Published on Feb 25, 2022
Witnesses against poultry executives charged with fixing prices and rigging bids for broiler chickens were coerced into saying what U.S. investigators wanted to hear, and the government’s star witness was a “liar,” defense attorneys told a jury in Denver on Thursday.
FBI agents used interrogation tactics and applied enough pressure to make the witnesses “willing to speak some magic words,” lawyer Dennis Canty said as the defense wrapped up its opening arguments in a retrial of 10 current and former managers at companies including Tyson Foods (TSN), Pilgrim’s Pride (PPC) and distributor Koch Foods.
The criminal proceedings come two months after a federal judge declared a mistrial in the original trial because the jury failed to reach a verdict on a single defendant. Antitrust experts attributed that outcome partly to doubts among jurors about the government’s star witness, Robert Bryant, a longtime Pilgrim’s employee who testified that rival producers exchanged information to either increase prices or limit decreases.
Convictions in the second trial will depend on whether Department of Justice prosecutors can focus less on Bryant and more on how industry executives shared sensitive price information and how that sharing points to a conspiracy to fix prices in the $65 billion industry wholesale chicken market, experts have said.
On Thursday, defense attorneys questioned Bryant’s credibility as a witness. They called Bryant a “liar” who was interviewed 20 times by law-enforcement agents in an effort to “coerce” him into supporting government charges that the defendants conspired to rig bids and fix prices between 2012 and early 2019.
Although 10 defendants were sitting in the courtroom, only one person in the proceedings was a criminal “beyond a reasonable doubt,” said defense attorney Roxann Henry. “It is Mr. Bryant, and he is desperate to avoid prosecution,” said Henry, who is defending former Koch Foods sales executive William Kantola.
Bryant has testified with immunity following a Pilgrim’s plea deal. During the first trial, he admitted to having lied to the FBI “multiple times,” Bloomberg reported at the time. Those lies were unrelated to the price-fixing case, the report said, but the subject of the lies hasn’t been made public.
Seeking witnesses. Witnesses in this case didn’t come forward voluntarily to “help the government in its crusade for truth and justice,” defense lawyer Canty said on Thursday. They were, instead, picked out after DOJ concluded that there had been a price-fixing conspiracy, he said.
“The government, wedded to [its] fabulous theory and with indictment in hand, sought the witnesses out,” said Canty, a lawyer for Jimmie Lee Little, a former Pilgrim’s sales director.
In wrapping up their opening arguments, defense attorneys again said it wasn’t illegal to share price information. They stressed that it was standard practice for poultry producers to fill contracts for rivals then their supplies of fresh chickens run low. Sharing price information in that situation was just good business, they said.
Defense lawyers also noted that some of the defendants were, despite their executive titles, lower-level employees who had no authority to set prices and little incentive to do so.
Roger Austin, a Pilgrim’s vice president, had “no motive” for conspiring, said his attorney, Michael Feldberg. There was “no evidence that he had Pilgrim’s stock options or that higher prices [would] result in a big pay day” for him, Feldberg said. “It doesn’t make sense that he’d risk his career, his standing in the community … and his liberty.”
If convicted, each defendant could face up to 10 years in prison and a fine of up to $1 million for conspiring to restrain trade. Little, the former Pilgrim’s sales director, is also charged with obstructing justice, which carries a maximum 20-year prison sentence.
FBI agent takes stand. After the defense completed its opening arguments, the government called its first witness, LaNard Taylor, a special agent with the Federal Bureau of Investigation. Taylor was soft-spoken and sometimes had to be reminded to speak slower.
Government prosecutor Michael Koenig asked Taylor about his background and work on the price-fixing case, seeking to draw a timeline for the jury and to establish that the investigation had been thorough and rigorous.
Taylor testified that the FBI’s International Corruption Unit began investigating alleged price-fixing in the chicken industry in 2017. He joined the probe in 2019, he said.
During direct and cross examination, Taylor explained how FBI investigations work, describing the use of interviews, subpoenas and search warrants. He also discussed the use of a law-enforcement technique known as a “knock and talk,” in which agents knock on the door of a private residence and ask to speak with someone as part of their investigation.
The U.S. Department of Commerce Office of the Inspector General and the US Department of Agriculture Office of the Inspector General were also involved in the investigation alongside attorneys in DOJ’s Antitrust Division.
On cross-examination, defense attorney Anna Pletcher quizzed Taylor about some basic facts in the case. Asked how many interviews the FBI conducted during the investigation, Taylor said more than 200.
“Does 243 sound right to you?” asked Pletcher, who is representing former a former Pilgrim’s chief executive, Jayson Penn. The attorney later said the government had obtained 14.8 million documents, to which Taylor said it was in the “ballpark” of 15 million.
But Taylor corrected another defense attorney’s description of the tactics that the FBI uses.
“To be clear, they were not interrogations,” he said. “They were interviews.”
During another cross-examination, a defense attorney asked Taylor if he thought this case was more “complex” than others he had worked on. The FBI agent demurred, saying that the same techniques are used in every case even if the subject matter was more complex.
Mar-Jac Poultry. It was less clear why the government called its next two witnesses, both of whom have connections to Mar-Jac Poultry, whose name has cropped up in court documents.
During the first trial, Bryant, who has not yet been called to the stand, recounted contract negotiations, phone calls and other conversations between competing chicken suppliers. He spoke at one point of an agreement involving Mar-Jac and five other participants—producers Pilgrim’s, Tyson, Claxton, George’s Inc., plus distributor Koch Foods.
The government’s second witness on Thursday was Lawrence Barela, an employee of Open Text (OTEX), a cloud-based information-management company. Mar-Jac used the Open Text system to store information. In direct examination, government attorney Paul Torzilli asked Barela to compare documents that the defense showed him to documents he had previously viewed on his company’s servers. Torzilli didn’t explain the purpose of the comparison to the jury.
The government’s final witness for the day was Florence Becker, who has worked at Mar-Jac. Becker appeared with her attorney via a Zoom link from her home in Gainesville, Georgia. With her glasses perched on her head and a gold cross on the wall behind her, Becker answered questions from government attorney Heather Call with care.
Call clarified that she had never spoken with Becker before and asked her to recount her experience as a Mar-Jac executive assistant. Then Call asked Becker to analyze some documents that Becker hadn’t seen before and to say if the handwriting belonged to any of her bosses at Mar-Jac.
“I’ve got a Bible right there beside me, and I cannot swear . . . it’s some particular person’s handwriting,” she said. But she did say it was “somewhat” like the handwriting of Pete Martin, her former Mar-Jac boss, who isn’t a defendant in the case.
Although Becker was one of the livelier witnesses, her testimony appeared confusing in the absence of greater context. The confusion deepened when Judge Brimmer dismissed the jury at five o’clock and directed the government to complete Becker’s direct examination on Monday, when the court is back in session.
Jury behavior. After dismissing the jury, Brimmer read aloud to the court a question from a juror who asked lawyers to identify themselves when they stood up for cross-examination. Brimmer expressed sympathy for the jury’s confusion about the “sea of suits” in front of them. It was the second question from a juror on Thursday suggesting there was some bewilderment about who was who in the retrial.
In addition to Austin, Kantola, Little and Penn, prosecutors have charged Rickie Blake, a former director and manager at George’s; Scott Brady, a Claxton salesman; Mikell Fries, president of Claxton Poultry Farms; former Pilgrim’s CEO William Lovette; Timothy Mulrenin, a Perdue Farms executive who previously worked at Tyson; and Gary Brian Roberts, a Case Farms employee who had worked at Tyson.
The court is closed on Friday, February 25, and the trial is scheduled to resume on Monday.