U.S. Magistrate Judge Thomas Q. Langstaff has ordered Stewart Parnell returned to the C.B. King Federal Courthouse in Albany, GA, on Feb. 24, 2021, for a hearing that could lead to freedom for the former peanut executive.

Parnell was sentenced in 2015 to a 28-year  prison term, which he is currently serving at a federal prison in South Carolina. He will be returned to the courtroom wher a jury convicted him in 2014 so the federal magistrate can hear oral arguments on a motion to vacate his conviction and sentence on grounds he was denied effective counsel.

Two of Georgia’s most accomplished appellate attorneys, Savannah’s Amy Lee Copeland and Atlanta’s Amy Levin Weil, are representing Parnell in the motion hearing. They will argue that Parnell received ineffective assistance from trial counsel.

Gentry Locke LLP attorney Thomas J. Bondurant Jr. from Roanoke, VA, represented Parnell at trial and will likely be subpoenaed to testify at the February hearing. In September 2019, he supported Parnell’s motion to vacate the conviction and sentence with a declaration, telling about a prospective juror who said he wanted to “extract my pound of flesh” from Parnell.

When asked what he’d heard about the case, Bondurant said that  juror responded by saying:

“I own an ag irrigation dealership, part of that, I’m a third-generation peanut farmer in Sumter County. So I have invested thousands of dollars in market promotion and it was tanked. Everything we did was washed away. Not only did they endanger children’s lives, but they also destroyed our market. I know people. Y’all kept referring to Lab 1 and Lab 2. I don’t know who Lab 2 is, but I know who Lab 1 is. I heard all about the samples. Of course, I know everything I read in — I read in the Albany Herald, and I read it in all of our trade magazines.”

Parnell’s appellate attorneys have been seeking an evidentiary hearing since September 2019.  Copeland and Weil, former federal appellate attorneys, plan to show how Georgia’s peanut growing counties turned hostile toward Parnell after PCA poisoned its customers and tainted the industry’s reputation. They are going to argue that Parnell’s trial attorneys should have sought a change of venue out of the hostile territory.

Parnell was indicted on Feb. 15, 2013, about four years after a Salmonella outbreak caused by peanut butter and peanut paste produced by Parnell’s Peanut Corporation of America plant poisoned thousands around the country and resulted in at least seven deaths. Parnell and four other PCA executives or managers were charged with conspiracy; introduction of adulterated food into interstate commerce with intent to defraud or mislead; introduction of misbranded food into interstate commerce with intent to defraud or mislead; mail fraud; wire fraud; and obstruction of justice.

Following a 34-day jury trial in August and September 2014, Parnell was found guilty of conspiracy to commit mail fraud and wire fraud, conspiracy to introduce adulterated and misbranded food into interstate commerce, multiple counts of introduction of adulterated food into interstate commerce, multiple counts of Introduction of misbranded food into interstate commerce, multiple counts of mail fraud, multiple counts of wire fraud, and two counts of obstruction of justice.

Parnell filed a post-trial motion for a new trial on Oct. 6, 2014, alleging that juror misconduct prejudiced his right to a fair trial. In part,  he alleged that jury members discussed salmonella-related deaths allegedly caused by PCA’s products and that Juror 34 showed juror bias.

 The court held two hearings, calling in every seleced juror for individual questioning at the second hearing. One juror testified that other jurors had conducted their own research over the course of the trial and discovered that the defendants “killed nine people” in the outbreak.

That juror did not bring this alleged misconduct to the attention of any defendant or defendants’ counsel until after the trial had concluded. After a detailed review of juror testimony, the court found that “[v]iewing the totality of the circumstances, the court finds that there is no indication that any juror concealed harbored bias from the court or the defendants. . . [and] the court finds that the defendants failed to demonstrate that any juror failed to honestly answer any question during voir dire.”

In regard to whether the jury was exposed to prejudicial extrinsic information, the court found that three jurors stated that deaths were discussed in the jury room, but that “the discussion of deaths arose from a misperception or incorrect recollection of the trial testimony or evidence [that deaths were caused], not from the extrinsic source.”

Parnell was sentenced to 28 years in prison, which began when he entered on Sept. 21, 2015.  It is to be followed by three years of supervised release.

Parnell appealed his conviction to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.

On appeal, he again argued that he was entitled to a new trial based on the jury’s alleged exposure to extrinsic evidence that people died as a result of the salmonella outbreak, that the district court erred in allowing testimony from former operating managers as to business records, and that the government’s evidence of loss was not sufficiently specific or reliable.

 The Eleventh Circuit court assumed that “at least several of the jurors who sat on the case were exposed to extrinsic evidence,” but that the extrinsic evidence did not influence or contribute to the jury verdict. The Eleventh Circuit further found that the former operating managers had ample knowledge from which to testify and that there was no error in admitting this testimony, and that any remand for recalculation of the loss amount was futile and any errors in the district court’s calculation were harmless.

In granting Parnell’s latest “2225 claim,” the Magistrate judge points out that: “The law is clear that, in order to be entitled to an evidentiary hearing, a petitioner need only allege – not prove — reasonably specific, non-conclusory facts that, if true, would entitle him to relief.”

And if Parnell were to prevail, the magistrate  notes that If a prisoner’s 2255 claim is found to be valid, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”

Parnell’s attorneys allege that he received ineffective assistance of trial counsel in that counsel failed to seek a change in a venue based on adverse pretrial publicity, jurors’ preconceived notions, and the amount of media exposure for the case in the entire division, presumably the Albany Division of the Middle District of Georgia.

The magistrate says that to obtain relief from a conviction based on constitutionally ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.”

“In order to prove ineffective assistance of counsel based upon a failure to move for a change of venue, a petitioner must show, at a minimum, [that] there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if counsel had presented such a motion to the court.” 

Parnell also alleges that trial counsel provided ineffective assistance in failing to move to strike for cause venirepersons who had knowledge that deaths had been attributed to the salmonella outbreak.  

He “asserts that an evidentiary hearing is necessary as he has alleged facts which if proven would entitle him to relief. Petitioner has set forth portions of the media coverage for the trial and highlights portions of the trial record showing venirepersons’ knowledge of the case and attitudes towards the defendant.”

Parnell additionally asserts, according to the magistrate, that an evidentiary hearing would provide testimony from his trial counsel regarding the decisions not to move for a change in venue and not to move to strike jurors with knowledge of deaths caused by the salmonella outbreak. 

The government opposed the Motion for an Evidentiary hearing, saying that an evidentiary hearing is not warranted, as neither the record nor extrinsic evidence shows deficient performance or prejudice to petitioner. The government asserts that the record falls short of requiring the hearing.

In his ruling, the Magistrate found the record does not conclusively show that the Petitioner’s claims fail and that Petitioner is entitled to an evidentiary hearing on his claims. Petitioner has alleged facts that, if proven, would entitle him to relief.

“We cannot say [that Petitioner’s] allegations at this stage are patently frivolous, based on unsupported generalizations, or affirmatively contradicted by the record. Neither can we say the record conclusively shows he is entitled to no relief?”

“Although we conclude [petitioner] is entitled to an evidentiary hearing, we express no opinion about the merits of his claims. As our predecessor court spelled out, “[t]he point is that we do not know . . . whether [petitioner’s] allegations are indeed true and whether, as a consequence, he was unconstitutionally deprived of reasonably effective assistance of counsel.”

Langstaff’s ruling: “The Court finds that a factual basis must be developed by means of an evidentiary hearing for Petitioner’s grounds for relief, which are claims of ineffective assistance of counsel, with Petitioner’s prior counsel present to testify. “

If COVID-19 continues to be a public health threat, it’s possible next February’s hearing could end up being a video conference.

Meanwhile, Stewart’s brother Michael, who was also convicted of multiple felony counts and sentenced to 20 years, is making similar arguments. “Trial counsel’s failure to investigate and call witnesses was not strategy but a violation of Sixth Amendment standards and warrants presentation to the Court to make the case of just how material testimony would have been,” wrote Charlottesville, VA, attorney Elliott Harding on Michale’s behalf last April.