Claxton Poultry Farms president hopes to go on safari while waiting for 2021 trial

A  Denver trial in a poultry price-fixing case now won’t begin until Feb. 16, 2021, and one defendant hopes to use some of that extra time for a hunting safari in Tanzania.

Under the new order, the deadline for pretrial motions will be Dec. 28, 2020, and responses will be due on Jan. 11, 2021.  A trial preparation conference is set for 1:30 p.m. on Feb. 12, 2021.  A 10-day trial is planned.

Top defendants in that trial will be Jayson Jeffrey Penn, CEO of Pilgrim’s Pride Corp., and Mikell Fries, Claxton Poultry Farms president.  

Along with Claxton Vice President Scott Brady and Pilgrim Vice President Roger Austin, the defendants are charged with one count of conspiracy to restrain trade in violation of Section 1 of the Sherman Act.  The charge relates to alleged bid-rigging and price-fixing for broiler chicken products sold in the United States between 2012 and 2017.

The indictment says the four “entered into and engaged in a continuing combination and conspiracy to suppress and eliminate competition by rigging bids and fixing prices and other price-related terms for broiler chicken products sold in the United States in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.”

In approving the delay of the trial, U.S. District Court Judge Philip Brimmer explained  the complex situation this way:

• “Defendants indicate that the United States intends to produce 12.5 million documents to them as part of discovery, comprising 19 terabytes of data. Docket No. 49 at 4. The government has told the defendants that discovery will not be completed until early August 2020.  Defendants state that they will need to organize and analyze all of these documents, which, given the volume is a large undertaking and one made more complicated by the ongoing COVID-19 pandemic.
• “Defendants also argue that the nature of the case is complex and will require significant time to investigate. First, defense counsel will need to analyze the various aspects of the broiler chicken market, including the production, pricing, and marketing of broiler chickens. Second, defense counsel will need to identify and interview potential experts and interview witnesses.  These tasks will be complicated by the pandemic and the hesitancy of some people to travel or meet in person.  Third, the pandemic will make is more difficult for defense counsel to meet with their clients to review discovery and to consult about the case.”
• “In light of a large amount of discovery, I find that the case is complex within the meaning of the Speedy Trial Act. Given that I will need to hold hearings to resolve any motions filed, given the amount of discovery, and the likely complexity of the trial (thus necessitating more lengthy trial preparation), I find that the exclusion of 180 days is justified and is necessary to allow defense counsel adequate time to file and litigate motions and to prepare for trial. The ongoing pandemic has made such an exclusion even more reasonable since its effect to make tasks that would take a long time take even longer. “

Brimmer, who is the chief judge for the U.S. District of Colorado, said because the case is “so complex due to the nature of the criminal charge,” he extended the time for pre-trial proceedings.

 If the defendnants are convicted of the Sherman Antitrust Act violation, the statutory maximum sentence is 10 years in federal prison and a $1 million fine.

Pilgrim’s Pride, the nation’s second-largest poultry producer, permitted Penn to take a leave of absence after he was indicted for price-fixing to assist in his defense.   

The four poultry executives are charged in a “combination and conspiracy involving a “continuing agreement, understanding, and concert of action among the Defendants and co-conspirators, the substantial terms of which were to rig bids and to fix, maintain, stabilize, and raise prices and other price-related terms for broiler chicken products sold in the United States.”

Defendant Mikell Fries has asked the court for permission to travel internationally next month. His passport is held by his defense attorney.

Before he was indicted, Fries paid $37,000 for a hunting safari in Tanzania. While it’s been postponed due to panedemic travel restrictions, he and three “lifelong” friends hope to make the trip, which is now possible during the last two weeks of August.

“Assuming he’s permitted to travel, he will travel with his own guns, with arrangements and transport of the firearms organized and verified through TWG travel, as this is their specialty, his request says. “The route of travel is Hilton Head, Savannah, GA, to Washington, D.C, Washington, D.C. to Addis Ababa, Ethiopia, and Addis Ababa to Kilimanjaro International Airport, Tanzania. The return flight will be in the reverse order.

“Mr. Fries and his counsel understand that this is an unusual request. However, the facts and circumstances surrounding this trip, coupled with Mr. Fries’ exemplary background, compliance with the pretrial release, and deep business and personal ties to the United States establish the fact that he is not a risk of flight,” it continues.  “Further, the fact that Mr. Fries, an avid hunter, is allowed to possess firearms under the terms of his supervised release establishes that neither the government nor the Probation Department believes him to be a danger to the community. This is a once-in-a-lifetime trip, that is fully paid for and non-refundable, with set travel parameters.”

Fries employs 2,000 people in Georgia where multi-generational members of his family live. He says there is no reason he’d not return from Tanzania. Tanzania also has an extradition treaty with the United States. The  Department of Justice (DOJ) opposes the trip but has not yet presented written arguments as to why.