When your clients are all sitting in federal prisons around the country, and you are down to your last written arguments in the appellate courts, it is not time to hold back.
That’s roughly where the nation’s most important food safety case finds itself on the day after attorneys for the three Peanut Corporation of America (PCA) criminal defendants began filing their “reply briefs” in the U.S. Court of Appeals for the 11th Circuit in Atlanta.
Nothing is being held back as three former executives appeal prison sentences related to the 2008-09 Salmonella outbreak that was traced to peanut butter and paste produced by PCA. Thousands were sickened and nine people died.
Take the way defense attorney Thomas Ledford put his client, Mary Wilkerson, on the record favoring Oral Arguments — which the government and defense attorneys for brothers Stewart Parnell and Michael Parnell have all said they favor.
In his one-page statement favoring Oral Arguments, Ledford says a live session is needed because of Brady abuses of Discovery, the prosecution’s “Mega-Data Dump” of millions of pages on the defense, potential prosecutorial misconduct, and violations of various constitutional and Due Process rights.
Wilkerson is 43, was the quality control officer for the now defunct Peanut Corporation of America in Blakely, GA. She was convicted by a jury trial in September 2014 on one count of obstruction of justice, and sentenced a year later to five years in federal prison. The jury found her not guilty on a second count of obstruction.
Like former PCA Chief Executive Stewart Parnell and his peanut broker brother Michael Parnell, Wilkerson wants to reverse both her conviction and sentence with the appeal. One of the issues she wants the appellate justices to examine is whether the prosecution presented sufficient evidence for the jury to have found her guilty beyond a reasonable doubt.
Wilkerson, who made a transition from being a secretary-receptionist to being PCA’s quality assurance manager at Blakely, was convicted for essentially getting tripped up in an answer to Food and Drug Administration (FDA) investigator.
Ledford says the Government “falsely accused Wilkerson of lying and charged her with Count 73 and the Indictment was false as Wilkerson was asked and answered about ‘January 2008.’ ” He contends the government failed to prove Wilkerson’s statement of “knowingly and willfully false.”
The reply briefs are being submitted to the 11th Circuit in several parts. Not yet in were those from attorneys for Michael Parnell, who are expected to make arguments about jury misconduct and the alleged erroneous admission of lay opinion testimony.
The Parnell brothers are also adopting parts of each other’s arguments as a way of submitting everything they can while living within the Court’s 24,000 word limit for the reply brief.
Justin M. Lugar, appellate attorney for Stewart Parnell, takes apart the sentencing rational that District Court Judge W. Louis Sands used to imprison the former PCA executive for 28 years. It’s complicated, but in essence Lugar claims the information used in sentencing was in “clear error.”
Use of the information – economic losses caused by PCA— added a 26-level loss enhancement under federal sentencing guidelines. In his reply brief, Lugar says: “As noted above, the 26-level loss enhancement applied by the district court erroneously inflated Stewart’s sentencing by 25 years.”
The attorney says the correct “offense level” for his client is 21, not 47 as used by Sands. That would result in an appropriate sentence range of 37 to 46 months; not the 336 months imposed by the district court.
In short, to prove the economic damage of PCA’s actions, which brought conspiracy, fraud, and other charges against the Parnell brothers, the district court relied on a “Customer Subpoena Log,” developed by an FBI agent who was tasked with asking companies doing business with PCA about their losses related to the 2008-09 nationwide salmonella outbreak and associated recalls. In courtroom testimony, however, it became apparent the log was not an audited document. It contained whatever information that was provided by the companies.
Lugar provided testimony showing the log did not include insurance recoveries, lawsuit losses, or lost profits as a part of the actual losses.
At the time of the outbreak, FDA posted recalls of products by almost 3,900 companies that had used PCA peanut butter and paste as ingredients. The FBI log lists only 29 companies.
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