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Parnell Brothers Taken Into Custody by Federal Marshals After Convictions

On Friday, U.S. marshals escorted brothers Stewart and Michael Parnell from the C.B. King U.S. Courthouse in downtown Albany, GA, to the Crisp County Jail in Cordele, GA, where they spent their first night in prison. The two men will likely remain in the lockup until at least Monday, when they might be able to post secured bail bonds of up to $ 150,000 so they can be released until sentencing.

Both Stewart and Michael Parnell were convicted earlier Friday in Albany’s U.S. District Court for the Middle District of Georgia on multiple federal felony counts stemming from a deadly Salmonella outbreak that began almost six years ago.  They were then transported to the Crisp County Jail, 44 miles to the northeast.

Stewart Parnell

A third defendant, Mary Wilkerson, the former quality control manager for the Peanut Corporation of America’s Blakely, GA, processing plant responsible for the Salmonella contamination, was allowed to go home. She was found guilty on one of two counts of obstruction of justice.

The 60-year-old Stewart Parnell and his 55-year-old brother were together convicted on a total of 97 federal felony counts. Upon hearing the jury verdicts, Assistant U.S. Attorney Alan Dasher asked to have the brothers jailed until sentencing. He said that, because of their ages, the expected sentences of 27-33 years would be the equivalent of life sentences.

Dasher’s inference was that the Parnell brothers have every reason to flee before sentencing. Since their February 2013 indictment, they’ve been free on unsecured $ 100,000 signature bonds and also surrendered their passports. U.S. District Court Judge W. Louis Sands gave the pair until 5 p.m. EDT Friday to come up with $ 150,000 bonds secured with cash or property. Neither made the deadline.

When they do bond out, they will lose certain other freedoms. Stewart Parnell’s pilot’s license was permanently revoked, and neither man will be able to travel outside their home state of Virginia without permission.

Earlier Friday, both Parnell families and Wilkerson’s met the jury verdict with emotional outbursts. Stewart Parnell simply put his head down on the defense table.

The verdict was also an emotional moment for outbreak victims and their families who have sought justice in the case. In the tight third-floor Georgia courtroom, those two groups were never far from one another during the eight-week trial that began last July 28 when prospective jurors were first summoned.

The government took 26 days during the trial to call 46 witnesses and introduced more than 1,000 documents as evidence. At no point did the government charge the defendants with being responsible for the deaths or injuries that resulted from the outbreak.

However, prosecutors did demonstrate that the PCA executives were involved in a large conspiracy involving shipments fraud and wire fraud, in addition to obstruction of justice. The government painted a picture of company officials so anxious to ship peanut butter and peanut paste that concerns about food safety fell to the wayside.

Stewart Parnell was convicted on numerous counts of putting misbranded and adulterated food into interstate commerce.

Prosecutors piled the evidence high with layer upon layer, showing emails, lab reports, shipping documents and other records. The government had help in the trial from two former PCA executives with whom they reached plea agreements — Samuel Lightsey, the former Blakely plant manger, and Daniel Kilgore, the former Blakely operations manger.

In their deals with the government, Lightsey will get no more than six years in jail, and Kilgore, no more than 12. Given the outcome of the trial, the two will likely serve much less time than that. Together, they testified for about 10 days and clearly delivered for the prosecution.

Jurors were likely convinced by some of the emails, especially the ones in which the Parnells seemed unmoved by whether or not any one product shipment was contaminated. “Just ship it,” read a Stewart Parnell email about a peanut load held up for a lab test. “I cannot afford to (lose) another customer.”

(Dallas Carter, Food Safety News’ courthouse observer, assisted in this report.)

Food Safety News

Parnell Defense: Government Can’t Prove Deadly Salmonella Came From PCA

Call it the hamburger defense.

Attorneys for Stewart Parnell, the former Peanut Corporation of America president and chief executive officer, have hit upon a tried and true defense lifted straight from the meat industry. They claim there is no way to prove that a deadly pathogen came from their client’s specific product.

In 20 years of litigation over responsibility for deadly E. coli O157:H7, plaintiffs’ attorneys have often run up against a maddening reality about simple American hamburger.

As New York Times writer Michael Moss wrote in his 2010 Pulitzer Prize-winning story about the hamburger that crippled Minnesota dance instructor Stephanie Smith, “… a single portion of hamburger meat is often an amalgam of various grades of meat from different parts of cows and even from different slaughterhouses.”

Moss explained the single hamburger that damaged Smith contained “ingredients came from slaughterhouses in Nebraska, Texas and Uruguay, and from a South Dakota company that processes fatty trimmings and treats them with ammonia to kill bacteria.”

In the complex fraud and conspiracy trial involving Parnell and two other former PCA executives, defense attorneys are trying their best to keep the jury from ever hearing about the 700 illnesses and nine deaths that are at the heart of the case. In doing so, they’ve struck on the hamburger defense. Specifically, defense attorney Thomas J. Bondurant, Jr., is challenging the government’s conclusion that Austin Peanut Butter crackers made with PCA peanut butter were responsible for making a South Carolina woman sick.

“As an initial matter, the government omits the fact the samples of Austin Peanut Butter crackers provided to the FDA consisted of previously opened cracked and unopened packages that were ‘purchased at different times from the same vendor,’” Bondurant writes in the defense brief.

“It is unclear whether these packages were sequentially numbered, were packaged at different times, or if they were even made from the same batch of peanut butter or other ingredients,” he says. “Likewise, the sampling records from the FDA do not indicate whether the samples analyzed included just peanut butter within the cracker or, as is more likely, parts of the cheese cracker as well.

“The FDA report does not indicate whether the Salmonella found could be isolated to just the peanut butter, to the cracker, or to perhaps even to the internal environment within the plastic wrapper.

“Additionally, no one from the FDA or any other agency traced ingredients within the crackers to ascertain the other source of the Salmonella,” Bondurant continues. “Had the FDA done so, it would have quickly learned that PCA is but ‘one of [Kellogg’s] three supplier of bulk peanut paste used to make the peanut butter fillings for sandwich crackers.’

“Moreover, the information available to the FDA includes the observation that Kellogg’s routinely mixes peanut paste from all the companies into an indistinguishable peanut butter product.”

Bondurant, a former government prosecutor, says this information was available to FDA from Kellogg’s “Establishment Inspection Report” 30 days before crackers were collected in the South Carolina case.

“This report concludes that Kellogg’s does not segregate the peanut paste that is received from its three suppliers,” he says. “Rather, Kellogg’s unloads bulk tanker paste ‘through insulated pipes to one of three 45,000 lb. capacity bulk storage tanks’ which are ‘not designated and all three tanks are supplied though a single receiving line’ and ‘are also emptied through one set of piping.’”

Bondurant says bulk paste running through common lines and common tankers was sent through a second common line to a mixing room where it was mixed with other ingredients, including sugar and salt. He says that a “ribbon mixer line” is one that was once mixed with other ingredients and is used to feed drop stations for the stencil depositors on the sandwich cracker lines.

Further, he says the bulk tankers “are not emptied and cleaned at any time” as Kellogg’s uses a “closed system/nitrogen blanket” system. It does not apply heat treatment during processing and does no microbiological testing of finished products.

The bottom line? Bondurant claims “… there are insurmountable obstacles to providing, or even asserting, that a PCA product was ingested by a particular person who ate Kellogg’s crackers and later developed an illness of any kind.”

He says that the opportunities for pathogens to taint the ultimate product are many, and that neither FDA nor Kellogg’s could trace it.

“This, of course, is evident on its face as the end product is ‘peanut butter cheese crackers’ and PCA produced only peanut paste (not even the peanut butter) for Kellogg’s,” the defense attorney argues. “Viewing the facts as a whole, the government cannot claim that the peanut butter in South Carolina crackers was PCA peanut butter, and the overwhelming disconnect between salmonellosis in the woman from South Carolina and peanut butter crackers that may or may not have even contained a PCA product illustrates precisely why the government cannot realistically claim that evidence of illness and death is relevant.”

Bondurant’s defense brief is in advance of Tuesday’s important hearing on several pre-trial motions that will likely determine what does and does not go to the jury. In earlier filings, government prosecutors have claimed they have broad discretion in determining what evidence they may present to a jury.

Michael Parnell, the peanut broker who was also involved in PCA’s transactions with Kellogg’s, and Mary Wilkerson, quality control manager at the Blakely, GA, processing plant, also face federal felony charges in the case scheduled for trial starting July 14.

Food Safety News

Defense Again Raises Possibility of Separate Trials for Parnell Brothers

In prosecuting the former executives of Peanut Corporation of America (PCA), government attorneys are going for convictions that, for the first time, could put defendants in a foodborne illness case behind prison bars. Rarely do food executives responsible for products causing sickness and death face criminal charges, and those who do seldom face real jail time.

This officially “complex” case is now on the verge of going to a jury trial in federal court in Albany, GA, which is about one hour away from the now-abandoned PCA peanut processing plant that was involved in a deadly outbreak of a common strain of Salmonella. The case is being watched by food industry executives and their lawyers like nothing in memory because the stakes are so high for those charged.

Two of the five original targets of a four-year investigation led by the Federal Bureau of Investigation (FBI) agreed to plead guilty in exchange for consideration at sentencing, which won’t come until after the trial that could see both of them testify for the government. Both Daniel Kilgore and Samuel Lightsey were top PCA managers at Blakely, and both now await sentencing.

Not-guilty pleas were entered for the three others, who are scheduled for trial July 14. Stewart Parnell, who was chief executive of the now-defunct PCA, his brother Michael, the peanut broker, and Mary Wilkerson, the former manager of quality assurance at the Blakely, GA, plant, are putting their futures in the hands of a jury.

In the 16 months since the indictment of the former peanut executives on a total of 76 federal felony counts, prosecutors have had to deal with plenty of maneuvering by the skilled defense attorneys. Those charges include conspiracy, interstate shipments fraud, wire fraud, obstruction of justice, introducing adulterated food into interstate commerce with intent to defraud or mislead, and introduction of misbranded food into interstate commerce with intent to defraud or mislead.

Conviction on any one of those counts can result in prison sentences of five to 20 years. Being found guilty on multiple counts of such crimes could quickly add up.

But on the eve of the trial long thought to be about foodborne illness and the resulting deaths, the defense is moving to exclude the jury from hearing any mention of outbreak-related illnesses or deaths. They say the way the charges are drawn, the government has made the coming trial about “incurred monetary losses” and obtaining money “by means of fraud and fraudulent pretenses, representations and promises.”

“Notably, the government’s indictment makes no mention of any victims of these alleged crimes other than the eleven customers that were defrauded by this scheme,” Thomas J. Bondurant, Jr., defense attorney for Stewart Parnell has told the court. “The pleaded harm that resulted from this alleged criminal scheme consists of monetary harm to customers that the individuals named caused to PCA’s eleven named customers.”

“Despite the fact that the government’s entire case is premised on the alleged wrongful conduct of obtaining money by false pretenses, it is anticipated that the government will attempt to introduce evidence at trial of an alleged nine deaths and over 700 illnesses related to allegations that salmonella-tainted peanut products left PCA,” Bondurant added.

Bondurant goes on to assert that the reason the government focused on the “economic harm rather than the physical harm” is because “it cannot establish that any illness or deaths related to the salmonella outbreak originated from PCA or formed part of the conspiracy and fraud alleged in the indictment.”

Besides wanting to keep out any mention of foodborne illnesses or deaths, defense attorneys also want Dr. Ian Williams, who has led outbreak response for the Centers for Disease Control and Prevention for 20 years, prevented from testifying as an expert witness at the trial.

Ahead of an important pre-trial hearing scheduled for 10 a.m. this coming Tuesday, the prosecution team has roared back at the defense, charging that they are attempting to keep the government “from presenting proper, direct, intrinsic and inextricably intertwined evidence proving the charges and facts alleged in the indictment.”

“The indictment sets forth information pertaining to salmonella, the effects of salmonella to a person’s health, the Center for Disease Control’s (CDC) role which determined the chain of events that led to PCA’s Blakely facility, and that salmonella adulterated PCA’s peanut products,” Patrick H. Hearn, attorney from the Consumer Protection Branch of the U.S. Department of Justice, wrote in a response filed with the court.

In his 17-page response, Hearn “connects the dots” that will make the Salmonella illnesses and deaths the narrative for the coming trial. “The CDC with the assistance of state and local health authorities traced salmonella from individuals who were ill or who had died from salmonellosis,” he stated. “The individuals were tested for salmonellosis. Food products the individuals had consumed were tested for salmonella. The food products were peanut butter and peanut butter crackers.”

“The suppliers of the peanut butter and manufacturers of the peanut butter crackers identified PCA Blakely as the source of the peanut butter,” Hearn continued. “As a result, the FDA sent investigators to the PCA Blakely plant. This chain of events explains how and why the FDA went to PCA Blakely.”

“Produced in discovery by the government was an FDA test from a salmonella positive sample of Austin Peanut Butter Crackers provided to the FDA by a woman in South Carolina sickened with salmonellosis …. The peanut butter in the crackers came from PCA,” he stated.

Hearn cites a 1997 Supreme Court case (Old Chief v. United States) giving prosecutors “broad latitude” to present evidence in a criminal trial. Multiple counts of the indictment involve adulteration of food.

“Food is adulterated if it ‘bears or contains any poisonous or deleterious substance which may render it injurious to health,’” the DOJ lawyer noted.

“Evidence of illnesses and deaths that stemmed from the PCA salmonella outbreak is directly relevant to providing that, per this definition, PCA products were adulterated, as alleged in this indictment,” Hearn wrote, adding that the prosecution “is entitled to prove its case by evidence of its own choice.”

Just as the prosecution’s task would be far more difficult if they are not allowed to speak of Salmonella illnesses and deaths or call witnesses on those subjects, the defense also want to keep laboratory test records from being read in court as simple business records.

Defense attorney Edward D. Tolley, representing Michael Parnell, says that records of those tests should only be accepted by the court if the scientists and testers are made available for cross-examination to protect the Sixth Amendment rights of the accused.

At a minimum, such a ruling holds the likelihood that getting lab results for Salmonella testing will take more time and could result in boring and repetitive questioning.

One issue that has not gone away is whether the Parnell brothers can, or should, be tried by the same jury. The issue has come up again in arguments over whether to accept the CDC’s Dr. Williams as an expert witness at the trial.

In a motion joining with his brother’s objections about Williams being allowed as an expert witness, the attorney for Michael Parnell says that the CDC official’s testimony could have a “spillover effect” on his client, causing him to “continue to insist that he be severed from Defendant Stewart Parnell, either physically in a separate trial, or in points of instructions to the jury along the way.”

Michael Parnell, with a company of his own called P.P. Sales Inc., was a peanut broker. Tolley states that, “to the extent that Dr. Williams’ testimony relates to illnesses and death arising from King Nut peanut butter and/or Parnell’s Pride peanut butter, produced by PCA, which was not peanut butter contracted from delivery by P.P. Sales Inc.”

The outbreak was also an economic train wreck. Within a year, either PCA or its customers, or both, recalled 3,918 food and pet food products thought to contain peanut products made at the Georgia plant. It was the largest ingredient recall in U.S. history and came at a cost of as much as $ 1 billion, according to food industry experts.

Tuesday’s pre-trial hearing will be held at the C.B. King U.S. Courthouse in Albany, GA, before W. Louis Sands, senior U.S. district judge for the Middle District of Georgia.

Food Safety News

Stewart Parnell Wants to Keep One Particular Email Under Court Seal

Defense attorneys have long known that damaging email traffic from their clients could be very useful to the prosecution in the upcoming criminal trial involving former executives of the Peanut Corporation of America (PCA).

But there is one particular email, now under seal, that Stewart Parnell has managed to keep from the public for most of the past year and that he now wants to keep from the jury. Defense attorneys and government prosecutors have decided to draw their lines in the sand over this one email that Parnell says “is highly prejudicial” to his case.

Parnell wants this email kept under seal by the U.S. District Court for the Middle District of Georgia and away from the jury in the coming trial of PCA executives.

The former president of the now-defunct peanut processing company and two other defendants are scheduled for a July 14 jury trial. They are charged with a total of 76 federal felonies, including fraud and conspiracy, obstruction of justice, and the introduction of adulterated and misbranded food into interstate commerce.

Federal prosecutors want to use the email as evidence at trial, and, in a recent “response in opposition,” they say that Parnell has not come up with a good reason to keep the email away from the public.

“Defendant Stewart Parnell has failed to show good cause why the document should be sealed,” argues K. Alan Dasher, assistant U.S. District Attorney for the Middle District of Georgia. “The courts have consistently held that it is presumed that court proceedings and judicial documents should be open and accessible to the public.”

Dasher also quotes from findings of the U.S. Court of Appeals for the Eleventh Circuit that a “public right of access” is critical to the operation of the federal courts. Just as civil and criminal cases should be tried in public, Dasher says there is a common law right of access to the court’s public records.

While accepting that right of access is not absolute, Dasher says the “desire” of a party to seal documents “is immaterial.” Sealing documents, he adds, requires a “showing of good cause.”

“Defendant Stewart Parnell asserts as the sole ground for sealing the document that it is highly prejudicial,” Dasher writes. “That is an insufficient reason to overcome the strong presumption in favor of public access.”

The sealed email is known as 404(b) evidence, defined in the Federal Rules of Evidence as that which involves a crime, wrong or other act that may have never resulted in an arrest, prosecution, or conviction and may not even be criminal. Among the reasons 404(b) evidence may be admissible are: motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.

Parnell’s many caustic emails were one of the early ways the public came to learn about how PCA’s business practices might have contributed to the 2008-2009 Salmonella outbreak that was linked to the company’s products.

His “turn them loose” email was first disclosed five years ago by the U.S. House Subcommittee on Oversight and Investigations. A staffer’s email had asked Parnell what to do with peanut products initially found to be contaminated, and that was his reply.

Another email Parnell might like to keep under seal was his response to his 2007 quality assurance manager, who emailed the boss to ask for permission to purchase from overseas a $ 600 piece of used equipment for PCA’s lab for microbiological testing.

“Can you guarantee it will work and we will not get screwed — GET IT, ” Parnell’s reply email stated. “These lab tests and COA’s are fucking breaking me/us.” (COAs are Certificates of Analysis used by PCA to guarantee customer requirements were being met.)

In addition to wanting to keep the one email sealed, attorneys for Parnell have asked federal Judge W. Louis Sands to ban any mention of illnesses or deaths resulting from the Salmonella outbreak and allow an expert witness to testify at trial that their client suffers from Attention Deficit Hyperactivity Disorder (ADHD).

Parnell is being tried with his brother Michael, former PCA vice president and peanut broker, and Mary Wilkerson, who was the company’s quality assurance manager. About 700 illnesses and nine deaths were blamed on the outbreak by the U.S. Centers for Disease Control and Prevention.

Food Safety News

Prosecution Must Show Parnell Had Knowledge of Crimes Charged

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

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

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

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

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

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

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

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

Food Safety News

Judge Sands: No Separate Trials for the Parnell Brothers

Stewart and Michael Parnell, the brothers who five years ago were running Peanut Corporation of America (PCA) when it was involved with one of the nation’s deadliest foodborne disease outbreaks,  are going to be tried together.  U.S. District Court Judge W. Louis Sands has  denied a motion the brothers made last summer to have their trials severed because they claimed they have “antagonistic and mutually exclusive defenses in this case.”

The Parnell brothers and two other managers of the now defunct PCA face a total of 76 federal felony charges stemming from the sale of salmonella-contaminated peanuts. Federal rules of criminal procedure call for persons jointly indicted to be tried together unless a single trial interferes with fair trial.  In his motion denying their request to sever the trials, Sands points out that among the charges, the brothers are accused of “conspiracy to falsify Certificates of Analysis, which certify peanuts for the absence of harmful microbiological content.”

Stewart Parnell was the owner and chief executive of the now defunct peanut company. Michael Parnell was the company’s vice president and food broker, and was responsible for arranging shipments between PCA and its customers.  Sands also noted the defendants did not describe their defenses in their request to have the trials severed, but instead requested an in camera ex parte hearing to provide supporting facts.

The Court granted the request from the bench last Dec. 6 and ordered any documents to be filed under seal. Sands followed up with a written order on Dec. 11. In a Jan. 15 letter to Sands, Stewart Parnell’s defense counsel said “this defendant does not have any such documents to file.”

“To date, the defendants have not specified the grounds for their June 29 motion,” Sands wrote.

In December, attorneys for Michael Parnell argued he was not a PCA employee and was associated with only one customer. The peanut broker claims not be be part of “a common conspiracy” and “argues he will suffer a prejudicial spill-over effect if tried with the PCA employees.”

In the denial motion, Sands discusses the Federal Rules of Civil Procedure that are “construed in favor” of joint trials for defendants who are indicted together. The judge says the district court has to balance the right to a fair trial against the efficient and economic administration of justice.

For trials to be severed, defendants must show a joint trial would result in “specific and compelling prejudice.” Sand said Michael Parnell’s argument that he did not participate in a common conspiracy “lacks merit.”

“The indictment alleges Michael Parnell conspired with other codefendants to defraud PCA’s customers about the content of peanut shipments and the performance of certificates of analysis,” Sands says, “It lists specific acts he committed to further that goal, such as e-mailing other coconspirators about falsifying certificates and causing to be shipped specific batches of misbranded and mislabeled peanuts.”

“In total,” the judge continued. “Michael Parnell is charged in forty-one counts and is specifically named in eleven of the Overt Acts comprising the conspiracy in Count Two. All of these allegations and charges are tied in scope and scheme. That’s sufficient for initial joinder, both as to defendants and counts.”  Sands says a defendant “need not know all of the details of a conspiracy or participate in every stage to be found guilty.” All that is required is that the defendant “knew the essential objectives of the conspiracy and willfully join in it.”

Arguments about “mutually exclusive defenses” and “the spill over effect” did not move Sands. “Neither ground is availing,” he said.

Sands said the defendants needed to do more than make summary allegations and by not taking advantage of the court’s invitation to provide information on their “mutually exclusive defenses” under seal, no factual basis exists to address the joint motion.

Government had opposed separate trials for the Parnell brothers. “Defendants’ motion is wholly lacking of any explanation whatsoever as to the nature of their defenses, how those defenses are inconsistent, and how they are mutually exclusive,” K. Alan Dasher, assistant U.S. attorney for the Middle District of Georgia said last August.

“The motion (requiring separate trials) provides simply a conclusion with no factual basis.”

The brothers were indicted in February 2013 along with two other former PCA managers, Samuel Lightsey and Mary Wilkerson. Their joint jury trial is now scheduled to begin July 14 before Sands in the federal courthouse in Albany, GA.

Officially designated as a “complex” federal criminal case involving fraud and conspiracy, the 76-count indictment stems from a four year investigation by the FBI that followed the 2008-09 Salmonella Typhimurium outbreak.

The nationwide outbreak led to nine deaths and sickened 700 others throughout the U.S. and those illnesses were traced back to peanut butter and peanut paste produced by PCA, mostly at its processing plant located in Blakely, GA, about one hour from Albany.  PCA also processed peanuts in Virginia and Texas.

The outbreak also led to the largest and most expensive ingredient recall in U.S. history involving nearly 4,000 products from hundreds of companies that were supplied with peanut butters and paste by PCA.

Food Safety News

Second Defense Attorney Wants Out of Hearing Over Whether Stewart Parnell Might Have ‘ADHD’

A lawyer for a second defendant in the fraud and conspiracy case against four Peanut Corporation of America (PCA)  executives wants permission to skip the March 13 “Daubert” hearing in U.S. District Court in Albany, GA.  Four defendants, including brothers Stewart and Michael Parnell and two former PCA managers, are scheduled to go on trial for a total of 76 federal felony counts on July 14. The March 13 preliminary hearing is to hear arguments on whether certain expert witness testimony should be permitted at trial.

If permitted to testify at trial as an expert witness, Dr. Joseph C. Conley Jr. will say Stewart Parnell, the now defunct PCA’s chief executive officer, suffers from Attention Deficit Hyperactivity Disorder (ADHD), a diagnosis that theoretically could limit his culpability at trial and shift more blame to others.  Parnell’s attorney could argue their client’s ADHD condition made it impossible for him to direct all the decisions involved in the complex criminal complaint.

But, so far two of the other three defendants say they are not interested in what happens at the March 13 hearing. First, the attorney for Michael Parnell, the former PCA vice president and peanut broker, begged off because he is having knee surgery.  Attorney Edward D. Tolley already has the court’s permission to be off the case from Feb. 26 too March 31 for the knee surgery and a rehabilitation period. He is sending an associate from Athens, GA-based law firm of Cook Noell Tolley & Bates, LLP, to the March 13 to cover on behalf of Michael Parnell.

A second principal defense attorney, James W. Parkman, III, now also wants out of the March 13 hearing. Parkman, who practices out of Birmingham, says “none of the issues being presented at said hearing pertain to our defendant, Samuel Lightsey.”  His client was the manager of the PCA peanut processing plant at Blakely, GA, which was the center of the 2008-09 Salmonella Typhimurium outbreak that sickened more than 700 nationwide and was blamed for nine deaths.

In his recently filed motion with the court, Parkman says unless excused he will have to ask for a continuance for the “Daubert” hearing because of schedule conflicts.  U.S. District Court Judge W. Louis Sands has not yet ruled on Parkman’s motion.

It was a year ago this month that federal prosecutors unsealed lengthy criminal indictments against the Parnell brothers, Lightsey and Mary Wilkerson, for a total of 76 felony counts. Wilkerson was quality control manager for the Blakely plant.  The federal jury trial has already been delayed to July 14, from a hoped for start date of Feb. 10 due to lawyer schedule conflicts.   Most of the delay was due to Parkman’s role as a defense attorney in a recent Oklahoma murder case.

The “Daubert” hearing must stay on schedule to give Sands time to rule on any expert witnesses for the jury trial to start in July. Such prior to trial proceedings were named for the plaintiff in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals.

All four defendants were released on bail after their arrests to await trail and assist in their own defenses. They were charged after a four year FBI investigation following the deadly outbreak.   The illnesses were linked to peanut butter and peanut paste manufactured by PCA at both Blakely, GA. and Plainview, TX. The jury is expected to hear evidence that the company shipped product it knew to be contaminated.

The outbreak forced the company into Chapter 7 bankruptcy liquidation, and its butters and pastes were so widely used that its practices also resulted in the largest multi-product recalls for a single ingredient in history and cost downstream companies millions of dollars.

To make the July start date for the jury trial work, Sands has signed a scheduling order with these dates and deadlines:

  • March: Hold the March 13 “Daubert” hearing and impose March 21 as the deadline for all preliminary motions.
  • April: Deadline of April 10 to respond to motions, with an April 30 hearing on motions that are filed.
  • May: Deadline of May 20 for government and defense attorneys to file any start of trial motions known as “in limine.”
  • June: Responses to motions in limine will be due June 9, and replies must be turned in by June 19. A June 24 pre-trial hearing will be held for Sands to hear arguments on the start of trial motions. Sands wants the attorneys to meet regarding exhibits on June 25.
  • July: Attorneys must propose voir dire questions for the jury and jury instructions by July 7. If all of this stays on the tracks, the jury trial will begin on July 14.

In addition to Stewart Parnell’s potential ADHD defense, there are some other pre-trial issues that have gone unresolved. The Parnell brothers continue to want their trials separated from one another. And Wilkerson, who is charged with two counts of obstruction of justice, has repeatedly complained to the government over discovery issues.

Food Safety News

Stewart and Michael Parnell Ask for Separate Criminal Trials

Criminal defendants Stewart and Michael Parnell want separate trials for the federal felony counts they are charged with regarding their time running the Peanut Corporation of America. With two other defendants,  the Parnells face a total indictment of 76 counts, including conspiracy, wire fraud, obstruction of justice and introducing misbranded and adulterated food into interstate commerce with the intent to defraud.

In a joint motion for severance, the brothers are asking Judge W. Louis Sands to sever the jury trial because their defenses in the case “are antagonistic and mutually exclusive.” Stewart and Michael Parnell, along with Samuel Lightsey and Mary Wilkerson, are scheduled to go to a single jury trial for the charges stemming from one of the most deadly and costly foodborne illnesses outbreaks in U.S. history.

The Parnells’ severance motion is the latest in a string of pre-trial actions that must be sorted through by the U.S. District Court for the Middle District of Georgia before any trial can begin. In it, attorneys for the two brothers acknowledge that normally persons who are jointly indicted are tried together, but they note under federal rules for criminal procedure severance of co-defendants at trial is mandated if the defenses are “antagonistic and mutually exclusive.”

“If the jury, in order to believe the core of the testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant, severance is compelled, “ the attorneys wrote. “In that situation, the co-defendants ‘become the government’s best witnesses against each other.’”

PCA produced peanut butter and peanut paste that was responsible for the 2008-09 Salmonella Typhimurium outbreak that killed 9 and sickened 700 in a nationwide event. It also led to one of the most costly recalls in history involving almost 4,000 products containing the contaminated peanut butter or paste.

Through their attorneys, the Parnell brothers say they cannot get a fair trial unless the cases are severed. Rather than submit affidavits to support their motion, the brothers have asked Judge Sands to hold an in camera ex parte hearing on the issue. At that closed hearing, they say they will be prepared to provide affidavits delineating their prospective testimonies and the reasons why separate trials are mandated.

Stewart Parnell, the former chief executive officer of the now-defunct Lynchburg, VA-based peanut processing company, is represented by Roanoke attorney Thomas J. Bondurant, Jr., while attorney Edward D. Tolley in Athens, GA represents Michael Parnell, who was vice president and peanut broker for PCA.

Earlier, Sands scheduled a jury trial for all four defendants to begin Oct. 7 at the federal courthouse in Albany. The other two defendants, Lightsey and Wilkerson, were managers at the PCA peanut processing plant in Blakely, GA.

Wilkerson, who is charged with two counts of obstruction of justice, has moved to suppress “any and all” discovery produced by the government in the case because she does not have the means to determine what the relevant evidence is among nearly 3 million documents produced by the federal prosecutors after a four-year investigation.

The former quality assurance manager at the Blakely plant claims she is being denied access to evidence by the “unorganized and unspecified” documents. Albany attorney Thomas G. Ledford represents Wilkerson.

An earlier “Jencks motion” for discovery and inspection and another to force the government to reveal any deals it has with potential witnesses, originally filed for Wilkerson, have since been joined by Stewart Parnell and Lightsey

Food Safety News