Chris Lischewski’s appeal denied as judicial panel cites “overwhelming” evidence

Chris Lischewski will remain in prison, serving a 40-month sentence for fixing the prices of canned tuna sold in the U.S. between 2011 and 2013, after an appeal of his conviction was denied.

Lischewski, the former president and CEO of Bumble Bee Foods, was convicted in December 2020 and sentenced in June 2020.

A three-judge panel from the U.S. Nine Circuit Court of Appeals wrote in its decision that “Lischewski’s challenge would fail under any standard of review.”

“The evidence that Lischewski participated in a scheme to fix prices in the canned tuna market was overwhelming,” the panel wrote. “In addition to documentary evidence, several of Lischewski’s co-conspirators testified at the trial that the conspiracy existed, that Lischewski knew about the conspiracy, and that he was a member of it. This included testimony that Lischewski was substantially involved in orchestrating, implementing, and enforcing the price-fixing agreements.”

Lischewski had argued that District Court Judge Edward M. Chen, who oversaw his case, gave incorrect instructions to the jury. But the Ninth Circuit panel, which included judges Sidney R. Thomas, Daniel Bress, and Patrick J. Bumatay, said Chen had committed no error.

“The instructions and the government’s statements correctly reflected the substantive law, and Lischewski has not explained why reversal would be warranted,” they wrote.

Lischewski had argued Chen told the jury it needed only find a “mutual understanding” on pricing existed, not an “agreement.”

“Lischewski’s argument lacks merit because he improperly reads the phrase ‘mutual understanding’ in isolation,” the panel found. “Contrary to Lischewski’s argument, various portions of the instructions made clear that ‘agreement’ and ‘mutual understanding’ were used synonymously.”

Chen’s instructions to the jury “clearly required jurors to find that Lischewski entered into an unlawful agreement to fix prices, while providing that a ‘mere similarity of conduct among various persons’ or ‘common aims and interests’ was not sufficient,” the panel wrote, undercutting Lischewski’s argument that “mere knowledge of a conspiracy without participation” was insufficient grounds for conviction.

Lischewski also challenged Chen’s admittance of emails written by former Tri-Marine CEO Renato Curto and by former StarKist executives, but the appellate panel ruled both were admissible.

“Even if the two emails were improperly admitted or the limiting instructions on the second email insufficient, any error was harmless given the overwhelming evidence that Lischewski participated in a price-fixing conspiracy,” it said.

As he did in an interview with SeafoodSource in July 2020, Lischewski also argued against the application of the Sheman Antitrust Act’s per se rule in his case.

“Under the per se rule, any act of price-fixing is defined as unreasonable and the government only needs to show the existence of an agreement to obtain a conviction. They do not have to show that the price-fixing agreement was ever put into place, that it was effective, or that there was any harm to consumers,” Lischewski said. “We believe the per se rule violates the Fifth Amendment and Sixth Amendment of the U.S. Constitution and it should be up to the jury – not the court – to make the determination of what is unreasonable.”

But the appeals panel found that Chen “did not abuse its discretion in instructing the jury on the per se rule or prohibiting Lischewski from offering evidence about the supposed reasonableness of his price-fixing conspiracy."

Lischewski said in his appeal he is considering further challenging the use of the per se rule in his case, potentially in an appeal to the U.S. Supreme Court.

Image courtesy of the U.S. Ninth Circuit Court of Appeals


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