Case 1:20-cr-00152-PAB Document 306 Filed 07/26/21 USDC Colorado Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Criminal Case No. 1:20-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. JAYSON JEFFREY PENN,
`2. MIKELL REEVE FRIES,
`3. SCOTT JAMES BRADY,
`4. ROGER BORN AUSTIN,
`5. TIMOTHY R. MULRENIN,
`6. WILLIAM VINCENT KANTOLA,
`7. JIMMIE LEE LITTLE,
`8. WILLIAM WADE LOVETTE,
`9. GARY BRIAN ROBERTS, and
`10. RICKIE PATTERSON BLAKE,
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`Defendants.
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` DEFENDANT JIMMIE LITTLE’S MOTION TO DISMISS
`COUNT ONE OF THE SUPERSEDING INDICTMENT
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`Case 1:20-cr-00152-PAB Document 306 Filed 07/26/21 USDC Colorado Page 2 of 8
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`Defendant Jimmie Little, by and through his counsel, and pursuant to Rule 12(b)(3)(B)(v) of
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`the Federal Rules of Criminal Procedure, moves to dismiss Count One of the Superseding
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`Indictment for failure to state an offense.
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`I.
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`INTRODUCTION
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`On October 6, 2020, Mr. Little was indicted, along with nine other individuals, for an alleged
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`violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.1 Superseding Indictment (“Dkt. 101”).
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`Count One of the Superseding Indictment alleges that the ten defendants, together with co-
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`conspirators known and unknown to the grand jury, engaged in a continuing combination and
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`conspiracy to fix prices and other price related terms for broiler chicken products sold in the United
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`States in violation Section 1 of the Sherman Act (15 U.S.C. § 1). Dkt. 101 ¶ 1. The Superseding
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`Indictment alleges a conspiracy spanning at least seven years, beginning as early as 2012 and
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`continuing through at least early 2019. Id. The Superseding Indictment identifies ten suppliers of
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`broiler chicken parts (id. ¶¶ 14, 22-35), eight customers and one distributor (id. ¶¶ 36-44), but it does
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`not indicate whether the conspiracy was limited to them.
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`The Superseding Indictment describes fourteen separate incidents that allegedly constitute
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`the means and methods of the conspiracy, yet it argues a broader and seemingly more wide-reaching
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`conspiracy than those fourteen incidents. Id. ¶¶ 47-143. The Superseding Indictment alleges a
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`conspiracy whose purpose was “to suppress and eliminate competition through rigging bids and
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`fixing prices and price-related terms for broiler chicken products sold in the United States.” Id. ¶ 47.
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`It contends that the acts alleged in the indictment formed only “part” of the conspiracy alleged. Id. ¶
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`48 (“It was part of the conspiracy ....”); Id. ¶ 49 (“It was further part of the conspiracy ....”); Id. ¶ 50
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`(same). In addition, the Superseding Indictment alleges the co-conspirators utilized their
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`“continuing network” to reach agreements and understandings to submit “aligned” bids, participate
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`1 Mr. Little is also charged with False Statements (18 U.S.C. § 1001) and Obstruction of Justice (18
`U.S.C. § 1512(c)(2)). Dkt. 101 ¶¶ 146-149, 150-151.
`2
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`in conversations and communications relating to non-public information, and to monitor bids. Id. ¶
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`48(a)-(c).
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`It is unclear from the Superseding Indictment how the fourteen distinct incidents are related
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`to a single conspiracy involving all the defendants. In fact, the fourteen incidents involve different
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`groups of individuals, customers, and bids, further obscuring what the alleged agreement could be.
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`With respect to the specific allegations against Mr. Little, he is identified in only three of the
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`fourteen identified incidents. Id. ¶¶ 66-70; 77-83; 87-107. The Superseding Indictment alleges that
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`he was a Sales Director at Supplier-1 and started working at the company in approximately 2000.
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`Id. ¶ 18. Mr. Little left the poultry industry when he retired in 2016.2
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`II.
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`LEGAL STANDARD
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`Pursuant to Local Criminal Rule 12.1(b), Mr. Little incorporates by reference the legal
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`authorities set forth in Section II and III of the Motion to Dismiss filed by Mr. Austin on July 26,
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`2021. (Defendant Roger Austin’s Motion to Dismiss the Superseding Indictment, Dkt. No. 302.)
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`III. ARGUMENT
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`Count One of the Superseding Indictment should be dismissed because it fails to allege: 1) an
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`agreement among the co-conspirators; 2) an unreasonable restraint on trade; and 3) that Mr. Little
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`knowingly and intentionally entered into an illegal agreement to restrain trade.
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`A. The Superseding Indictment Fails to Allege an Agreement
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`The Superseding Indictment alleges numerous facts in relation to the fourteen incidents,
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`however, it does not include a specific allegation of an agreement among the alleged conspirators. It
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`does not say, and it cannot be inferred, who agreed with whom to do what. Instead, the Superseding
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`Indictment just parrots the “combination” and “conspiracy” language from the Sherman Act (Dkt.
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`2 Mr. Little originally was charged by Criminal Complaint with Conspiracy to Restrain Trade. (See U.S.
`v. Little, 20-mj-149-SKC, Criminal Complaint, Doc. No. 1.) In the Affidavit in Support of Criminal
`Complaint, the affiant stated that Mr. Little retired in approximately 2016, although it was noted that
`there was conflicting documentation about whether he retired in 2016 or 2017. (Id. ¶ 13, FN. 2.)
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`101 ¶¶ 1, 2), but the Sherman Act “does not, in clear and categorical terms, precisely identify the
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`conduct which it proscribes.” U.S. Gypsum Co., 438 U.S. 422, 438 (1978).
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`The Superseding Indictment alleges actions supposedly in furtherance of an alleged
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`conspiracy while failing to identify the alleged agreement. See Dkt. 101 ¶¶ 51-143. The formation of
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`an agreement is not alleged. See id. An agreement cannot be inferred from any of the alleged acts
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`because, while the indictment alleges a bid-rigging and price-fixing conspiracy, there is no allegation
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`that any bid was rigged, or that any price was fixed.3 See id.
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`B. The Superseding Indictment Fails to Allege an Unreasonable Restraint on Trade
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`The Sherman Act prohibits “unreasonable restraints” of trade. State Oil Co. v. Khan, 522
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`U.S. 3, 10 (1997). “Restraints can be unreasonable in one of two ways. A small group of restraints
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`are unreasonable per se because they always or almost always tend to restrict competition and
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`decrease output.” Ohio v. American Express Co., 138 S. Ct. 2274, 2283 (2018) (quotation omitted).
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`“Restraints that are not unreasonable per se are judged under the rule of reason[,]” which “requires
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`courts to conduct a fact-specific assessment of market power and market structure … to assess the
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`restraint’s actual effect on competition.” American Express Co., 138 S. Ct. at 2283 (quotations
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`omitted).
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`The Superseding Indictment alleges that the Defendants engaged in a per se unlawful
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`restraint of trade. Dkt. 101 ¶ 1. Per se unreasonable restraints include horizontal price-fixing,
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`market allocation, group boycotts, and bid rigging. See, e.g., United States v. Topco, Inc., 405 U.S.
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`3 Compare United States v. Mobile Materials, 871 F.2d 902 (10th Cir. 1989), where the Tenth Circuit
`upheld the sufficiency of the indictment and concluded that “[t]he indictment does more than merely
`repeat the words of the statute; it describes this particular conspiracy.” Id. at 909, abrogated on other
`grounds by Bloate v. United States, 559 U.S. 196 (2010). The Court reached this conclusion because the
`indictment “outlines the practices in furtherance of the conspiracy allegedly engaged in by the appellants
`and other conspirators including: 1) discussing the submission of prospective bids on projects, 2)
`agreeing on the successful low bidder on projects, 3) submitting intentionally high, noncompetitive bids
`or withholding bids on construction projects and 4) submitting bid proposals with false statements and
`entries.” Id. at 907. The same cannot be said in this case.
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`596, 607-09 (1972); see also Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing
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`Co., 472 U.S. 284, 290 (1985). However, the most that can be inferred from the allegations in the
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`Superseding Indictment is that Mr. Little shared pricing information with competitors.
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`First, in 2013, QSR-4 began requiring suppliers to provide frozen 8-piece chicken-on-bone
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`and dark meat. The Superseding Indictment alleges that Supplier-3-Employee-1called Mr. Little
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`twice and then Supplier-3-Employee-1 sent an e-mail to co-workers noting Supplier-1’s price. The
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`Superseding Indictment also alleges that Supplier-3-Employee-1 later submitted pricing to QSR-4,
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`but the Superseding Indictment is silent as to any pricing information that Mr. Little’s employer
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`submitted to QSR-4. Dkt. 101 ¶¶ 66-70.
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`Second, in 2013, QSR- 4 implemented new quality assurance requirements. The Superseding
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`Indictment alleges that after a co-worker questioned how other suppliers would react, Supplier-3-
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`Employee-1 called Mr. Little and then sent an e-mail that he had talked to Mr. Little and he said they
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`were planning on adding it to their cost. The Superseding Indictment alleges that Supplier-3-
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`Employee-1 later submitted pricing to QSR-4 that included a quality assurance cost, but the
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`Superseding Indictment is silent on whether Mr. Little’s employer charged QSR-4 for the quality
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`assurance cost. In connection with the same incident, the Superseding Indictment alleges that Mr.
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`Little called Mr. Kantola after which Mr. Kantola and Mr. Little sent e-mails to their co-workers
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`with general pricing information, but there is no allegation regarding how those calls or the pricing
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`information set forth in the e-mails relate to the quality assurance cost in issue. Dkt. 101 ¶¶ 66-70.
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`Third, the Superseding Indictment alleges that Mr. Little spoke to Supplier-3-Employee-1,
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`Mr. Kantola, and Mr. Austin on August 18, 2014, during the first round of negotiations to supply 8-
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`piece chicken-on-bone products for QSR-1 in 2015. Dkt. 101 ¶ 94(a). On the same day, one of Mr.
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`Little’s co-workers sent an e-mail that included pricing information of competitors. The suppliers
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`ultimately submitted bids for QSR-1 with different margins. Id. ¶ 107.
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`Although it is possible to draw the inference that Mr. Little may have shared pricing
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`information with competitors in connection with these incidents, “[t]he exchange of price data and
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`other information among competitors…do not constitute a per se violation of the Sherman Act.” U.S.
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`Gypsum Co., 438 U.S. at 441 n.16. This is because such an exchange “does not invariably have
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`anticompetitive effects; indeed such practices can in certain circumstances increase economic
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`efficiency and render markets more, rather than less, competitive.” Id. Similarly, “consciously
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`parallel behavior … is insufficient, standing alone, to prove conspiracy.” Mitchael v. Intracorp., Inc.,
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`179 F.3d 847, 859 (10th Cir. 1999).
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`C. The Superseding Indictment Fails to Allege Mr. Little Knowingly Entered a Conspiracy
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`“[A] defendant’s state of mind or intent is an element of a criminal antitrust offense which
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`must be established by evidence and inferences drawn therefrom and cannot be taken from the trier
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`of fact through reliance on a legal presumption of wrongful intent…” U.S. Gypsum Co., 438 U.S. at
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`435. The “requisite intent must be pled and proved in any criminal prosecution arising out of the
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`Sherman Act[.]” United States v. Metro. Enterprises, Inc., 728 F.2d 444, 453 (10th Cir. 1984). This
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`may be done explicitly or implicitly. Id. at 452-53.
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`The Superseding Indictment does not explicitly allege that Mr. Little knowingly or
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`intentionally violated the Sherman Act. It contains no allegation that he intended to unreasonably
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`restrain trade or knew that the supposed “continuing network” had the effect of unreasonably
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`restraining trade. Although the Superseding Indictment asserts in conclusory terms that Mr. Little
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`“participated in a continuing network” (Dkt. 101 ¶ 47) and the network had an “understood purpose”
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`and “shared understanding” (Dkt. 101 ¶ 48), there is no allegation that Mr. Little intentionally or
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`knowingly joined this “network.” Nor can the requisite intent be inferred from the allegations in the
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`Superseding Indictment. It alleges only facially lawful conduct- exchanges of information.
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`IV. CONCLUSION
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`For the foregoing reasons, Mr. Little respectfully requests that the Court dismiss Count One
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`of the Superseding Indictment.
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`Dated: July 26, 2021
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`Respectfully submitted,
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`/s/ Mark A. Byrne
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`Mark A. Byrne (Cal. Bar No. 116657)
`e-mail: markbyrne@byrnenixon.com
`Jennifer L. Derwin (Cal. Bar No. 222420)
`e-mail: jenniferderwin@byrnenixon.com
`BYRNE & NIXON LLP
`888 West Sixth Street, Suite 1100
`Los Angeles, California 90017
`Telephone: 213-620-8003
`Facsimile: 213-620-8012
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`Attorneys for Defendant Jimmie Lee Little
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 26, 2021, I electronically filed the foregoing with the Clerk of the
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`Court using the CM/ECF system, which will send a notice of such filing to all parties of record.
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` /s/ Mark A. Byrne
`Mark A. Byrne
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