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.