanor offense, carrying a possible term of imprisonment of up to one year. See 21 U.S.C. § 331(a); see also 21 U.S.C. § 333(a)(1).
According to his plea agreement, Austin DeCoster “exercised substantial control over the operations of Quality Egg and related entities and assets in Iowa.” Austin DeCoster’s Rule 11 Plea Agreement (docket no. 16-1), ¶ 7. Peter DeCoster “exercised some control over the production and distribution of shell eggs by Quality Egg and related entities and assets in Iowa.” Peter DeCoster’s Rule 11 Plea Agreement (docket no. 17-1), ¶ 7. The following facts quoted from the parties’ Rule 11 plea agreements are undisputed and were stipulated to by the parties:
*925 Between about the beginning of 2010 and in or about August 2010, Quality Egg introduced and caused to be introduced into interstate commerce food, that is shell eggs, that were adulterated. The shell eggs were adulterated in that they contained a poisonous and deleterious substance, that is, Salmonella En-teritidis, that may have rendered them injurious to health. Quality Egg produced, processed, held, and packed the contaminated eggs in Iowa and sold and caused the distribution of the eggs to*926 buyers in states other than Iowa. At the time Quality Egg sold the contaminated eggs, if the contamination of eggs had been known to the defendants, [they] [were] in [] position^] of sufficient authority at Quality Egg to detect, present, and correct the sale of the contaminated eggs.6
According to the findings of the CDC, as set forth in the defendants’ PSIRs, there were thousands of consumers sickened by the SE outbreak in 2010. See Austin De-Coster’s PSIR at ¶ 59; see also Peter De-Coster’s PSIR at ¶ 59. In fact, “the CDC determined that approximately 1,939 reported illnesses and/or cases of salmonello-sis were likely associated with the SE outbreak in 2010.”
After the SE outbreak was traced back to Quality Egg’s facilities, the FDA requested that Quality Egg issue a voluntary recall of hundreds of millions of shell eggs produced at Quality Egg’s facilities. See Austin DeCoster’s PSIR at ¶ 10, 63; see also Peter DeCoster’s PSIR at ¶ 1Ó, 63. Quality Egg followed the FDA’s request. According to the parties’ stipulations, other than one occasion in 2009, “prior to July 2010, Quality Egg did not conduct SE tests on eggs or divert eggs from the market based upon the receipt of a positive environmental SE result.” Parties’ Stip. at ¶ 2; see also Austin DeCoster’s PSIR at ¶ 25; Peter DeCoster’s PSIR at ¶ 25. After Quality Egg’s recall, between August 12, 2010 and August 30, 2010, the FDA conducted a regulatory inspection of Quality Egg’s facilities in Iowa and observed “egregious unsanitary conditions,” including live and dead rodents, beetles, flies, and frogs in the laying areas, feed areas, and conveyer belts, and a room filled with manure. Austin DeCoster’s PSIR at ¶ 66; Peter DeCoster’s PSIR at ¶ 66.
It is important to note, here, that I adopt every unobjected to portion of the defendants’ PSIRs as findings of fact in this case. Because certain unobjected to portions of the defendants’ PSIRs are par
A. Quality Egg Provided False Information and Documents
29.Between 2007 and 2010, one of Quality Egg’s major customers was U.S. Foodservice (“USFoods”). The broker for Quality Egg’s USFoods account was Lund Eggs, owned by Joan Lund (now deceased). As a condition for buying eggs produced by Quality Egg, USFoods required that the Quality Egg plants where the USFoods eggs were processed — primarily Quality Egg Plants 3 and 6 — undergo annual food safety audits by an independent auditing firm, one of which was AIB. Each audit consisted of a scheduled two-day plant visit: one day the auditor conducted a physical inspection of the plant; the other day the auditor reviewed the food safety and sanitation-related paperwork that Quality Egg was required to maintain, which included Quality Egg’s HACCP Plan. The HACCP Plan itself required Quality Egg to maintain documentation of certain tasks to be performed daily, weekly, or monthly. When the AIB auditor completed his review of the facilities and documentation, he produced two documents: (1) a formal AIB Audit Report that explained his findings and observations, and gave the facility a score; and (2) a US-Foods Addendum, which was a checklist of items required specifically by USFoods. The auditor provided these two documents to Joan Lund, who in turn submitted them to US-Foods. In order to supply eggs to USFoods, the audited facility had. to receive a score of “Superior,” which was 900 points or higher.
30. During every AIB audit between 2007 and 2010, Quality Egg and [redacted] made significant misrepresentations, including material omissions, to two AIB auditors with regard to Quality Egg’s food safety and sanitation practices and procedures. With respect to the documentation required for every audit, [redacted] and others at Quality Egg directed the manufacture and falsification of documents required for the audit, with the intent that the auditors and USFoods would rely on the fabricated documents. On the days leading up to each audit, [redacted] identified numerous documents that were supposed to have been completed monthly, weekly, or daily that were missing from Quality Egg’s files; many of those documents then appeared in the files on the day the auditor was to review them. On the days leading up to an audit, [redacted] gave Quality Egg employees blank, signed forms and instructed them to fill in the missing information. Among the forms that were manufactured and completed late at the direction of [redacted] and others at Quality Egg were preoperative sanitation reports, daily clean-up forms, pest control reports, daily maintenance reports, and visitor logs.
31. Both • through documents and through oral representations, [redacted] and Quality Egg misled the AIB auditors about the pest control meas*928 ures that were in place in the processing plants and layer barns, [redacted] and Quality Egg represented to AIB auditors during the annual audits that Quality Egg had a pest control program in place for Plants 8 and 6 during the entire time period between 2007 and 2010. In fact, Quality Egg’s retention of a pest control company was sporadic over this time period. For various time periods between July 2006 and August 2010, Quality Egg had no outside pest control services to deal with rodents or insects in the processing plants, and had no outside pest control services at all to deal with rodents in the layer barns.
32. [redacted] and Quality Egg also misled the AIB auditors about the Salmonella prevention strategies and measures used by Quality Egg for Plants 3 and 6, with the intent that the auditors and USFoods would rely on those misrepresentations. The USFoods Addenda that the AIB auditors completed required Quality Egg’s plants to have in place “product testing protocols and appropriate intervention technologies to reduce or limit the amount of Salmonella found in fresh shell eggs,” and that such measures be included in Quality Egg’s HACCP Plan. For each AIB audit between 2007 and 2010, [redacted] and Quality Egg provided the AIB inspector with documents that indicated that Quality Egg performed flock testing to identify and control Salmonella. In fact, no such “flock testing” was ever done. For the August 2009 AIB audits for Plants 3 and 6, [redacted] and Quality Egg made the further misrepresentation B reflected in the US-Foods Addenda for those audits B that Quality Egg had a Salmonella program in place for the layer and pullet barns. Moreover, [redacted] and Quality Egg did not take preventative measures or employ strategies to reduce or limit Salmonella in Quality Egg’s table eggs when they received positive results from the sporadic SE environmental testing and necropsies that Quality Egg did perform.
33. When Quality Egg first started selling eggs to USFoods through Lund Eggs, Quality Egg represented to Lund Eggs that it had a very aggressive Salmonella prevention program that was ahead of the industry. Quality Egg told Lund Eggs that it performed blood tests for Salmonella on pullets and also environmental swab tests, [redacted] and Quality Egg represented to Lund Eggs and USFoods during an audit by USFoods that, if its tests came back positive for Salmonella, Quality Egg would divert the eggs. In fact, no eggs were ever diverted, even though [redacted] and Quality Egg received numerous positive environmental SE tests for Plants 3 and 6.
B. Quality Egg Bribed a USDA Official
45. On more than one occasion in 2010, inspectors of the U.S. Department of Agriculture (USDA) exercised their official authority to retain pallets of shell eggs at Quality Egg’s egg production and processing facilities in Wright County, Iowa. Such pallets of eggs were retained for failing to meet minimum quality grade standards promulgated by the USDA. Pursuant to USDA procedures, USDA inspectors must retain or “red tag” pallets of eggs which, upon inspection, fail to meet appropriate standards. Pallets of retained or “red tagged” eggs are legally restricted and cannot be shipped or sold unless such eggs are*929 properly re-processed and released for shipment or sale by appropriate USDA personnel. Specifically, the retained pallets of eggs at Quality Egg’s facility contained too great a percentage of restricted eggs under minimum USDA quality grade standards. That is, too many of these restricted eggs qualified as “checks,” “dirty eggs,” “leakers,” or “losses” as defined by 21 U.S.C. § 1033(g).
46. On or about April 12, 2010, [redacted] authorized the disbursement of $300 in Quality Egg petty cash to [redacted] knowing and intending that the cash would be used by [redacted] to bribe a USDA inspector. Specifically, [redacted] instructed Quality Egg’s Chief Financial Officer to give [redacted] $300 from Quality Egg’s petty cash fund, [redacted] and [redacted] provided the bribe to the inspector in an attempt to corruptly influence the inspector with regard to an official act, that is, to exercise his authority to release pallets of retained eggs for sale by Quality Egg without re-processing them as required by law and USDA standards. On at least one additional occasion in 2010, [redacted] and [redacted] provided a bribe to the same inspector for the same purpose. The inspector is now deceased.
47. In providing the bribes, [redacted] and [redacted] were each acting within their scope of employment at Quality Egg and were acting with intent to benefit Quality Egg.
48. The prosecutor’s investigation has revealed no evidence that, prior to the bribe made on or about April 12, 2010, either [defendant] had knowledge that the bribe was going to occur.
C. Quality Egg Changed the “Julian Dates” on Packages of Eggs and Sold Misbranded Eggs into Interstate Commerce
53. In the United States shell egg industry, shell egg producers put dates on cases of eggs to designate the date that the eggs were processed. The dates are typically expressed as a “Julian date.” In turn, as is well known in the shell egg industry, shell eggs are typically processed within 24 hours of the time the eggs are laid. Processing dates are typically applied to cases of eggs and not necessarily to each individual carton of eggs. At the relevant times, the States of California and Arizona required that shell eggs be sold within 30 and 24 days of processing; other states had similar laws restricting the sale of older eggs.
54. Beginning no later than January 1, 2006, and continuing until approximately August 12, 2010, Quality Egg personnel, under the direction and •with the approval of [redacted], shipped some eggs in interstate commerce to various wholesale customers with deliberately mislabeled processing dates and expiration dates. In fact, some of the eggs were older than indicated by the dates on the egg cases. Some of the eggs were also shipped with no labeling so that, in some instances, labeling with inaccurate processing and expiration dates could be sent to wholesalers and affixed to the cases at the destination.9
55. Because Quality Egg produced in excess of one million eggs every day and the market varied up and down frequently, Quality Egg often had a surplus of eggs in storage. Quality Egg’s options were to sell the surplus eggs to a wholesale shell egg'custom*930 er or to sell them to a breaker facility that bought them for approximately one-half the market price of shell eggs. Quality Egg’s typical practice was to sell the eggs at a reduced price to a wholesale shell egg customer rather than to sell them to a breaker. These surplus eggs had been in storage for periods of time ranging from 14 days to 40 or more days, [redacted] referred to older eggs as “distressed eggs.” [redacted] also said the only way he would not sell such eggs to a wholesale shell egg customer was if the eggs were moldy. If said eggs were moldy, then [redacted] would instruct Quality Egg personnel to sell the eggs to a breaker facility.10
56.There were a number of ways that, under the direction and approval of [redacted], Quality Egg mislabeled older eggs with newer processing and expiration dates prior to shipping the eggs to customers in California, Arizona, and other states. Sometimes Quality Egg personnel did not put any processing or corresponding expiration dates on the eggs when they were processed. The eggs would be kept in storage for several days and up to several weeks. Then, just prior to shipping the eggs, Quality Egg personnel labeled the eggs with processing dates that were false, in that the dates were more recent than the dates that the eggs had actually been processed, with corresponding false expiration dates. In other instances, Quality Egg personnel relabeled older eggs with processing dates that were false, in that the dates were more recent than the dates that the eggs had actually been processed, with corresponding false expiration dates. Quality Egg personnel did this by removing the original labeling and affixing new, false labeling to the egg cases, and also by placing new, false labeling over existing labeling on the egg cases. In other instances, Quality Egg personnel sent new labeling with processing dates that were false, in that dates were more recent than the dates that the eggs had actually been processed and with corresponding false expiration dates, with the drivers of the trucks in which the eggs were shipped, so the wholesale customer could apply the new labeling at the destination. In addition, at the request of certain wholesale customers, Quality Egg personnel printed new labeling with processing dates that were false, in that dates were more recent than the dates that the eggs had actually been processed and with corresponding false expiration dates, and sent false labeling to the wholesale customers so that older cases of eggs could be relabeled to falsely indicate more recent dates.
57. Through these mislabeling practices, Quality Egg personnel, including [redacted], intended to mislead, at least, state regulators and retail egg customers regarding the age of the eggs. These mislabeling practices •had the effect of misleading state regulators and retail egg customers regarding the age of these eggs.
58. In mislabeling eggs with false processing and corresponding expiration dates, [redacted] and other Quality Egg personnel were each acting within the scope of their employment by*931 Quality Egg and were acting with intent to benefit Quality Egg.
59. The mislabeling of eggs at Quality Egg with inaccurate dates was a common practice and was well known among several Quality Egg employees. It was an ongoing practice before [redacted] became involved in Quality Egg sales in 2002.
60. As a result of the mislabeling of eggs with false processing and corresponding expiration dates, [redacted] and other Quality Egg personnel caused an actual, reasonably foreseeable, pecuniary harm to more than 250 retail egg customers in a total amount of more than $400,000 but not more than $1,000,000.11
61. The prosecutor has investigated whether any persons became ill or otherwise sustained bodily injury as a result of ingesting eggs sold with false processing and corresponding expiration dates. To date, the prosecutor’s investigation has not identified any such persons.
62. To date, the prosecutor’s investigation has revealed no evidence that Peter DeCoster and/or [Austin] DeCoster had knowledge of these mislabeling practices.
D. Quality Egg Failed to Meet FDA Regulatory Standards
66. Between August 12, 2010, and August 30, 2010, the FDA conducted a regulatory inspection of the following Quality Egg facilities: Layers 1, 2, 3, 4, and 6, and the feed mill. Many egregious unsanitary conditions were observed. Items noted were: live and
dead rodents (mice) and frogs found in, the laying areas, feed areas, conveyer belts, and outside of the buildings; skeletal remains of a chicken on a conveyer belt; numerous holes in walls and baseboards in the feed and laying buildings; missing vent covers; rodent traps were broken, did not have bait in them, and some traps still had dead rodents in them; manure piled to the rafters in one building, which was below the laying hens; a room was so filled with manure that it pushed the screen out of the door, allowing rodents access to the building; and live and dead beetles and flies throughout the chicken barns.
67. Based upon the inspection, the FDA issued a “Form 483 Inspectional Observations” report (“483 Report”) and subsequently issued a more detailed “Establishment Inspection Report.” The following observations were included in the 483 Report:
A. DeCoster12 failed to implement and follow its written SE prevention plan (by failing to effectively implement various aspects of its egg bio-security plan related to dogs, cats, rodents and other wild animals, and manure management);
B. DeCoster failed to take steps to ensure there was no introduction or transfer of SE into or among poultry houses (including, with regard to inadequate doorway accesses, protective clothing, cleaning/saniti-zation of equipment, uncaged chickens using manure eight feet high to access the laying area, and a door being blocked by excess manure);
*932 C. DeCoster failed to achieve satisfactory rodent and pest control (as evidenced by the observation of specified numbers of live mice, and numerous live and dead maggots and live and dead flies);
D. DeCoster failed to adequately document the monitoring of rodents and other pest control measures;
E. DeCoster failed to adequately document compliance with biosecurity measures;
F. Regarding the feed mill, wild birds were observed in the storage and milling areas (and nesting material was in the “closed” mixing system, ingredient storage, and truck filling areas), ingredient bins had rusted holes and were otherwise inadequately closed, and outside grain bins had topside doors/ lids open to the environment with pigeons entering and leaving the bins; and
G. Samples were collected during the inspection that tested positive for SE.
68. As of October 14, 2010, the FDA had made several determinations regarding SE contamination at Quality Egg facilities and the steps necessary to address the contamination. According to the FDA, Quality Egg’s environmental and egg testing and the FDA’s environmental and feed testing established that the SE contamination at Quality Egg’s facilities was widespread. Given the extremely high level and pervasive nature of the contamination and the conditions identified at Quality Egg’s facilities that were not sufficient to prevent the spread of SE, the FDA determined that depopulation of each of Quality Egg’s hen houses was the appropriate action to minimize the likelihood of a recurrence of a food borne outbreak. The FDA offered the following reasons for its determination that lesser measures would be insufficient:
• Pervasive Salmonella Enteritidis (SE) contamination throughout the entirety of Wright County Eggs’ (WCE) operation. SE was found in 63% (46/73) of house environments and in eggs from 40% (31/77) of houses. Additionally, SE was isolated from the wash water, feed mill, feed samples, feed ingredients, and a pullet house. These data are indicative of widespread SE contamination that is not localized to any one part of WCE’s operation, but is instead spread throughout the entirety of the WCE operation.
• The known presence of an additional egg-associated pathogen, Salmonella Heidelberg (SH), at the pullet houses. The younger a bird is, the more susceptible it is to infection. Since this pathogen was present at a time when the pullets were susceptible to colonization, it is possible that these birds, if they are now laying eggs, are producing eggs that contain SH.
• An incidence rate of SE positive eggs that is approximately 39 times higher than the estimate cited in the FDA’s egg safety rule as being the current national incidence rate. Based on WCE’s egg tests, the FDA calculated that 1 out of every 516 eggs at WCE was positive for SE compared to the expected rate of 1 in 20,000. This data is for the operation as a whole and importantly, all WCE farms have been determined to be producing SE positive eggs.
• The likelihood that current layers in production now have been exposed to SE positive feed. Current layers (Sites 2 and 4) would have been*933 placed at WCE pullet rearing facilities sometime (approximate) between April and May 2010. These birds would have been fed potentially contaminated feed for several months prior to the FDA’s identification of SE in the feed. As stated above, younger birds are more susceptible to colonization. Thus, current layers at Sites 2 and 4 may be producing eggs that contain SE.
• The likelihood that houses will be recontaminated. In light of the inter-connectivity of houses in an inline operation, the fact that WCE houses are connected through a common walkway and biosecurity concerns revealed during the FDA’s inspections, such as the lack of doors to some houses, the FDA is concerned about the possibility of recontamination. Given the pervasive nature of SE at WCE, even if a house environment is presently SE-negative, there is a distinct possibility that it will not remain SE-negative but will become contaminated with SE present elsewhere in WCE’s facilities.
• An SE negative environmental test is not always indicative of SE negative eggs. At WCE there are eight houses with SE negative environmental tests that produced eggs that tested positive for SE (Farm 2 House 1; Farm 3 House I; Farm 4 Houses 1 and 4; and Farm 6 Houses 1, 4, 5, and 8). These observations, coupled with the pervasive nature of SE at WCE’s facilities, suggest that environmental negatives in WCE houses at present must be viewed with caution.
• A house with a negative environment and negative egg test still has the potential to produce positive eggs. Because only one — 1,000 egg sample has been taken and because infected hens are known to lay SE positive eggs intermittently, it is very plausible that the full extent of SE contamination of eggs being produced at WCE has not yet been discovered and that the 40% figure mentioned above is an underestimation of the extent of contamination.
• An inefficacious vaccination program in place at the time current layers were being grown out.' A total of 54 flocks were vaccinated but 57% (31/54) of houses with vaccinated layers had SE positive environments and 17% (9/54) of houses with vaccinated layers produced eggs that tested positive for SE. The vaccination program appears to be in-efficacious regardless of whether one or two doses were administered.
• While WCE claims to be operating a new and improved vaccination scheme presently, no data has been provided to the FDA which would demonstrate efficacy of that program.
69. In addition, the FDA emphasized that depopulation alone would not be sufficient, but should be done in conjunction with the following “necessary actions”:
removal of manure from all sites, cleaning and disinfection of all houses subsequent to manure removal, verification that cleaning and disinfection has rendered facilities free of SE and SH, repair of facilities to prevent ingress by rodents or birds, and resolution of all items described on the FDA Form 483. Such actions should be completed before repopulating any facility with chickens at any stage of maturity. In addition, we also believe you (WCE) must make certain that your*934 (WCE’s) feed mill and pullet rearing facilities are free of SE and SH. Once the entirety of WCE operations is free of SE and SH, adequate biosecurity measures must be followed to prevent a reoccurrence.
70. Between August 19, 2010, and August 24, 2010, the FDA conducted a regulatory inspection of Hillandale’s West Union (Layer 9) and Alden facilities and its corporate office. It was discovered that Hillandale purchased/obtained all their pullets from Quality Egg. It was also discovered that Hillandale purchased all the feed for their facility in Alden, Iowa, from Quality Egg.
71. Excessive bird activity was observed at Hillandale’s grain storage facility. In addition, grain and other ingredients were stored outside open to the environment, therefore allowing birds and rodents access to the grain . and to potentially contaminate it with SE through fecal matter.
Austin DeCoster’s PSIR at ¶ 29-33, 45-48, 66-71; Peter DeCoster’s PSIR at ¶ 29-33, 45-48, 66-71; Quality Egg’s PSIR at ¶ 53-62.
IV. ISSUES
There are three primary issues I address in this Memorandum Opinion and Order: (1) Whether, under the Sixth Amendment, it was permissible for me to find at the defendants’ sentencing hearing that they had relevant knowledge of the conduct underlying their strict liability offense; (2) Whether, absent proof of mens rea, the sanction of imprisonment for their offense would be unconstitutional in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment; and (3) Whether, absent proof of mens rea, the sanction of imprisonment for their offense would be unconstitutional in violation of the Due Process Clause of the Fifth Amendment.
V. DISCUSSION
A. Whether The Sixth Amendment Was Violated By My Factual Findiny At The Defendants’ Sentenciny Hear-iny
1. Defendants’ Aryuments
In their initial brief, the defendants claimed to have “no knowledge of the violation and no knowledge of the conduct underlying the offense” to which they pleaded guilty. Austin DeCoster’s Memorandum at 1. Rather, their plea agreements were based on their roles as “corporate officers” at Quality Egg. Id. In the absence of mens rea, the defendants argued, imprisonment would be unconstitutional, in violation of the right to due process and the Eighth Amendment’s prohibition on cruel and unusual punishment. See id. at 3; see also Defendants’ Reply Brief (docket no. 78), 4.
Early in their reply brief, the defendants took issue with the prosecutors’ assertion that their constitutional argument could be avoided if I determined at the defendants’ sentencing hearing “that defendants in fact had culpable mental states.” Defendants’ Reply Brief at 3 (quoting Resistance Brief at 2). Such a finding of fact would, according to the defendants, be a constitutional violation under the Sixth Amendment. This is because, citing to Alleyne v. United States, — U.S. —,
Later in their reply brief, the defendants returned and added to their argument that proving the defendants had relevant knowledge of their offenses by a preponderance of the evidence at their sentencing, rather than at a trial by jury, would be a violation of the Sixth Amendment. See id. at 9-10. The defendants, again in reliance on Alleyne, reiterated that “absent an admission by the defendant, the government must prove to a jury ‘every fact that [is] a basis for imposing or increasing punishment.’ ” Id. at 9 (quoting Alleyne,
If the DeCosters’ position is correct, and a prison sentence cannot be imposed with a determination that the defendant had personal knowledge of the offense conduct or personal involvement in the offense conduct, then that fact cannot permissibly be determined by a court because it would supply a “basis for imposing or increasing punishment.” Alleyne,133 S.Ct. at 2159 .
Id. Thus, the defendants argued that I must first decide whether the imposition of a term of imprisonment is unconstitutional, here, before I consider the prosecutors’ claims as to the defendants’ mens rea at sentencing.
2. Prosecutors ’ Arguments
Contrary to the defendants’ assertions, the prosecutors argued that the defendants “were in no ways ‘wholly innocent and unknowing’ ... about the conduct to which they pled guilty.” Resistance Brief at 2. The prosecutors referred to information in the defendants’ PSIRs, and the defendants’ objections to their PSIRs, to further the prosecutors’ point. For instance, the defendants’ PSIRs suggest that the defendants knew of SE contamination at Quality Egg between January and August 2010 because of “necropsies that found SE in the organs of laying hens and positive environmental tests for SE.”
In addition, the prosecutors argued that the defendants’ objections (and lack thereof) to their PSIRs prove that the defendants knew about the “preventative and ameliorative measures recommended to address the company’s SE and pest control problem.” Id. at 5. This is because they were aware of the recommendations by Dr. Charles Hofacre and Dr. Maxcy P. Nolan, III,
Lastly, the prosecutors indicated that they were “prepared to present evidence” at the defendants’ sentencing hearing to bolster their claim that the defendants knew of the conditions, which “increased the likelihood of Salmonella contamination and proliferation.” Id. at 5. However, no additional evidence was presented because the scope of the contested issues was narrowed by the parties’ stipulations. Based on the defendants’ PSIRs and objections, the prosecutors argued in their briefs and at sentencing, it is clear that the defendants knew about the insanitary conditions at Quality Egg in Iowa and the lack of a proper response to that problem in order to minimize and prevent SE contamination. Id. Therefore, the prosecutors made the case that the defendants’ motions are based on a “fundamentally flawed premise” because they, indeed, “knew about the conditions that caused the introduction of adulterated eggs into interstate commerce[.]” Id. at 6.
3. Analysis
Relying primarily on Alleyne,
In Alleyne, a defendant was convicted of robbery affecting commerce and the use of a firearm during and in relation to a crime of violence. Alleyne,
Unlike in Alleyne and Apprendi, my factual finding that the defendants had relevant knowledge of their strict liability crimes — that is, knowledge of the insanitary conditions at Quality Egg, and the increased risk that their processing plants were contaminated with SE, does not constitute an element of their offense, or “increase[ ] the punishment above what is otherwise legally prescribed.” Alleyne,
In addition, as indicated in the defendants’ plea agreements, both defendants agreed to be “sentenced, based on facts to be found by the sentencing judge by a preponderance of the evidence and agree facts essential to the punishment need not be (1) charged in the Indictment or Information; (2) proven to a jury; or (3) proven beyond a reasonable doubt.” Austin DeCoster’s Rule 11 Plea Agreement at ¶ 8 (emphasis added); Peter DeCoster’s Rule 11 Plea Agreement at ¶ 8 (emphasis added). However, despite what is provided in their plea agreements, and, therefore, agreed to by the defendants, the defendants demanded a higher standard of persuasion on this issue in their reply brief. Inconsistent with their plea agreements, the defendants argued in their reply brief that the prosecutors’ proposal to prove their prior knowledge of their offenses to me, by a preponderance of the evidence, would violate their Sixth Amendment rights. See Reply Brief at 9-10. Thus, alternatively, I find that the defendants clearly waived in their respective plea agreements their belated assertion of an Alleyne-Apprendi issue. Based on a correct reading of Alleyne and Apprendi, the defendants’ plea agreements, and the evidence presented by the prosecutors at the defendants’ sentencing hearing, I disagree with the defendants’ claim that a Sixth Amendment violation occurred by not submitting the factual issue of whether the defendants had relevant knowledge of their strict liability offenses to a jury.
During oral arguments at the DeCost-ers’ sentencing their counsel further refined their Sixth Amendment argument. The defendants’ argument was that if it was unconstitutional to impose any incarceration for the offense of conviction, because that would violate due process and the Eighth Amendment where no actual knowledge was established, then it would also violate the Sixth Amendment. I pointed out that was a silly argument because, if they won on the due process or Eighth Amendment claims, I could not impose incarceration, rendering their Al
For argument’s sake, even if I agree with the defendants that they had no relevant knowledge of their criminal conduct, I am still well within my discretion to impose a sentence of imprisonment for the defendants’ violations of 21 U.S.C. § 331(a) for the reasons discussed below.
B. Whether the Eighth Amendment Permits a Sentence of Imprisonment for the Defendants’ Strict Liability Offenses
1. Defendants ’ Arguments
The defendants’ reply brief asserted that when courts consider whether a defendant’s sentence is “grossly disproportionate” to the defendant’s crime, and thus, in violation of the Eighth Amendment, courts consider “ ‘the gravity of the offense and the harshness of the penalty,’ as well [sic] the sentences imposed for similar offenses by judges within the jurisdiction and across the country.’ ” Defendants* Reply Brief at 7. Applying that standard, the .defendants argued that a prison sentence or confinement “would be disproportionate” to the defendants’ crime “because this, a strict vicarious liability crime, is the most minor offense known to the law.” Id. at 8.
The defendants further contended that their crime “is a pure status offense — a criminal violation based upon the fact that someone else subordinate to the defendant broke the law.” Id. Because someone else violated the law, with no criminal intent, when a defendant is charged under a strict vicarious liability theory, courts have traditionally warned that jailing a defendant on that basis, as here, would be “unjustifiable.” Id. Although such case law is grounded on the Due Process Clause, “the basic principle” set forth in those cases also applies to the Eighth Amendment: “Imprisonment for a person who did not commit the crime would indeed be ‘grossly disproportionate,’ and would therefore violate the Eighth Amendment, just at it would violate the Due Process Clause.” Id. at 8-9 (quoting Graham v. Florida,
The defendants also disagreed with the prosecutors that imprisonment is justified for deterrence purposes. The defendants argued that “it’would not serve any rational deterrence purpose to impose a prison sentence on a corporate officer who had nothing to do with the underlying offense and who is not charged with any degree of fault.” Id. This is because such a “rule of liability” would enable courts to sentence business executives to terms of imprisonment where such business executives did “everything in their power to prevent the offense from occurring.” Id. The defendants categorized the prosecutors’ deterrence theory as “irrational.” Id. The prosecutors’ theory, the defendants contended, is “wholly insufficient” to serve as justification for imprisoning the defendants as their links to the crime committed are their statuses at Quality Egg. Id.
2. Prosecutors’Arguments
The prosecutors’ resistance brief focused on refuting the defendants’ general contention that the Constitution “forbids ‘sentence[s] of incarceration ... or other re
Citing Graham, the prosecutors added that, in “consider[ing] whether certain sentencing practices are categorically disproportionate as applied to certain classes of offenders or offenses,” Resistance Brief at 11, the Supreme Court analyzes “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue.” Graham,
In addition, there is no case law, the prosecutors contended, that “construes the Eighth Amendment, or any other constitutional provision, to impose a per se constitutional bar to imprisonment for strict-liability offenses.” Id. Rather, the FDCA’s one-year prison sentence furthers the penological goals and congressional efforts to deter the introduction of unsafe foods and drugs into the economy. Id. at 13. To bolster their argument, the prosecutors provided a thorough overview of relevant case law “upholding sentences of imprisonment for strict-liability offenses[.]” Id. The prosecutors discussed the facts of relevant federal district court cases in which the defendants were convicted of FDCA violations and sentenced to prison, even though they lacked knowledge of the wrongdoing.
3. Analysis
The defendants have failed to convince me that even a sentence of the statutory maximum of one year in prison is “grossly disproportionate” to their offense, and therefore, in violation of the Eighth Amendment. See 21 U.S.C. § 333(a)(1); see also Ewing,
To determine whether a sentence is grossly disproportionate, we examine “ ‘the gravity of the offense compared to the harshness of the penalty.’ ” [United States v. Paton,535 F.3d 829 , 837 (8th Cir.2008) (quoting Ewing,538 U.S. at 28 ,123 S.Ct. 1179 ) ]. In weighing these matters, we 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. Wiest,596 F.3d 906 , 911-12 (8th Cir.2010) ]. We also consider a defendant’s history of felony recidivism, if there is one. Paton,535 F.3d at 837 (citing Ewing, 538 U.S.at 29,123 S.Ct. 1179 ).
United States v. Lee,
In this case, the DeCosters’ contaminated eggs caused harm to thousands of consumers. Those consumers were sickened, and some of the consumers’ injuries were severe.
In addition, as the prosecutors pointed out in their resistance brief, the Eighth Circuit. Court of Appeals has explained that it has “never held a sentence within the statutory range to violate the Eighth Amendment.” See Resistance Brief at 12; see also Vanhorn,
Purdue Frederick Co., a case relied upon by the defendants, is inapplicable. In Purdue Frederick Co., the District Court for the Western District of Virginia accepted the pleas of three corporate officers, who pleaded guilty to the misdemeanor charge of misbranding a prescription opioid pain medication, OxyContin, in violation of the FDCA. Purdue Frederick Co.,
Unlike the plea agreements in Purdue Frederick Co., which explicitly “provide[d] for no incarceration for the individual defendants,” the plea agreements in this case do not provide for no incarceration for either defendant. Purdue Frederick Co.,
In addition, in the prosecutors’ resistance brief, the prosecutors argued that the defendants had knowledge of the significant presence of SE in the laying’hens and their environments at Quality Egg in Iowa between January and August 2010. For example, in their resistance brief, the prosecutors highlighted that the defendants’ submissions to the Court proved their knowledge of the SE contamination at Quality Egg’s facilities. This is because their objections “reflect their knowledge of the preventative and ameliorative measures recommended to address the company’s SE and pest control problems.” Resistance Brief at 5.
The prosecutors also argued in their briefs and at the defendants’ sentencing hearing that Quality Egg in Iowa did not follow the same SE prevention and remediation practices as those implemented at Quality Egg’s Maine facilities. Even after SE was detected in Quality Egg’s Iowa facilities, the defendants failed to follow the methods used at their Maine plants to resolve that problem, such as depopulating, cleaning, and retesting the barns. The matter was only addressed after the 2010 SE outbreak took place. Together, I was persuaded that the defendants had knowledge of the increased risk of SE in the processing plants, and did not minimize SE contamination in their plants, despite having knowledge of how to effectively deal with SE contamination. See Austin DeCoster’s PSIR at ¶ 16-22; see also Peter DeCoster’s PSIR at ¶ 16-22.
Also, distinct from the defendants in Purdue Frederick Co., Austin DeCoster has a prior criminal record. Cf. Purdue Frederick Co.,
By contrast, the prosecutors’ four “particularly relevant” cases, including Bohner, No. 2:09-cr-403-5; Higgins,
In Higgins, the defendant was the former President of Synthes Spine Division and Senior Vice President of Global Strategy, Synthes. Higgins,
Higgins bolsters my decision that there is not an Eighth Amendment violation for imposing a sentence of imprisonment for violating the specific provisions of the FDCA at issue. The defendants, like the corporate officer in Higgins, pleaded guilty to strict liability offenses, but maintained their lack of knowledge and intention of the alleged criminal conduct. Also, as in Higgins, evidence was presented 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 the proper remedial and preventative measures to reduce the presence of SE. See Higgins,
From early 2006 to 2010, for example, the defendants “were generally aware of the positive SE test results as they were received,” and the “positive [SE] test results continued, and increased in frequency, into the fall of 2010” when the recall began in August. See Austin DeCoster’s PSIR at ¶ 16-17, 19; see also Peter DeCoster’s PSIR at ¶ 16-17, 19; Parties’ Stip. at ¶ 7. Prior to July 2010,
However, the record supports the inference that the individual defendants 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. Because the offending parties were never disciplined for their actions, according to the record, it does appear that their conduct was condoned. In addition, the parties stipulated that a Quality Egg manager “would testify that [Austin] DeCoster instructed him” that Quality Egg should not divert more than “1-2% of the eggs based upon ‘checks.’ ” Parties’ Stip. ¶ 9; see also Austin DeCoster’s PSIR at ¶ 42; Peter DeCoster’s PSIR at ¶ 42.
The record is also replete with evidence regarding Quality Egg’s and the defendants’ misrepresentations regarding its food safety and sanitation practices and procedures and independent audits, such as defendant Peter DeCoster’s inaccurate statements about a Flock Testing Policy and a Safe Quality Food Institute Program to Walmart in 2008.
In addition, between 2007 and 2010, Quality Egg provided false information to its auditors, AIB, as to safety and sanitation procedures employed at the company, and even manufactured and falsified documents with the intent that USFoods and AIB would rely on such fabricated documents. See Austin DeCoster’s PSIR at ¶ 29-33; see also Peter DeCoster’s PSIR at ¶ 29-33. Quality Egg personnel also bribed a USDA official, twice, in order to sell a higher percentage of eggs, even though the eggs did not meet USDA standards. See Austin DeCoster’s PSIR at ¶ 45-48; see also Peter DeCoster’s PSIR at ¶ 45-48. Quality Egg changed the packing dates of their eggs, which misled state regulators and retail egg customers, and sold misbranded eggs into interstate commerce. See Quality Egg’s PSIR at ¶ 53-62. Finally, Quality Egg failed to meet FDA regulatory standards, and following the SE outbreak, FDA officials visited Quality Egg’s Iowa facilities and described the insanitary conditions observed there as “egregious.” See Austin DeCoster’s PSIR at ¶ 66-71; see also Peter DeCoster’s PSIR at ¶ 66-71. In sum, the public’s interest in health and well-being based on the production and sale of safe foods must outweigh the “demanding, and perhaps onerous” tasks placed on those who “voluntarily assume positions of authority,” such as the DeCosters, and enter regulated industries with a profit motive being their driving force. See Park,
While the defendants’ violations of 21 U.S.C. § 331 required no proof of knowledge in order impose the statutorily permitted term of imprisonment, I refer to the above conduct to distinguish this case from a mere unaware corporate executive, and explain why a probationary sentence is inappropriate under the circumstances presented. See Higgins,
Further buttressing my finding is the philosophical justification underlying the defendants’ punishment, i.e., deterring other corporate officers from similar criminal conduct, which is also relevant to my analysis of the 18 U.S.C. § 3553(a) factors. Agreeing with the prosecutors, I find that the imposition of a prison term, one established by Congress under 21 U.S.C. § 333(a)(1), will protect the public from additional crimes that the defendants may commit in their individual capacities (i.e., specific deterrence). See 18 U.S.C. § 3553(a)(2)(C) (“to protect the public from further crimes of the defendant[s]”). Given the defendants’ careless oversight and’ repeated violations of safety standards, there is an increased likelihood that these offenses, or offenses like these, could happen again. The punishment will also serve to effectively deter against the marketing of unsafe foods and widespread harm to public health by similarly situated corporate officials and other executives in the industry (i.e., general deterrence).
In light of the above, I decided to give effect to the penal sanction provided under 21 U.S.C. § 333(a)(1), and I found that the defendants’ sentence is not cruel and unusual punishment in violation of the Eighth Amendment. I turn now to explain why the defendants’ sentences also do not violate their due process rights under the Fifth Amendment.
C. Whether The Fifth Amendment Permits a Sentence of Imprisonment for the Defendants’ Strict Liability Offenses
1. Defendants’Arguments
The defendants contended that to sentence them to prison, or otherwise restrict their liberty (aside from probation), would violate their constitutional rights under the
In addition, the defendants asserted that the Supreme Court “has held that penalties imposed [for strict liability offenses] must be ‘small’ and not give rise to ‘grave damage to an offender’s reputation.’ ” Austin DeCoster’s Memorandum at 3-4 (citing Staples v. United States,
The defendants reiterated that the prosecutors failed to account for any factually similar case law: the prosecutors have “not identified a single case, in any court, in which an American judge has imposed a sentence of incarceration or confinement in a situation like this one, where criminal liability is both strict and vicarious, i.e., where (1) the conviction does not rest on any admission or jury determination that anyone acted with criminal knowledge or intent, and (2) the conviction likewise does not rest on any admission or jury determination that the defendant himself committed any relevant act.” Defendants’ Reply Brief at 1. Instead, the defendants argued that the prosecutors only cite a “raft of ordinary strict-liability cases,” in which a defendant “at least personally committed the unlawful act.” Id. That case law does not “consider[] or address[] whether incarceration or confinement would also be permissible if the defendant were merely vicariously liable for the strict-liability offense committed by someone else.” Id. at 6-7. The defendants go so far as to argue that no case law exists to support the prosecutors’ position that “the Due Process Clause permits defendants to be deprived of their liberty because someone in the company that they lead has committed a strict-liability offense.” Id. at 7; see also Austin DeCoster’s Memorandum at 1-2.
2. Prosecutors ’ Arguments
Despite the prosecutors’ belief that the Fifth Amendment’s Due Process Clause does not control in this ease, they directly addressed and rebutted the defendants’ contentions that their constitutional challenge arises under that clause. See Resistance Brief at 7-10, 16-20. “The necessary predicate for a substantive due process claim is the deprivation of a fundamental right that is objectively, deeply rooted in this Nation’s history and tradition, or an executive abuse of power ... which shocks the conscience.” Id. at 16-17 (internal quotation marks and citations omitted). According to the prosecutors, the defendants failed to show that the imposition of a custodial sentence equals a due process violation under these standards. History has proven otherwise, the prosecutors argued: “[T]he FDCA and other strict-liability statutes have long been punishable with prison sentences, and there is a long history of defendants going to prison for those crimes.” Id. at 17. Therefore, the prosecutors contended, the defendants’ due process arguments are meritless.
The defendants were incorrect, the prosecutors argued, in asserting that “courts construe crimes as strict-liability offenses only where ‘the penalty is relatively small.’ ” Id. at 18 (citing Austin DeCoster’s Memorandum at 4). While the principle from the Holdridge case, relied on by the defendants, is one of statutory interpretation, not a constitutional limitation, even if that principle did apply in constitutional terms, here, the sanction of one-year in prison would fit within the “relatively small” category. Id. The prosecutors advanced their argument by noting that a person who violates the FDCA faces a sanction of imprisonment “for not more than one year,” a fine, or both. Id. (quot
Additionally, the defendants’ general assertion that “ ‘strict liability criminal offenses’ are a matter of ‘constitutional uncertainty,’ ” fails. Id. at 17 (citing Austin DeCoster’s Memorandum at 3). That argument conflicts with precedent of the Supreme Court providing that a person punished for violating the law, without mens rea, does not constitute a due process violation. Id. at 18-19 (citing United States v. Balint,
Finally, the prosecutors also advanced their argument by discussing the Supreme Court’s recognition of the “legitimate and important purposes” served by the imposition óf strict liability for FDCA violations. Id. The prosecutors focused on three purposes. First, “the strict-liability standard plainly advances the federal government’s efforts to protect public health and safety.” Id. Second, quoting passages from Dotterweich,
3. Analysis
The defendants are incorrect in arguing that a sentence of incarceration would violate their due process rights under the Fifth Amendment. In making their claim, the defendants asserted that non-binding authority from the state supreme courts of Minnesota, Georgia, and Pennsylvania have ruled that “due process principles forbid imprisonment as a punishment for a strict vicarious liability of.fense.” Defendants’ Reply Brief at 5. The defendants then referred to Iowa City v. Nolan,
In Nolan, the defendant was charged with “over a dozen vehicle parking violations under three separate Iowa City ordinances,” and after an appeal, he was found guilty and fined twenty dollars. Nolan,
The highest court of Iowa explained that the United States Supreme Court in a series of cases, including Morissette,
In addition, analogous to the defendant in Higgins,
In Park, the defendant, the president and chief executive officer of a large na
The rationale of the interpretation given the Act in Dotterweich, as holding criminally accountable the persons whose failure to exercise the authority and supervisory responsibility reposed in them by the business organization resulted in the violation complained of, has been confirmed in our subsequent cases. Thus, the Court has reaffirmed the proposition that “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.” [Smith,361 U.S. at 152 ,80 S.Ct. 215 ]. In order to make “distributors of food the strictest censors of their merchandise,” ibid., the Act punishes “neglect where the law requires care, or inaction where it imposes a duty.” [Morissette,342 U.S. at 255 ,72 S.Ct. 240 ]. “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.” Id. at 256,72 S.Ct. at 246 . Cf. Hughes, Criminal Omissions, 67 Yale L.J. 590 (1958).
The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of 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. Cf. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 731, 741-745 (1960). The Act does not, as we observed in Dotterweich, make criminal liability turn on “awareness of some wrongdoing” or “conscious fraud.”
Id. at 671,
Holdridge, another case relied on by the defendants, which arises out of the Eighth Circuit, also does not advance the defendants’ constitutional due process claim. The Eighth Circuit Court of Appeals noted that the Supreme Court, in Morissette,
Even if it is assumed, arguendo, that Holdridge provides a “constitutional limitation” on the penalties imposed for strict-liability offenses under the FDCA,
Further bolstering the prosecutors’ position is their alternative argument that the Eighth Circuit Court of Appeals has upheld the constitutionality of strict-liability statutes, and found no Fifth Amendment due process violation, where the penalty imposed was far beyond a one-year term of imprisonment. See, e.g., United States v. Wilcox,
Lastly, the defendants repeatedly pressed Sheffield Farms upon me and requested that I adhere to a “longstanding tradition” begun by Judge Cardozo,
In their reply brief, the defendants argued that “[n]early a century ago, Judge Cardozo cautioned that his court’s acceptance of the government’s ‘power to fine’ for regulatory offenses should ‘not be understood as sustaining to a like length the power to imprison,’ and he expressed strong doubt that ‘life or liberty may be forfeited without tinge of personal fault through the acts or omissions of others.’ ” Reply Brief at 2 (citing Sheffield Farms,
In these and like cases, the duty to make reparation to the state for the wrongs of one’s servants, when the reparation does not go beyond the payment of a moderate fine, is a reasonable regulation of the right to do business by proxy. That right is not strictly absolute any more than any other. In such matters, differences of degree are vital ( [Ten. House Dept. v. McDevitt,215 N.Y. 160 , 169,109 N.E. 88 (1915)]; International Harvester Co. v. Kentucky,234 U.S. 216 , 223 [34 S.Ct. 853 ,58 L.Ed. 1284 (1914) ]). Even a “ fine may be immoderate (Standard Oil Co. of Indiana v. Missouri,224 U.S. 270 , 286 [32 S.Ct. 406 ,56 L.Ed. 760 (1912)]; Waters-Pierce Oil Co. v. Texas,212 U.S. 86 , 111 [29 S.Ct. 220 ,53 L.Ed. 417 (1909) ]). But in sustaining the power to fine, we are not to be understood as sustaining to a like length the power to imprison. We leave that question open. That there may be reasonable regulation of a right is no argument in favor of regulations that are extravagant. Exceptional principles apply to callings of such a nature that one may be excluded from them altogether. Of these it may be true that by engaging in them at all, one accepts the accompanying conditions (Miller v.*957 Strahl,239 U.S. 426 [36 S.Ct. 147 ,60 L.Ed. 364 (1915)]; People v. Rosenheimer,209 N.Y. 115 [102 N.E. 530 (1913)]; People v. Roby,52 Mich. 577 [18 N.W. 365 (1884)]). We speak rather of callings pursued of common right, where restrictions must be reasonable (People v. Beakes Dairy Co.,222 N.Y. 416 , 427 [119 N.E. 115 (1918)]). This case does not require us to decide that life or liberty may be forfeited without tinge of personal fault through the acts or omissions of others (Comm. v. Stevens,153 Mass. 421 , 424, 425 [26 N.E. 992 (1891)]; Comm. v. Morgan,107 Mass. 199 , 203 [(1871)]; Comm. v. Riley,196 Mass. 60 , 62 [81 N.E. 881 (1907)]; Mousell Bros. v. London & N.W. Ry. Co., 1917, 2 K.B. 836, 843, 844; [The Queen v. Tolson, L.R. 23 Q.B.D. 168, 185]). The statute is not void as a whole though some of its penalties maybe excessive. The good is to be severed from the bad. The valid penalties remain.
Sheffield Farms,
More specifically, as the prosecutors rightly pointed out in their resistance brief, Resistance Brief at 7, the Supreme Court has permitted the imposition of criminal punishments for violations of the FDCA absent mens rea. See, e.g., Park,
VI. CONCLUSION
For the reasons discussed above, I denied the defendants’ motions at their sentencing hearing on April 13, 2015. For the reasons given at the sentencing hearing, I imposed a sentence of three months imprisonment for each of the DeCosters.
IT IS SO ORDERED.
Notes
. Marcus Tullius Cicero, an-infamous Roman philosopher, statesman, and attorney, directed De Officiis (On Duties or On Obligations), in part, to his son, also named Marcus. See
. Quality Egg also operated under the names Wright County Egg, Environ, and Lund/ Wright Company. See Austin DeCoster’s PSIR at ¶ 6; see also Peter DeCoster’s PSIR at ¶ 6. Quality Egg also operated two distinct processing facilities under an agreement with Hillandale Farms in Alden, Iowa, and West Union, Iowa. See Austin DeCoster’s PSIR at ¶ 8; see also Peter DeCoster's PSIR at ¶ 8.
. The "responsible corporate officer” (RCO) doctrine is a creation of the common law. As Brenda S. Hustis and John Y. Gotanda explain, "The RCO doctrine arose from two United States Supreme Court decisions involving prosecutions under the Federal Food, Drug, and Cosmetic Act of 1938 (‘FDCA’).” Brenda S. Hustin & John Y. Gotanda, The Responsible Corporate Officer: Designated Felon or Legal Fiction?, 25 Loy. U. Chi. L.J. 169, 172-73 (1994) (citing United States v. Park,
. Nowhere in the defendants' initial brief, in support of their motion that a sentence of incarceration or confinement is unconstitutional, do they argue that imprisonment would violate the Eighth Amendment. See Austin DeCoster’s Memorandum at 1-7. Rather, the defendants only made that contention after the prosecutors argued that the defendants incorrectly framed their argument. As the prosecutors put it,
As an initial matter, although defendants assert that ''[a] sentence of incarceration ... would violate [their] constitutional right to due process,” [Austin DeCoster's Memorandum at 2] (emphasis added), it is not clear that they have framed their argument in the correct terms. Defendants are not contesting the constitutionality of being subjected to criminal liability in the first instance; they challenge only the punishment that may be imposed for their crimes. A defendant’s claim that the severity of his penalty is disproportionate to his offense is ordinarily understood to implicate the Eighth Amendment, which prohibits “cruel and unusual punishment.’’ U.S. Const, amend. VIII.
Resistance Brief at 10.
. Section 331(a) prohibits “[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “causing” of the same acts. 21 U.S.C. § 331(a). Section 333(a)(1) provides that "[a]ny person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000, or both.” 21 U.S.C. § 333(a)(1).
. “According to the Centers for Disease Control and Prevention ("CDC”), Salmonella is a group of bacteria that can cause diar-rheal illness in humans. They are microscopic living creatures that pass from the feces of people or animals to other people or other animals. There are many different kinds of Salmonella bacteria.” Austin De-Coster’s PSIR at ¶ 11; Peter DeCoster’s PSIR at ¶ 11. People infected by Salmonella “develop diarrhea, fever, and abdominal cramps 12 to 72 hours after infection,” and the illness generally persists for “four to seven days[.]” Austin DeCoster's PSIR at ¶ 12; Peter DeCoster’s PSIR at ¶ 12. While some infected persons recover without treatment, some are hospitalized by severe diarrhea, and in some cases, the Salmonella infection can "spread from the intestines to the blood stream, and then to other body sites, and can cause death unless the person is treated promptly with antibiotics.” Austin DeCoster’s PSIR at ¶ 12; Peter DeCoster’s PSIR at ¶ 12.
. The statistics are more calamitous than they initially appear. The number of persons affected by the outbreak in 2010 was presumably a lot higher. Because there were 1,939 reported cases of SE, and for every laboratory-confirmed case, there are 29 cases of SE unreported, the CDC estimated that “more than 56,000 persons in the United States may have been sickened by the SE outbreak in 2010.” Austin DeCoster's PSIR at ¶ 72 n. 14; Peter DeCoster's PSIR at ¶ 72 n. 14.
. The numbers of the paragraphs that I cite to in the three defendants’ PSIRs are listed in numerical order. However, to be clear, paragraphs 23 to 33, 45 to 48, and 66 to 71 are taken from Austin DeCoster's and Peter De-Coster’s PSIRs. Paragraphs 53 to 62 are taken from Quality Egg's PSIR. Also, as the reader will soon become aware, I have redacted the names of certain persons, not the DeCosters, from this Memorandum Opinion and Order.
. I omitted the footnotes in paragraphs 53 and 54 from Quality Egg’s PSIR.
. I note that there was an objection to paragraph 55; however, based on the defendants’ subsequent objections I consider it withdrawn. Even if it is not withdrawn, I overrule the objection, and, in any event, I am permitted to consider this information when analyzing the factors set forth under 18 U.S.C. § 3553(a).
. I omitted a footnote in paragraph 60 of Quality Egg's PSIR.
. According to the defendants’ PSIRs, the FDA 483 Report used "DeCoster” as a shorthand reference for the company, Quality Egg, not to refer to a specific person. See Austin DeCoster's PSIR at ¶ 67 n. 13; see also Peter DeCoster's PSIR at ¶ 67 n. 13.
. A "necropsy” is an autopsy performed on an animal.
. The parties stipulated that "neither Dr. Charles Hofacre nor Dr. Maxcy Nolan has a basis to testify that Quality Egg fully and effectively implemented all of Dr. Hofacre’s and Dr. Nolan's recommendations.” Parties' Stip. ¶ 1. However, the parties also stipulated that "a number of recommendations were implemented, but that the measures implemented were not effective in stopping the outbreak of salmonella that occurred at Quality Egg.” Id.
. “The Sixth Amendment provides that those 'accused’ of a ‘crime’ have the right to a trial ‘by an impartial jury.’” Alleyne,
. In Apprendi, the defendant fired several .22-caliber bullets into an African American family’s home. Apprendi,
. As the prosecutors rightly pointed out, according to paragraphs three and four of the defendants' plea agreements, both defendants "understood the maximum statutory penalties for their crimes,” including imprisonment of up to one year and probation. Resistance Brief at 4; see also Austin DeCoster’s Rule 11 Plea Agreement at ¶ 3-4; Peter DeCoster’s Rule 11 Plea Agreement at ¶ 3-4. Both defendants’ base offense levels are 6, and those offense levels were not enhanced as a consequence of my finding that the defendants had knowledge of the insanitary conditions at Quality Egg and the increased risk that their shell eggs were contaminated with SE. See Austin DeCoster’s PSIR at ¶ 85; see also Peter DeCoster’s PSIR at ¶ 85. Their offense levels were only decreased by 2 points based on their acceptance of responsibility. See Austin DeCoster's PSIR at ¶ 92; see also Peter De-Coster's PSIR at ¶ 92.
. For example, the prosecutors cited to and analyzed four "particularly relevant” cases involving four executives of Synthes Corporation, who received prison sentences from five to nine months, after being convicted of strict liability misdemeanors under the FDCA because the corporation conducted illegal clinical trials of a bone cement. See Resistance Brief at 14 (citing United States v. Bohner, No. 2:09-cr-403-5 (E.D.Pa. Dec. 13, 2011); Higgins,
. One of the victim’s fathers provided a statement at the defendants’ sentencing hearing. He traveled from Dallas, Texas, to Sioux City, Iowa, to tell the tragic story of his son. His son was poisoned by SE after consuming eggs produced at Quality Egg, and he was. placed in the intensive care unit of a children’s medical hospital for eight days. While at the hospital, the son received an extremely strong dose of IV antibiotics, which was necessary to save his life, and that treatment was followed by six weeks of oral antibiotics. Consequently, the victim is required to have his young teeth capped in stainless steel. The father discussed the enormous psychological trauma on his son because of the stainless steel crowns on all his teeth. I simply cannot imagine the unbelievable psychological impact on an eight-year-old child of having a mouthful of stainless steel, much like the fictional assassin, Jaws, in the James Bond movies.
. Austin DeCoster was sentenced to two counts in September of 2003 of Continuing Employment of Unauthorized Aliens. Austin DeCoster’s PSIR at ¶ 96. Austin DeCoster was sentenced to 5 years of probation on each count and ordered to pay a fine ($3,000.00 on each count), special assessment ($10.00 on each count), and restitution ($875,000.00). Id. In addition, in July of 2003,' Austin De-Coster’s prosecution was deferred for five years on his charge for Conspiracy to Conceal, Harbor, or Shield From Detection Through Employment and Attempt to Conceal, Harbor, or Shield From Detection Illegal Aliens. Austin DeCoster’s PSIR at ¶ 102. Austin DeCoster received five years of supervision on that charge. Id. By contrast, Peter DeCoster did not appear before me in 2003 for sentencing. . Peter was only charged with Conspiracy to Conceal Harbor or Shield From Detection Through Employment and Attempt to Conceal, Harbor, or Shield From Detection Illegal Aliens. Peter DeCoster’s PSIR at ¶ 101. However, Peter DeCoster's prosecution was deferred for five years via a pretrial diversion program, and he received five years of supervision. Peter DeCoster’s PSIR at ¶ 101.
. See, e.g., Higgins,
. The District Court for the Eastern District of Pennsylvania determined that Higgins “knew” the bone cement "was potentially dangerous”; he “knew, or should have known,” that the planned development of the cement was "potentially suspect, and caution and strict adherence to regulatory procedure was required”; and he "knew or should have known” the bone cement needed "further testing before the product could be safely used on humans.” Higgins,
. The parties stipulated that “until the adoption of the Egg Safety Rule in July 2010, there was no legal or regulatory requirement” to conduct SE tests. Parties’ Stip. at ¶ 2
. The defendants' PSIRs provide that on more than one occasion in 2010, Quality Egg’s personnel paid cash bribes to a USDA inspector to unlawfully release eggs that had been retained or “red tagged” for failing to meet minimum quality grade standards without re-processing the eggs as required by law and USDA standards. See Austin DeCoster's PSIR at ¶ 45-48; see also Peter DeCoster’s PSIR at ¶ 45-48. The parties also stipulated to the following regarding the bribes:
[redacted] would testify that he told Peter DeCoster about the first bribe after it occurred, and would testify that Peter DeCoster responded by telling him never to do it again. The parties stipulate that [redacted] would testify that he recalls [redacted] telling him that [redacted] had told [Austin] DeCoster that [redacted] had "taken care of” some eggs that had been retained. The parties further stipulate that [redacted] would testify that, at some point soon after this conversation between [redacted] and [Austin] DeCoster, [Austin] DeCoster stated to [redacted], “Way to get those eggs out the door.”
Parties' Stip. ¶ 11. In the next paragraph, the parties stipulated to the following: "[redacted] would testify that, about three days after he gave [redacted] cash to use for the second bribe, he overhead Peter DeCoster saying to [redacted], 'Be careful about what you are doing. This is a federal offense.’ ” Parties’ Stip. ¶ 12. The prosecutors indicated that, in view of the conflicting evidence and credibility considerations, they would not ask me to find that either Austin or Peter DeCoster knew of the bribes at any particular time.
. At the defendants’ sentencing, the prosecutors did not ask me to find that Austin DeCoster read any version of the Walmart presentation. See Austin DeCoster’s PSIR at ¶ 23-24. Thus, the prosecutors did not prove that Austin DeCoster was aware of the false statements provided in the presentation to Walmart.
. See Patrick O’Leary, Credible Deterrence: FDA and the Park Doctrine In The 21st Century, 68 Food & Drug L.J. 137, 176 (2013) (“Most importantly, the credible threat of individual prosecution is a uniquely salient deterrent in an industry where the cost of misconduct can too often be measured in human lives.”).
. Here is the defendants’ argument: "The government devotes scant attention to defendants' due process argument, essentially arguing that the Supreme Court's decision in United States v. Park,
. Like the defendants’ citation to Nolan, their citations to the highest state courts’ decisions in State v. Guminga,
. When I pressed one of the defense attorneys at the defendants’ sentencing hearing on this issue he referred me to a parenthetical cited in the defendants’ brief which indicates that Iowa's Supreme Court in Nolan decided that whether a violator of the strict-liability offense of illegally parking his vehicle “may be subject to imprisonment is not before us now.” Reply Brief at 2 (quoting Nolan,
. After that holding, Iowa's Supreme Court invites the reader to compare the language of the statute involved in Park,
. It is unclear from the defendants’ brief whether the defendants argued that the Eighth Circuit Court of Appeals adopted the approach of Justice Stewart in his dissenting opinion in Park, which the defendants egregiously misrepresented, or the approach of the majority's opinion in Park,
. See O’Leary, supra note 26, at 142, for a clear explanation of the evolution of the jurisprudence from Dotterweich to Park. O’Leary notes, “That FDA still has a strict-liability criminal charge at its disposal today is the product of nearly seven decades of often contentious historical development, beginning with Dotterweich in 1943, and taking its present shape in Park in 1975.” Id.
. The defendants argued, “The penalties in [Park and Dotterweich ] were 'light,’ recognized Justice Stewart in dissent, but the imposition of 'imprisonment for a year’ for a strict liability offense would be 'wholly alien to fundamental principles of our law.’” Austin DeCoster’s Memorandum at 4 (citing Park,
. Relatedly, the District Court for the Eastern District of Pennsylvania in Higgins already underscored the weaknesses in the defendants’ position, in part for relying on Park and Dotterweich. Citing to Park and Dotterweich, the district court explained, “Under Park, a conviction based on strict liability for the offense in this case [of violating the FDCA] is permissible.” Higgins,
. It is worth noting that, in Higgins, the defendant, citing to Morissette,
Morissette decided "quite a different question” concerning the constitutional parameters of a conviction for conversion of government property without proof of intent.342 U.S. at 248 ,72 S.Ct. 240 . Morissette did not decide the constitutional boundaries of strict liability crimes proscribed by statutes and regulations directed to health and welfare concerns. Id. at 248, 253-54,72 S.Ct. 240 . Defendant does not explain why Morissette should be applied to the circumstances presented here. Nor does Higgins provide a reason to depart from the teachings of Park, which held that the FDCA "imposes the highest standard of care and permits conviction of responsible corporate officials who, in light of this standard of care, have the power to prevent or correct violations of its provisions.”421 U.S. at 676 ,95 S.Ct. 1903 (1975) (decided after Morissette).
Id. Similar to the defendant in Higgins, the defendants, here, have not articulated why Morissette is applicable. Additionally, Holdridge, unlike this case, concerned the prosecution of defendants for violating a statute that prohibited the re-entry onto a military reservation after having been removed and ordered not to re-enter; it did not regard strict liability offenses aimed at health and welfare concerns. See Holdridge,
. If one leaves aside the factual distinctions between this case and Holdridge, one could reasonably make that argument based on a proposition in Holdridge, which the Eighth Circuit Court of Appeals derived from the case law:
From these cases emerges the proposition that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and Where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element in [sic] then not violative of the due process clause. Shevlin-Carpenter Co. v. State of Minnesota,218 U.S. 57 , 69-70,30 S.Ct. 663 ,54 L.Ed. 930 ; [Balint,258 U.S. at 252 ,42 S.Ct. 301 ]; Williams v. State of North Carolina,325 U.S. 226 , 238,65 S.Ct. 1092 ,89 L.Ed. 1577 .
Holdridge,
. The "longstanding tradition," according to the defendants, is "of judicial opinions warning that our Constitution does not permit prison sentences to be imposed in this circumstance.” Defendants' Reply Brief at 7.
. Through my own research, I discovered that there are two versions of the opinion for Sheffield Farms: a New York Official Reports version and the National Reporter System version. Because I have encountered inconsistencies between the two versions, I will include parallel citations to both opinions. However, I will only quote the language that appears in the official version.
. That section provided the following: "No child under the age of fourteen years shall be employed or permitted to work in or in connection with any mercantile * * * establishment specified in the preceding section.” Sheffield Farms,
. The beginning sentences of Judge Frederick E. Crane’s concurring opinion fortify my interpretation of Judge Cardozo’s majority opinion that he did not address the issue of imprisonment. Sheffield,
I recognize that this is the law regarding many police regulations and statutes creating minor offenses, and that there is a distinction between acts mala prohibita and mala in se, but I do not believe that the Legislature is unlimited in its power to make acts mala prohibita with the result that an employer can be imprisoned for the acts of his servant. [People ex rel. Cossey v. Grout,179 N.Y. 417 , 433,72 N.E. 464 (N.Y. 1904) ]. Nearly all the cases upon this subject have been those fixing a penalty to be recovered either in a civil or a criminal proceeding. Others have been prosecutions for a misdemeanor such as in this case resulting in a fine. To this extent I concede that the employer is liable irrespective of his knowledge or negligence,- but when an employer may be prosecuted as for a crime to which there is affixed a penalty of imprisonment for an act which he in no way can prevent, we are stretching the law regarding acts mala prohibita beyond its legal limitation. [Chicago, B. & Q. Ry. v. United States, 220 U.S. 559,31 S.Ct. 612 ,55 L.Ed. 582 (N.Y.1911)].
Id.
. The prosecutors referenced the one Supreme Court decision in which the high court invalidated a strict-liability offense on due process grounds where the defendants lacked knowledge of a city ordinance's felon registration requirement. See Resistance Brief at 17-18; see also Lambert v. California,