By Bryan Koenig

Law360 (February 19, 2021, 7:31 PM EST ) A Colorado federal judge granted a limited set of discovery Thursday into how COVID-19 impacted the pool of grand jurors who indicted poultry executives accused of price-fixing.

U.S. District Judge Philip A. Brimmer rejected many of the discovery requests from Rickie Patterson Blake, one of 10 executives currently facing trial Aug. 2, who's sought details on the jury's makeup out of concerns that the pandemic may have skewed the potential pool of both the grand jury and the jurors who'll eventually decide the executives' fate.

Blake, according to the ruling, will be able to get jury questionnaires for grand jurors picked for his grand jury, as well as basic demographic information for the list of potential jurors and those who were sent summonses and questionnaires, with identifying details removed. Other requests were rejected.

A major limiting factor on the discovery granted was the fact that the grand jury was selected in September 2019, months before the COVID-19 pandemic disrupted court proceedings and daily life nationwide. The grand jury did not, however, indict Blake and five other defendants until early October 2020, and Blake argued a week later that the pandemic may have spurred grand jurors to be excused from service and the novel coronavirus could create the same issue when the petite jury is selected.

Judge Brimmer held Thursday that demographic information covering grand juries empaneled while the pandemic raged couldn't serve as the basis for any challenge to the grand jury "since the grand jury that indicted him was selected before the pandemic."

"To the extent that these requests seek information about grand jurors from grand juries selected pre-pandemic, but serving during the pandemic, including his grand jury, the court finds that this juror replacement information is irrelevant to any challenge that Mr. Blake could properly make," the judge said. "The grand jury that indicted Mr. Blake was already selected by the time of the pandemic and by the time of the court's adoption of pandemic protocols."

Judge Brimmer also refused to give Blake information covering petite jurors who might ultimately decide his fate. By the time the case goes to trial, according to the ruling, a new list of possible jury candidates will be in use. "Therefore, pandemic-related excuse information from the previous master wheel will not be relevant." The judge similarly refused to give insight into the policies used to excuse jurors based on the pandemic.  

Blake asked for the discovery on Oct. 13, arguing that jurors may have been excused because they or a loved one was at greater risk of COVID-19 because of an underlying medical condition.

"The COVID-19 pandemic has affected distinctive groups differently. Accordingly, the process by which a grand jury or petit jury is ordinarily selected may not comply with the fair cross-section requirement during the unprecedented COVID-19 pandemic and any adjustments made to the ordinary jury selection process may not resolve, and can even exacerbate, these concerns," he said. "As such, Mr. Blake respectfully seeks discovery related to the jury selection plan during the COVID-19 pandemic to ensure that his Fifth and Sixth Amendment rights are not violated."

Representatives for Blake and the U.S. Department of Justice did not immediately respond to press inquiries Friday.

Blake is not the only criminal defendant to raise the prospect of challenging jurors based on the impact of COVID-19, which as of Friday had sickened more than 27 million people in the U.S. and killed more than 489,000, according to Centers for Disease Control and Prevention data. Commonwealth Edison Co. executives and lobbyists are similarly vying for grand jury selection materials in their bribery case by arguing that jurors chosen during the coronavirus pandemic may not be representative of the community because COVID-19 has disproportionately affected certain populations' economic and physical health, leading to a whiter, younger and more male grand jury.

In the instant case, a grand jury handed down a superseding indictment in October that brought the number of men officially charged with a role in the poultry conspiracy to 10 by adding charges against six who served as executives or managers of poultry companies across the country after four had been charged in June. Federal enforcers have also cut a deal with Pilgrim's Pride that requires the chicken producer to pay a penalty of more than $110.5 million and cooperate with the investigation.

The group of indicted executives includes Jimmie Lee Little, William Wade Lovette, Roger Born Austin and Jayson Jeffrey Penn of Pilgrim's Pride; Mikell Reeve Fries and Scott James Brady of Claxton Poultry; Timothy R. Mulrenin and Gary Brian Roberts of Tyson Foods; Rickie Patterson Blake of George's Inc.; and William Vincent Kantola of Koch Foods Inc.

They all stand charged with criminal violations of the Sherman Act, which prosecutors say occurred as part of a scheme that purportedly lasted from 2012 to 2019 to fix prices and rig bids for broiler chickens, or chickens bred specifically for their meat, which account for around 98% of the chicken consumed in the U.S.

The executives kept in close contact through text message, phone and email to coordinate bids made to restaurants, grocery stores and buying co-ops, according to prosecutors.

Chicken producers have been facing price-fixing allegations for years now in civil court, but the DOJ revealed in mid-2019 that it had been conducting an investigation into the industry when it asked to pause discovery in one of those civil lawsuits.

The government is represented by Michael T. Koenig, Heather D. Call, Carolyn M. Sweeney and Paul J. Torzilli of the U.S. Department of Justice's Antitrust Division.

Gary Brian Roberts is represented by Craig A. Gillen of Gillen Withers & Lake LLC.

Jimmie Lee Little is represented by Mark A. Byrne and Jennifer L. Derwin of Byrne & Nixon LLP.

Timothy R. Mulrenin is represented by Elizabeth Prewitt and Caroline Rivera of Latham & Watkins LLP.

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

William Wade Lovette is represented by John A. Fagg Jr. of Moore & Van Allen PLLC.

William Vincent Kantola is represented by James A. Backstrom.

Mikell Reeve Fries is represented by Richard K. Kornfeld of Recht Kornfeld PC.

Scott James Brady is represented by Megan C. Rahman and Bryan B. Lavine of Troutman Pepper Hamilton Sanders LLP.

Roger Born Austin is represented by Michael S. Feldberg of Reichman Jorgensen LLP.

Jayson Jeffrey Penn is represented by Chad David Williams and Jacqueline Ventre Roeder of Davis Graham & Stubbs LLP and Michael F. Tubach, Anna T. Pletcher, Megan Havstad and Brian P. Quinn of O'Melveny & Myers LLP.

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 Julia Arciga, Reenat Sinay, Celeste Bott, Lauraann Wood, Matthew Perlman and Nadia Dreid. Editing by Jay Jackson Jr.

Update: Attorney information has been updated for this story.

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