Law360, San Francisco (May 22, 2020, 8:53 PM EDT) -- A California federal judge outlined new coronavirus-related courtroom protocols on Friday for when he holds an in-person sentencing for Bumble Bee's former CEO next month, saying plexiglass barriers are going up in the courtroom, the hearing will be limited to 10 attendees and all must take elevators individually and wear masks.
U.S. District Judge Edward Chen said on a Zoom videoconference on Friday that he thinks it's "feasible" to hold an in-person sentencing hearing for Chris Lischewski, who was found guilty in December of violating federal antitrust laws by teaming up with executives at rival tuna companies, StarKist and Chicken of the Sea, to illegally raise the price of canned tuna between 2010 and 2013.
"We are going to start having live hearings for sentencing," Judge Chen said, expanding on a general order issued on Thursday by the Northern District of California's top judge postponing or vacating all new criminal jury trials through June 30 and new civil jury trials through Sept. 30. The general order also permits in-court proceedings for guilty pleas, evidentiary hearings requiring witness testimony and sentencings.
"We don't have the budget to have people screened for temperature," Judge Chen said.
But the judge, whose courtroom is located in San Francisco, noted that additional precautions will include having only one courtroom for all the San Francisco judges and spacing out hearing times to allow for distancing.
"It's going to look different and that's the reality," Judge Chen said.
Lischewski's attorney, Elliot Peters of Keker Van Nest & Peters LLP, urged Judge Chen to let the former executive — who attended the video conference sporting long white locks that had grown in since the trial — to "face the music and get on with his life."
Peters said the sentencing has been hanging over Lischewski's head since the trial, and that waiting to be sentenced has been "miserable" for him and his family. He said his client intends to appeal the decision, but not before sentencing.
Peters asked the court to consider bifurcating the sentencing, allowing arguments on sentencing guidelines to be done via Zoom and then the actual sentencing to happen in-person in mid-June. Judge Chen said he thought that to be feasible.
While federal prosecutors have called for Lischewski to spend up to 10 years behind bars, Lischewski sought a reduced sentence of one year of home confinement, citing the public health emergency caused by COVID-19.
During the nearly four weeks of trial, the jury heard testimony from a host of other major players in the canned tuna industry, including former Chicken of the Sea CEO Shue Wing Chan, StarKist Vice President of Sales Stephen Hodge and Bumble Bee's former senior vice presidents Kenneth Worsham and Walter Scott Cameron, who both testified that Lischewski had directed the conspiracy.
Worsham, Cameron and Hodge have all pled guilty to their roles in the scheme, and they too are awaiting sentencing. Chan has received amnesty in return for cooperating with the investigation.
Bumble Bee and StarKist have also pled guilty to conspiring to fix prices and were slapped with fines of $25 million and $100 million, respectively. Chicken of the Sea has admitted to wrongdoing and cooperated with the government's investigation.
On Friday, U.S. Department of Justice prosecutor Leslie Wulff urged the judge to delay Lischewski's sentencing by two months, saying the government anticipates that his victims will want to speak at his sentencing and that the 10-person limit in the courtroom could pose a significant challenge.
The judge said victims can line up outside the physical courtroom or potentially appear via video call. The judge said the court reporter would attend remotely, as would members of the public.
Judge Chen said the court seeks to maximize public access.
But the government expressed concern that the coronavirus relief legislation allows for sentencing to happen via video only if the court finds that the sentencing cannot be further delayed without serious harm to the interest of justice.
Judge Chen said his understanding of the case law is that, as long as it's a proceeding where the defendant would not have contributed anything, the defendant's in-person appearance can be waived. But the judge instructed the parties to brief him further on the issue and tentatively scheduled a Zoom hearing in early June followed by an in-person sentencing hearing a few weeks later.
The parties did not immediately respond to Law360's requests for comment.
The government is represented by Manish Kumar, Mikal Condon, Leslie Wulff and Andrew Schupanitz of the U.S. Department of Justice's Antitrust Division.
Lischewski is represented by Elliot Peters of Keker Van Nest & Peters LLP.
The case is U.S. v. Lischewski, case number 3:18-cr-00203, in the U.S. District Court for the Northern District of California.
--Editing by Nicole Bleier.
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