Chicken executives' lawyers decry 'third bite' price-fixing trial for DOJ

REUTERS/Agustin Marcarian
  • DOJ moves ahead with third trial, set for June
  • Defense lawyers urge dismissal, restrictions on any new evidence

(Reuters) - Defense lawyers for five former and current chicken industry executives on Monday mounted new legal challenges against prosecutors who want another shot at a criminal price-fixing prosecution after two earlier juries were deadlocked.

Attorneys for the former Pilgrim's Pride Corp chief executives Jayson Penn and William Lovette, among the defendants, said in new filings that the third trial set for June should not be a "fresh opportunity" for the government "to fill gaps it belatedly believes prevented conviction twice" in recent months.

The executives' lawyers called the "third bite" prosecution unlawful in seeking dismissal of charges. The lawyers also urged the court to block the government from adding any new pieces of evidence.

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"Such endless opportunity for revision is fundamentally unfair to defendants. The government has already had more than enough time to investigate this case and assemble evidence; fairness demands a limit," the defense lawyers argued in new filings.

A Justice Department spokesperson did not immediately comment on Tuesday. The third trial is scheduled to start in Denver federal court on June 6 before U.S. District Judge Philip Brimmer.

Lawyers for Penn and Lovette, who have pleaded not guilty, did not immediately return messages seeking comment on Tuesday.

Brimmer last month called Jonathan Kanter, the Senate-confirmed head of the Justice Department's antitrust division, to court to defend the government's plan for a third trial. The government dropped charges against five of 10 defendants after the second mistrial and said it was "streamlining" the third trial.

Prosecutors have argued industry defendants conspired to fix chicken prices from 2012 through 2019.

In a filing last month, DOJ told Brimmer "there is ample evidence for a rational jury to find beyond a reasonable doubt that each defendant knowingly joined a conspiracy to fix prices and rig bids for broiler chicken products."

Government lawyers said they had weighed "the significant impact of the charged conduct on the public, the deterrent value of the prosecution, and the nature and seriousness of the charged offense."

Defense lawyers said prosecutors want to introduce evidence primarily related to compensation and bonus schemes at Pilgrim's Pride that is not related to charged conduct.

The attorneys argued in their filings that certain new pieces of information were "discoverable" prior to the first trial.

"New trials following mistrials are not meant for lawyers to 'plug the holes' in their cases," the defense attorneys said.

The case is United States v. Penn et al, U.S. District Court for the District of Colorado, No. 20-cr-00152-PAB.

Read more:

'Nothing unlawful' about defense pact in chicken antitrust case - U.S. judge

After DOJ antitrust losses in employment trials, defense lawyers urge 'rethink'

U.S. drops price-fixing charges against chicken executives after mistrials

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