When a defendant wants something excluded at trial and the government wants to include it, both will file a “Motion in Limine” with the judge, usually just before the trial. Often referred to as “threshold” motions, these resulting decisions lay down the ground rules all sides will have to follow at trial. It’s Motions in Limine time now in the government’s prosecution of the three remaining defendants in the Peanut Corporation of America trial, scheduled to begin July 14. Four former PCA executives were indicted in February 2013 on 76 federal felony charges, including conspiracy, interstate shipment fraud, obstruction of justice, and violations of the Food, Drug, and Cosmetic Act. Three continue to await trial after former Blakely, GA, plant manager Samuel Lightsey changed his plea in early May to guilty in an agreement with government attorneys. Still awaiting trial are Stewart Parnell, the former PCA president and chief executive officer, Michael Parnell, the former PCA vice president and peanut broker, and Mary Wilkerson, the company’s former quality control manager. Defense attorneys for Stewart Parnell and Wilkerson have filed Motions in Limine, as have government prosecutors. All the pre-trial requests will be decided by the federal court trial judge, W. Louis Sands. Among the issues Sands has to decide as a result of these motions are:

• Defense attorneys for both Stewart Parnell and Wilkerson want to exclude any witness from saying anything about the nine deaths and at least 700 illnesses caused by Salmonella contamination from PCA’s peanut butters and paste.
• Government attorneys want to permit the introduction of the records of microbiological testing of PCA products that were conducted by both private and government laboratories, including those conducted to determine the source of the 2008-09 salmonella outbreak in peanut products.
• Wilkerson’s defense attorney wants to exclude any reference to a 2009 interview related to one of the two obstruction of justice charges against her because the government has failed to produce a transcript of the conversation with the FBI.
• Stewart Parnell’s defense team also wants to exclude so-called 404(b) evidence, which is a copy of an email that remains under seal. Government attorneys say the sealed evidence shows the former PCA executive’s “motive and intent.”

These issues, along with whether or not Virginia neuropsychologist Dr. Joseph C. Conley, Jr., can appear as an expert witness to testify that Stewart Parnell suffers from Attention Deficit Hyperactivity Disorder (ADHD), must be decided before the trial gets underway. In making their arguments, the attorneys have also revealed some information not previously known or confirmed. For example, a 2009 Wilkerson meeting, for which no transcript is available, occurred so she could make a so-called “proffer” to agents from the FBI and U.S. Food and Drug Administration (FDA). Such a “proffer” typically involves offering something that causes the other party to enter into serious negotiations like those resulting in a formal plea agreement. Government attorneys also laid out in more detail the roles the three defendants had at PCA: Stewart Parnell: “Defendant Stewart Parnell was an owner and president of PCA and served as PCA’s primary leader and decision maker. Defendant Stewart Parnell traveled to PCA Blakely, PCA Plainview, and PCA Suffolk to meet with plant management and employees and to supervise food production — including microbiological testing — at all three PCA food production facilities.” Michael Parnell: “Defendant Michael Parnell was the Vice President and principal decision make of P.P. Sales, a food brokerage business located in Lynchburg, Virginia. Defendant Michael Parnell, the brother of Defendant Stewart Parnell, worked on behalf of PCA as a food broker; in this role, he oversaw the negotiation and execution of contracts for the purchase of peanut products from PCA, including contracts for the purchase of PCA peanut paste. Additionally, Defendant Michael Parnell was a supervisor, advisor, and director of PCA, giving direction and receiving reports regarding all aspects of PCA’s production of peanut paste, including microbiological testing.” Mary Wilkerson: “Defendant Mary Wilkerson was employed in various capacities at PCA Blakely from April 2002 through February 2009, including as Quality Assurance Manager of the Blakely facility. As Quality Assurance Manager, she was responsible for managing and overseeing the quality assurance operations at the facility, including routine sampling of peanut products to be sent to private laboratories for microbiological testing and receiving reports pertaining to such testing.” The government wants to enter into evidence test results from the two private labs that PCA used, one in Albany, GA and the other in Lincolnshire, IL, noting, “PCA officials routinely issued Certificates of Analysis (COAs), which certified that peanuts being shipped to the customer met the customer’s specified testing requirements. “PCA’s customers relied on the information contained in the COAs to verify that PCA peanut products met their specifications and were safe for consumption. This practice allowed PCA to consistently represent their peanuts as being free of salmonella and other pathogens.” The government wants to get all of PCA’s microbiological tests records, from both private and government labs, introduced at trial as business records that represent the core output of the labs, with much of the work conducted during an ongoing public health emergency. “PCA officials routinely represented to their customers that the peanut products PCA shipped to them had been tested for salmonella and other pathogens and had passed those tests,” prosecutors wrote. The government argues that allowing the data as evidence does preclude defendants from questioning witnesses or confronting their accusers. They say criminal prosecutions for foodborne pathogen outbreaks are “somewhat unusual,” meaning it’s “highly unlikely that a person working under these circumstances, viewed objectively, would contemplate that they were creating a record for a criminal trial.” Finally, while the defendants don’t want statements about Salmonella illnesses and deaths to be made to the jury, the government wants them to keep their mouths shut as well. “Statements by Stewart Parnell, Michael Parnell, and Mary Wilkerson, if offered by defendants, constitute inadmissible hearsay not subject to exception under the Federal Rules of Evidence,” states a government motion.