Poultry Manager Says DOJ Jury Secrecy Concerns 'Misplaced'

By Julia Arciga
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Law360 (November 4, 2020, 1:36 PM EST) -- A poultry manager accused of taking part in a price-fixing conspiracy told a Colorado federal court that federal prosecutors' concerns over his request for materials about the jury selection in his case were "misplaced," stating in a Tuesday filing that his discovery bid did not include materials that would compromise jury secrecy.

Rickie Patterson Blake, who is accused of partaking in a broader price-fixing scheme in the broiler chicken industry, submitted a reply brief dismissing the Justice Department's concerns over his effort to collect information about grand jury members who handed down his indictment in early October.

While the DOJ claimed Blake's request — arguing that the jury selection systematically excluded those of "certain races and ages" due to the COVID-19 pandemic — would pose "undue intrusions into grand jury secrecy," Blake said his efforts pertain to administrative information about the jurors rather than encroaching on the substance of grand jury matters.

"The government's concerns about grand jury secrecy and juror privacy are misplaced, however, because Mr. Blake does not seek personal identifying information and the demographic and excuse information he does seek is purely ministerial," the filing said.

Blake also countered the DOJ's claims that his request for information about the grand jurors who originally indicted him weren't valid because they were selected before the COVID-19 pandemic, arguing that the initial jurors continued to serve as the pandemic hit the U.S. and were therefore subject to his requests.

"Mr. Blake's requests seek demographic information both for those initially selected for grand jury service during the pandemic and those selected for service prior to the pandemic's onset who continued to serve as grand jurors during the pandemic," the brief read. "This information is necessary for Mr. Blake to understand the procedures in this district that govern changes in grand jury compositions during the pandemic and whether those procedures are affecting distinctive groups in a disparate way."

Blake also urged the court to reject the DOJ's efforts to narrow his discovery bid and to order the clerk's office to produce materials outlined in his requests.

In October, Blake asked the Colorado federal court for information about his jurors, claiming that the coronavirus pandemic may have omitted members of "distinctive groups" from his jury. Late last month, the DOJ countered his requests and asserted that they were "intrusive of juror privacy" and "unnecessary and irrelevant" to the motion he wanted to file.

About a week before Blake made his request, he was named in a superseding indictment charging a total of 10 poultry executives and employees with price-fixing in the broiler chicken industry. The indictment alleged that the individuals fixed prices and rigged bids for broiler chickens from 2012 until at least early 2019 — purportedly communicating with each other via phone, email and text messages to closely coordinate bids made to restaurants, grocery stores and buying cooperatives.

The October superseding indictment followed a June indictment of Pilgrim's Pride president and CEO on the same charges. Both indictments are a part of the DOJ's antitrust investigation into the chicken industry, which kicked off in June 2019.

The DOJ and counsel for Blake did not immediately respond to requests for comment Wednesday.

Blake is represented by Barry J. Pollack and Jessica Arden Ettinger of Robbins Russell Englert Orseck Untereiner & Sauber LLP, and Wendy W. Johnson of RMP LLP.

The U.S. is represented by Michael Koenig, Heather Call, Carolyn Sweeney and Paul Torzilli of the U.S. Department of Justice.

The case is U.S. v. Penn et al., case number 1:20-cr-00152, in the U.S. District Court for the District of Colorado.

--Additional reporting by Matthew Perlman. Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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USA v. Penn et al

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June 02, 2020

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