DOJ wants federal judge to deny motion for early release for Stewart Parnell

DOJ wants federal judge to deny motion for early release for Stewart Parnell

by Sue Jones
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The way the Department of Justice sees it, the once chief executive officer of the now-defunct Peanut Corporation of America is a keeper.

Government counsel wants the Middle District of the U.S. District Court in Georgia to deny a motion to vacate, set aside, or correct his sentence. A denial means Stewart Parnell, 67, likely will be kept in federal prison for an additional 18 years or until he is 85-years old.  He is currently being held at the Hazelton federal prison in Bruceton Mills, WV.

The DOJ Consumer Protection Branch filed its response Oct. 8 to Parnell’s post-hearing brief, continuing its vigorous opposition to the former peanut executive’s 2255 Motion for early release.

“Petitioner has failed to meet his burden,” DOJ trial attorney Speare I. Hodges wrote in the reply brief. “The lengthy trial record and more recent testimony from petitioner’s trial counsel and others do not support his ineffective assistance claim. The court should deny the petitioner’s motion.”

Hodges provided this “brief procedural history:”

  • “On Sept. 19, 2014, following a seven-week trial, the jury found petitioner guilty for his role in a scheme to ship peanut products that tested positive for salmonella or otherwise were produced under insanitary conditions. ECF 285.
  • On Oct.6, 2014, petitioner filed a motion for a new trial, alleging that juror misconduct prejudiced his right to a fair trial. ECF 308. As relevant to this case, petitioner alleged that several jurors conducted outside research, jury members discussed salmonella-related deaths allegedly caused by his company, and one particular juror, Juror 34, was biased. The trial court held two hearings on the issue, calling in every selected juror for individual questioning. ECF 397 at 13-14. The court ultimately found “no indication that any juror concealed harbored bias[,]” that Juror 34 was in fact “biased” toward petitioner’s co-defendant, and that any juror knowledge of deaths was not highly prejudicial given the “overwhelming” evidence against the petitioner presented at trial.
  • On Sept. 30, 2015, the district court sentenced petitioner to a total term of imprisonment of 336 months (28 years). ECF 498. Petitioner next appealed his conviction and sentence, specifically raising the jury misconduct issue, among others. The Court of Appeals for the Eleventh Circuit affirmed his conviction and sentence on June 20, 2018. The United States v. Parnell,
  • On Sept. 6, 2019, Parnell then filed the instant petition along with a motion for an evidentiary hearing. ECFs 667-68. The court held an evidentiary hearing on May 24-25, 2021, hearing testimony from petitioner’s four former trial counsel, Kenneth Bryant Hodges, Thomas J. Bondurant, Scott Austin, and Justin Lugar; a local peanut broker, James Thomas Strother; and trial counsel for petitioner’s co-defendant, Ed Tolley.”

The DOJ brief says that to prevail on a claim of effective counsel, a defendant must show the counsel’s representation was deficient and that deficient representation was prejudicial. It says the petition would have to show reasonable professional acts or omissions were lacking

“Petitioner argues that his trial counsel made two errors that deprived him of his Sixth Amendment right: (1) “failing to move the Court for a change in the venue” and (2) “failing to move to strike for cause venirepersons who heard that deaths had been attributed to the salmonella outbreak,” Hodges wrote. “But the record does not support petitioner’s claims that the actions of his trial counsel constituted errors at all — let alone that they meet Strickland’s requirement to show the result of his trial would have been different. Accordingly, petitioner’s motion should be denied.”

Early in his brief, Hodges knocks down Parneel’s argument that the defendants could not get a fair jury trial in Albany, GA.  He writes;

  • “Petitioner failed to show his counsel rendered ineffective assistance because accepting venue in the Albany Division did not prejudice him and was objectively reasonable.

Venue transfer is governed by Federal Rule of Criminal Procedure 21, which instructs that a “court must transfer the proceeding . . . to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” Fed. R. Crim. P. 21(a). In this case, petitioner argues his trial counsel provided ineffective assistance in failing to move for a transfer because he would have met the ‘extremely heavy’ burden to show the venue was presumptively prejudiced. See Coleman v. Kemp.”

  •  Petitioner failed to show he would have prevailed on a motion to change venue.

Petitioner’s post-hearing brief alleges no new facts in support of his claim that his trial counsel would have met the demanding legal standard to demonstrate presumed prejudice. The Eleventh Circuit has made clear that this burden “is an extremely heavy one,” and presumed prejudice is, therefore “rarely applicable and is reserved for an extreme situation.”

In the U.S. v. Campa, the Supreme Court has pointed to several factors that may constitute presumed prejudice: (1) the size and characteristics of the community in which the crime occurred; (2) whether news contained blatantly prejudicial information that jurors “could not reasonably be expected to shut from sight”; (3) whether “the decibel level of media attention” did not diminish during the run-up to the trial, and (4) whether “the jury’s verdict did not undermine in any way the supposition of juror bias.” Skilling v. the United States, 561 U.S. 358, 380-85 (2010). Even if such facts support presuming prejudice, the presumption is rebutted when “the district court’s careful and thorough voir dire, as well as its use of prophylactic measures to insulate the jury from outside influences, ensured that the defendant received a fair trial by an impartial jury.”

The government’s 22-page brief goes on to argue that the media climate in the Albany, GA, area leading up to the 2014 jury trial was “predominantly factual.”  And the South Georgia peanut industry saw the impacts of the Salmonella outbreak as temporary. And, the trial did not occur until five years after the outbreak.

Also, the government argues that “the verdict undermines any suggestion of juror bias” in that all three defendants who went to trial were acquitted of at least one count. “It would be illogical to think that the jurors reserved their biases solely for the petitioner,” Hodges said.

Post-hearing briefs and the in-person hearing transcripts all go to Magistrate Judge Thomas Q. Langstaff, who makes recommendations to the Middle District Court.

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