Case 1:20-cr-00152-PAB Document 293 Filed 07/26/21 USDC Colorado Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Criminal Case No. 20-cr-00152-PAB
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`1.
`2.
`3.
`4.
`5.
`6.
`7.
`8.
`9.
`10.
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`JAYSON JEFFREY PENN,
`MIKELL REEVE FRIES,
`SCOTT JAMES BRADY,
`ROGER BORN AUSTIN,
`TIMOTHY MULRENIN,
`WILLIAM VINCENT KANTOLA,
`JIMMIE LEE LITTLE,
`WILLIAM WADE LOVETTE,
`GARY BRIAN ROBERTS, and
`RICKIE PATTERSON BLAKE,
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`Defendants.
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`DEFENDANT ROBERTS’ MOTION TO DISMISS THE INDICTMENT
`AS BARRED BY THE STATUTE OF LIMITATIONS
`AND BRIEF IN SUPPORT THEREOF
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`Defendant Gary Brian Roberts respectfully moves the Court to dismiss the charges against
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`him as barred by the statute of limitations pursuant to 18 U.S.C. § 3282(a) and the Fifth
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`Amendment of the Constitution of the United States. In the event that the charges against
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`Defendant are not dismissed on Defendant’s motion, Defendant respectfully requests that an
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`evidentiary hearing be held on the issue of whether the Government’s prosecution of Defendant is
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`barred by the statute of limitations, at which the prosecution should be required to produce
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`evidence that Defendant participated in an alleged crime within the limitations period.
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`Case 1:20-cr-00152-PAB Document 293 Filed 07/26/21 USDC Colorado Page 2 of 13
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`The Government alleges in its Superseding Indictment (Indictment) that, “beginning at
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`I. INTRODUCTION
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`least as early as 2012,” the Defendants and others allegedly “entered into and engaged in a
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`continuing combination and conspiracy to suppress and eliminate competition by rigging bids and
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`fixing prices and other price-related terms for broiler chicken products sold in the United States,”
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`which was “per se unlawful.” Dkt. # 101, ¶ 1. The Government’s allegations and the nature of a
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`Sherman Act, 15 U.S.C. § 1, conspiracy charge present prima facie grounds for dismissal of this
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`prosecution as barred by the statute of limitations. The prosecution obtained its Indictment against
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`Mr. Roberts and the other Defendants on October 6, 2020. Id. Based upon its own allegations, the
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`prosecution indicted Mr. Roberts and the other Defendants 8 years after the offense was complete
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`and the limitations period began to run. Dismissal of the Indictment and this prosecution as barred
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`by the statute of limitations is warranted, and compelled by the Defendants’ right to due process.
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`Fully three quarters of the prosecution’s substantive allegations concern alleged conduct
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`occurring outside of the limitations period. See Dkt. # 101, ¶¶ 51-119. In Mr. Roberts’ case, the
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`last specific act alleged against him occurred over 6 years prior to the return of the Indictment. Id.
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`at ¶ 106. Based upon the grounds set forth herein, the prosecution should not be permitted to
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`proceed against Mr. Roberts, and the Indictment and charges should be dismissed as to him.
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`II. APPLICABLE LAW AND ARGUMENT
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`A. The Charge Against Mr. Roberts Is Barred By The Statute of Limitations
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`The Government alleges in its Indictment that the Defendants entered into and engaged in
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`a “continuing” combination and conspiracy to suppress and eliminate competition by rigging bids
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`and fixing prices and other price-related terms for broiler chicken products, in violation of Section
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`Case 1:20-cr-00152-PAB Document 293 Filed 07/26/21 USDC Colorado Page 3 of 13
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`1 of the Sherman Act, 15 U.S.C. § 1, continuing through at least early 2019. Dkt. # 101, ¶ 1. Its
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`specific allegations concerning Mr. Roberts consist of various alleged communications in relation
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`to “QSR-4’s 2013 Freezing Charge,” “QSR-4’s Quality Assurance Costs for 2014,” and “QSR-1’s
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`8-Piece COB Supply for 2015.” Id. at ¶¶ 68(c), 69, 82, 91, 93, 98, 104. The most recent specific
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`conduct alleged against Mr. Roberts are alleged communications between August 11 and
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`September 3, 2014, in relation to “QSR-1’s 8-Piece COB Supply for 2015.” Id. at ¶¶ 91-95, 97-
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`101, 103. The Government alleges more recent conduct in sections entitled “QSR-2’s 2015 Bone-
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`In Promotional Discount,” “Distributor-1’s Line-of-Credit Term,” “QSR-1’s Broiler Chicken
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`Products for 2018,” and “QSR-2’s 8-Piece COB Supply for 2018 and 2019,” however none of this
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`conduct references Mr. Roberts. Id. at ¶¶ 120-143.
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`The Government’s Section 1 charge is subject to a five (5) year limitations period under
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`18 U.S.C. § 3282. See United States v. Kemp & Assocs., Inc., 907 F.3d 1264, 1270 (10th Cir. 2018)
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`(citing 18 U.S.C. § 3282(a); United States v. Evans & Assocs. Const. Co., 839 F.2d 656, 661 (10th
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`Cir. 1988)). The Court of Appeals has held that, when a defendant raises a statute of limitations
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`defense, “‘the Government then bears the burden of establishing compliance with the statute of
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`limitations by presenting evidence that the crime was committed within the limitations period or
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`by establishing an exception to the limitations period.’” United States v. DeLia, 906 F.3d 1212,
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`1217 (10th Cir. 2018) (quoting Musacchio v. United States, 136 S.Ct. 709, 718 (2016)); see also
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`Musacchio, at 717 (“When a defendant introduces the limitations defense into the case, the
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`Government then has ‘the right to reply or give evidence’ on the limitations claim”) (quoting
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`United States v. Cook, 17 Wall. 168, 179 (1872)) (quoting United States v. Cook, 17 Wall. 168,
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`179 (1872)). Furthermore, in a criminal antitrust prosecution, the government must prove beyond
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`a reasonable doubt that each defendant “continued to be a member to a time within the period of
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`the statute of limitations.” American Bar Association, Model Jury Instructions in Criminal
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`Antitrust Cases, Ch. 4, § A(1) (2009).
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`Statutes of limitations provide a guarantee “‘against bringing overly stale criminal
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`charges.’” United States v. Lovasco, 431 U.S. 783, 789 (1977) (quoting United States v. Marion,
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`404 U.S. 307, 322 (1971); quoting United States v. Ewell, 383 U.S. 116, 122 (1966)). “‘[A]n act
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`condoned by the expiration of the statute of limitations is no longer a punishable offense.’” Stogner
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`v. California, 539 U.S. 607, 613 (2003) (quoting H. Black, American Constitutional Law § 266, p.
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`700 (4th ed.1927)). Statutes of limitations “reflect[ ] a legislative judgment that, after a certain
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`time, no quantum of evidence is sufficient to convict.” Id. at 615 (citing Marion, at 322); accord
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`DeLia, 906 F.3d at 1217 (quoting Stogner, at 615). “‘The theory is that even if one has a just claim
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`it is unjust not to put the adversary on notice to defend within the period of limitation and that the
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`right to be free of stale claims in time comes to prevail over the right to prosecute them.’” Marion,
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`at 325 (quoting Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349
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`(1944)).
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`Given that the expiration of the statute of limitations prevents the bringing of stale criminal
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`charges and renders the underlying conduct no longer punishable, in combination with the
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`requirement that the Government bears the burden of proving that the offense was committed
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`within the limitations period or the applicability of an exception to the statute when a statute of
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`limitations defense is raised by the defendant, the Government should be required to establish why
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`its prosecution of Mr. Roberts is not barred before its prosecution proceeds further. Requiring the
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`Government to meet this burden before its prosecution of Mr. Roberts is allowed to continue is
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`Case 1:20-cr-00152-PAB Document 293 Filed 07/26/21 USDC Colorado Page 5 of 13
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`further wholly consistent with “the law of this circuit [ ] that if the statute of limitations is to have
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`any meaning in the administration of criminal justice, [it] must be held ... to operate as a
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`jurisdictional limitation upon the power to prosecute and punish.” United States v. Cooper, 956
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`F.2d 960, 961–962 (10th Cir. 1992) (where the criminal information against the defendant was
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`filed after the expiration of the statute of limitation in Section 3282, reversing the defendant’s
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`conviction despite her guilty plea and holding that the statute of limitations was a bar to
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`prosecution, and that the charge against the defendant was a nullity). Dismissals of indictments
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`and charges brought in violation of the statute of limitations have been upheld in other cases, under
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`similar circumstances. See United States v. Dunne, 324 F.3d 1158, 1166 (10th Cir. 2003)
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`(affirming the district court’s dismissal of a superseding indictment for failure to charge within the
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`applicable five-year statute of limitations); United States v. Payne, 978 F.2d 1177, 1181 (10th Cir.
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`1992) (reversing the defendant’s convictions for false representations of social security numbers
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`as barred by the five-year statute of limitations under Section 3282 where the evidence was
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`undisputed that the defendant’s last false representation of a social security number occurred in
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`1984, and the indictment was not returned until 1991).
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`Mr. Roberts accordingly requests that the Indictment be dismissed as to him or, in the event
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`that the charges against him are not dismissed on this Motion, that an evidentiary hearing be held
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`in which the prosecution should be required to meet its burden of proving that Mr. Roberts
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`committed an alleged offense within the limitations period.
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`Case 1:20-cr-00152-PAB Document 293 Filed 07/26/21 USDC Colorado Page 6 of 13
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`1. The Government’s Charged Antitrust Conspiracy Was Complete and Triggered
`the Running of the Statute of Limitations When the Alleged Combination and
`Conspiracy Was Entered Into
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`The Court of Appeals has held that criminal statutes of limitations generally begin to run
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`when the crime is complete. See Hinkle v. Beckham Cty. Bd. of Cty. Commissioners, 962 F.3d
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`1204, 1225 (10th Cir. 2020) (quoting United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir.
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`1995); 22A C.J.S. Criminal Procedure and Rights of Accused § 596). “‘A crime is complete as
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`soon as every element in the crime occurs.’” United States v. Payne, 978 F.2d 1177, 1179 (10th
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`Cir. 1992) (quoting United States v. Musacchio, 968 F.2d 782, 790 (9th Cir. 1991)).
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`Over a century ago, in United States v. Kissel, 218 U.S. 601 (1910), Justice Holmes held
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`that a conspiracy in restraint of trade under the Sherman Act “continues up to the time of
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`abandonment or success.” Kissel, 218 U.S. at 608. The Court also recognized, however, that
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`“[m]ere continuance of the result of a crime does not continue the crime.” Id. at 607 (citing United
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`States v. Irvine, 98 U. S. 450 (1878); 3 Am. Crim. Rep. 334).
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`Thirty years later, however, in United States v. Socony-Vacuum Oil Co., 310 U.S. 150
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`(1940), a prosecution of alleged fixing of gasoline prices under Section 1, the Supreme Court
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`observed that “under the Sherman Act a combination formed for the purpose and with the effect
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`of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or
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`foreign commerce is illegal per se,” id. at 223. The Court recognized that conspiracies under the
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`Sherman Act “are not dependent on the ‘doing of any act other than the act of conspiring’ as a
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`condition of liability.” Id. at 252 (quoting Nash v. United States, 229 U.S. 373, 378 (1913)).
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`Mr. Roberts acknowledges that the Court of Appeals has held that a conspiracy under the
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`Sherman Act “remains actionable ‘until its purpose has been achieved or abandoned, and the
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`statute of limitations does not run so long as the co-conspirators engage in overt acts designed to
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`accomplish its objectives.’” Kemp & Assocs., Inc., 907 F.3d at 1270 (quoting United States v.
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`Inryco, Inc., 642 F.2d 290, 293 (9th Cir. 1981); citing Kissel, 218 U.S. at 607).
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`The Government alleges that the purpose of the Section 1 conspiracy was to allegedly
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`suppress and eliminate competition through rigging bids and fixing prices. See Dkt. # 101, ¶ 47.
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`In regard to the most recent transaction Mr. Roberts had alleged involvement in, “QSR-1’s 8-Piece
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`COB Supply for 2015,” that alleged purpose was achieved when the suppliers signed cost-plus
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`pricing agreements with Cooperative-1 prior to December 24, 2014. Id. at ¶ 106. Moreover, the
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`Superseding Indictment fails to allege any specific overt acts subsequent to the pricing agreements.
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`Id. at ¶ 107. It alleges that Supplier-1 sold and accepted payment for 8-piece COB through a
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`distributor to QSR-1 franchisees at a margin of $.2175. Id. However, such payments did not
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`constitute alleged overt acts in furtherance of any conspiracy. See In re Ciprofloxacin
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`Hydrochloride Antitrust Litig., 261 F. Supp. 2d 188, 229 (E.D.N.Y. 2003) (“[T]he performance of
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`an allegedly anticompetitive, pre-existing contract is not a new predicate act”).
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`The Government’s Section 1 charge alleges that the Defendants and others entered into,
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`and engaged in, a “continuing combination and conspiracy” to suppress and eliminate competition
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`by rigging bids and fixing prices and other price-related terms for broiler chicken products
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`“beginning at least as early as 2012.” See Dkt. # 101, ¶ 1. Pursuant to the Supreme Court’s
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`interpretation of Section 1 in Socony-Vacuum Oil Co., the Government’s alleged bid rigging and
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`price fixing conspiracy was “complete” when the Defendants initially allegedly combined and
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`conspired in 2012.1 See United States v. Reitmeyer, 356 F.3d 1313, 1316 (10th Cir. 2004) (in
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`prosecution of pursuant to indictment in February of 2002 of various companies and their officers
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`for an alleged scheme to defraud the United States in violation of the Major Fraud Act, 18 U.S.C.
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`§ 1031(a), based upon defendants’ submission in May of 1994 of a claim for equitable adjustment
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`to the United States Army Corps of Engineers, finding that the defendants executed their alleged
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`scheme when they filed their claim for equitable adjustment in May of 1994, and that the
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`limitations period began to run at that time). No further act by the Defendants was necessary to
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`render the Defendants allegedly liable under Section 1. Pursuant to law, the limitations period was
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`therefore triggered and commenced running in 2012. From the face of the Government’s
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`allegations, its charges against the Defendants are plainly time-barred.
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`2. The Alleged Conduct Involving Mr. Roberts Was Not a “Continuing” Violation
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`The Government will doubtless argue that the alleged combination and conspiracy was
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`“continuing,” as it alleges in the first paragraph of its Indictment. See Dkt. # 101, ¶ 1. As referenced
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`above, the Indictment contains allegations of specific acts by Defendants asserted to be unlawful
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`as late as September of 2017. Id. at ¶ 143. However, the three alleged schemes in which Mr.
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`Roberts is specifically referenced ended years prior to that date. The Government makes no
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`allegations regarding “QSR-4’s 2013 Freezing Charge” dating later than June of 2013. See Dkt. #
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`1 Other courts have found that an offense of a Sherman Act conspiracy is generally complete when
`the agreement or conspiracy is formed. See United States v. Gasoline Retailers Ass’n, Inc., 285
`F.2d 688, 691 (7th Cir. 1961) (quoting United States v. New York Great Atlantic & Pacific Tea
`Co., 137 F.2d 459, 463 (5 Cir. 1943)). This holding stems from the Supreme Court’s statement in
`Socony-Vacuum Oil Co. that Section 1 prohibits “‘conspiracy, in restraint of trade or commerce…
`whether the concerted activity be wholly nascent or abortive…’” Socony-Vacuum Oil Co., 310
`U.S. at 224 (quoting United States v. Trenton Potteries Co., 273 U.S. 392, 402 (1954); citing Retail
`Lumber Dealer’s Ass’n v. State, 95 Miss. 337 (1909)).
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`101, ¶ 70. Similarly, the Government’s most recent allegation concerning “QSR-4’s Quality
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`Assurance Costs for 2014” is in January of 2014. Id. at ¶ 83.
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`Concerning “QSR-1’s 8-Piece COB Supply for 2015,” the Indictment alleges that suppliers
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`signed cost-plus pricing agreements for 2015 with “Cooperative-1” by on or about December 24,
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`2014. See Dkt. # 101, ¶ 106. It then proceeds to allege that it was part of the conspiracy that
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`“Supplier-1” sold and accepted payment for 8-piece chicken-on-bone (COB) through a distributor
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`to “QSR-1” franchisees at a margin of $.2175 as late as approximately December 26, 2015. Id. at
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`¶ 107.
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`Whether these alleged schemes are viewed separately or as part of the alleged combination
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`and conspiracy entered into in 2012, in regard to Mr. Roberts the offense was complete and the
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`limitations period commenced, at the absolute latest, at the end of 2014. The payments to Supplier-
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`1 in 2015 for 8-piece COB cannot transform the alleged conduct relating to “QSR-1’s 8-Piece
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`COB Supply for 2015” into an alleged “continuing” violation or conspiracy. See Dkt. # 101, ¶ 107.
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`The Court of Appeals has held, in the context of a civil antitrust claims, that the continuing
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`conspiracy or violation exception to the statute of limitations applies only where “acts committed
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`within the limitations period are somehow more than ‘the abatable but unabated inertial
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`consequences of some pre-limitations action.’” Kaw Valley Elec. Co-op. Co. v. Kansas Elec.
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`Power Co-op., Inc., 872 F.2d 931, 933 (10th Cir. 1989) (quoting Poster Exchange, Inc. v. National
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`Screen Serv. Corp., 517 F.2d 117, 128 (5th Cir. 1975)). “[A] victim does not have a new cause of
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`action if, within the limitations period, a violator collects payments on an illegal contract executed
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`outside the limitations period that established with finality ‘the rights and liabilties of [the] parties
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`[to the contract].’” Id. 872 at 933 n. 5 (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
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`Shipyards, Inc., 677 F.2d 1045, 1053 (5th Cir. 1982)).
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`In this case, the 2015 payments to Supplier-1 were merely the consequence or result of the
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`earlier alleged combination and agreement. See Kissel, 218 U.S. at 608 (“Mere continuance of the
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`result of a crime does not continue the crime”) 607 (citing Irvine, 98 U. S. 450; 3 Am. Crim. Rep.
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`334); see also United States v. Great W. Sugar Co., 39 F.2d 152 (D. Neb. 1930) (in a criminal
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`prosecution of a conspiracy to restrain interstate commerce in beet sugar, contrary to the Sherman
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`Act, finding that the defendant’s increase in the price of beets was done outside of the statute of
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`limitations and that the charged conspiracy was barred, holding that that the act of price fixing
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`“was not the acceptance of the beets or paying for them… It was the price boost by offer to contract
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`at the excessive price and the contracting…”); Reitmeyer, 356 F.3d at 1324 (finding that the
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`execution of the scheme was not a “continuing offense” for statute of limitations purposes). The
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`payments were not necessary to Defendants’ alleged liability under the Sherman Act. The charged
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`bid rigging and price fixing conspiracy is not a “continuing” conspiracy.
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`Section 3282 provides that “[e]xcept as otherwise expressly provided by law, no person
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`shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found
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`or the information is instituted within five years next after such offense shall have been
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`committed.” 18 U.S.C. § 3282(a). Criminal statutes of limitations are “liberally interpreted in favor
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`of repose.” United States v. Marion, 404 U.S. 307, 325 (1971) (citing United States v. Habig, 390
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`U.S. 222, 227 (1968)). Furthermore, the Due Process Clause also serves to protect defendants from
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`“oppressive delay.” Lovasco, 431 U.S. at 789 (citing Marion, 404 U.S. at 324); accord United
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`States v. Deberry, 430 F.3d 1294, 1300–01 (10th Cir. 2005) (citing Marion, at 324).
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`[T]he Fifth Amendment requires the dismissal of an indictment, even if it is brought
`within the statute of limitations, if the defendant can prove that the Government’s
`delay in bringing the indictment was a deliberate device to gain an advantage over
`him and that it caused him actual prejudice in presenting his defense.”
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`United States v. Gouveia, 467 U.S. 180, 192 (1984) (internal citations omitted) (citing Lovasco, at
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`788–790; Marion, 404 U.S. at 322, 324). The Due Process Clause is “a safeguard against
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`fundamentally unfair prosecutorial conduct.” Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016)
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`(quoting Lovasco, at 795 n. 17).
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`As demonstrated above, the alleged offense was complete and the limitations period began
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`to run in 2012. The prosecution took approximately 8 years to bring the Indictment against the
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`Defendants, and indicted Mr. Roberts over 6 years after the last specific act alleged against him.
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`Pursuant to due process and construing the statute of limitations in favor of repose, the Court
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`should find that the conduct charged against Mr. Roberts is no longer a prosecutable or punishable
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`offense, and should dismiss the Indictment as to him. Dismissal of the charges against Mr. Roberts
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`is furthermore warranted as a sanction for the prosecution’s unjustifiable delay in bringing the
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`case. See Marion, 404 U.S. at 323 (finding that limitations periods “‘have the salutary effect of
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`encouraging law enforcement officials promptly to investigate suspected criminal activity’”)
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`(quoting Toussie v. United States, 397 U.S. 112, 114-115 (1970)); accord United States v. DeLia,
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`906 F.3d 1212, 1217 (10th Cir. 2018) (quoting Toussie, 397 U.S. at 115).
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`III. CONCLUSION
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`Based upon the authorities and grounds set forth herein, Defendant Brian Roberts
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`respectfully requests that the Court grant Defendant Roberts’ Motion to Dismiss the Indictment
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`As Barred by the Statute of Limitations, and dismiss the charges against him as barred by the
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`statute of limitations and due process. In the event that the charges against Defendant are not
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`dismissed, Defendant respectfully requests that an evidentiary hearing be held on the issue of
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`whether the Government’s prosecution of Defendant is barred by the statute of limitations.
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`Respectfully submitted, this 26th day of July, 2021.
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`s/ Craig A. Gillen_______________________
`Craig Allen Gillen
`GILLEN WITHERS & LAKE, LLC
`400 Galleria Parkway
`Ste 1920
`Atlanta, Georgia 30339
`Telephone: 404-842-9700
`Email: cgillen@gwllawfirm.com
`Counsel for Gary Brian Roberts
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`Case 1:20-cr-00152-PAB Document 293 Filed 07/26/21 USDC Colorado Page 13 of 13
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 26th day of July, 2021, I electronically filed the foregoing
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`DEFENDANT ROBERTS’ MOTION TO DISMISS THE INDICTMENT AS BARRED BY
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`THE STATUTE OF LIMITATIONS AND BRIEF IN SUPPORT THEREOF with the Clerk
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`of Court using the CM/ECF system which will send notification of such filing to all listed parties.
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`s/ Craig A. Gillen_______________________
`Craig Allen Gillen
`GILLEN WITHERS & LAKE, LLC
`400 Galleria Parkway
`Ste 1920
`Atlanta, Georgia 30339
`Telephone: 404-842-9700
`Email: cgillen@gwllawfirm.com
`Counsel for Gary Brian Roberts
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