Case 1:20-cr-00152-PAB Document 308 Filed 07/26/21 USDC Colorado Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`1.
`2.
`3.
`4.
`5.
`6.
`7.
`8.
`9.
`10.
`
`JAYSON JEFFREY PENN,
`MIKELL REEVE FRIES,
`SCOTT JAMES BRADY,
`ROGER BORN AUSTIN,
`TIMOTHY R. MULRENIN,
`WILLIAM VINCENT KANTOLA,
`JIMMIE LEE LITTLE,
`WILLIAM WADE LOVETTE,
`GARY BRIAN ROBERTS, and
`RICKIE PATTERSON BLAKE,
`
`Defendants.
`
`No. 20-cr-00152-PAB
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`
`
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`DEFENDANT JAYSON JEFFREY PENN’S
`MOTION TO DISMISS SUPERSEDING INDICTMENT
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`Defendant Jayson Penn, by and through undersigned counsel, respectfully requests that
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`the Court invoke Federal Rule of Criminal Procedure 12(b)(3)(B)(v) and dismiss the superseding
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`indictment for failure to state an offense. The superseding indictment is insufficient for three
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`independent reasons.
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`First, the superseding indictment uses words like “agreement,” “understanding,” and
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`“concert of action” in wholly conclusory fashion, and fails to allege an agreement with the
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`specificity required by the Constitution. A “meeting of minds in an unlawful arrangement” is the
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`sine qua non of any criminal Sherman Act Section 1 violation. American Tobacco Co. v. United
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`States, 328 U.S. 781, 810 (1946); see Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768
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`(1984) (requiring evidence that defendant made “a conscious commitment to a common scheme
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`designed to achieve an unlawful objective”); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553
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`(2007) (explaining that the “crucial question” in a Section 1 case is whether the challenged
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`conduct “stems from independent decision or from an agreement”). The superseding indictment
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`does not satisfy that requirement. In an attempt to string together a coherent narrative, the
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`superseding indictment instead relies on broad assertions, vague labels, and disparate
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`communications that have no evident connection and do not particularize the asserted
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`anticompetitive agreement. Because, in an antitrust case, “guilt depends so crucially upon . . . a
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`specific identification of fact”—what the offending agreement was—the generic language in the
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`superseding indictment does not satisfy the Sixth Amendment or Federal Rule of Criminal
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`Procedure 7(c)(1). See Hamling v. United States, 418 U.S. 87, 118 (1974). The superseding
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`indictment should be dismissed for failure to state an offense.
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`Second, the superseding indictment does not allege an agreement that is per se unlawful.
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`Courts assess Section 1 agreements under one of two analytical frameworks to determine if the
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`agreements unreasonably restrain trade: the per se rule or the “rule of reason.” The government’s
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`longstanding position is that it will criminally prosecute only per se violations of the Sherman
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`Act. United States v. Kemp & Assocs., Inc., 907 F.3d 1264, 1274 (10th Cir. 2018). A charging
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`document’s failure to clearly delimit per se violations with precise allegations raises serious due
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`process concerns. Cf. United States v. U.S. Gypsum Co., 438 U.S. 422, 440-42 (1978) (Gypsum)
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`(noting that outside of per se violations, “the behavior proscribed by the Act is often difficult to
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`distinguish from the gray zone of socially acceptable and economically justifiable business
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`conduct,” making “the use of criminal sanctions in such circumstances . . . difficult to square
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`with the generally accepted functions of the criminal law”).
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`In contrast, rule of reason cases are subject to civil enforcement and require plaintiffs to
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`allege a relevant market, market power, and anticompetitive effects—evidentiary predicates that
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`do not apply in a per se case. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S.
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`877, 885 (2007). Courts analyze agreements to exchange pricing information under the civil rule
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`of reason standard, not the per se framework. Gypsum, 438 U.S. at 441 n.16. Here, the
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`superseding indictment alleges as the sole factual predicate for a Sherman Act violation the
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`exchange of information between competitors. This is insufficient. The superseding indictment
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`does not make any fact-based allegations of an agreement to use that information to fix prices, as
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`must be proven to establish a criminal Sherman Act violation. Indeed, the superseding
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`indictment does not allege factual allegations capable of establishing any agreement—including
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`an agreement to exchange information—much less a per se unlawful agreement to rig bids or fix
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`prices. Dismissal is independently warranted on this basis.
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`Finally, the superseding indictment does not allege that Mr. Penn knowingly and
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`intentionally entered into any agreement. See Gypsum, 438 U.S. at 443 n.20. The superseding
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`indictment omits the intent allegation necessary to plead a criminal antitrust case—that the
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`defendant “knowingly joined and participated” in the conspiracy. No subsequent pleadings fill
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`that void. This fundamental failing also renders the superseding indictment inadequate to meet
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`constitutional requirements or satisfy Rule 7.
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`For each of these reasons, the Court should dismiss the superseding indictment.
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`FACTUAL BACKGROUND
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`On June 2, 2020, a grand jury indicted Mr. Penn and three co-defendants for allegedly
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`violating Section 1 of the Sherman Act, 15 U.S.C. § 1. Indictment (“Ind.”) ¶ 1. The indictment
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`alleged a price-fixing and bid-rigging conspiracy between 2012 and 2017 involving suppliers of
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`broiler chicken products. Id. It described eight separate incidents of alleged conspiratorial
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`activity relating to five customers and four different products. Id. ¶¶ 32-77. The indictment
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`alleged that the defendants utilized a “continuing network” to reach agreements and
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`understandings to submit “aligned” bids; to participate in conversations and communications
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`relating to non-public information; and to monitor bids. Id. ¶ 29(a)-(c).
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`On October 6, 2020, a grand jury returned a superseding indictment against Mr. Penn and
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`nine co-defendants, charging all defendants with one count of violating 15 U.S.C. § 1, and
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`charging only co-defendant Jimmie Little with two additional counts. Superseding Indictment
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`(“Super. Ind.”) ¶¶ 1, 147, 151. The superseding indictment alleges a price-fixing and bid-rigging
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`conspiracy spanning a seven-year period; relating to a larger number of suppliers, customers, and
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`products; and identifies fourteen separate incidents that were allegedly part of the conspiracy. Id.
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`¶¶ 51-145. The fundamentals remain unchanged: the superseding indictment alleges that the co-
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`conspirators utilized a “continuing network” to reach agreements and understandings to submit
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`aligned bids; to participate in conversations and communications relating to non-public
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`information; and to monitor bids. Id. ¶¶ 47, 48(a)-(c). The superseding indictment identifies Mr.
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`Penn in six out of the fourteen incidents. As with the original indictment, there are no factual
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`allegations from which a jury could infer an express or implied agreement. There are just
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`allegations of data sharing that invoke a civil “rule of reason” analysis.
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`LEGAL STANDARD
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`An indictment that does not set forth all of the elements of the alleged crime is deficient.
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`United States v. Hathaway, 318 F.3d 1001, 1009 (10th Cir. 2003) (dismissing indictment that
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`failed to allege a required and essential element of the crime for which the defendant was
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`convicted). At a minimum, the indictment must (1) “contain[] the elements of the offense
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`charged and fairly inform[] a defendant of the charge against which he must defend”; and (2)
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`“enable[] him to plead an acquittal or conviction in bar of future prosecutions for the same
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`offense.” Hamling, 418 U.S. at 117; see also United States v. Washington, 653 F.3d 1251, 1259
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`(10th Cir. 2011); United States v. Fitapelli, 786 F.2d 1461, 1463-64 (11th Cir. 1986) (reversing
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`convictions for violation of 15 U.S.C. § 1 where indictment failed to allege element of the
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`offense). “This test is embodied in Fed. R. Crim. P. 7(c)(1), which requires that an indictment be
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`‘a plain, concise and definite written statement of the essential facts constituting the offense
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`charged.’” United States v. Salazar, 720 F.2d 1482, 1486 (10th Cir. 1983).
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`While “an indictment parroting the language of a federal criminal statute is often
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`sufficient, there are crimes that must be charged with greater specificity.” United States v.
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`Resendiz-Ponce, 549 U.S. 102, 109 (2007). If the language of the relevant statute does not “fully,
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`directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary
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`to constitute the offence intended to be punished,” then the charging document “must be
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`accompanied with such a statement of the facts and circumstances as will inform the accused of
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`the specific offence, coming under the general description, with which he is charged.” Russell v.
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`United States, 369 U.S. 749, 765 (1965). In determining the sufficiency of an indictment, “a
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`court generally is bound by the factual allegations contained within [its] four corners. . . .”
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`United States v. Welch, 327 F.3d 1081, 1090 (10th Cir. 2003).
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`ARGUMENT
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`The superseding indictment does not sufficiently “set forth each element of the crime that
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`it charges.” See Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). It must allege the
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`four elements of any criminal violation of Sherman Act Section 1: (1) an agreement, (2) that
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`unreasonably restrains trade, (3) affecting interstate commerce, and (4) that the defendant
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`knowingly and intentionally entered into. 15 U.S.C. § 1; Shaw v. United States, 371 F. Supp. 2d
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`265, 272 (E.D.N.Y. 2005); Gypsum, 438 U.S. at 430, 443 & n.20. Because the superseding
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`indictment does not allege the first, second, and fourth elements of that offense, it should be
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`dismissed.
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`I.
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`The Superseding Indictment Does Not Identify the Agreement Underpinning the
`Charged Offense.
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`The superseding indictment founders on the first and foundational element of any Section
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`1 violation: an agreement. Fisher v. City of Berkeley, 475 U.S. 260, 266 (1986). Only an
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`agreement can transform “[m]ere exchanges of information” into a potentially illegal conspiracy.
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`Mitchael v. Intracorp, Inc., 179 F.3d 847, 859 (10th Cir. 1999). Yet the language of the Sherman
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`Act does not provide clear guidance on the characteristics that distinguish unlawful agreements.
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`Gypsum, 438 U.S. at 438 (“The Sherman Act, unlike most traditional criminal statutes, does not,
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`in clear and categorical terms, precisely identify the conduct which it proscribes.”).
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`That ambiguity places Sherman Act offenses in a category of crimes for which guilt
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`depends “crucially upon [] a specific identification of fact”—an agreement—that the statute
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`defines generically, but that the government must charge with specificity. See Resendiz-Ponce,
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`549 U.S. at 110; see also Russell, 369 U.S. 764-66 (indictment charging refusal by witness
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`summoned to congressional hearing to answer any question “pertinent to the question under
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`inquiry,” must allege the subject of the hearing). Accordingly, an indictment charging a
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`conspiracy under Section 1 must set out, at a minimum, the “time, place, manner, means and
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`effect” of the alleged agreement. United States v. Mobile Materials, Inc., 871 F.2d 902, 907
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`(10th Cir. 1989), opinion supplemented on reh’g, 881 F.2d 866 (10th Cir. 1989), and abrogated
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`on other grounds by Bloate v. United States, 559 U.S. 196 (2010). Any omission of these critical
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`contextual details is fatal. Id. at 907.
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`In Count One, the superseding indictment purports to charge a single, multi-year
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`overarching agreement. The first paragraphs of the superseding indictment parrot the Sherman
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`Act by alleging a “combination” and “conspiracy,” and go on to describe the charged conduct in
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`equally conclusory language as “a continuing agreement, understanding and concert of action.”
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`Super. Ind. ¶¶ 1, 2. However, the remaining paragraphs do not elaborate on the nature of that
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`alleged agreement. They only refer to a vague and disjointed set of events under the rubric of a
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`“continuing network” (id. ¶¶ 47-50), an “understood purpose” of which was to suppress
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`competition through bid-rigging and other unspecified acts (id. ¶¶ 51-143). None of the factual
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`allegations even claim the Defendants formed a specific agreement, fixed a certain price, or
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`rigged an identified bid. See id.
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`The indictment that the Tenth Circuit affirmed in Mobile Materials illustrates what is
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`required to state an offense, and what is missing here. In Mobile Materials, a jury convicted a
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`highway construction company and its president of rigging bids in violation of Section 1. 871
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`F.2d at 905. On appeal, the defendants contended that the indictment failed to provide sufficient
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`information to enable them to prepare a defense. Id. at 906. The Court disagreed. With respect to
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`the manner and means by which the defendants conspired, the indictment alleged: “There was
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`advance agreement as to which co-conspirator would be the low bidder on highway construction
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`projects. With this object in mind, some noncompetitive bids were submitted, and some bids
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`were withheld.” Id. at 907. The Tenth Circuit held that these straightforward statements sufficed,
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`because they clearly specified the object of the agreement and, importantly, the manner by which
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`the defendants achieved it. Id.
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`Rather than adopt the straightforward approach that Mobile Materials laid out, the
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`superseding indictment in this case alleges that Defendants participated in a “continuing
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`network,” and utilized that network to reach unspecified agreements and understandings to
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`submit aligned bids; participate in conversations and communications relating to non-public
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`information; and monitor bids. Id. ¶ 48(a)-(c). As to Mr. Penn, the superseding indictment
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`alleges only that he “participated in a continuing network,” an “understood purpose of which”
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`was to rig bids and fix prices and “price-related terms” for broiler chicken. Super. Ind. ¶ 47. But
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`it does not describe with any specificity the alleged agreement he made or the manner by which
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`he purportedly sought to achieve it.
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`These vague and amorphous allegations—in a case involving allegations that span nearly
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`a decade—do not meet the requirements of the Constitution. Counsel has not found a single
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`criminal antitrust indictment, plea agreement, or information that uses the term “continuing
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`network.” “Network” suggests some sort of association or connection among individuals1, but
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`the superseding indictment does not define who was connected or the parameters of their
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`connection, nor does it explain how or why that connection matters for purposes of Section 1.
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`The superseding indictment alleges that the “understood purpose” of the “continuing network”
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`was to rig bids and fix prices, but does not describe the provenance of that understanding or the
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`1 See Network, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/network
`(last visited July 26, 2021) (“[A]n interconnected or interrelated chain, group, or system.”).
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`identity of those who shared it.
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`The fourteen episodes described in the superseding indictment muddy the waters even
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`further. They encompass multiple different suppliers, customers, products, and price terms over
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`the course of seven years. There is no Defendant who is common to every event, nor is there any
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`“hub” who is alleged to have facilitated an agreement or understanding among the various
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`Defendants. For example, nothing in the superseding indictment connects a 2016 email
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`communication between William Lovette and Joe Grendys about credit terms for a food
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`wholesaler with communications in 2014 between different individuals working at different
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`chicken suppliers about a different customer seeking to transition to antibiotic-free chicken. The
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`connection between Mr. Penn and the alleged misconduct is even more attenuated. As described
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`in the superseding indictment, his communications are mundane internal corporate emails that
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`are lawful on their face. For example, the superseding indictment alleges that Mr. Penn
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`participated in a conspiracy by (1) agreeing to give a customer a discount for a promotion the
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`customer wanted to run, Super. Ind. ¶¶ 124-26, (2) refusing to sell chicken to a competitor, id. ¶¶
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`117-18, and (3) signing a contract with a customer, id. ¶ 75. Here, in contrast to Mobile
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`Materials, there is no allegation that Defendants entered into any agreement governing this
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`disjointed set of events, nor any contention that a specific outcome—such as withholding or
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`aligning a bid submission—can be traced to that agreement.
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`The superseding indictment’s internal contradictions add to the confusion. While it
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`initially alleges one count under Section 1 and describes the allegedly unlawful agreement in the
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`singular, it later refers to multiple conspiracies to fix prices and rig bids. Compare Super. Ind. ¶ 1
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`(alleging that Defendants “entered into and engaged in a continuing combination and
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`conspiracy”) (emphasis added), with id. ¶ 48(a) (alleging that Mr. Penn and co-Defendants
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`utilized the continuing network “to reach agreements and understandings” to fix prices and
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`submit rigged bids) (emphasis added). The only through line is the allegation that Defendants
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`participated in a “continuing network,” an elusive construct that reduces to little more than
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`“worked in the broiler chicken industry.” See Dahl v. Bain Capital Partners, LLC, 937 F. Supp.
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`2d 119, 137 (D. Mass. 2013) (holding that evidence of a “kaleidoscope of interactions among an
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`ever-rotating, overlapping cast of Defendants as they reacted to the spontaneous events of the
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`market” did not suggest “that any single interaction was the result of a larger scheme”); cf. In re
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`Iowa Ready-Mix Concrete Antitrust Litig., 768 F. Supp. 2d 961, 975 (N.D. Iowa 2011) (“What is
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`missing in this case, however, is the ‘larger picture’ from which inferences of a wider conspiracy
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`can be drawn from guilty pleas to separate bilateral conspiracies.”).
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`None of the purportedly conspiratorial incidents reflects an actual agreement, much less a
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`single, years long, overarching conspiracy encompassing each of the fourteen incidents. Unless
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`this Court dismisses the superseding indictment for failure to specify this element—the key
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`predicate of the charged offense—Mr. Penn will lose the protections that grand jury indictments
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`are supposed to afford: the right to be informed of the nature and cause of the accusation and
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`protection against future prosecutions for the same offense. See Russell, 369 U.S.at 764.
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`II.
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`The Superseding Indictment Fails to Allege a Per Se Unlawful Restraint of Trade.
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`Just as the superseding indictment does not allege or identify any agreement, it omits
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`allegations that would justify applying the per se analytical framework to the challenged
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`conduct. By its terms, Section 1 proscribes “[e]very contract, combination in the form of trust or
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`otherwise, or conspiracy,” 15 U.S.C. § 1, but federal courts interpret the statute to prohibit only
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`“unreasonable” restraints of trade. NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 98
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`(1984). Based on longstanding experience with a discrete category of restraints that always or
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`nearly always harm competition—price fixing, bid rigging, market allocations, and certain types
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`of group boycotts—courts presume that they are unreasonable and classify them as per se
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`unlawful without inquiring into their effect. Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006).
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`Federal courts assess business practices that do not fall within the narrow per se category
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`under the “rule of reason,” an analytical framework that requires the fact-finder to define a
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`relevant antitrust market and weigh the competitive effects of a business practice to determine
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`whether it is unreasonable, and therefore unlawful. Ohio v. Am. Express Co., 138 S. Ct. 2274,
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`2284 (2018); Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977). Among the conduct
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`that falls within the “rule of reason” rubric are agreements among competitors to exchange
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`pricing information. United States v. Citizens & S. Nat. Bank, 422 U.S. 86, 113 (1975); United
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`States v. Container Corp. of Am., 393 U.S. 333, 338-39 (1969) (Fortas, J., concurring).
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`The distinction is relevant in this case due to the mismatch between the superseding
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`indictment’s factual allegations and the per se label it applies to this case. Given the most
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`generous reading, the superseding indictment alleges that the Defendants exchanged price
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`information with competitors. For instance, it alleges generically that the Defendants (which
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`includes Mr. Penn) “participate[d] in conversations and communications” about “bids, prices and
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`price-related terms,” Super. Ind. ¶ 48(b); possessed information about competitor pricing, id.
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`¶ 60; and received information regarding supplier margins, id. ¶ 94(c), (d). The superseding
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`indictment also alleges a handful of instances of parallel pricing. See id. ¶¶ 62, 63, 125. But even
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`if those information exchanges could amount to an agreement to share pricing information, and
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`even if broiler chicken suppliers engaged in parallel pricing, this conduct would still—as a
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`matter of binding precedent—be assessed under the rule of reason rather than the per se
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`framework.
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`The Supreme Court explained in Gypsum that exchanges “of price data and other
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`information among competitors do[] not invariably have anticompetitive effects” and “do not
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`constitute a per se violation of the Sherman Act,” precisely because they “can in certain
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`circumstances increase economic efficiency and render markets more, rather than less,
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`competitive.” 438 U.S. 422, 441 n.16; see also Mitchael, 179 F.3d at 859 (“Mere exchanges of
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`information, even regarding price, are not necessarily illegal”); United States v. Suntar Roofing,
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`Inc., 897 F.2d 469, 475 (10th Cir. 1990) (“[I]t is not unlawful for competitors to meet and
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`exchange information necessary to preparation of a bid or . . . exchange information on
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`independently derived prices.”).2 Similarly, parallel pricing—intentionally setting the same price
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`as a competitor without an agreement to do so—is not unlawful. See, e.g., Brooke Grp. Ltd. v.
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`Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993); Clamp-All Corp. v. Cast Iron
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`Soil Pipe Inst., 851 F.2d 478, 484 (1st Cir. 1988) (Breyer, J.) (noting near uniformity among
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`courts in concluding that parallel conduct without prior agreement is lawful).
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`The superseding indictment’s allegations fit squarely within this line of precedent.
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`Indeed, there is a complete absence of factual allegations supporting a criminal violation.
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`Because the rule of reason governs the type of information exchanges at issue, the superseding
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`2 See also In re Baby Food Antitrust Litig., 166 F.3d 112, 124, 137 (3d Cir. 1999) (affirming
`holding that evidence of price verification among sellers and parallel pricing did “not support an
`inference of a conspiracy to fix prices but portrayed nothing more than intense efforts on the part
`of three large and strong competing companies in the baby food industry to ascertain[] ‘what
`their competitors would be doing with regard to pricing, promotions and products’”).
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`indictment must meet the rule of reason’s requirements to survive a motion to dismiss. See Am.
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`Express Co., 138 S. Ct. at 2284 (discussing elements of rule of reason framework, including
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`anticompetitive effects and relevant antitrust markets). But it does not purport to do so. It is
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`premised on a per se theory. Accordingly, the superseding indictment must be dismissed.3
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`III. The Superseding Indictment Does Not Allege that Mr. Penn Knowingly or
`Intentionally Joined Any Conspiracy.
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`Regardless of whether the per se or rule-of-reason analytical framework applies to the
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`superseding indictment, it should be dismissed for a third and independent reason: it does not
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`expressly or impliedly allege that Mr. Penn knowingly or intentionally entered into an unlawful
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`agreement. “[I]ntent is a necessary element of a criminal antitrust violation,” Gypsum, 438 U.S.
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`at 443, and it “must be pled and proved in any criminal prosecution arising out of the Sherman
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`Act,” United States v. Metro. Enters., Inc., 728 F.2d 444, 453 (10th Cir. 1984). While a charging
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`document may allege the intent element explicitly or implicitly, id., here it does neither.
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`First, the superseding indictment does not expressly allege the intent element and,
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`strangely, eschews the language typically used for that purpose in criminal antitrust indictments.
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`See, e.g., United States v. Lischewski, No. 3:18-cr-00203 (N.D. Cal. May 16, 2019) (alleging that
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`defendant “knowingly joined and participated” in antitrust conspiracy) (Ind. at 2); United States
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`3 Even assuming the government properly alleges an offense based on the per se theory of
`liability, the superseding indictment would fail for a separate and independent reason: it does not
`advance factual allegations describing how the charged conduct unreasonably restrained trade.
`As discussed above, the per se theory simply presumes a restraint is unreasonable. But in the
`criminal context, a conclusive presumption that takes an element away from the jury violates the
`Fifth and Sixth Amendments. United States v. Gaudin, 515 U.S. 506, 514 (1995); Francis v.
`Franklin, 471 U.S. 307, 317 (1985); Morissette v. United States, 342 U.S. 246, 274 (1952).
`Accordingly, the government’s attempt to utilize an unconstitutional presumption against Mr.
`Penn requires dismissal.
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`v. Usher et al., No. 1:17-cr-00019 (S.D.N.Y. Jan. 10, 2017) (same) (Ind. at 7). The superseding
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`indictment never alleges that Mr. Penn knowingly or intentionally joined or participated in any
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`conspiracy. See Gypsum, 438 U.S. at 433 n.20 (noting that the base “intent to agree . . . is
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`necessary to establish the existence of the conspiracy”). The closest the superseding indictment
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`comes to expressly alleging intent is in its discussion of the “continuing network”:
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`It was part of the conspiracy that Penn, Fries, Brady, Austin, Mulrenin, Kantola,
`Little, Lovette, Roberts, and Blake, together with their co-conspirators known and
`unknown to the Grand Jury, in the State and District of Colorado and elsewhere,
`participated in a continuing network of Suppliers and co-conspirators, an
`understood purpose of which was to suppress and eliminate competition through
`rigging bids and fixing prices and price-related terms for broiler chicken products
`sold in the United States.
`
`Super. Ind. ¶ 47 (capitalization omitted). But there is no allegation that Mr. Penn knowingly or
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`intentionally joined or “participated in a continuing network,” or that he knew the “understood
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`purpose” of this “continuing network” was rigging bids and fixing prices. If the facts support the
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`superseding indictment, it should have been easy to expressly allege that Mr. Penn knowingly
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`and intentionally agreed with competitors to rig bids and fix prices. In failing to do so, the
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`superseding indictment is incurably defective.
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`Second, the superseding indictment does not support any inference that Mr. Penn
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`knowingly or intentionally entered into any agreement. While the requisite intent to agree may
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`be implicit in the overt acts charged or in the allegation of a price-fixing agreement, Metro.
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`Enters., 728 F.2d at 452-53, it is absent here. The allegations involving Mr. Penn describe
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`ordinary, lawful conduct—at most, information sharing. There is no allegation from which his
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`knowing and intentional entry into an agreement of any kind can be implied. See id. at 453; cf.
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`Mobile Materials, 871 F.2d at 906-907 (conspirators decided the “winner” on highway
`
`14
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`

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`Case 1:20-cr-00152-PAB Document 308 Filed 07/26/21 USDC Colorado Page 15 of 16
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`construction projects in advance, and “losers” then submitted noncompetitive bids or withheld
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`bids entirely).
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`The Sherman Act does not impose strict liability on criminal defendants. Without an
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`intent allegation, no Sherman Act violation is possible. Gypsum, 438 U.S. at 423, 433 n.20, 443
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`n.17. It follows that the superseding indictment, which omits any express or implied intent
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`allegation, should be dismissed.
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`CONCLUSION
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`The superseding indictment fails to allege three of the four elements of the charged
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`Section 1 violation. The purpose of an indictment is sacrosanct: to protect the innocent from
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`government overreach and inform the accused of the nature and cause of the accusation.
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`Hamling, 418 U.S. at 117; see also United States v. Williston, 862 F.3d 1023, 1031 (10th Cir.
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`2017). Because the superseding indictment fails to fulfill these purposes, it should be dismissed.
`
`
`
`Dated: July 26, 2021
`
`
`Chad David Williams
`Jacqueline Ventre Roeder
`DAVIS GRAHAM & STUBBS LLP-DENVER
`1550 17th Street
`Suite 500
`Denver, CO 80202
`Tel.: 303-892-9400
`Fax: 303-893-1379
`chad.williams@dgslaw.com
`jackie.roeder@dgslaw.com
`
`
`
`
`
`Respectfully submitted,
`
` s/ Michael F. Tubach
`
`Michael F. Tubach (Cal. Bar No. 145955)
`Anna T. Pletcher (Cal. Bar No. 239730)
`Brian P. Quinn (D.C. Bar No. 1048323)
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, California 94111-3823
`Tel.: 415-984-8700
`Fax: 415-984-8701
`mtubach@omm.com
`apletcher@omm.com
`bquinn@omm.com
`
`
`Attorneys for Defendant Jayson Jeffrey Penn
`
`
`15
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`Case 1:20-cr-00152-PAB Document 308 Filed 07/26/21 USDC Colorado Page 16 of 16
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 26, 2021, I electronically filed the foregoing Motion to
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`Dismiss Superseding Indictment with the Clerk of Court using the CM/ECF system, which will
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`send notification of this filing to all listed parties.
`
`Dated: July 26, 2021
`
` s/ Michael F. Tubach
`
`Michael F. Tubach
`
`
`
`
`
`
`
`
`
`16
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`