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United States v. Lischewski

United States District Court, N.D. California

November 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER LISCHEWSKI, Defendant.

          ORDER RE SCOPE OF ALLEGED CONSPIRACY CHARGED IN THE INDICTMENT DOCKET NOS. 429, 431

          EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE.

         During a hearing on the Court's proposed jury instructions, the parties disputed the scope of the conspiracy charged in the Indictment. The Court ordered briefing on whether the Government may obtain a conviction by proving an illegal agreement between Bumble Bee and one other tuna company (rather than having to prove such an agreement amongst all three tuna companies). See Docket Nos. 429, 431. In previously ruling on Defendant's motion for a bill of particulars, the Court found the Government's “September 12, 2018 letter satisfied the three functions of the bill of particulars, which are ‘to inform the defendant of the nature of the charges with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his conviction or acquittal in bar of another prosecution for the same offense when the indictment is too vague, and indefinite for such purposes.'” See Docket No. 82 (“Order Denying BOP”). But in so doing, “this Court reserve[d] its authority to revisit this issue and order the government to commit to a theory of the case if necessary as trial approaches.” Id. at 2. (emphasis added).

         The Court finds the Government's theory of convicting based on a bilateral agreement consistent with the Indictment; however, given the risk of confusion arising from multiple alleged conspiracies, the Court will instruct the jury on unanimity and the distinction between single v. multiple conspiracies.

         I. BACKGROUND

         The Indictment, as written, reads as follows,

Beginning in or about November 2010 and continuing until in or about December 2013, the exact dates being unknown to the Grand Jury, in the Northern District of California and elsewhere, the defendant and coconspirators knowingly entered into and engaged in a combination and conspiracy to suppress and eliminate competition by fixing prices for packaged seafood sold in the United States. The combination and conspiracy engaged in by the defendant and coconspirators was an unreasonable restraint of interstate commerce in violation of Section 1 of the Sherman Act (15 U.S.C. § 1). The defendant knowingly joined and participated in the charged conspiracy beginning in or about November 2010 and continuing until in or about December 2013.

         Docket No. 1, at ¶ 7. Defendant supplied the Court with the following instances where the Government represented to him and the Court that it intended to prove one overarching conspiracy involving an agreement among all tuna companies:

• “The Indictment clearly alleges a single, continuing conspiracy that ended within the statute of limitations period.” Docket No. 71 (“Govt's Opp'n to Mot. for Bill of Particulars”) at 19.
• “The indictment in this case is sufficiently specific and has been supplemented by discovery and voluntary disclosures.” Id. at 12.
• “Between around November 2010 and December 2013, high-level executives from each of the three packaged-seafood companies engaged in a price-fixing conspiracy regarding canned tuna . . . . Although executives from the three companies were not on the phone together at the same time, they were aware that communications were happening among all three companies.” Docket No. 133 (“Govt's Notice of Coconspirator Statements”) at 5 (emphasis added).
• “[T]he issue is whether those sub agreements fit together as part of an overarching conspiracy . . . . ¶ And so the Government has done that here and has provided the testimony of witnesses regarding the existence of an overarching conspiracy.” Tr. of June 11, 2019 Hr'g, at 24:20-25:1.
• “The Court has found by a preponderance of evidence that beginning in or about November 2010 and continuing until in or about December 2013, high-level executives from the three U.S.-based packaged-seafood companies-Bumble Bee, Tri-Union Seafoods LLC d/b/a Chicken of the Sea (“COSI”), and StarKist Co. (“StarKist”)-engaged in a conspiracy to fix the prices of shelf-stable canned tuna.” Docket No. 246 (“Govt's Trial Br.”) at 1 (emphasis added).

         The Government's position is that its September 12, 2018 letter was neither an amendment to the indictment nor a voluntary bill of particulars. Docket No. 431 (“Govt's Brief”) at 1. It further contended that its pretrial filings and notice of coconspirator statements cannot and did not constitute a constructive amendment or a variance. Id. at 2-3.[1]

         II. L ...


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