The US Department of Justice (DOJ) is asking a federal judge to move forward with allowing communications that reveal a more intimate glimpse into the long-awaited criminal trial for embattled former Bumble Bee CEO Chris Lischewski's involvement in price-fixing tuna on the US market.
Included below is the key evidence the DOJ plans to use against Lischewski. If guilty, he could face a $1 million (€867,345) fine and a 10-year jail term.
- An alleged December 2015 conversation with Scott Cameron
Former Bumble Bee Senior Vice President Walter Scott Cameron plead guilty to his role
in the conspiracy and has agreed to pay a criminal fine. The DOJ contends a conversation between Lischewski and Cameron when they met with new potential Bumble Bee buyers for dinner is relevant to the case. During this conversation, Lischewski purportedly told Cameron "he believed the lawyers representing Bumble Bee were playing to lose by cooperating with the government in the investigation." Cameron is expected to testify that Lischewski "put his hand on Cameron’s shoulder and told him that Bumble Bee would only protect him and (Kenneth) Worsham (a former Bumble Bee executive) “to a point,” and that he and Worsham “shouldn’t F**K this up.” The DOJ said Lischewski "offers nothing to support his wild accusation that Cameron’s testimony was fabricated."
Lischewski's lawyers argue the conversation between Cameron and Lischewski "is alleged to have occurred two years after the government alleges the conspiracy ceased, months after the government’s investigation had already begun, at a time when both Mr. Lischewski and Mr. Cameron were represented by separate counsel, and Mr. Cameron was pursuing a cooperation deal with the government."
-- Corporate criminal plea agreements submitted by Bumble Bee and Starkist
The DOJ has remained firm that Bumble Bee pleading guilty to price-fixing and making a plea deal with the government agency "poses little risk of the jury inferring that defendant must have participated in a price-fixing conspiracy, and any such risk can be eliminated by an appropriate limiting instruction."
The DOJ says that Lischewski's "efforts to recruit Roszmann into the conspiracy in order to extend the duration of the conspiracy is admissible because it shows defendant’s knowing participation in the charged conspiracy."
Lischewski's lawyers allege the US government intends to offer testimony and documents regarding communications with former Chicken of the Sea COO David Roszmann, who they note is not a co-conspirator, and that the communications occurred after the conspiracy ended.
According to the DOJ, the recruitment effort began in 2013, following the departure of Former Chicken of the Sea CEO Shue Wing Chan.
The DOJ also states Roszmann's testimony "will provide necessary context for the jury to understand how the conspiratorial communications occurred." The government agency says his testimony is "identical to the testimony the other government witnesses will present."
The US judge overseeing Lischewski's criminal trial ruled in July "[a]bsent a sufficient foundation, the government may not introduce statements prior to November 2010." The conspiracy was reported to have occurred between 2010-2013.
-An email from Tri Marine President and CEO Renato Curto
Lischewski's lawyers are requesting an email sent by Curto, dated Aug. 8, 2012, be excluded from the government's exhibit list. The US government is using the letter, whose subject and contents are redacted in the court documents, as evidence. Lischewski lawyers are not contesting Curto's ability to testify in court, however.
The email is a "business record," according to the DOJ. It "memorializes a business conversation" between Curto, Lischewski, and one of Tri-Marine's customers," the DOJ said. The entity added Lischewski has suggested Curto was intoxicated the night he wrote the email.
The contents of the email pertained to Starkist, where it "recounts an admission by defendant that his sales team and the competition were 'talking constantly' and have been in 'good communication about how to go to market intelligently.'"
"The fact that Curto and defendant are friends, that the conversation occurred outside of normal business hours, or that the email itself was sent outside of normal business hours, does not diminish the business purpose for which Curto wrote the email," the DOJ said.
-An anonymous letter
Lischewski's lawyers are looking to remove an "anonymous, undated, and unsigned letter, appearing on the government’s exhibit list" as well as a subsequent "related email thread appearing on the government’s exhibit list." The lawyers state Lischewski will not be able to cross-examine its author during the trial, and cannot "test the declarant(s)’ credibility or prove the falsity of the statements."
The DOJ said this anonymous document is an unsigned letter written by former Bumble Bee Regional Sales Vice President Charlie Simmons to Lion Capital's Eric Lindberg in January 2012.
The letter alleges "potential anti-competitive activity" as it relates to phone calls, meetings and emails among the Bumble Bee team and names Cameron and Worsham.
The DOJ said Simmons can testify at the trial to the accuracy of the letter and its contents.
"The government’s only purpose in referring to Mr. Lischewski’s deposition testimony would be to invite the jury to infer from Mr. Lischewski’s silence either culpability or a lack of honesty," his lawyers contend.
-Lischewski's financial circumstances and that he is 'wealthier than most.'
"Mr. Lischewski is a successful executive who was well-compensated," his lawyers state. "But that is irrelevant to any issue the jury will be asked to decide in this case.
The DOJ firmly disagrees.
Looking into Lischewski's total compensation from Bumble Bee, "including salary, bonuses,
and equity in the company, is admissible because it is highly probative of his motive for
participating in the charged price-fixing conspiracy."
The DOJ said, however, it does not plan to introduce " evidence of the defendant’s overall net worth or lifestyle."
-Evidence of ownership of fishing boats
The US government contends Lischewski's ownership interest in in tuna fishing boats managed by the South Pacific Tuna Corporation (SOPAC), "is quintessential motive evidence"
"When the price of raw fish increased, defendant stood to gain from his SOPAC ownership interest," the DOJ said. "By raising the price of canned tuna, defendant also stood to gain from his Bumble Bee executive compensation, which included bonuses tied to the company’s financial performance. Thus, the price-fixing conspiracy allowed defendant to capture profit from high prices on both sides of the market."
The CEO contends the boats were approved by Bumble Bee’s board of directors and were fully disclosed in Bumble Bee’s audited financial filings, including in its 2010 registration statement filed with the Securities and Exchange Commission regarding its public debt.
-US government arguments suggesting "Tuna the Wonderfish" marketing campaign, co-pack agreements were illegal, evidence regarding pre-conspiracy information on downsizing and pricing
The conspiracy was reported to have occurred between 2010-2013, and Lischewski's lawyers have long argued that evidence pre-dating this period is not valid to the case.
But the DOJ has also long-contended that it is very relevant.
"Evidence related to competitor communications that predated the conspiracy or concerned other products, the Tuna the Wonderfish campaign, the copacking agreement, and the fish-fill settlements is inextricably intertwined with the charged conspiracy," the DOJ said.
"While the evidence is undoubtedly incriminating, it is incriminating not because it shows defendant has a propensity towards criminal activity. The evidence, instead, shows the full scope of the price-fixing conspiracy and the fact that defendant had the intent, opportunity, and motive to commit the crime charged in the indictment."