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Feds mount evidence in salmonella outbreak probe

Greg Bluestein, Associated Press/

February 14, 2009

ATLANTA -- First, federal investigators said Stewart Parnell knowingly shipped salmonella-tainted foods even after internal tests showed they were contaminated. Then they revealed the evidence: e-mails Parnell sent to his employees urging them to ship out the products that authorities say ultimately sickened hundreds and may have caused the deaths of nine.

Federal authorities, who started an investigation last month, have remained tightlipped about possible charges against Parnell. So has the FBI, which raided the company's Georgia plant about a week ago.

But food safety attorneys say prosecutors have an array of options for what could be one of the Food and Drug Administration's most high-profile tainted food cases in decades.

"Any time you've got interstate commerce, those are the buzz words for federal prosecution," said Kent Alexander, a former U.S. attorney in Atlanta who is now general counsel at Emory University. "And prosecutors can be very creative in alleging schemes involving interstate commerce."

One tool federal prosecutors could use is the 1938 Federal Food Drug and Cosmetic Act, which carries a maximum penalty of three years in prison and a fine of $10,000 if prosecutors prove there's an intent to "defraud or mislead."

Prosecutors could also turn to a range of other laws if they are seeking a tougher punishment.

Fred Pritzker, a food safety lawyer in Minneapolis who filed a wrongful death lawsuit against Peanut Corp., said investigators could charge Parnell with federal anti-conspiracy charges.

Or authorities could charge Parnell and his company with mail fraud or wire fraud if prosecutors believe they can prove they were knowingly giving customers adulterated product, said Jim Frush, a former federal prosecutor who is now a criminal defense attorney.

And Alexander said the ongoing investigation could yield a separate, perhaps indirect, charge.

"In cases like this, sometimes the biggest vulnerability people have is lying under oath or lying to federal investigators," he said.

Authorities say a Blakely, Ga., plant run by Parnell's company, Peanut Corp. of America, is the sole source of a salmonella outbreak that has led to one of the nation's biggest food recalls. The company filed for Chapter 7 bankruptcy protection Friday.

Prosecutions in such cases are fairly rare, and they generally lead to fines against companies rather than jail time or other punishments for individuals. Recent convictions include the 1996 case against juice-maker Odwalla Inc., which was fined $1.5 million on charges of shipping unpasteurized apple juice that killed a baby. Five years later, Sara Lee Corp. was fined $200,000 after pleading guilty to misdemeanor charges of selling tainted meats in a listeria outbreak that killed 15 people.

Other, more high-profile outbreaks haven't yielded criminal charges. Prosecutors decided not to press charges against two produce companies involved in a 2006 tainted spinach case that killed three people and sickened 200 others, saying the investigation found growers and processors did not deliberately skirt the law.

Parnell's e-mails, released this week by House investigators, depict a man driven by profits who instructed his employees to ship out products despite reports that salmonella was detected. "Turn them loose," he said in one e-mail.

Parnell, summoned by congressional subpoena, repeatedly invoked his right not to incriminate himself. Reached by telephone Friday, he said his attorneys had advised him not to talk. The company, in statements, has said it is cooperating with federal investigators.

Food safety watchdogs have long argued that the FDA doesn't pursue criminal charges enough in tainted food cases, but they have little doubt that investigators are building a case as public outrage grows.

"I am no attorney," said Mike Doyle, a University of Georgia food safety scientist. "But the evidence appears to be a smoking gun. It appears that Mr. Parnell knowingly ordered shipment of salmonella-contaminated product."

Creighton Magid, a Washington-based products liability attorney often on the defense side, said prosecutors may not press charges in food safety cases because they don't want to discourage responsible companies from coming forward with their mistakes.

Parnell's case, he said, appears to be a sharp contrast.

"There's a huge difference between a recall of a product because of a flaw in manufacturing and knowingly selling a product that is contaminated," he said. "That's a different ball game entirely."

Either way, food safety attorneys say the revelations this week could be the opening act of one of the most high-profile tainted food prosecutions in recent history.

"The question is not whether there will be charges," said Bill Marler, a food safety lawyer who has filed lawsuits against Parnell's company. "But what they will charge him with."

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