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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`UNITED STATES OF AMERICA,
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`v.
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`Case No. 1:20-cr-00152-PAB
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`JAYSON JEFFREY PENN, et al.,
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`Defendants.
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`RICKIE BLAKE’S MOTION TO DISMISS COUNT ONE
`FOR FAILURE TO ALLEGE AN OFFENSE AGAINST HIM
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`The Superseding Indictment charges Mr. Blake with a single violation of the Sherman
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`Act, 15 U.S.C. § 1. An indictment charging a conspiracy under § 1 of the Sherman Act “must
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`descend to particulars and charge every constituent ingredient of which the crime is composed”
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`through factual allegations. Frankfort Distilleries, Inc. v. United States, 144 F.2d 824, 830 (10th
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`Cir. 1944) (en banc), rev’d on other grounds, 324 U.S. 293 (1945). The Government must allege
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`and prove: (1) “that the conspiracy described in the indictment existed at or about the time
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`alleged”; (2) “that the defendant knowingly became a member of the conspiracy”; and (3) “that
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`the conspiracy described in the indictment either affected interstate [and/or foreign] commerce in
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`goods or services or occurred within the flow of interstate [and/or foreign] commerce in goods
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`and services.” See, e.g., ABA Model Jury Instructions in Criminal Antitrust Cases (Feb. 2009)
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`(“ABA Model Instructions”), ch. 3.C.1
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`As described in greater detail below, missing from the Superseding Indictment are non-
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`conclusory factual allegations about Mr. Blake regarding the second element, i.e., that Mr. Blake
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`participated in an agreement in restraint of trade and that Mr. Blake knowingly joined that
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`conspiracy, with intent to further its purpose of restraining trade. Other than making conclusory
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`allegations that track the statutory language, with respect to Mr. Blake, the Superseding
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`Indictment merely alleges that he made or received six phone calls from other chicken suppliers
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`over the course of several years—without alleging what was said in any of these calls. At most,
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`the factual allegations imply that, in some of these calls, Mr. Blake shared pricing information of
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`his employer, Supplier-6, with competitors of his employer.
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`Missing are any allegations that Mr. Blake shared pricing information with the intent to
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`align Supplier-6’s bids with the bids of its competitors or received any pricing information in
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`return. Indeed, the Superseding Indictment contains no non-conclusory factual allegations that
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`Mr. Blake intended to affect the bids of Supplier-6 (or even possessed authority to affect the bids
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`of Supplier-6) or that he intended to affect the bids of its competitors, much less that he intended
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`to align competitors’ bids with Supplier-6’s bids in order to restrain competition.
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`1 See also Sand, 3 Modern Federal Jury Instructions, § 58.01 (“Sand”), Instruction 58-3
`(Elements of the Offense) (identifying the same substantive requirements, broken out into four
`elements); 1-1 Antitrust Law Developments 1B, ABA Section of Antitrust Law, (8th ed. 2018).
`“Knowingly” joining the conspiracy means the defendant “act[ed] voluntarily and intentionally”
`and “joined the conspiracy . . . with the intent to aid or advance the object or purpose of the
`conspiracy.” ABA Model Instructions ch. 3.K; see also United States v. U.S. Gypsum Co., 438
`U.S. 422, 435 (1978) (intent is an essential element of a Sherman Act § 1 offense). Because the
`Tenth Circuit’s Pattern Jury Instructions do not include an instruction for antitrust offenses, Mr.
`Blake is relying on other sources with respect to these elements.
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`2
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`Independently, the Superseding Indictment also fails to allege that the charged agreement
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`was an unreasonable restraint of trade. Rather, the Superseding Indictment relies on the per se
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`rule to presume unreasonableness. Because such a presumption cannot constitutionally be
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`applied in a criminal case, the Superseding Indictment’s failure to include factual allegations
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`regarding the unreasonableness of the alleged restraint of trade is fatal.
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`Because the allegations fail to state an offense against Mr. Blake, the Superseding
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`Indictment should be dismissed as to him. See Fed. R. Crim. P. 7(c)(1), 12(b)(3)(B)(v).
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`BACKGROUND
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`On October 6, 2020, Mr. Blake and nine others were charged in a Superseding Indictment
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`with one count of violating the Sherman Act, 15 U.S.C. § 1, by conspiring to fix prices and rig
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`bids in the broiler chicken supply industry over at least a seven-year period, from 2012 to 2019.
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`See Superseding Indictment, ECF No. 101 (“SI”), ¶ 1. Despite its length, Count One of the
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`Superseding Indictment lacks the substance of an adequately alleged violation of 15 U.S.C. § 1
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`by Mr. Blake.
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`The Superseding Indictment contains generic conclusory allegations. Supposedly, all co-
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`defendants “entered into and engaged in a continuing combination and conspiracy” that
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`“consisted of a continuing agreement, understanding, and concert of action[,] . . . the substantial
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`terms of which were to rig bids and to fix, maintain, stabilize, and raise prices and other price-
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`related terms for broiler chicken products sold in the United States” (SI ¶¶ 1–2); all ten
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`defendants and other, unnamed co-conspirators “participated in a continuing network of
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`Suppliers and co-conspirators” (id. ¶ 47) and “utilized that continuing network” “to reach
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`agreements and understandings to submit aligned . . . bids and to offer aligned . . . prices, and
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`3
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`price-related terms” (id. ¶ 48(a)); communicated “non-public information” to one another with a
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`“shared understanding that the purpose of the conversations and communications was to rig bids,
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`and to fix, maintain, stabilize, and raise prices and other price-related terms” (id. ¶ 48(b)); and
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`monitored bids submitted and prices and price-related terms offered by chicken suppliers and
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`other co-conspirators (id. ¶ 48(c)). The term “continuing network” is not defined in the
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`Superseding Indictment; nor does it have any meaning in the context of antitrust law. The
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`Superseding Indictment, moreover, does not descend into the particulars and make specific
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`factual allegations, particularly with respect to Mr. Blake.
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`With respect to Mr. Blake, the allegations in the Superseding Indictment are particularly
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`sparse. He is referenced just twelve times in over 145 paragraphs. After alleging that Mr. Blake
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`worked at Supplier-6 (id. ¶ 21) and parroting language from the statute that he—along with all
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`other defendants—was a member of a “continuing combination and conspiracy” (see id. ¶¶ 1,
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`47–50), the Superseding Indictment references Mr. Blake only with respect to four phone calls
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`he made to, and two phone calls he received from, other broiler chicken suppliers’ employees
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`over a five-year period from November 2012 to September 2017 (id. ¶¶ 56, 58, 105(a), 122(a),
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`123(c), 142). The Superseding Indictment does not allege what Mr. Blake said or what was said
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`to him in any one of those six calls.
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`The Superseding Indictment does not allege, even by implication, that in any of these
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`calls Mr. Blake agreed to fix prices, rig bids, or knowingly furthered such an agreement by
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`providing price information to or obtaining price information from competitors for use in
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`assuring that the bids that were to be submitted by his employer would be fixed or aligned with
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`bids to be submitted by his employer’s competitors. At most, the Superseding Indictment
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`4
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`implies that in some of these calls, Mr. Blake may have shared some information with a
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`competitor about what his employer intended to bid, without receiving similar information from
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`the competitor.
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`First, the Superseding Indictment alleges that, during the same time period that suppliers
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`were negotiating for QSR-1’s business for calendar year 2013, Mr. Blake made one call to Scott
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`Brady (id. ¶ 56 (November 13, 2012)), who worked for Supplier 2 (id. ¶ 15), and one call to
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`Roger Austin (id. ¶ 58 (November 28, 2012)), who worked for Supplier 1 (id. ¶ 13). Mr. Brady
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`allegedly texted Mikell Fries (at Supplier 2 (id. ¶ 14)) shortly after he spoke with Mr. Blake that
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`“[Supplier-6] is .30 back on dark meat.” Id. ¶ 56. Thus, the Superseding Indictment implies that
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`Mr. Brady learned from Mr. Blake the revised bid that Supplier-6 might submit for QSR-1’s
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`business.
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`Second, the Superseding Indictment alleges that Mr. Austin called Supplier-1-Employee-
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`4 the day after speaking with Mr. Blake and that Supplier-1-Employee-4 then sent a spreadsheet
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`to Mr. Austin that contained Supplier-6’s “8 Piece Quote[]” of $0.9632 per pound. See id.
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`¶¶ 58–59. It continues on, however, to allege that Supplier-6 ultimately submitted a different,
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`lower bid (id. ¶ 61) and does not allege that the other suppliers bid a price that was identical to or
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`aligned with Supplier-6’s final bid.
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`Third, the Superseding Indictment alleges that Mr. Blake called Mr. Austin on September
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`3, 2014, during the period when suppliers were negotiating an increased margin at which to
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`supply QSR-1 with 8-piece chicken-on-bone products in 2015. Id. ¶ 105(a). Mr. Austin and
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`Mr. Brady allegedly spoke about two and a half hours after Mr. Austin concluded his call with
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`Mr. Blake. Id. (alleging Blake-Austin call at 2:01 pm lasting eight minutes and alleging
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`5
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`Mr. Austin called Mr. Brady at 4:24 p.m.). Shortly after Mr. Brady concluded his call with
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`Mr. Austin, Mr. Brady allegedly texted Mr. Fries that Cooperative-1-Employee-3 had told him
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`“someone moved down .04” but Mr. Brady could only guess that “it has to be [Supplier-6] or he
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`is bluffing” because “Roger [AUSTIN] and bill [KANTOLA] are not moving.” Id. ¶ 105(b)
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`(alleging Mr. Brady texted Mr. Fries at 5:15 p.m.). Thus, the Superseding Indictment concedes
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`that three hours after Mr. Blake had spoken to Mr. Austin and after Mr. Austin had spoken to
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`Mr. Brady, Mr. Austin did not know what Supplier-6 intended to bid and could only guess.
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`Further, the Superseding Indictment alleges that when Supplier-6 signed its pricing agreement
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`with Cooperative-1 later that year, its proposed margin was substantially lower than every other
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`supplier’s margin. Id. ¶ 106.
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`Fourth, Mr. Blake is alleged to have received a 30-second phone call from Supplier-3-
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`Employee-1 on March 26, 2015, during the same time period that suppliers were asked to
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`provide a discount to QSR-2 for the month of September 2015. Id. ¶ 122(a). Later that same
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`day, Supplier-3-Employee-1 told another Supplier-3-employee that he had “talked to a couple
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`company’s [sic] and they are thinking .02lb for September.” Id. ¶ 122(b). Even assuming that
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`one of these companies was Employer-6 and that Mr. Blake was the person at Supplier-6 with
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`whom Supplier-3-Employee-1 spoke (neither of which the Superseding Indictment alleges), the
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`Superseding Indictment does not allege that Mr. Blake obtained any information in this call
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`about what discount, if any, Supplier-3 was intending to offer.
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`Fifth, Mr. Blake allegedly made a phone call to Supplier-3-Employee-1 on March 27,
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`2015. Id. ¶ 123(c)). There is no allegation even by inference, however, regarding anything
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`Mr. Blake and Supplier-3-Employee-1 discussed during this call. Id.
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`6
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`Sixth, and finally, Paragraph 142 alleges that, during the same time period that suppliers
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`were asked to propose lower prices at which to supply QSR-2 with 8-piece chicken-on-bone
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`product for calendar years 2018 and 2019, Mr. Blake received a phone call from Supplier-3-
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`Employee-1. Two hours later, Mr. Mulrenin allegedly received a text from Supplier-3-
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`Employee-1 saying that he had “a general idea what [Supplier-6] is doing.” Id. ¶ 142. Again,
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`while the Superseding Indictment may be read to imply that Mr. Blake shared general pricing
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`information, there is no allegation that Mr. Blake obtained even general pricing information from
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`Supplier-3.
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`Thus, considered in the light most favorable to the Government, the Superseding
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`Indictment can be read to allege only that Mr. Blake, on occasion, shared some information
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`about Supplier-6’s bidding intentions with competitors of Supplier-6. The Superseding
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`Indictment, however, does not allege, even by implication, that Mr. Blake received information
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`from competitors or that Mr. Blake intended to align Supplier-6’s bids with those of its
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`competitors, or even that he had the ability to do so.
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`ARGUMENT2
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`“A party may raise by pretrial motion any defense, objection, or request that the court can
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`determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). An indictment must allege
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`2 Pursuant to Local Rule 12.1(b), Mr. Blake approves, adopts, and incorporates by reference all
`reasons, arguments, and authorities cited in Defendant Jayson Jeffrey Penn’s Motion to Dismiss
`Superseding Indictment, ECF No. 308 (“Penn Mot.”) (filed on July 26, 2021), Defendant Roger
`Austin’s Motion to Dismiss the Superseding Indictment, ECF No. 302 (“Austin Mot.”) (same),
`and Defendant Roberts’ Motion to Dismiss the Indictment on Sufficiency Grounds and Brief in
`Support Thereof, ECF No. 305 (“Roberts Mot.”) (same) for the proposition that the Superseding
`Indictment fails adequately to allege the existence of the conspiracy charged (the first element).
`For the reasons stated in those motions and those described below, the allegations in the
`Superseding Indictment fail to state that Mr. Blake committed a criminal offense.
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`7
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`the elements of the offense charged and provide notice to the defendant so that he may prepare
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`his defense and avoid double jeopardy. See Hamling v. United States, 418 U.S. 87, 117–18
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`(1974); Russell v. United States, 369 U.S. 749, 763–65 (1962). If it fails to do so, the defendant
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`must identify that defect in a pretrial motion to dismiss. Fed. R. Crim. P. 12(b)(3)(B)(v).
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`Because § 1 of the Sherman Act does not set forth all the elements necessary to constitute an
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`offense and relies on generic terms, as noted above, an indictment charging a conspiracy under
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`§ 1 of the Sherman Act “must descend to particulars and charge every constituent ingredient of
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`which the crime is composed” through factual allegations. Frankfort Distilleries, 144 F.2d at
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`830.3
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`It is the anticompetitive agreement itself that distinguishes legal from illegal conduct.
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`See, e.g., United States v. Armour & Co., 137 F.2d 269, 270 (10th Cir. 1943) (“Of course, a
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`conspiracy is the result of an unlawful agreement and without an agreement to restrain trade
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`there can be no conspiracy, and an indictment which fails to charge such an agreement is fatally
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`defective.”); see also U.S. Dep’t of Justice, Antitrust Div., An Antitrust Primer for Federal Law
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`Enforcement Personnel (Sep. 2018), https://tinyurl.com/d3af9268, at 2 (“Agreement Is Key.
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`The agreement is the essence of a Section 1 violation.” (bold in original)). The contours of the
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`allegedly anticompetitive agreement change with each case, requiring fuller factual allegations in
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`an indictment. At a minimum, an indictment must set forth the “time, place, manner, means and
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`effect” of the alleged conspiracy. United States v. Mobile Materials, Inc., 871 F.2d 902, 907
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`3 See Penn Mot. at 6 (citing, inter alia, U.S. Gypsum Co., 438 U.S. at 438 (“The Sherman Act,
`unlike most traditional criminal statutes, does not, in clear and categorical terms, precisely
`identify the conduct which it proscribes.”)); Austin Mot. at 4–5 (citing, inter alia, Nat’l Soc’y of
`Prof’l Eng’rs v. United States, 435 U.S. 679, 688 (1978) (“ . . . Congress . . . did not intend the
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`8
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`(10th Cir.) (per curiam), supplemented on reh’g, 881 F.2d 866 (10th Cir. 1989), abrogated on
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`other grounds, Bloate v. United States, 559 U.S. 196 (2010).
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`As set forth below, the Superseding Indictment fails to do so with respect to Mr. Blake.
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`Specifically, it fails to make factual allegations that Mr. Blake participated in the charged
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`conspiracy or that he did so knowingly. Accordingly, the Superseding Indictment fails to state
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`an offense against him and must be dismissed.4
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`I.
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`
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`The Superseding Indictment fails to allege Mr. Blake participated in an agreement
`to restrain trade.
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`Although the Superseding Indictment cloaks all six calls in which it alleges Mr. Blake
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`participated with the boilerplate phrase “[i]t was further part of the conspiracy” (SI ¶¶ 56, 58,
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`105, 122, 123, 142), the Superseding Indictment fails to include any factual allegations to
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`support that conclusory assertion. See Russell, 369 U.S. at 765; Frankfort Distilleries, 144 F.2d
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`at 830. Indeed, unlike the allegations made against each of the other defendants, which include
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`the alleged content of text messages or e-mails (see, e.g., SI ¶¶ 65, 79(a)), the allegations against
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`Mr. Blake rely exclusively on telephone calls and state only when the calls occurred, without
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`alleging anything about what was said in those calls. At most, the Superseding Indictment
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`circumstantially implies that in some of these calls, Mr. Blake shared some Supplier-6 price
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`text of the Sherman Act to delineate the full meaning of the statute or its application . . . ”)); see
`also Russell, 369 U.S. at 765.
`4 The Court denied Mr. Blake’s motion for a bill of particulars in part because the Superseding
`Indictment “sets forth the elements of the charge and the government’s general theory of the
`case.” Order, ECF No. 257, at 5; accord id. at 7. Whether a motion for a bill of particulars is
`warranted and whether an indictment is legally sufficient, however, are two separate questions.
`See Fed. R. Crim P. 7(c), 7(f), 12(b); see also Russell, 369 U.S. at 770 (“a bill of particulars
`cannot save an invalid indictment”). Neither Mr. Blake’s motion for a bill of particulars nor the
`Court’s ruling on that motion addressed the issue raised in this motion: whether the Superseding
`Indictment states an offense as to Mr. Blake.
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`9
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`information, while failing even by implication to allege that he received any price information in
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`return. See supra at 4–7.
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`These allegations are insufficient to state a claim for violation of the Sherman Act.
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`Indeed, even two-way “exchanges of information” between competitors “do not constitute a per
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`se violation of the Sherman Act.” U.S. Gypsum Co., 438 U.S. at 441 & n.16. This is because
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`“[t]he exchange of price data and other information among competitors 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. n.16 (emphasis added)).
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`Consequently, an allegation that a person engaged in a two-way exchange of price
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`information with a competitor, standing alone, is not an allegation of an illegal agreement to
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`violate the Sherman Act. See Mitchael v. Intracorp, Inc., 179 F.3d 847, 859 (10th Cir. 1999)
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`(“Mere exchanges of information, even regarding price, are not necessarily illegal, in the absence
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`of additional evidence that an agreement to engage in unlawful conduct resulted from, or was a
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`part of, the information exchange.”); United States v. Suntar Roofing, Inc., 897 F.2d 469, 474–75
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`(10th Cir. 1990) (jury properly instructed that, “[i]n the absence of an agreement on a course of
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`action that is designed to eliminate competition, it is not unlawful for competitors to meet and
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`exchange information necessary to preparation of a bid or discuss common aims or objectives or
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`exchange information on independently derived prices”).5
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`
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`5 See also In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 801 F.3d 758, 763 (7th Cir.
`2015) (communications between competitors did not support inference of conspiracy); United
`States v. Therm-All, Inc., 373 F.3d 625, 638 (5th Cir. 2004) (not error to instruct jury conspiracy
`could not be proven based on an “exchange [of] pricing information without more”); In re Baby
`Food Antitrust Litig., 166 F.3d 112, 125–26 (3d Cir. 1999) (information exchanges must be
`correlated with specific collusive behavior; “mere possession of competitive memoranda”
`reflecting “advance prices of competition” is not “evidence of concerted action to fix prices”
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`10
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`Yet, the Superseding Indictment alleges, standing alone, simply that Mr. Blake may have
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`shared pricing information with competitors, which is even more deficient than an allegation
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`against Mr. Blake of a two-way exchange of information, which itself would be insufficient to
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`state an offense against him. Accordingly, the Superseding Indictment fails to allege that
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`Mr. Blake participated in an agreement to restrain trade.
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`II.
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`The Superseding Indictment fails to allege that Mr. Blake knowingly entered into an
`agreement with the intent to restrain trade.
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`The Superseding Indictment must be dismissed for the independent reason that, even if it
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`adequately alleges an illegal agreement between or among some individuals to restrain trade in
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`which Mr. Blake unwittingly participated, it does not adequately allege that Mr. Blake
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`knowingly entered into that agreement and intended to restrain trade, as required to state an
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`offense under § 1. See U.S. Gypsum Co., 438 U.S. at 443; Penn Mot. at 13–15; Austin Mot. at 5,
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`9–10; Roberts Mot. at 3–7. As Mr. Penn argues, the Superseding Indictment lacks even the basic
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`boilerplate assertion that Mr. Blake and others “knowingly” or “intentionally” joined any illegal
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`agreement. See Penn Mot. at 13–15. While Paragraphs 47 and 48 assert in conclusory fashion
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`that Mr. Blake “participated in a continuing network” and the network had an “understood
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`because, “[i]n a highly competitive industry, . . . it makes common sense to obtain as much
`information as possible of the pricing policies and marketing strategy of one’s competitors”);
`Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1357–58 (9th Cir. 1982) (“[T]he mere
`exchange of price information, without more, is not per se illegal[.]”; affirming district court
`finding that “sporadic exchanges of price information . . . having no effect upon actual pricing
`decisions” did not prove price-fixing conspiracy) (citing United States v. Citizens & S. Nat’l
`Bank, 422 U.S. 86, 113 (1975) and United States v. Container Corp. of Am., 393 U.S. 333, 338
`(1969) (Fortas, J., concurring)); Sand Instruction 58-12.1 (Price Fixing: Evidence of Exchange of
`Price Information) (“The exchange of information about price is not, by itself, illegal. The fact
`that the defendants exchanged such information does not establish an agreement to fix prices.”);
`ABA Model Jury Instructions ch. 3.I (approving jury instructions stating that mere exchange of
`price information is not illegal); Penn Mot. at 12 (collecting additional cases).
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`11
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`purpose” (SI ¶ 47) and “shared understanding” (id. ¶ 48(b)), there is no allegation that Mr. Blake
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`intentionally or knowingly joined this “network.” See Penn Mot. at 14.
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`Allegations implying that Mr. Blake on occasion shared Supplier-6’s price information
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`with competitors of Supplier-6 do not amount to allegations that he knew an anticompetitive
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`agreement existed and joined it with the intent to further its purpose. Even if the Superseding
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`Indictment could be read to suggest that information shared by Mr. Blake may have furthered an
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`agreement between or among other suppliers, that reading does not transform the allegations
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`concerning Mr. Blake into allegations that he knowingly joined such an agreement. See United
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`States v. Metro. Enterprs., Inc., 728 F.2d 444, 453 (10th Cir. 1984) (“requisite intent must be
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`pled and proved in any criminal prosecution arising out of the Sherman Act”); ABA Model
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`Instructions ch. 3.K (“[A] person who has no knowledge of a[n antitrust] conspiracy but who
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`happens to act in a way which furthers some object or purpose of the conspiracy does not thereby
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`become a member of the conspiracy.”); Sand Instruction 58-10 (Second Element—Joining and
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`Participating in the Conspiracy) (same); see also Tenth Cir. Pattern Jury Instruction 2.19 (to
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`prove a violation of 18 U.S.C. § 371, Government must demonstrate beyond reasonable doubt,
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`inter alia, that “the defendant knew the essential objective of the conspiracy” and “knowingly
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`and voluntarily participated” in it); cf. Suntar Roofing, 897 F.2d at 474–75 (approving instruction
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`that jury could find defendant knowing joined conspiracy only if “the Government prove[d]
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`beyond a reasonable doubt that a defendant was aware of the common purpose, and was a
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`willing participant, with the intent to advance the purpose of the conspiracy”).
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`Although an indictment need not use the word “intend” in order adequately to allege a § 1
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`violation, it must contain factual allegations sufficient to give rise to a reasonable inference that
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`12
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`the accused, “by conspiring, did intend to produce the anticompetitive effects” alleged. See
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`Metro. Enterprs., 728 F.2d at 453. The handful of phone calls that Mr. Blake allegedly made or
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`received during the timeframe of the purported conspiracy—on which, at most, he is alleged to
`
`have shared price information with an employee of a competitor—do not constitute allegations
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`that Mr. Blake intended to restrain trade. See U.S. Gypsum Co., 438 U.S. at 441 (corporate
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`officials cannot face criminal liability for “the exchange of price information among competitors
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`. . . . without inquiring into the intent with which [that conduct] was undertaken”); cf. Metro.
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`Enterprs., 728 F.2d at 453; see also Krehl, 664 F.2d at 1357 (price communications between
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`“persons with no direct pricing responsibilities” were little more than “idle ‘shop talk’”).6
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`III. The Superseding Indictment fails to allege an unreasonable restraint.
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`The Superseding Indictment suffers from one final, independent fatal flaw: it does not
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`allege that any restraint of trade was “unreasonable.” State Oil v. Khan, 522 U.S. 3, 10 (1997).
`
`To violate Section 1 of the Sherman Act, the restraint of trade alleged must be an unreasonable
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`one. Standard Oil Co. v. United States, 221 U.S. 1, 50-51, 61 (1911) (the statutory term
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`“restraint of trade” incorporated its common law “synonym[],” “undue restraint.”); see State Oil,
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`522 U.S. at 10 (“Congress intended to outlaw only unreasonable restraints.”).
`
`
`
`6 As Mr. Austin’s and Mr. Roberts’s motions discuss, the Superseding Indictment is unlike the
`one the Tenth Circuit reviewed in Metropolitan Enterprises, 728 F.2d 444. In that case, the court
`of appeals affirmed the district court’s conclusion that the indictment contained the requisite
`“intent” element because it alleged “that the conspirators discussed the submission of prospective
`bids; agreed among themselves upon a low bidder; agreed that appellant Metropolitan
`Enterprises, Inc., would receive a specified subcontract to perform certain work on the projects
`in question; and submitted intentionally high, noncompetitive bids, or withheld bids” and that the
`“effects of this conspiracy . . . [were] the fixing of the prices of the Federal-Aid highway projects
`in question at artificial, noncompetitive levels; restraint of competition for the award of Federal-
`Aid highway projects; and the denial of the benefits of free and open competition for the award
`
`13
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`
`
`Case 1:20-cr-00152-PAB Document 309 Filed 07/26/21 USDC Colorado Page 14 of 16
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`In civil cases, to serve “business certainty and litigation efficiency,” the per se rule has
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`been followed in order to impose a “conclusive presumption that the restraint is unreasonable.”
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`Arizona v. Maricopa County Med. Soc., 457 U.S. 332, 343-44 (1982). The Superseding
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`Indictment fails to make factual allegations as to how the charged conspiracy purportedly
`
`unreasonably restrained trade. Instead, it simply presumes an unreasonable restraint of trade,
`
`relying on the per se rule. While numerous courts of appeals have upheld this practice against
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`constitutional challenges, see, e.g., United States v. Giordano, 261 F.3d 1134, 1143-44 (11th Cir.
`
`2001); United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195-96 (3d Cir. 1984); United
`
`States v. Cargo Serv. Stations, Inc., 657 F.2d 676, 683 (5th Cir. Unit B 1981); United States v.
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`Koppers Co., 652 F.2d 290, 295 (2d Cir. 1981); United States v. Brighton Bldg. & Maint. Co.,
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`598 F.2d 1101, 1106 (7th Cir. 1979); United States v. Manufacturers’ Ass’n of Relocatable Bldg.
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`Indus., 462 F.2d 49, 52 (9th Cir. 1972), the Tenth Circuit has never done so. Nor has the
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`Supreme Court.7
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`And with good reason. In the criminal sphere, a conclusive presumption that takes an
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`element away from the jury violates the Fifth and Sixth Amendments. United States v. Gaudin,
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`515 U.S. 506, 514-15 (1995); Francis v. Franklin, 471 U.S. 307, 317 (1985); Morissette v.
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`United States, 342 U.S. 246, 274-75 (1952). Because the Superseding Indictment fails to allege
`
`an unreasonable restraint of trade other than by relying on an unconstitutional presumption
`
`against Mr. Blake, it fails to state an offense and must be dismissed.
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`of the specified projects.” Id. at 453; see Austin Mot. at 10; Roberts Mot. at 6–7. No similar
`allegations are made in the Superseding Indictment.
`
`
`
`14
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`Case 1:20-cr-00152-PAB Document 309 Filed 07/26/21 USDC Colorado Page 15 of 16
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`CONCLUSION
`
`
`
`Other than parroting the statutory language and offering conclusory allegations, the
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`Superseding Indictment relies exclusively on allegations of a handful of phone calls that
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`Mr. Blake made to or received from competitors to charge Mr. Blake with violating the Sherman
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`Act. Conspicuously absent is any allegation of what Mr. Blake said or what was said to him
`
`during any one of these calls. Reading the Superseding Indictment as a whole, the allegations, at
`
`most, imply that Mr. Blake may have on occasion shared information about Supplier-6’s
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`contemplated prices with a competitor. But even an allegation that Mr. Blake participated in
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`two-way sharing of price information—something the Superseding Indictment does not allege,
`
`even by implication—would fall well short of alleging that Mr. Blake knowingly joined an
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`agreement to restrain trade with the intent to further its purpose. Further, the Superseding
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`Indictment fails to allege the unreasonableness of the alleged restraint. Accordingly, the
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`Superseding Indictment fails to state an offense against Mr. Blake.
`
`Date: July 26, 2021
`
`Wendy L. Johnson
`RMP LLP
`5519 Hackett Road, Suite 300
`Springdale, Arkansas 72762
`Telephone: (479) 443-2705
`Fax: (479) 443-2718
`wjohnson@rmp.law
`
`Respectfully submitted,
`
`/s/ Barry J. Pollack
`Barry J. Pollack
`ROBBINS, RUSSELL, ENGLERT, ORSECK
`& UNTEREINER LLP
`2000 K Street N.W., 4th Floor
`Washington, D.C. 20006
`Telephone: (202) 775 4500
`Fax: (202) 775 4510
`bpollack@robbinsrussell.com
`
`Counsel for Mr. Blake
`
`7 The Supreme Court has upheld the application of the per se rule only in criminal cases that did
`not present the constitutional question and that predate the Court’s modern conclusive-
`presumption jurisprudence. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218-22
`(1940); United States v. Trenton Potteries Co., 273 U.S. 392, 395-401 (1927).
`
`
`
`15
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`
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`Case 1:20-cr-00152-PAB Document 309 Filed 07