The federal government “intends to put on live victim’s testimony and to refer to victim impact statements” next month when defendants in the Peanut Corporation of America (PCA) criminal case are sentenced in federal court in Albany, GA. “This evidence will make plain the severe hardships that the victims of the Defendants’ conduct suffered,” attorneys for the government stated in a footnote in a 12-page Post-Hearing Brief on sentencing issues. But defense attorneys are already challenging the filing of written “Victim Impact Statements” and are likely to try to prevent much live testimony. They say injury and death claims were never contested in the trial and never subjected to the burden of proof required in a criminal case. albanycourt_406The government’s footnote was the first definitive announcement that victims might have a role in the sentencing of defendants. Some of them did attend the trial last year. Trial testimony was permitted about illnesses that resulted from the Salmonella outbreak blamed on contaminated peanut products produced by PCA, but not about the nine deaths associated with the 2008-2009 food poisoning. Government and defense attorneys have been trading legal arguments since the July 1-2 pre-sentencing hearing. Al Maxwell, an Atlanta attorney who is an expert in food safety cases, testified at that hearing about how he made $12.75 million in insurance payments during PCA’s bankruptcy proceedings to victims and their families, including wrongful death cases. Jury convictions were entered against Stewart Parnell, Michael Parnell and Mary Wilkerson last Sept. 19 after a 35-day criminal trial in U.S. District Court for the Middle District of Georgia. The defendants are scheduled to be sentenced Sept. 21 by federal Judge W. Louis Sands, who presided over the trial. In pre-sentence reports, life in prison has been recommended for Stewart Parnell, who was chief executive officer for the now-defunct Lynchburg, VA-based PCA. He was convicted on 71 counts of conspiracy, interstate shipments fraud, wire fraud, obstruction of justice, introduction of 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. The recommendation for Michael Parnell’s sentence is 18-22 years and 8-10 years for Wilkerson. The jury convicted Michael Parnell on 21 counts from a list similar to that faced by his older brother. Wilkerson was found guilty of one count of obstruction of justice, an offense that carries a maximum prison term of 20 years. In their arguments, defense attorneys are challenging the “calculations” the government has used to determine who is a victim and the weight they are being given. “Maxwell never took or reviewed testimony under oath from any of the claimants, their diagnosing doctors, or medical examiners,” says Michael Parnell’s defense attorneys, Edward D. Tolley and Devin Hartness Smith. “He relied upon settlement demand packages from the claimants’ attorneys and assigned a value to the claim,” they added. “The Government cannot stand upon Maxwell’s ‘did the best we could’ reliance on the information that ‘the plaintiffs’ lawyers thought were relevant’ with regard to injury as proof that each of these individuals is a verifiable ‘victim’ of the fraud scheme alleged in this case.” Tolley and Smith also challenge the U.S. Center for Disease Control and Prevention (CDC) over the numbers involved in the outbreak and point out that CDC did not make an estimate for illnesses caused by Kellogg’s products using PCA peanut products as ingredients. Michael Parnell, a peanut broker, claims he was only involved with sales to Kellogg’s. The defense attorneys further state that no one knew there was any risk from Salmonella in the peanut butter PCA made because at the time everyone — including an FDA investigator — thought that cooking the product was a “kill step” the pathogen could not survive. They also point to the jury finding Michael Parnell not guilty on those counts involving shipping adulterated product. Stewart Parnell’s defense team states that the testimony of Dr. Ian Williams at CDC and Maxwell are “straw men to distract the Court from the lack of ‘sufficient and reliable’ evidence that 250 or more victims suffered ‘any significant injury … .’” They also argue that the government has not even established a threshold for a “significant injury.” “Instead the government assumes that an illness of any kind equates to a ‘significant injury,’ that the illness (if one even existed) in question was caused by a Salmonella infection, and any presence of Salmonella in a stool sample must be associated with PCA,” states the Stewart Parnell brief. “The Court has heard testimony about the possible effects of a Salmonella infection, but we have heard nothing specific about any of the individuals alleged to have been injured,” they continue. “What the government asks the Court to do is akin to awarding a plaintiff a sum of money for an injury without the plaintiff ever speaking a word in court proceedings about the injury, its cause, or its diagnosis and treatment.” They call that “an absurd and arrogant position to take …” and ask the court to rule that the government has not met the “most basic evidentiary standard.” As for economic losses, including those suffered by PCA customers, the Stewart Parnell team argues that numbers prepared by a FBI agent are “unreliable, speculative, and untrustworthy.” FBI’s estimate of the economic losses to those businesses because of PCA totals $144 million.

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