Circuit court denies all Peanut Corp. of America criminal appeals
foodsafetynews.com by Dan Flynn, Jan. 23, 2018
Stewart Parnell, chief executive of the Peanut Corporation of America, refused to testify during a U.S. House of Representatives subcommittee hearing. The legislators were looking into a salmonella outbreak linked to his product. Parnell refused to answer questions, citing his 5th Amendment rights under the Constitution. EPA/Matthew Cavanaugh
The three executives once associated with Peanut Corporation of America, and already serving lengthy jail terms, lost all their appeals today.
A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Atlanta upheld the criminal convictions of former PCA chief executive Stewart Parnell, his peanut broker brother Michael Parnell, and one-time PCA quality manager Mary Wilkerson.
The three defendants are serving a total of 53 years in federal prisons for their roles in the 2008-09 nationwide Salmonella outbreak linked to PCA. The outbreak sickened thousands and caused at least nine deaths.
Survivors of some of those who died were the first to learn of today’s ruling.
“We received the 21-page opinion from the 11th Circuit Court of Appeals,” DOJ told the families by email.
“It’s attached. We won. They lost on all issues. Team Peanut knows that all of our efforts cannot bring back your mother or the other victims. However, we do hope you will take comfort in the decision and celebrate it. If you don’t mind, please pass this information and the case decision to the other families.”
DOJ cautioned, however, that it might not be quite over.
When he was 3, Jake Hurley developed a Salmonella infection from eating contaminated peanut paste that was used to make his favorite snack crackers.
“… the defendants may file a motion for review of the decision by all of the appellate judges in the 11th Circuit Court of Appeals,” DOJ said. “This is called an ‘en banc’ review. We will keep you apprised if they do.”
Attorneys for the PCA criminal defendants have 21 days to request the review.
A jury in 2014 convicted the three defendants in U.S. District Court for the Middle District of Georgia in Albany. Sentencing was delayed for one year while the district court investigated jury misconduct allegations.
The court action followed a 2013 indictment that included 76 federal felony charges. The jury convicted the Parnell brothers on most of the counts, with Stewart Parnell sentenced to 28 years in federal prison and Michael Parnell to 20 years.
Wilkerson was convicted on a single count of obstruction of justice and sentenced to five years.
Who decided these appeals?
Together, the three appellate judges who decided on the trio’s appeals have 105 years of experience on the federal bench, most in the circuit court system.
Judges Gerald Bard Tjoflat, 88, and Lanier Anderson, 81, are both former chief judges for the 11th Circuit. Judge Tjoflat is the longest-serving, full-time circuit court judge in the nation.
President Richard M. Nixon appointed Tjoflat to the federal court. President Jimmy Carter named Anderson. President Bill Clinton appointed the third member of the PCA appeals panel, Judge Bev Martin, 62, to the federal bench.
Their decision is per curiam, which means it is issued in the name of the court, not the specific judges.
What did the government argue to win the original convictions?
As explained by the three-judge panel, the government presented evidence that Stewart and Michael (Parnell) conspired with senior management at PCA to defraud its customers regarding the safety of its products.
“… to ensure that products are safe for human consumption, peanut manufacturers like PCA send samples from a specific lot of product for microbiological testing before the lot is shipped,” according to court documents.
“Many PCA customers required PCA to attach a Certificate of Analysis (COA) to each lot of product, certifying that the lot tested negative for bacteria. At Stewart’s direction, PCA retested product before receiving the test results for the product, and even shipped the product after receiving confirmed positive test results.”
Further, the government presented evidence on a scheme the Parnell brothers and others used to meet production demands from Kellogg’s. It involved assigning future lot numbers to samples of peanut paste for testing. PCA used the multiple numbers scheme, so it did not have to tell Kellogg’s if a lot already shipped turned out to be positive for the pathogen.
Wilkerson claimed to not know of any positive test results when asked about the issue by a Food and Drug Administration agent.
What did the jury convict them on?
For Stewart and Michael Parnell, their behavior at PCA translated into jury convictions on multiple counts of fraudulently introducing misbranded food into interstate commerce; interstate shipment; wire fraud; and conspiring to commit the offenses. Stewart was further found guilty of entering food into interstate commerce and obstruction of justice.
Wilkerson was convicted only of one count of obstruction of justice.
What about those allegations of jury misconduct?
The jury was not supposed to hear anything about the nine deaths caused by the 2008-09 nationwide Salmonella outbreak, but it came out after the seven-week trial had ended that some did. Exposure to extrinsic evidence, which is not supposed to be revealed to jurors during a trial, can, in extreme result in a jury verdict being overturned.
The three-judge panel decided several jurors were aware the salmonella outbreak caused some deaths but found that knowledge was “not prejudicial at all.” The circuit judges found the information that was known to some of the jurors was too vague to be prejudicial, amounting to faint memories or passing comments from family members.
“The jurors’ vague recall of these statements indicates their lack of impact of jurors,” the panel’s decision says.
The appeals judges also sided with the district court, which delayed sentencing by a year largely to investigate the jury, by finding the government’s case against Stewart and Michael was “overwhelming.”
What about Wilkerson’s conviction?
The circuit judges said Wilkerson is serving five years in federal prison for the simple reason that she “lied to Agent Gray about not knowing positive test results.”
What about the government witnesses who testified?
Two PCA managers negotiated plea agreements with the federal prosecutors were critical witnesses at the trial, but was this just “lay opinion.”
Both Samuel Lightsey and Daniel Kilgore were top managers for the PCA plant at Blakely, GA, the source of the contaminated peanut butter and peanut paste. According to the circuit panel, both knew about PCA “fraudulent practices.”
Was the basis for sentencing the Parnells correct?
Sentencing levels follow monetary damages under parts of the federal sentencing guidelines. Sentencing Stewart Parnell to 28 years and Michael Parnell to 20 years was based on the “evidence of loss” presented by the government.
The government showed the loss by subpoenaing the 50 companies that purchased the most peanut butter and/or peanut paste from PCA in 2008. The appeals panel said the district court “need only make a reasonable estimate of the loss …”
“Our careful review of the record leaves us confident that the district court has not committed reversible error,” the appeals judges wrote.
The judges found the loss attributed to Michael was $25.8 million, or more than enough to justify a 22-level sentence enhancement. Stewart’s portion added up to a 26-level sentence enhancement.
In addition to peanut broker, what was Michael’s role at PCA?
“The evidence establishes that Michael managed or supervised at least Lightsey,” the appeals court said. “The evidence in the record reveals ample evidence that the district court correctly concluded Michael’s conduct warranted manager status.”
The federal sentencing guidelines recognize manager status by adding three additional levels.
How long has this been going on and when will it end?
Federal prosecutors filed the original indictments almost five years ago. Nearly half of the time since then has been taken up by the appeals court review. Today’s decision comes just more than two months after the appeals judges heard oral arguments in Atlanta. The PCA criminal defendants now have 21 days to ask the entire Eleventh Circuit to rehear their appeals.
And the defendants?
No, get out of jail cards were dealt with this decision. Wilkerson, 44, has more than two years to go before her scheduled release from the federal prison in Marianna, FL on March 10, 2020.
Michael Parnell, 59, has another 15 years to go before his scheduled release from federal prison at Milan, MI, on Feb. 17, 2033. Stewart Parnell’s release from the federal prison at Estill, SC, is 22 years out, scheduled for Feb. 6, 2040. He is 63 years old.
So who were the winners?
It was not known until today that government prosecutors referred to themselves as “Team Peanut.” Their work from the trial court level through the appeals court is a big win for the Department of Justice.
However, the biggest winner is Judge W. Louis Sands, the district court judge whose numerous and complicated decisions in this unique case have now been upheld by his peers. Sands, 69, transitioned to “senior” judge status while presiding over the PCA criminal trial.