Posted: 07 Aug 2015 05:39 AM PDT
By Jenifer R. Stach* –
After Stewart Parnell’s conviction for selling salmonella-tainted peanut products, causing many deaths and illnesses, he could be facing life in prison. Attorneys on both sides called the recommendation for a life sentence “unprecedented” for a food-poisoning case.
We wrote about the convictions in a prior posting after the Peanut Corporation of America (PCA) defendants were found guilty on September 19, 2014. On July 22, 2015, the Government filed their brief seeking a life sentence for Stewart Parnell, 17.5 – 21 years for his brother, Michael Parnell, and 8 – 10 years for Mary Wilkerson, a PCA Quality Assurance Manager.
Are these sentencing recommendations warranted?
In their brief, the Government argues that the Sentencing Guidelines adjusted offense levels in the Pre-Sentence Reports (PSRs) issued by the U.S. Probation Office were properly calculated. The adjustments were made based on the following factors: number of victims, loss calculations, conscious or reckless risk of death or serious bodily injury by the Parnell brothers, and a general lack of acceptance of responsibility by Mary Wilkerson. While the recommendation for a life sentence may be unprecedented, so are the facts of the case.
Number of Victims. The number of victims included 9 deaths; 714 people who fell ill, with 166 of those hospitalized; and that for every case reported to the Center for Disease Control, 30 cases go unreported, therefore, the 714 illnesses confirmed by the CDC could represent as many as 20,000 ill people across the United States.
Conscious or Reckless Risk of Death or Serious Bodily Injury by the Parnells. The Parnell brothers both claimed that they were unaware of the risk of serious bodily injury or death. The Government argues that witness testimony by PCA employees of the conditions of filth in the Texas, Virginia, and Georgia plants, knowledge by defendants of the salmonella-positive test results, the falsification of Certificates of Analysis (COAs) for testing, and emails written by Stewart Parnell telling his employees to ship tainted products were aggravating factors that warranted the adjusted sentencing levels.
An executive who was perhaps new to the industry may have been able to make the claim that they were unaware of the risk, but the Parnell brothers had been in the peanut business with their father as peanut roasters since 1977. In 2005, Stewart Parnell was appointed to the USDA’s Peanut Agriculture Board, which (ironically enough) sets quality control procedures for peanuts. In 2009 after the DOJ investigation was initiated, Parnell was removed from the board. Clearly, Parnell’s egregious and continuous behavior directing his employees to ship tainted products was not a result of being unaware.
Loss Calculation. Despite arguments by the Parnell brothers that insurance payouts should be considered in the loss calculation, the Government argues that insurance payouts are not relevant and asserts that the loss estimates to PCA customers is $144 million due to recalls and product that had to be destroyed.
A General Lack of Acceptance of Responsibility by Mary Wilkerson. Wilkerson claims she had no knowledge of the schemes to ship tainted products. The Government points to testimony by PCA employees that Wilkerson was the Quality Assurance Manager responsible for COAs during the time of the outbreaks, and that she was aware that products were produced and shipped on the same day, despite her knowledge that salmonella testing takes two to four days.
All in all, the Government argues that “this criminal activity was extensive.” But the impact is wider than the Sentencing Guidelines factors. We should not forget the number of people affected by the deaths of those nine people -- their family and friends, the interruption in the lives of those who fell ill, and the impact of the PCA employees and family members who lost their jobs after the company filed bankruptcy.
Even if Stewart Parnell does not receive a life sentence, the impact on government enforcement priorities has persisted. The Department of Justice (DOJ) and FDA continue to focus on safety in peanut manufacturing as a priority. Recent cases indicate that companies are learning the potential consequences of violating the FDC Act. In 2012 Sunland, a New Mexico based peanut producer entered into a consent decree with DOJ to implement sanitation control programs, conduct testing, and develop monitoring and remediation protocols. Most recently in May, ConAgra pled guilty to a misdemeanor charge of the FDC Act for introducing peanut butter with salmonella into interstate commerce (coincidentally manufactured in Georgia).
Will Stewart Parnell’s willful sales of tainted peanut butter be enough for a court to sentence him to life in prison? We’ll find out soon, because sentencing is scheduled for September 21, 2015. We will keep you posted.
*Admitted only in Maryland. Practicing under the supervision of the Firm
After Stewart Parnell’s conviction for selling salmonella-tainted peanut products, causing many deaths and illnesses, he could be facing life in prison. Attorneys on both sides called the recommendation for a life sentence “unprecedented” for a food-poisoning case.
We wrote about the convictions in a prior posting after the Peanut Corporation of America (PCA) defendants were found guilty on September 19, 2014. On July 22, 2015, the Government filed their brief seeking a life sentence for Stewart Parnell, 17.5 – 21 years for his brother, Michael Parnell, and 8 – 10 years for Mary Wilkerson, a PCA Quality Assurance Manager.
Are these sentencing recommendations warranted?
In their brief, the Government argues that the Sentencing Guidelines adjusted offense levels in the Pre-Sentence Reports (PSRs) issued by the U.S. Probation Office were properly calculated. The adjustments were made based on the following factors: number of victims, loss calculations, conscious or reckless risk of death or serious bodily injury by the Parnell brothers, and a general lack of acceptance of responsibility by Mary Wilkerson. While the recommendation for a life sentence may be unprecedented, so are the facts of the case.
Number of Victims. The number of victims included 9 deaths; 714 people who fell ill, with 166 of those hospitalized; and that for every case reported to the Center for Disease Control, 30 cases go unreported, therefore, the 714 illnesses confirmed by the CDC could represent as many as 20,000 ill people across the United States.
Conscious or Reckless Risk of Death or Serious Bodily Injury by the Parnells. The Parnell brothers both claimed that they were unaware of the risk of serious bodily injury or death. The Government argues that witness testimony by PCA employees of the conditions of filth in the Texas, Virginia, and Georgia plants, knowledge by defendants of the salmonella-positive test results, the falsification of Certificates of Analysis (COAs) for testing, and emails written by Stewart Parnell telling his employees to ship tainted products were aggravating factors that warranted the adjusted sentencing levels.
An executive who was perhaps new to the industry may have been able to make the claim that they were unaware of the risk, but the Parnell brothers had been in the peanut business with their father as peanut roasters since 1977. In 2005, Stewart Parnell was appointed to the USDA’s Peanut Agriculture Board, which (ironically enough) sets quality control procedures for peanuts. In 2009 after the DOJ investigation was initiated, Parnell was removed from the board. Clearly, Parnell’s egregious and continuous behavior directing his employees to ship tainted products was not a result of being unaware.
Loss Calculation. Despite arguments by the Parnell brothers that insurance payouts should be considered in the loss calculation, the Government argues that insurance payouts are not relevant and asserts that the loss estimates to PCA customers is $144 million due to recalls and product that had to be destroyed.
A General Lack of Acceptance of Responsibility by Mary Wilkerson. Wilkerson claims she had no knowledge of the schemes to ship tainted products. The Government points to testimony by PCA employees that Wilkerson was the Quality Assurance Manager responsible for COAs during the time of the outbreaks, and that she was aware that products were produced and shipped on the same day, despite her knowledge that salmonella testing takes two to four days.
All in all, the Government argues that “this criminal activity was extensive.” But the impact is wider than the Sentencing Guidelines factors. We should not forget the number of people affected by the deaths of those nine people -- their family and friends, the interruption in the lives of those who fell ill, and the impact of the PCA employees and family members who lost their jobs after the company filed bankruptcy.
Even if Stewart Parnell does not receive a life sentence, the impact on government enforcement priorities has persisted. The Department of Justice (DOJ) and FDA continue to focus on safety in peanut manufacturing as a priority. Recent cases indicate that companies are learning the potential consequences of violating the FDC Act. In 2012 Sunland, a New Mexico based peanut producer entered into a consent decree with DOJ to implement sanitation control programs, conduct testing, and develop monitoring and remediation protocols. Most recently in May, ConAgra pled guilty to a misdemeanor charge of the FDC Act for introducing peanut butter with salmonella into interstate commerce (coincidentally manufactured in Georgia).
Will Stewart Parnell’s willful sales of tainted peanut butter be enough for a court to sentence him to life in prison? We’ll find out soon, because sentencing is scheduled for September 21, 2015. We will keep you posted.
*Admitted only in Maryland. Practicing under the supervision of the Firm
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