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Letter From The Editor: DOJ

Everything I know about the U.S. Department of Justice (DOJ), I learned from a U.S. District Attorney for Idaho years ago.   He was, I think, taken aback by how little this then-recent J-School, Political Science graduate knew about our federal justice system.


Actually, I knew enough about the the third branch of government.   I just did not know what all the attorneys did.  At that time, I was left with the impression a U.S.D.A., appointed by the President and confirmed by the Senate, was a needed and fairly independent actor in our federal system. 

 If I had a question for a U.S. attorney back then, I could just call them up and asked it.

My impression now is that our federal district attorneys are no longer independent actors, but one big herd being run out of DOJ in Washington, D.C.  Maybe Patrick Fitzgerald in Chicago runs his own show.  I don’t really know.

What’s evolved is federal prosecution machinery that is about the least transparent part of the government, on par with our many spy agencies.   Getting much beyond a standard list of responses out of DOJ is almost impossible.  

The top of that list is that DOJ will neither confirm nor deny an investigation is underway.  I am sure they do it in part because federal judges like it that way and because it eliminates any follow up questions.  Rarely do we get a U.S.D.A. or assistant on the record.  They often will not answer questions that are follow ups to their own press releases.

All of which is to explain why its so difficult to get accurate, currant information on federal criminal investigations into multiple state foodborne illness outbreaks involving injuries and/or deaths.

Food Safety News readers know that the one outbreak we’ve never let drop is the one involving Peanut Corporation of America.  By my count, we’ve dedicated at least 300 stories to PCA.

We’ve tried to give voice to the victims, and get answers for them.

PCA was the “perfect storm” of foodborne illness.   The pathogen was Salmonella Typhimurium.  The transmission source was peanut butter.   There were 714 confirmed cases in 46 states.  Nine good people were killed by the outbreak and they left families behind that deserve answers from their federal government.

The federal Centers for Disease Control and Prevention (CDC) has a multiplier number to figure how many people were actually involved an outbreak, beyond the officially confirmed cases   The multiplier suggests thousands were impacted by the PCA outbreak.

Many other victims were PCA’s clients in the food industry.  Peanut butter and peanut paste from PCA was recalled as ingredients in 3,913 products produced by 361 companies.   No recall of a single ingredient across multiple product lines of multiple companies has ever been larger, more complex or more costly.

PCA cost others in the food industry at least $1 billion, according to estimates.

That $1 billion, however, fades along side those nine lives.  Each loss is tragic, but as the families of these nine have come forward to testify before Congress or talk to the media, it’s become apparent those  who died lived large and were at the center of their families lives.

 Those survivors  been waiting for federal prosecution of PCA’s Stewart Parnell, the chief executive, who many say knowingly shipped contaminated peanut butter.  What the investigation did show was 12 contaminated samples from PCA’s production chain between 2007 and 2008–when the outbreak began. 

PCA did not do much to solve the problem, and Parnell ordered peanuts shipped before positive tests for Salmonella could be returned.  Parnell invoked his Fifth Amendments rights in declining to answer questions before Congress.

In thinking back to the beginning of the PCA outbreak to present day, its amazing how little we  “officially” know.

We learned from the FBI that a criminal investigation led by the Office of Criminal Investigation (OCI) at the U.S. Food and Drug Administration (FDA) was underway. The FBI had helped execute search warrants on the now bankrupt PCA in Georgia and Texas, but quickly said OCI was in charge of the investigation.

About a year later,  FDA Commissioner Margaret Hamburg confirmed the OCI investigation was continuing during testimony she provided to Congress.   Except for those “neither confirm nor deny” statements when we call around to various U.S. District attorneys offices, that’s about it for official information.

Unofficially, there have been other indications like Parnell getting himself an excellent federal criminal defense attorney or tracks OCI occasionally leaves when going about its work.   But that’s about it.

The great irony is that DOJ has produced a system that leaves the victims and their families in the dark,  while those subjects of the investigation at least know what possibility might coming down the road.  The only thing the rest of us know is its hard telling what a herd is really up to.

© Food Safety News
  • Peter Hurley

    Well reported Dan. Because of the PCA poisoning I have lost all faith in DOJ. Especially the honorably corrupt Holder.

  • I agree with you, there is no transparency when it comes to investigations at the FDA or the USDA. But we can’t assume the hold up here is because of the DOJ. From my experience with the USDA, the problem is, most likely, cautious investigators in an understaffed FDA.
    During animal welfare investigations, I’ve run into the “under investigation” wall frequently when submitting FOIA requests to the USDA. The issue is, FOIA specifically excludes access to information during an “ongoing investigation”, if release of the information could be prejudicial to the case.
    I can understand, to a point. The problem is, the investigations are not timely, so everyone is left in limbo. The more controversial the case, the longer the investigation. And it is in the investigation where the hold up is likely to occur (which means, it’s in the FDA’s court, not the DOJ’s).
    Add to this is the continuing pressure that Congressional members exert on the investigations. I saw this in action when it came to determining the action the USDA would take with a bunny miller who sold rabbits as pet wholesale, and without a license. The bunny miller generated a lot of Tea Party publicity and go some Congressional members to pressure the USDA into offering the miller a settlement that let them off without any fine.
    Yet when I finally had access to all the documentation, this wasn’t the recommendation of the field inspector. No, the process was short circuited because of Congressional pressure.
    For comparison: the bunny miller investigation took over two years. Just to determine whether to prosecute someone for selling pet rabbits without a license.
    The point is, both the FDA and the USDA have limited resources so investigations take a long time–across the board. Before they can move to prosecute, they have to gather enough evidence so that the case can withstand challenge in court (and Congressional interference). People died so I imagine the organization is going to extraordinary lengths to ensure a conviction.
    Consider another case where criminal charges were recently filed by the FDA. The incident leading to the criminal charges happened in 2007, and no one died.
    Bottom line: we can’t find anything out, because an investigation of this nature meets one of the nine FOIA exemptions. The investigations take a long time because both the FDA and the USDA are cautious…and understaffed.
    Add it all up, and you have what you have with the Peanut Corporation.
    None of this is, inherently, the DOJ’s fault.

  • Larry and Karen Andrew

    Dan….as a victim, Karen thanks you for the very well written article. Besides the obvious concern regarding timely prosecution, it is frustrating to realize that the agencies we look to to deal with the matter seems to have so little concern regarding the victims that they will continue to stonewall.
    Shelley…your response is informative but it is very interesting to us you seem to believe that there is an, effectively, an active, ongoing investigation with a goal of building a case that can produce a conviction.
    If that is the case, why is the term “neither confirm nor deny” used? Why can’t they at least conjure up some alternative ways to provide some comfort to the victims that they are really trying to do something?
    Perhaps we victims should see if we can develop some alternative terms they could use. Why can’t they say “confirm that there is an active investigation underway”?
    Why do they include the words “neither” and “nor deny”. Pardon us if we consider that phrase just more BS from a non-responsibe federal bureacracy that is best described in Dan’s article as “the herd”.

  • Larry and Keren:
    I did want to respond to your one paragraph:
    “Shelley…your response is informative but it is very interesting to us you seem to believe that there is an, effectively, an active, ongoing investigation with a goal of building a case that can produce a conviction.”
    I’m just a layman in all of this, so I don’t have any special insight other than my dealings with the USDA the last few years. So take what I’m saying as nothing more than expressing an opinion.
    Why do I think there’s an active investigation? Because of the response. If there were no investigation, I truly believe the response would have definitively stated this fact.
    It makes no sense not to respond definitively if the case is no longer being pursued.
    It makes no sense that the FDA/DOJ wouldn’t issue a press release stating its decision not to pursue a case, and giving a reason why. It makes no sense to keep people guessing when there is going to be no further action.
    As the maps say, ‘ware, here be dragons–it can only make things worse for the government to let people believe there is an investigation, when there is none.
    I have to look at what facts there are, and then ask myself: what makes sense. Well, what makes sense isn’t as clear cut as what doesn’t make sense, and it just doesn’t make sense not to definitely say “No”, when asked if there is an active investigation.
    Again, it would help to see the FOIA request responses.

  • Carlo Silvestri

    I’m strictly third party when it comes to the PCA debacle. However, I do know the controller of a company that was definitely hurt by PCA’s corruption and the immoral behavior of its executives. I have an idea. Whether it would work or not is questionable but it seemed to work in the case of “pink slime”. Why not get some individuals hot enough to start and push an internet petition? Frankly, PCA probably has disappeared from the majority of people’s radar. If you want action, the people have to take it! Like I say, it worked on “pink slime”. The difference, of course, is that the only pressure that could be exerted would be on the government but in an election year, who knows what could happen?

  • Minkpuppy

    Like Shelley, I wouldn’t blame the DOJ entirely for the holdup on prosecutions. FSIS compliance officers have told me that they’ve had prosecutions derailed because someone in field inspection dropped the ball or ran their mouths when they shouldn’t have.
    It’s to the government’s benefit to “neither confirm nor deny” investigations to avoid these types of problems. All it takes is one field inspector with loose lips to sink the ship.

  • Rest assured, It’s not over, very complicated, but not done! It goes much deeper than anyone knew of.

  • Larry and Karen Andrew

    Well…either Kenneth is blowing smoke or Dan and the FSN reporters have yet to discover info that is out there somewhere regarding the investigation. Is Kenneth the “deep throat” contact that could blow the thing open?
    Hey Kenneth, call Dan!
    We find it difficult to understand how we can read or hear many details of high profile criminal investigations as they are underway but not in this case.
    FWIW, we recently sent a letter to our Congressman, Peter DeFazio, requesting his help in contacting DOJ to get the latest “neither confirm nor deny” response. He responded that he has forwarded our letter to Holder and will let us know when the Holder non-responsive statement is received. We will post what he says when, or if, we actually receive a reply.

  • Larry and Karen Andrew
    I hope you know how horrid i feel for the families, I have worked with STOP food born illness, http://www.stopfoodborneillness.org/
    and the government accountability project http://foodwhistleblower.org/the-lifecycle-of-food/the-problems-of-processing/contamination/kenneth-kendrick
    since 2009 and have been speaking about this my experience at Peanut Corp. The FBI is questioning people still- no blowing smoke. I have been fighting this battle for years. There are things going on that FSN does not know. It has not all been put together in a good piece yet, but I am working on that too. (but cannot hurt the FBI case)
    If you want to know more about me, here is a 15 minute you tune video from last your, I think you will find it interesting!
    no smoke here
    http://www.youtube.com/watch?v=CAUZKMmAuyc I WILL NOT WAIVER IN FIGHTING THIS! if you click on my name
    project since 2009 on this,

  • Larry and Karen Andrew

    Kenneth…we appreciate your efforts and are sorry for what you have had to go thru to get the truth out about Parnell and PCA. The video helps us understand what you have done in that regard.
    The video and your comments above raise additional questions. How is it that you know the FBI is still conducting interviews? They don’t seem willing to tell others that they are doing so why do they tell you? If they aren’t the ones telling you that, who is? How can we (victims) elevate ourselves to your level so that we can be told what you know?
    If you are working on putting it all together, why wouldn’t you want to use the FSN resources to help you reach that goal?
    If you need help or additional resources in that regard, I am sure we and others would be willing to assist if you could just be more open with the information that you indicate you possess.

  • Kenneth

    Larry and Karen Andrew
    I have been in personal contact with some other family members and would be happy to speak with you. I ca not write this in an open forum ,, you are more than welcome to contact me. Keep in mind, using this forum will allow Parnell’s Attorneys (as well as others) to read info that they do not need to read. PLEASE contact me.