The former president of the Peanut Corporation of America (PCA), Stewart Parnell, has embraced several of his brother’s issues on appeal and also asked to be released on bond until those appeals are decided by the U.S. Court of Appeals for the Eleventh Circuit. In a 55-page filing on behalf of Stewart Parnell, Gentry Locke appellate attorney Justin M. Lugar has asked the court to allow his client to adopt several of Michael Parnell’s appeal issues.

The Roanoke, VA-based attorney told the Atlanta appeals court that, like Michael Parnell, his client was also denied release pending appeal “despite a lack of evidence that he is a flight risk or danger to the community, and despite the fact that his appeal presents substantial legal and factual questions.” Both Stewart and Michael Parnell have been in the custody of the U.S. Marshals Service since they were sentenced on Sept. 21, 2015, to 28 and 20 years in prison, respectively. But in the appeal, Lugar states that Stewart Parnell’s “conviction and sentence are highly suspect on a variety of complex procedural and substantive grounds, including issues involving the Confrontation Clause, the Due Process Clause, and the Sixth Amendment’s guarantee of a fair and just trial.” Lugar claims that those issues first raised in the Michael Parnell appeal should be considered as part of his client’s appeal as well in the interests of “judicial economy.” It would, he said, avoid the need for “rote repletion” of the Supreme Court’s “evolving standards” over the “primary purpose test” of the Confrontation Clause “as applied to a federal multi-function agency, the FDA.” He also writes that incorporation would eliminate the need to repeat the record over both allegations of a prejudiced jury verdict and improper statements by the government during closing arguments. Lugar is asking for oral arguments in the court’s review of whether Stewart Parnell should be released on bond pending the outcome of his appeal issues. “Due to the district court’s erroneous finding that he presents a flight risk and his appeal presents no substantive questions of law or fact, Stewart has now been in prison for almost two months,” Lugar’s motion states. “Expedited briefing is necessary to remedy this injustice and allow Stewart to rejoin his family while this Court considers his appeal.” Stewart Parnell’s attorney argues that if his client wanted to flee federal jurisdiction, he could have already done so. “In the half decade between the commencement of the investigation and formal indictment in this case, Stewart travelled to a host of African and South American countries to provide assistance with agriculture technologies …,” Lugar writes. “He could have easily relocated himself and his family to a non-extradition country with a paying job. He did not do so because he is committed to his family, particularly his beloved granddaughters, who all dotingly refer to Stewart as their Stew-Pa. Stewart, and his family, are firmly committed to clearing his name. Stewart has always proclaimed his innocence and continues to do so.” The only thing that has changed since 2014, when Stewart and Michael Parnell were both allowed to remain free after their jury convictions but before sentencing, is that now their financial resources are “nearly exhausted” because of the costs of the trial and appeals. Stewart Parnell’s appeal suggests that there are substantial questions of law or fact for the appellate court to decide, and that it likely will determine how similar food safety cases are prosecuted in the future. At the top of those issues are these questions: When did the Food and Drug Administration’s (FDA) criminal investigation start, and when did it circumvent FDA’s public health activities? Attorneys for the Parnell brothers maintain they were denied their “Confrontation Clause” rights to cross-examine individuals who actually produced laboratory tests conducted for the criminal probe. The appeal includes trial testimony from FDA’s Janet Gray, who said that the agency’s Office of Criminal Investigations began its investigation on Jan. 27, 2009, and essentially took over. Lugar says the idea that an “ongoing emergency” existed after that date “is both without support and belied by the record established at trial.” As examples that the lab work should have been subjected to defense cross-examination, Stewart Parnell’s appeal points to lab tests that were expected to be negative that turned out positive and the disclosure at trial that Kellogg’s tested the entire cracker, not just the peanut butter “Without confrontation, this evidence would never have been heard. It begs the question then as to how much evidence was improperly kept from the jury because Stewart was not permitted to confront the witnesses and challenge their testimony,” the appeal states, continuing, “There can be little doubt that Stewart was unconstitutionally prevented from confronting his accusers by the district court’s erroneous inclusion of testimonial testing evidence without testimony from the individuals involved.” The Parnell brothers were convicted by a jury in September 2014 of a variety of criminal charges related to a 2008-09 Salmonella outbreak linked to PCA products. That outbreak sickened at least 714 people in 46 states (and likely thousands more who did not report being ill) and was blamed for the deaths of nine people.

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