The victims of a foodborne outbreak are crime victims and their written statements and oral testimony should be heard at next week’s sentencing of Stewart and Michael Parnell and Mary Wilkerson, according to U.S. Department of Justice lawyer Mary M. Engelhart from the Consumer Protection Branch. She is one of three government prosecutors in the Peanut Corporation of America (PCA) criminal trial who have now responded to a move by defense attorneys to exclude victims of the 2009 Salmonella Typhimurium outbreak from the sentencing proceedings based on arguments that outbreak victims are not really crime victims. “The Defendants’ claim that individuals who were sickened or family members of individuals who died—as a result of the Defendants’ criminal actions—are not victims and should not be afforded the right under the Crime Victims’ Rights Act (CVRA) is unfathomable to the government,” Engelhart wrote in DOJ’S response brief. The government states that outbreak victims meet a two-part test established by the Atlanta-based Eleventh Circuit U.S. Court of Appeals for determining who is a “crime victim” under the CVRA. “The Eleventh Circuit has further stated that an individual ‘may qualify as a victim, even though (he) may not be the target of the crime, as long as (he) suffers harm as a result of the crime’s commission,’” she continued. Engelhart also called “meritless” the defendants’ claim that only PCA’s business customers were victims, not the end consumers who purchased and consumed products made with contaminated PCA peanut butter and peanut paste. Defense attorneys argued that PCA for the most part did not ship directly to consumers, or obtain payments from them. “These claims,” Engelhart wrote, “are illogical and served only to obfuscate the story. The offense conduct here is much more straightforward than the Defendants make it out to be. It involved the shipment of salmonella-tainted peanuts, peanut paste, and peanut butter to food distributors and manufacturers, oftentimes accompanied by falsified documents. “The food distributors and manufacturers then added PCA’s peanut products to other ingredients to make a final product—they added chopped peanuts to their ice cream, they spread peanut paste on their crackers, and they sprinkled peanuts on top of their caramel apples. And then the food distributors and manufacturers sold the final products to consumers,” she continued. “Thousands of consumers who ate the products became ill, and nine people died. Defendants’ attempts to complicate the story cannot change these facts. That Defendants sold their products to middlemen distributors and manufacturers does not somehow relieve them of responsibility for the safety of those products.” Statements and testimony of outbreak victims being heard at sentencing under the CVRA is not unprecedented. Judge Mark Bennett heard such testimony in U.S. District Court for Northern Iowa in Sioux City before pronouncing sentence on egg producers Austin (Jack) and Peter DeCoster and Quality Egg LLC following convictions related to a nationwide Salmonella outbreak in 2010. Defense attorneys for the Parnells challenged the practice largely out of concern about how multiple victims bump up the sentencing levels under federal guidelines. As it stands now, a 250-plus victim enhancement bumps Stewart Parnell up six levels in the federal sentencing guideline. A 50-plus victim enhancement takes him up four levels. “The Defendants have questioned the reliability of these statements and have alleged due process violations,” Engelhart continued in the response brief. “The Defendants have no Constitutional right to cross examine the victims. Victims who speak at sentencing are not government witnesses, but independent parties with the right to speak at sentencing. Victims exercising their rights under the CVRA do so as independent parties to the litigation, standing apart from the prosecution. This is evident from the plain text of the statute and from case law.” Engelhart asks that the defense motion to exclude the outbreak victims as crime victims be denied. Sentencing in the PCA case is scheduled for Monday, Sept. 21, at the federal courthouse in Albany, GA.

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