Four years after a Salmonella outbreak was processed, packaged, and delivered to customers around the country, the Department of Justice charged five Peanut Corporation of America executives and employees with an array of federal crimes, but with a criminal justice system that presumes innocence — and with the potential for a long trial ahead — it could be a while before this story comes to a close.
Until now, some have questioned why the Food and Drug Administration and the Department of Justice have neglected to prosecute cases against those responsible for foodborne illness outbreaks, considering the power that Congress bestowed on federal agencies to fight against adulteration and misbranding.
That power comes from the Food, Drug, and Cosmetic Act, originally passed in 1938, which makes a person who puts an adulterated or misbranded food into interstate commerce with the intent to defraud or mislead guilty of a felony. Subsequent Supreme Court case law held that even if a person within a corporation is not intentionally acting fraudulently, they can be held criminally culpable under the Act for having a responsible relationship to the distribution of misbranded or adulterated food.
However, Stewart Parnell, Michael Parnell, Samuel Lightsey, and Daniel Kilgore’s charges go further than food adulteration. Along with the introduction of adulterated and misbranded food into interstate commerce with the intent to defraud or mislead, charges include mail fraud, wire fraud, conspiracy, and obstruction of justice (which Mary Wilkerson was also charged with).
The additional charges of fraud and conspiracy make this case similar to a traditional criminal case, except that the defendant’s alleged actions may have injured hundreds and killed nine. If the Department of Justice wants to use this case to make an example out of the defendants – in turn making a statement to those in the food industry – will a jail sentence and a large fine have the impact prosecutors are looking for?
“I don’t know that this case does anything other than show that the law is the law,” said former FDA general counsel Peter Barton Hutt in an interview with Food Safety News. “If indeed the PCA officials were covering up, they know that’s a criminal offense.”
A telling aspect of the case seems to be Kilgore’s guilty plea in an unsealed information that was released along with the indictment. The indictment also makes reference to four likely witnesses each identified as an “unindicted coconspirator.”
“Basic prosecution and basic defense, just from a reading of the article, would suggest that [prosecutors] appear to have cut a deal with [Kilgore] so he would roll over on the rest of them,” said James Hibey, a former federal prosecutor who now practices white collar criminal defense with the law firm Steptoe and Johnson in Washington, D.C., in an interview with Food Safety News. “At a minimum, the guilty plea sends a strong message to the remaining defendants.”
The federal prosecutor’s case likely will rely on Kilgore to supplement any document evidence that shows Stewart Parnell, Michael Parnell, and Samuel Lightsey knew they were breaking the law when they allegedly shipped Salmonella-tainted peanut products to grocery stores and food distributors.
“What the defense will try to do, unless they end up pleading guilty themselves,” Hibey said, “is figure out a way to explain the documents and find a way to cross-examine [Kilgore] and convince the jury that he’s lying because he got a deal.”
This may be difficult for the defense to do, because the indictment indicates the prosecutors will introduce, among other things, the following pieces of evidence:
Paragraph 19. “On or about April 12, 2007, via email to [unindicted coconspirator] #2, a PCA official suggested that totes of peanut meal at PCA Plainview be used to fill an order, noting that ‘[t]hey need to air hose the top off though because they are covered in dust and rat crap.’ [Uninindicted coconspirator] #2 forwarded said email to Stewart Parnell, who responded: ‘Clean em all up and ship them …’ A PCA official then instructed PCA Plainview employees, via email: ‘Please, Please make sure someone air off the totes before they are loaded on the truck. They are filthy on top.’”
Paragraphs 22-24. “On June 8, June 13, and June 20, 2007, Steweart Parnell and [unindicted coconspirator] #4 issued and caused to be issued to a customer a false and misleading [certificate of analysis] containing microbiological test results from a particular lot of peanut products manufactured prior to the lot of peanut products shipped to the customer.”
Paragraph 42. “On or about July 21, 2008, in response to an inquiry from [unindicted coconspirator] #2 about a customer request for a [certificate of analysis], Mary Wilkerson stated, via email: ‘Waiting on retest! [The product was out on Coliforms?????’ [Unindicted coconspirator] #2 responded to Mary Wilkerson, via email, stating ‘Where do you think all this coliform positives are coming from? Would you say it is the negative air pressure in the plant bringing in airborne pathogens? Like over the rancid peanut butter along the fence?’ Mary Wilkerson responded to [unindicted coconspirator] #2, stating: ‘MICE!’”
The Procedure of the Case
At the arraignment, the defendants will first enter their pleas and request bail. The defendants have a right to a speedy trial, meaning within 70 days, but will likely waive that right in order to take more time during the discovery process.
“They’ll be released on bail, assuming they are not considered to be a flight risk, and the discovery process begins,” Hibey said. “Everybody works toward the trial date, with motions to be filed, the options including a motion to dismiss the indictment. You’ll also have discovery motions because the lawyers are generally going to ask for more than the government is willing to give. Judges will have hearings on those motions.”
“If a deal is worked out, you can short circuit the whole thing,” Hibey said. “If not, then you have a trial, and I suspect they’ll ask for a jury, because more often than not you have a better chance of convincing at least one person that you’re not guilty as opposed to having a judge make that decision, although a jury in a case like this could be difficult. People just like them were poisoned. That’s a decision the defense lawyers will have to make.”
If the case goes to trial, and if the jury finds the defendants guilty, it will be up to the judge to hand down a sentence. Each charge has a maximum jail sentence and fine, but the judge will likely use the federal sentencing guidelines to reach a decision. The guidelines allow for great flexibility, making it difficult to predict what a sentence might be.
“[Sentencing] is so individualized in these cases,” Hutt said. “I don’t see how anybody could generalize on that. I just don’t know. I’ve seen people go to jail for this kind of thing and I’ve also seen people get relatively minor fines.”
Mr. Hibey agrees that making any predictions at this point is difficult.
“It is left to the discretion of the judge as to how much time on each count, and whether any of the sentences could run consecutively or concurrently,” Hibey said. “And we’re just not going to know for sure until the whole thing plays out, either by way of plea, or by way of trial.”
Hibey added that because this case will get more national publicity, the prosecutors may be harder to negotiate with.
“It puts more pressure on [the prosecutors] to make sure that if they get a plea, that they get the right deal,” Hibey said. “It also puts a bit more pressure on them to win, if it goes to trial. This case is different than the cases they normally indict.”© Food Safety News