A. Scope of Agreement: The Information to be filed in this case charges the defendant, Randall Lee Rahal ("Rahal"), with conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d); money laundering in violation of 18 U.S.C. § 1957; and participating in, and aiding and abetting a conspiracy to suppress and eliminate competition by allocating contracts, fixing prices, and rigging bids in unreasonable restraint of interstate trade and commerce, in violation of the Sherman Act, 15 U.S.C. § 1, and 18 U.S.C. § 2. This document contains the complete Plea and Cooperation Agreement between the United States Attorney's Office for the Eastern District of California and the United States Department of Justice, Antitrust Division (the "government"), and the defendant regarding this case. This Plea and Cooperation Agreement is limited to the United States Attorney's Office for the Eastern District of California and the United States Department of Justice, Antitrust Division, and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities.
B. Court Not a Party: The Court is not a party to this Plea and Cooperation Agreement. Sentencing is a matter solely within the discretion of the Court, the Court is under no obligation to accept any recommendations made by the government, and the Court may in its discretion impose any sentence it deems appropriate up to and including the statutory maximum stated in this Plea and Cooperation Agreement. If the Court should impose any sentence up to the maximum established by the statute, the defendant cannot, for that reason alone, withdraw his guilty plea, and he will remain bound to fulfill all of the obligations under this Plea and Cooperation Agreement. The defendant understands that neither the prosecutor, defense counsel, nor the Court can make a binding prediction or promise regarding the sentence he will receive.
A. Waiver of Indictment and Guilty Plea: The defendant will waive indictment by grand jury, waive venue, and plead guilty to a three-count Information, substantially in the form attached hereto as Exhibit B, charging him with conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d); money laundering in violation of 18 U.S.C. § 1957; and price fixing in violation of 15 U.S.C. § 1. The defendant agrees that he is in fact guilty of those charges and that the facts set forth in the Factual Basis attached hereto as Exhibit A are true and accurate.
B. Restitution: The Mandatory Victim Restitution Act requires the Court to order restitution to the victims of certain offenses. If such restitution is ordered, payment should be by cashier's or certified check made payable to the Clerk of the Court. The defendant understands that this Plea and Cooperation Agreement is voidable by the government if he fails to pay the restitution as ordered by the Court. Defendant further agrees that he will not seek to discharge any restitution obligation or any part of such obligation in any bankruptcy proceeding.
C. Special Assessment: The defendant agrees to pay a special assessment of $300 at the time of sentencing by delivering a check or money order payable to the United States District Court to the United States Probation Office immediately before the sentencing hearing.
D. Agreement to Cooperate: The defendant agrees to cooperate fully with the government and any other federal, state, or local law enforcement agency, as directed by the government. As used in this Agreement, "cooperation" requires the defendant: (1) to respond truthfully and completely to all questions, whether in interviews, in correspondence, telephone conversations, before a grand jury, or at any trial or other court proceeding; (2) to attend all meetings, grand jury sessions, trials, and other proceedings at which the defendant's presence is requested by the government or compelled by subpoena or court order; (3) to produce voluntarily any and all documents, records, or other tangible evidence requested by the government; (4) not to participate in any criminal activity while cooperating with the government; and (5) to disclose to the government the existence and status of all money, property, or assets, of any kind, derived from or acquired as a result of, or used to facilitate the commission of, the defendant's illegal activities or the illegal activities of any conspirators.
If the defendant commits any crimes or if any of the defendant's statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein. The determination whether the defendant has violated the Plea and Cooperation Agreement will be under a preponderance of the evidence standard. If the defendant violates the Plea and Cooperation Agreement, he shall thereafter be subject to prosecution for any federal criminal violation of which the government has knowledge, including but not limited to perjury, false statements, and obstruction of justice. Because disclosures pursuant to this Agreement will constitute a waiver of the Fifth Amendment privilege against compulsory self-incrimination, any such prosecution may be premised on statements and/or information provided by the defendant. Moreover, any prosecutions that are not time-barred by the applicable statute of limitations as of the date of this Agreement may be commenced in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of any such prosecutions. The defendant agrees to waive all defenses based on the statute of limitations or delay of prosecution with respect to any prosecutions that are not time- barred as of the date of this Agreement.
If it is determined that the defendant has violated any provision of this Agreement or if the defendant successfully moves to withdraw his plea: (1) all statements made by the defendant to the government or other designated law enforcement agents, or any testimony given by the defendant before a grand jury or other tribunal, whether before or after this Agreement, shall be admissible in evidence in any criminal, civil, or administrative proceedings hereafter brought against the defendant; and (2) the defendant shall assert no claim under the United States Constitution, any statute, Rule 11(f) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, or any other federal rule, that statements made by the defendant before or after this Agreement, or any leads derived therefrom, should be suppressed. By signing this Agreement, the defendant waives any and all rights in the foregoing respects.
E. Civil Forfeiture: The defendant agrees to sign a Stipulation for Final Judgment of Forfeiture in the pending civil action, U.S. v. Approximately $415,000.00 in U.S. Currency seized from Sun National Bank, et al., 2:08-CV-01899-GEB-GGH, forfeiting to the United States all of his and Intramark USA, Inc.'s ("Intramark") right, title, and interest in the defendant funds. This stipulation must be signed at least seven days prior to sentencing.
F. Payment of Fine: The defendant agrees to pay a criminal fine if so ordered. The government's recommendation with respect to any such criminal fine is set forth in Section III.D of this Plea and Cooperation Agreement.
A. Incarceration Range: The government will recommend that the defendant be sentenced to the bottom of the applicable guideline range for his offense as determined by the United States Probation Office.
B. Acceptance of Responsibility: The government agrees that a three-level reduction in defendant's offense level for his full and clear demonstration of acceptance of responsibility is appropriate under U.S.S.G. § 3E1.1, will not oppose such a reduction and will so move under § 3E1.1(b), so long as the defendant pleads guilty, meets with and assists the probation officer in the preparation of the pre-sentence report, is truthful and candid with the probation officer and the Court, and does not otherwise engage in conduct that constitutes obstruction of justice within the meaning of U.S.S.G. § 3C1.1, either in the preparation of the pre-sentence report or during the sentencing proceeding.
C. Reduction of Sentence for Cooperation: The government agrees to recommend at the time of sentencing that the defendant's sentence of imprisonment be reduced to reflect his substantial assistance to the government in the investigation and prosecution of others, pursuant to U.S.S.G. § 5K1.1. The defendant understands that he must comply with paragraph II(D) of this Plea and Cooperation Agreement. The defendant understands that the government's recommended reduction in his sentence will depend upon the level of assistance the government determines that the defendant has provided. The defendant further understands that a motion pursuant to U.S.S.G. § 5K1.1 is only a recommendation and is not binding on the Court.
Other than as set forth above, the government agrees that any incriminating information provided by the defendant during his cooperation will not be used in determining the applicable guideline range in his case, pursuant to U.S.S.G. § 1B1.8.
D. Fine: The government agrees to recommend that any criminal fine imposed on the defendant be no higher than the midpoint of the applicable fine range, given the defendant's offense level and sentencing range.
E. Other Considerations: To the extent the defendant enters a guilty plea and is sentenced on Counts One, Two and Three of the Information to be filed in this matter, the government, to include the United States Attorney's Office for the District of New Jersey, will not initiate any further criminal charges against the defendant arising out of the same facts and circumstances as the instant charges.
Fifth, the defendant joined in the illegal agreement referenced above, knowing of its object and intending to help accomplish it.
Fifth, that the transaction occurred in the United States.
Third, that the conspiracy was in or affected interstate commerce in the United States.
A. Maximum Penalty: With respect to Count One of the Information to be filed in this matter, which charges the defendant with conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d), the maximum sentence that the Court can impose is twenty years of incarceration; a fine of $250,000 or twice the gross gain or gross loss resulting from the offense, whichever is greatest; a three-year period of supervised release; and a special assessment of $100.
With respect to Count Two of the Information to be filed in this matter which charges the defendant with money laundering in violation of 18 U.S.C. § 1957, the maximum sentence that the Court can impose is ten years of incarceration, a fine of $250,000 or twice the amount of the criminally derived property involved in the transaction, a three-year period of supervised release, and a special assessment of $100.
With respect to Count Three of the Information to be filed in this matter, which charges the defendant with price fixing in violation of 15 U.S.C. § 1 and aiding and abetting in violation of 18 U.S.C. § 2, the maximum sentence the Court can impose is ten years incarceration; a fine in an amount equal to the greatest of (1) $1,000,000, (2) twice the gross pecuniary gain the conspirators derived from the crime, or (3) twice the gross pecuniary loss caused to the victims of the crime by the conspirators; a three-year period of supervised release; and a special assessment of $100.
B. Violations of Supervised Release: The defendant understands that if he violates a condition of supervised release at any time during the term of supervised release, the Court may revoke the term of supervised release and require the defendant to serve up to two additional years of imprisonment.
A. Statutory Authority: The defendant understands that the Court must consult the Federal Sentencing Guidelines (as promulgated by the Sentencing Commission pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998, and as modified by United States v. Booker and United States v. Fanfan. 543 U.S. 220, 125 S.Ct. 738 (2005)) and must take them into account when determining a final sentence. The defendant understands that the Court will determine a non-binding and advisory guideline sentencing range for this case pursuant to the Sentencing Guidelines. The defendant further understands that the Court will consider whether there is a basis for departure from the guideline sentencing range (either above or below the guideline sentencing range) because there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. The defendant further understands that the Court, after consultation and consideration of the Sentencing Guidelines, must impose a sentence that is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).
with respect to the charge of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d), pursuant to U.S.S.G. § 2E1.1 the defendant's base offense level is the greater of 19 or the offense level applicable to the underlying racketeering activity. In this instance, the guidelines sections applicable to the underlying racketeering activity committed by the defendant are U.S.S.G. §§ 2B4.1 and 2B1.1. Because the guidelines section resulting in the highest offense level is § 2B4.1, and loss amounts under §§ 2B4.1 and 2B1.1 group, the offense level for the underlying racketeering activity is determined under § 2B4.1.
Base Offense Level Under § 2B4.1: Pursuant to § 2B4.1, the base offense level is 8.
Specific Offense Characteristics: Pursuant to § 2B4.1(b)(1), the parties agree that at an evidentiary hearing the government is currently in a position to prove that the amount of loss attributable to the commercial bribery and honest services fraud committed by the defendant, and relevant conduct, and the loss attributable to the mail fraud, is greater than $400,000, but less than $1,000,000. Consequently, the base offense level is increased by 14.
Adjusted Offense Level Under § 2B4.1: As a result of the foregoing stipulations, the adjusted offense level applicable to the underlying racketeering activity related to the defendant's commercial bribery and honest services fraud, and mail fraud is 22.
As a result of the foregoing stipulations, the adjusted offense level for the racketeering conspiracy count is a level 22.
Pursuant to U.S.S.G. § 2S1.1(a)(1) the defendant's base offense level with respect to the money laundering charge is 22, since that is the offense level for the underlying offense from which the laundered funds were derived.
Pursuant to U.S.S.G. § 2S1.1(b)(2)(A), because the defendant is pleading guilty to conduct criminalized by 18 U.S.C. § 1957, the base offense level is increased by 1 level.
As a result of the foregoing stipulations, the adjusted offense level for the money laundering count is 23.
Pursuant to U.S.S.G. § 2R1.1(a) the defendant's base offense level with respect to Count Three is 12.
Because the defendant's conduct involved participation in an agreement to submit non-competitive bids, the base offense level is increased by 1 level pursuant to U.S.S.G. § 2R1.1(b)(1). Pursuant to U.S.S.G. § 2R1.1(b)(2), because the volume of commerce attributable to the defendant is greater than $10,000,000, but less than $40,000,000, the base offense level is increased by an additional 4 levels.
As a result of the foregoing stipulations, the adjusted offense level with respect to Count Three is 17.
Pursuant to U.S.S.G. § 3D1.2(d), the offenses covered in Counts One through Three of the Information to be filed in this case merge for grouping purposes, resulting in an offense level of 23.
Because the defendant served as a manager or supervisor with respect to the criminal activity charged, and that activity involved five or more participants and was otherwise extensive, defendant's offense level is increased by 3 levels.
Pursuant to the foregoing stipulations, defendant's total offense level is 26.
Pursuant to § 3E1.1 and as described in more detail in paragraph III(B) above, the defendant's total offense level is decreased by three levels because of his acceptance of responsibility. The Adjusted Total Offense Level is therefore 23.
The parties agree that the defendant's criminal history is to be determined by United States Probation.
The parties stipulate and agree that they will not seek or argue in support of any other specific offense characteristics, Chapter Three adjustments or cross-references, other than those contemplated in the foregoing stipulations. Both parties stipulate and agree not to move for, or argue in support of, any departure from the Sentencing Guidelines, or any deviance or variance from the Sentencing Guidelines under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), except: (1) pursuant to U.S.S.G. § 5K1.1; and (2) to account for the defendant's health condition at the time of sentencing. If either party breaches this provision, the other party shall be relieved of all of its obligations under this Plea and Cooperation Agreement.
A. Waiver of Constitutional Rights: The defendant understands that by pleading guilty he is waiving the following constitutional rights: (a) to plead not guilty and to persist in that plea if already made; (b) to be tried by a jury; (c) to be assisted at trial by an attorney, who would be appointed if necessary; (d) to subpoena witnesses to testify on his behalf; (e) to confront and cross- examine witnesses against him; and (f) not to be compelled to incriminate himself.
B. Waiver of Appeal and Collateral Attack: The defendant understands that the law gives him a right to appeal his conviction and sentence. He agrees as part of his plea, however, to give up the right to appeal the conviction and the right to appeal any aspect of the sentence imposed in this case so long as his sentence is no longer than the top of the Sentencing Guidelines range determined by the Court consistent with the stipulations set forth above about the Sentencing Guidelines variables.
Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.
If the defendant ever attempts to vacate his plea, dismiss the underlying charges, or reduce or set aside his sentence on any of the counts to which he is pleading guilty, the government shall have the right (1) to prosecute the defendant on any of the counts to which he pleaded guilty; (2) to reinstate any counts that may be dismissed pursuant to this Plea and Cooperation Agreement; and (3) to file any new charges that would otherwise be barred by this Plea and Cooperation Agreement. The decision to pursue any or all of these options is solely in the discretion of the United States Attorney's Office. By signing this Plea and Cooperation Agreement, the defendant agrees to waive any objections, motions, and defenses he might have to the government's decision. In particular, he agrees not to raise any objections based on the passage of time with respect to such counts including, but not limited to, any statutes of limitation or any objections based on the Speedy Trial Act or the Speedy Trial Clause of the Sixth Amendment.
C. Waiver of Attorneys' Fees and Costs: The defendant agrees to waive all rights under the "Hyde Amendment," Section 617, P.L. 105-119 (Nov. 26, 1997), to recover attorneys' fees or other litigation expenses in connection with the investigation and prosecution of all charges in the above-captioned matter and of any related allegations.
Other than this Plea and Cooperation Agreement, no agreement, understanding, promise, or condition between the government and the defendant exists, nor will such agreement, understanding, promise, or condition exist unless it is committed to writing and signed by the defendant, counsel for the defendant, and counsel for the United States.
A. Defense Counsel: I have read this Plea and Cooperation Agreement and have discussed it fully with my client. The Plea and Cooperation Agreement accurately and completely sets forth the entirety of the agreement, and I have no reason to believe that my client's plea of guilty should not be entered.
B. Defendant: I have read this Plea and Cooperation Agreement and carefully reviewed every part of it with my attorney. I understand it, and I voluntarily agree to it. Further, I have consulted with my attorney and fully understand my rights with respect to the provisions of the Sentencing Guidelines that may apply to my case. No other promises or inducements have been made to me, other than those contained in this Plea and Cooperation Agreement. In addition, no one has threatened or forced me in any way to enter into this Plea and Cooperation Agreement. Finally, I am satisfied with the representation of my attorney in this case.
C. Attorney for United States: I accept and agree to this Plea and Cooperation Agreement on behalf of the government.
Since 1990, Randall Rahal ("Rahal") has served as the president of Intramark USA, Inc. ("Intramark"), a New Jersey based company that holds itself out as a wholesaler of food ingredients, including tomato products, and an importer of juice concentrates. Since at least 1993 until April 2008, Rahal was an agent of, a partner of, or was associated with SK Foods, L.P., a limited partnership with principal places of business in Monterey, California, and Williams, Ripon, and Lemoore, California, in the Eastern District of California. SK Foods, L.P., and its related corporate entities ("SK Foods") is a grower and processor of tomato products and other food products, for sale to food product manufacturers, food service distributors and marketers, and retail outlets. Rahal acted as a kind of advisor and supervisor for SK Foods, giving direction to and receiving periodic reports regarding various aspects of SK Foods' business from SK Foods employees. Since at least 2004 until April 2008, Rahal formally served on SK Foods' board of directors. SK Foods, including Rahal and other of its leaders, employees and associates, constituted an enterprise as defined in Title 18, United States Code, Section 1961(4), that is a legal entity that was engaged in, and whose activities affected, interstate and foreign commerce.
Through Intramark, Rahal served as a broker for SK Foods. In that capacity, Rahal oversaw among other things the negotiation of contracts between SK Foods and many of its customers, such as Kraft Foods, Inc. ("Kraft"), ConAgra Foods, Inc. ("ConAgra"), B&G Foods, Inc. ("B&G") and Frito-Lay, Inc. ("Frito-Lay").
Beginning no later than January 2004 and continuing until at least April 2008, there was an agreement between Rahal and other leaders, employees and associates of SK Foods to conduct SK Foods' business and affairs through a pattern of racketeering activity in the Eastern District of California and elsewhere. Specifically, Rahal, on behalf of SK Foods, routinely paid bribes to the purchasing agents of many of SK Foods' customers in order to ensure that those customers purchased tomato-based products, and other products, from SK Foods rather than from its competitors. In other instances, Rahal paid bribes to purchasing agents so that those agents would provide bidding and other proprietary information from SK Foods' competitors. Between January 2004 and April 2008, Rahal, with the knowledge, and in some instances at the direction of certain leaders of SK Foods, paid bribes in this fashion to certain purchasing agents of, among others, Kraft, B&G and Frito-Lay, in violation of applicable state bribery laws, and 18 U.S.C. §§ 1341, 1343 and 1346.
In addition to the bribery of its customers' purchasing agents, between January 2004 and April 2008, SK Foods, with the assistance of Rahal, constructed and transmitted to its customers fraudulent financial and business information with the goal of inducing those customers to do business with, and release funds to SK Foods. For example, as part of a scheme to defraud ConAgra in June 2007, Rahal arranged for SK Foods to fabricate and backdate an invoice between SK Foods and Hatch Foods ("Hatch"), a ConAgra competitor (without Hatch's knowledge), which reflected a false and inflated price paid by Hatch for tomato product from SK Foods. The fraudulent invoice, which falsely reflected that SK Foods was charging Hatch for canned tomato product at a rate 39% higher than it actually was, was transmitted to ConAgra in an effort to ensure ConAgra signed a three-year contract for tomato paste with SK Foods, at a price of approximately $74,570,000.
Furthermore, between 2004 and April 2008, SK Foods, with the assistance of Rahal, knowingly and routinely sold processed tomato product to customers that did not meet customer specifications and falsified both internal documentation, and customer-bound product labels, quality control documents, bills of lading, and "Certificates of Analysis" ("COA"), in order to make it appear as if the processed tomato product shipped to customers was compliant with contract requirements. SK Foods' falsification of documentation involved various misstatements to its customers concerning both the quality and content of the product. This practice of providing customers with noncompliant and mis-marked product was done with knowledge and at the direction of Rahal and other leaders of SK Foods, and was in violation of 18 U.S.C. § 1341.
Racketeering Act #l: Honest Services Mail Fraud and Commercial Bribery with Respect to B&G Foods. Inc.
B&G is a multinational manufacturer, seller and distributor of various food products with a principal place of business in Parsippany, New Jersey. B&G is a regular customer of SK Foods with respect to tomato-based products, and other products. Between January 2004 and April 2008, Bribe Recipient #1 served as a purchasing manager at B&G, working out of the company's Parsippany, New Jersey headquarters. In that capacity, Bribe Recipient #1 was vested with the authority to negotiate and enter into contracts, with the approval of his employer, for the purchase of certain food products from processors, such as SK Foods. In performing these functions, Bribe Recipient #1 owed a duty of honest services to B&G.
In May 2007, SK Foods and B&G entered into a "cost-plus" contract whereby SK Foods agreed to sell B&G 13,000,000 pounds of chile and jalapeno peppers at a price of $0.22 per pound. Subsequent to entering into the agreement, and at the direction of another leader of SK Foods, Rahal and Bribe Recipient #1 agreed to increase the price per pound that B&G would pay SK Foods under the agreement. Rahal and another leader of SK Foods further agreed that they would provide Bribe Recipient #1 with a fictitious justification for the increased contract price, namely that SK Foods was experiencing increased agricultural costs in connection with the peppers, and that Bribe Recipient #1 would provide this justification to his employers.
As a result of Rahal, the other leader of SK Foods, and Bribe Recipient #1's actions, the contract price for the sale of the first 6,500,000 pounds of peppers to B&G was increased to $0.25 per pound. The contract price for the remaining 6,500,000 pounds of peppers was increased to $0.285 per pound.
In exchange for his efforts in helping to secure the pepper contract between SK Foods and B&G, as well as its price, Rahal promised Bribe Recipient #1 a personal bribe payment in the approximate amount of $65,000 - equating to $.005 per pound on the entire contract. On July 12, 2007, in an intercepted wire communication, Rahal confirmed the amount of the bribe payment with Bribe Recipient #1.
On or about December 12, 2007, Rahal directed a check in the amount of $9,689.80 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #1's wife, via United states mail, in partial satisfaction of the agreed to bribe payment. Between January 2004 and April 2008, Bribe Recipient #1 received at least $14,698.80 in bribe payments from Rahal. One such additional bribe payment occurred on or about July 11, 2007. On that date, Rahal directed a check in the amount of $2,000 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #1's wife, via United States mail. Assisted by Rahal, Bribe Recipient #1's actions violated a duty of fidelity owed to B&G, which is outlined in Section 2 of B&G Foods, Inc.'s Code of Business Conduct and Ethics. Such conduct violated 18 U.S.C. §§ 1341 and 1346, and N.J. Stat. Ann. § 2C:21-10.
Kraft is a multinational food company with a principal place of business in Northfield, Illinois. Kraft is a regular customer of SK Foods with respect to tomato paste and other tomato-based products. From at least January 2004 until April 2008, Bribe Recipient #2 served as a purchasing manager for Kraft, working out of the company's Northfield, Illinois headquarters. In that capacity, Bribe Recipient #2 was vested with the authority to negotiate and enter into contracts, with the approval of his employer, for the purchase of certain food products from various processors, such as SK Foods. In performing these functions, Bribe Recipient #2 owed a duty of honest services to Kraft.
In the normal course, Kraft and Bribe Recipient #2 received bids for the sale of tomato-based products from processors to Kraft by way of what was intended to be a secret and competitive bidding process. As part of a scheme to defraud Kraft of its right to Bribe Recipient #2's honest services and to secure contracts with Kraft for the Bale of tomato products at elevated prices, beginning in 2004 Rahal began making bribe payments to Bribe Recipient #2 on behalf of SK Foods.
As part of the scheme to defraud Kraft, between January 2004 and April 2008, Rahal paid Bribe Recipient #2 approximately $158,000 in bribes on behalf of SK Foods in order secure Kraft's business, and to induce Bribe Recipient #2 to provide SK Foods with certain proprietary information of SK Foods' competitors. These bribe payments were made with the knowledge and encouragement of other leaders and employees of SK Foods. For example, in a recorded telephone conversation on April 14, 2008, another leader of SK Foods and Rahal discussed how Rahal had just made personal bribe payments to Bribe Recipient #2 totaling $24,000. Later in that same conversation, the other leader of SK Foods expressed concern to Rahal that SK Foods was not getting a maximum value for its bribes to Bribe Recipient #2.
One such payment occurred on or about January 19, 2006. On that date, Rahal directed a check in the amount of $10,000.00 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #2 in Wheeling, Illinois, via United States mail. On July 25, 2007, Rahal subsequently directed a second check in the amount of $17,252.78 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #2, via United States mail.
As a result of Rahal's bribe payments to Bribe Recipient #2, between 2004 and 2008 SK Foods was able to secure contracts for the sale of approximately 230 million pounds of tomato product to Kraft at elevated prices, causing a substantial loss to Kraft Foods.
Rahal and Bribe Recipient #2's actions were in direct contravention of the conflict of interest policies set forth in Kraft Foods Code of Conduct for Compliance and Integrity, and were intended to, and did deprive Kraft of its right to Bribe Recipient #2's honest services. Such conduct violated 18 U.S.C. §§ 1341 and 1346.
Frito-Lay is a multinational food company with a principal place of business in Piano, Texas. Frito-Lay is a regular customer of SK Foods with respect to tomato-based products, and various other food products. From at least January 2004 until April 2008, Bribe Recipient #3 served as a purchasing manager for Frito-Lay, working out of the company's Piano, Texas headquarters. In that capacity, Bribe Recipient #3 was vested with the authority to negotiate and enter into contracts, with the approval of his employer, for the purchase of certain food products from various processors, such as SK Foods. In performing these functions, Bribe Recipient #3 owed a duty of honest services to Frito-Lay.
In the normal course, Frito-Lay and Bribe Recipient #3 received bids for the sale of tomato-based products from processors to Frito-Lay by way of what was intended to be a competitive bidding process. As part of a scheme to defraud Frito-Lay of its right to Bribe Recipient #3's honest services and to secure contracts with Frito-Lay for the sale of tomato products at elevated prices, beginning in 1998, Rahal began making bribe payments to Bribe Recipient #3 on behalf of SK Foods.
As part of the scheme to defraud Frito-Lay, between January 2004 and April 2008, Rahal with the knowledge and encouragement of other leaders and employees of SK Foods, paid approximately $81,000 in bribes on behalf of SK Foods in order secure Frito-Lay's business. One such payment occurred on or about September 7, 2006. On that date Rahal directed a check in the amount of $4,000.00 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #3 in Dallas, Texas, via United States mail. On March 26, 2008, Rahal subsequently directed a check in the amount of $5,722.94 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #3 in Dallas, Texas, via United States mail.
As a result of Rahal's bribe payments to Bribe Recipient #3, between 2004 and 2008, SK Foods was able to secure contracts for the sale of tomato and other food products to Frito-Lay at elevated prices, causing a substantial loss to Frito-Lay.
Rahal and Bribe Recipient #3's actions were in direct contravention of the conflict of interest policies set forth in Frito-Lay's Code of Conduct, and were intended to, and did deprive Frito-Lay of its right to Bribe Recipient #3's honest services. Such conduct violated 18 U.S.C. §§ 1341 and 1346, and Tex. Penal Code § 32.43.
The market price of processed tomato product is based in large part on the percentage of Natural Tomato Soluble Solids (NTSS) that the product contains. In the normal course, processed tomato product with a higher concentration of tomato solids costs more on the open market than tomato product with a lesser concentration. Customers frequently specify an NTSS concentration in their contracts with manufacturers such as SK Foods. Customers will also often specify acceptable levels of other tomato product characteristics such as the product's pH, mold content, acidity and viscosity.
During 2007, SK Foods experienced a period during which it was unable to produce an adequate supply of processed tomato paste containing 31% NTSS (Natural Tomato Soluble Solids) in order to meet its contractual obligations to certain customers, including Kraft. In an attempt to alleviate the shortage, a leader of SK Foods contacted a competing manufacturer of processed tomato products in February 2007, and arranged to purchase approximately 3,400,000 pounds of processed tomato product containing lower NTSS concentrations of 26% and 28%.
As the product purchased from the competitor did not meet the specifications contained in certain of SK Foods' existing contracts, in order to conceal the inferior quality of the product, and as part of a scheme to defraud Kraft, Rahal and another leader of SK Foods directed certain SK Foods employees to falsify both internal and customer-bound documentation so that it incorrectly reflected the product as containing 31% NTSS tomato paste. The same documentation was also altered so that it reflected a significantly lower mold content than what the product actually contained. The processed tomato product and the accompanying altered documentation were ultimately shipped, during the spring of 2007, via interstate carrier from SK Foods' facilities in the Eastern District of California to Kraft's facilities in other states. One such shipment occurred on or about April 12, 2007. On that date, SK Foods shipped tomato product, accompanied by among other things, a bill of lading, which falsely identified the shipment as containing 31% NTSS tomato paste, from its facilities in the Eastern District of California to Kraft in Darien, Wisconsin. A copy of the falsified bill of lading was also transmitted on or about April 12, 2007, via United States mail, to a separate Kraft address in San Antonio, Texas. Copies of the altered documentation were provided to Rahal and Intramark, via facsimile, in the District of New Jersey. At the time it was shipped, Rahal and executives at SK Foods knew the documentation was false with respect to the processed tomato product's NTSS level, a fact that was material to Kraft's decision to pay SK Foods for the product.
As a result of SK Foods' scheme to defraud, Kraft unknowingly paid approximately 11% and 12% above market rate for the 28% and 26% NTSS processed tomato product, respectively, causing a loss to Kraft in the approximate amount of $136,020.
On or about April 16, 2007, Rahal transmitted check number 7760 in the amount of $12,896.00 from Intramark's Sun National Bank account number XXXXXX5624 to Bribe Recipient #2 in Wheeling, Illinois, which was received, via United States mail. As Rahal well knew at the time of its transmission, the check represented the proceeds of acts otherwise indictable under Title 18, United States Code, Sections 1341 and 1346, specifically Rahal's and SK Foods' scheme to defraud Kraft of its right to Bribe Recipient #2's honest services with respect to the awarding of contracts for the purchase of tomato-based products. The issuance of the check on Intramark's Sun National Bank account constituted a violation of 18 U.S.C. § 1957.
Beginning at least as early as February 2006 and continuing until approximately April 2008, Rahal participated in and aided and abetted a conspiracy to fix prices, allocate contracts, and rig bids for processed tomato products, including tomato paste and diced tomatoes. The primary purpose of this conspiracy was to eliminate competition and fix the price of processed tomato products sold in the United States. During the relevant time, Rahal was the owner and president of Intramark USA Inc., a broker selling processed tomato products for itself and on behalf of others. Rahal and his co-conspirators reached agreement to fix the prices to be charged to customers in the United States for processed tomato products in the Eastern District of California and elsewhere. To carry out their agreements, Rahal and his co-conspirators submitted artificially inflated bids and price quotations. Rahal also acted to assist in enforcing the agreements, by obtaining and distributing information about prices offered by co-conspirators and competitors to the subject customers. In at least one instance, a co-conspirator withdrew a quote that did not comply with agreed-to prices after being confronted with information obtained by Rahal from the customer.
During the relevant period, processed tomato products sold by one or more of the conspirators, as well as payment for such products, traveled in interstate commerce. The business activities of the defendant and co-conspirators were within the flow of, and substantially affected, interstate trade and commerce.


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20180133727 NOZZLE ARRANGEMENT FOR A SPRAY GUN 2018-05-17 Schmon et al.
20150231655 Airless Adhesive Spray Gun and Method of Use 2015-08-20 Adams et al.
9073068 Slotted nozzle 2015-07-07 Krayer et al.
8899501 Spray gun with paint cartridge 2014-12-02 Fox et al.
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20140145003 COLOR APPLICATION SYSTEM AND METHOD FOR OPERATING THE SAME 2014-05-29 Schmon et al.
20140048627 EASY-TO-CLEAN SPRAY GUN, ACCESSORIES THEREFOR, AND MOUNTING AND DISMOUNTING METHODS 2014-02-20 Schmon et al.
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20130320110 SPRAY GUN AND ACCESSORIES 2013-12-05 Brose et al.
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20130266734 DEFLECTING AIR RING AND CORRESPONDING COATING PROCESS 2013-10-10 Nolte et al.
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20130074864 AIRBRUSH 2013-03-28 Nuzzo et al.
20130056556 NOZZLE HEAD FOR A SPRAY DEVICE 2013-03-07 Schmon et al.
20120187220 HIGH SWIRL AIR CAP 2012-07-26 Micheli et al.
20120160935 SLOTTED NOZZLE 2012-06-28 Krayer et al.
20120132550 LIQUID CONTAINER SYSTEM FOR A SPRAY GUN 2012-05-31 Gerson et al.
20120097762 PAINT SPRAY GUN 2012-04-26 Gehrung et al.
8127963 Liquid container system for a spray gun 2012-03-06 Gerson et al.
20120012671 SPRAY GUN WITH PRESSURE MEASURING DEVICE 2012-01-19 Brose et al.
8042402 Modular sensor assembly 2011-10-25 Brown et al.
20110174901 GRAVITY CUP FOR A PAINT SPRAYER 2011-07-21 Dettlaff et al.
20110168811 Spray Gun With Paint Cartridge 2011-07-14 Fox et al.
20110127767 Releasable Connection Assembly for Joining Tubing Sections 2011-06-02 Wicks et al.
20110121103 SPRAYER FOR A FLUID DELIVERY SYSTEM 2011-05-26 Carleton et al.
D627432 Nozzle collar 2010-11-16 Escoto et al.
7819341 Paint reservoir system for a paint spray gun 2010-10-26 Schmon et al.
7810744 Fluid reservoir for a paint spray gun 2010-10-12 Schmon et al.
D616527 Spray gun 2010-05-25 Anderson et al.
20100108783 SPRAYGUN WITH BUILT-IN QUICK-FIT CONNECTOR 2010-05-06 Joseph et al.
7694896 Liquid reservoir, spray assembly, and method of using same 2010-04-13 Turnbull et al.
7694893 Plural component spray gun for fast setting materials 2010-04-13 Zittel et al.
20100059533 LABELS, CONTAINERS, SYSTEM AND METHOD FOR PROVIDING REAGENTS 2010-03-11 Unger et al.
20100021646 DEFLECTING AIR RING AND CORRESPONDING COATING PROCESS 2010-01-28 Nolte et al.
D608858 Coating material dispensing device 2010-01-26 Baltz et al.
7614571 Disposable cup to be set up on a spray gun for preparing, applying and preserving a paint 2009-11-10 Camilleri et al.
20090235864 CONTROL SYSTEM FOR CAN COATING 2009-09-24 Khoury et al.
20090183516 INSPECTION PORT 2009-07-23 Appler et al.
20090143745 SAFETY DEVICE FOR DRUG DELIVERY DEVICES AND CONTAINERS 2009-06-04 Langan et al.
7540434 Spray gun 2009-06-02 Gohring et al.
20090078790 DISPOSABLE CUP TO BE SET UP ON A SPRAY GUN FOR PREPARING, APPLYING AND PRESERVING A PAINT 2009-03-26 Camilleri et al.
20090014557 Flow Reservoir for a Paint Spray Gun 2009-01-15 Schmon et al.
20080296410 One piece airless spray gun housing 2008-12-04 Carey et al.
D581483 Spray gun 2008-11-25 Bass et al.
20080251977 METHOD FOR MANUFACTURING HONEYCOMB STRUCTURE 2008-10-16 Naruse et al.
7416140 Disposable cup to be set up on a spray gun for preparing, applying and preserving a paint 2008-08-26 Camilleri et al.
7410106 Pressurized liquid supply assembly 2008-08-12 Escoto, Jr. et al.
20080179763 Paint Reservoir System For A Paint Spray Gun 2008-07-31 Schmon et al.
D573227 Texture spray gun 2008-07-15 Mirazita et al.
7374111 Apparatus for spraying liquids, and disposable containers and liners suitable for use therewith 2008-05-20 Joseph et al.
20080029619 Spray gun 2008-02-07 Gohring et al.
20080019789 TRACK FITTING FOR A CARGO SECURITY SYSTEM 2008-01-24 Dunaway et al.
20080011879 Liquid Supply Assembly 2008-01-17 Gerson et al.
7264131 Synthetic resin cap, closing device, and container-filled beverage 2007-09-04 Tsutsumi et al.
20070158349 Fluid reservoir for a paint spray gun 2007-07-12 Schmon et al.
D545943 Coating material dispensing device 2007-07-03 Rodgers et al.
20070131795 Device and method for mixing and dispensing fluid components of a multicomponent composition 2007-06-14 Abbate et al.
7201336 Liquid spray gun with non-circular horn air outlet passageways and apertures 2007-04-10 Blette et al.
7194829 Labeler for pipes, conduits, tubes, and rods 2007-03-27 Boire et al.
D538493 Wall vacuum 2007-03-13 Zimmerle et al.
7172139 Security clip for spray gun connector 2007-02-06 Bouic et al.
7165732 Adapter assembly for a fluid supply assembly 2007-01-23 Kosmyna et al.
20060196891 Liquid container system for a spray gun 2006-09-07 Gerson et al.
20060192377 Security label and method for the production thereof 2006-08-31 Bauer et al.
7090148 Mixing cup adapting assembly 2006-08-15 Petrie et al.
7083119 Security clip for spray gun connector 2006-08-01 Bouic et al.
20060113409 Disposable cup to be set up on a spray gun for preparing, applying and preserving a paint 2006-06-01 Camilleri et al.
7032839 Liquid spray gun with manually separable portions 2006-04-25 Blette et al.
20060048803 No contact spray apparatus cleaning device 2006-03-09 Jessup et al.
20060007123 Using size and shape of a physical object to manipulate output in an interactive display application 2006-01-12 Wilson et al.
20050248148 Mailing label having a signature section and method of using same 2005-11-10 Schenck et al.
6963331 Position information input apparatus and method 2005-11-08 Kobayashi et al.
6955180 Pipette washer 2005-10-18 Kocherlakota et al.
20050220943 System and method for portable infant feeding 2005-10-06 Abrams et al.
6945429 Disposable paint cup attachment system for gravity-feed paint sprayer 2005-09-20 Gosis et al.
6929019 Method for the production of a valve 2005-08-16 Weinmann et al.
20050145724 Liquid spray gun with manually separable portions 2005-07-07 Blette et al.
20050145723 Liquid spray gun with non-circular horn air outlet passageways and apertures 2005-07-07 Blette et al.
6877677 Paint spraying gun 2005-04-12 Schmon et al.
6874656 Vented closure 2005-04-05 Rohr et al.
6863920 Distributed control system for powder coating system 2005-03-08 Crum et al.
6855173 Use of absorbent materials to separate water from lipophilic fluid 2005-02-15 Ehrnsperger et al.
20040233223 Physical/digital input methodologies for spatial manipulations and entertainment 2004-11-25 Schkolne et al.
6820824 Apparatus for spraying liquids, disposable containers and liners suitable for use therewith 2004-11-23 Joseph et al.
6801211 Computer painting system with passive paint brush stylus 2004-10-05 Forsline et al.
20040191406 Distributed control system for powder coating system 2004-09-30 Crum et al.
6766763 Distributed control system for powder coating system 2004-07-27 Crum et al.
20040140373 Spraygun with built-in quick-fit connector 2004-07-22 Joseph et al.
6763964 One hand openable lid for beverage container 2004-07-20 Hurlbut et al.
6712292 Adjustable adapter for gravity-feed paint sprayer 2004-03-30 Gosis et al.
20040046051 Liquid storage, dispensing, mixing, application, system and method of use 2004-03-11 Santa Cruz et al.
6692118 Pierceable sealing element and ink reservoir with pierceable sealing element 2004-02-17 Michele et al.
D485685 Camouflage pattern for sheet material 2004-01-27 Zupkofska et al.
6675845 Package and method for controlled metered dose dispensing of a fluid product 2004-01-13 Volpenheim et al.
6661438 Display apparatus and portable information processing apparatus 2003-12-09 Shiraishi et al.
20030213857 Paint spraying gun 2003-11-20 Schmon et al.
20030209568 Conformable pouch reservoir for spray gun 2003-11-13 Douglas et al.
20030177979 Distributed control system for powder coating system 2003-09-25 Crum et al.
6595441 Mixing cup adapting assembly 2003-07-22 Petrie et al.
20030127046 Paint spray gun cleaner 2003-07-10 Zehner et al.
20030121476 Feeder bottles 2003-07-03 McIntyre et al.
6585173 Paint spray gun 2003-07-01 Schmon et al.
6554009 Device at washing apparatus for washing objects, preferably spray guns, with washing liquid, preferably a solvent 2003-04-29 Beijbom et al.
6553712 Insecticidal liquid bait station 2003-04-29 Majerowski et al.
6547884 Distributed control system for powder coating system 2003-04-15 Crum et al.
6543632 Feeder bottles 2003-04-08 McIntyre et al.
6540114 Dual tamper evident dispensing closure 2003-04-01 Popovich et al.
20030025000 Paint spray gun 2003-02-06 Schmon et al.
20020134861 Mixing cup adapting assembly 2002-09-26 Petrie et al.
6435426 Floating gasket plate for paint cup on spray gun 2002-08-20 Copp, Jr.
6402062 High-pressure spray nozzle 2002-06-11 Bending et al.
6402058 Aerosol spray gun 2002-06-11 Kaneko et al.
20010040192 Aerosol spray gun 2001-11-15 Kaneko et al.
D448451 Trigger sprayer 2001-09-25 Turnbull et al.
6250567 Apparatus and method for spraying single or multi-component material 2001-06-26 Lewis et al.
6132511 Distributed control system for powder coating system 2000-10-17 Crum et al.
6089607 Calendar and appointment journal 2000-07-18 Keeney et al.
6056213 Modular system for atomizing a liquid 2000-05-02 Ruta et al.
6017394 Distributed control system for powder coating system 2000-01-25 Crum et al.
6006930 Bottle finish and closure cap with double screw thread 1999-12-28 Dreyer et al.
5992763 Nozzle and method for enhancing fluid entrainment 1999-11-30 Smith et al.
5954268 Fluid delivery system 1999-09-21 Joshi et al.
5941461 Nozzle assembly and method for enhancing fluid entrainment 1999-08-24 Akin et al.
5884006 Rechargeable phase change material unit and food warming device 1999-03-16 Frohlich et al.
5843515 Distributed control system for powder coating system 1998-12-01 Crum et al.
D402820 Glass cleaning center for holding water and squeegees December, 1998 Morison et al.
5836517 Spray gun with fluid valve 1998-11-17 Burns et al.
5816501 Disposable paint container liner and method 1998-10-06 LoPresti et al.
5762228 Vented seal with rocking vent cover 1998-06-09 Morgan et al.
5755363 Device for dispensing a flowable mass stored under pressure in a container 1998-05-26 Gantner et al.
RE35769 Spray gun having trigger overtravel protection and maximum flow adjustment knob warning 1998-04-14 Grime et al.
5718767 Distributed control system for powder coating system 1998-02-17 Crum et al.
5704381 Enclosed spray gun and accessories cleaning apparatus 1998-01-06 Millan et al.
5662444 Fastener assembly with axially captivated washer 1997-09-02 Schmidt, Jr.
5655714 Pivotable syphon tube 1997-08-12 Kieffer et al.
5588562 Tamper evident resealable plastic closure 1996-12-31 Sander et al.
5582350 Hand held paint spray gun with top mounted paint cup 1996-12-10 Kosmyna et al.
5533674 Drying nozzle 1996-07-09 Feyrer et al.
5503439 Wedge bar locking mechanism for burial casket 1996-04-02 LaJeunesse et al.
D365952 Display January, 1996 Gagnon et al.
5456414 Suction feed nozzle assembly for HVLP spray gun 1995-10-10 Burns et al.
D353836 Document organizer December, 1994 Carvelli et al.
5367148 Counterfeit detection using ID numbers with at least one random portion 1994-11-22 Storch et al.
5344078 Nozzle assembly for HVLP spray gun 1994-09-06 Fritz et al.
5333908 Information management system 1994-08-02 Dorney et al.
5333506 Gauge for measuring the atomization air pressure in a paint spray gun 1994-08-02 Smith et al.
5325473 Apparatus and method for projection upon a three-dimensional object 1994-06-28 Monroe et al.
5289974 Spray gun having trigger overtravel protection and maximum flow adjustment knob warning 1994-03-01 Grime et al.
5249746 Low pressure paint atomizer-air spray gun 1993-10-05 Kaneko et al.
5236128 Spray gun with paint supply amount control 1993-08-17 Morita et al.
5190219 Automatic spray gun 1993-03-02 Copp, Jr.
5170941 Premixing-type spray gun 1992-12-15 Morita et al.
5165605 Low pressure air atomizing spray gun 1992-11-24 Morita et al.
5125391 Heat-retaining food service container 1992-06-30 Srivastava et al.
5090623 Paint spray gun 1992-02-25 Burns et al.
5042840 Refillable tank car for storing and transporting fluids 1991-08-27 Rieple et al.
D318877 Notebook August, 1991 Miranda et al.
5020700 Lid provided with a variable-flow pouring spout and with an improved vent device, particularly for cans of base color for automobile coachwork 1991-06-04 Krzywdziak et al.
4989787 Liquid spray gun accessories 1991-02-05 Nikkel et al.
D314421 Air spray gun February, 1991 Tajima et al.
4917300 Paint spray gun 1990-04-17 Gloviak et al.
4887747 Two-piece, snap-action closure 1989-12-19 Ostrowsky et al.
D298372 Spray cabinet washer for automotive machine parts, tools or the like November, 1988 Taylor, Jr.
4767057 Spray nozzle 1988-08-30 Degli et al.
D293950 Portable machine for wet or dry vacuum extraction January, 1988 Ogden et al.
4653661 Packaging container having a pressure relief valve 1987-03-31 Buchner et al.
4585168 High pressure liquid installation 1986-04-29 Even et al.
4562965 Compressed fluid spraying pistol 1986-01-07 Ihmels et al.
4411387 Manually-operated spray applicator 1983-10-25 Stern et al.
4171091 Process and device for spraying liquid 1979-10-16 van Hardeveld et al.
D252097 Spray gun June, 1979 Probst et al.
3873023 Apparatus for and method of spraying plural component materials 1975-03-25 Moss et al.
3840143 THREADED NESTABLE CONTAINER 1974-10-08 Davis et al.
3747850 ELECTROSTATIC SPRAY GUN 1973-07-24 Hastings et al.
3714967 SIPHON PAINT SPRAY CUP ASSEMBLY 1973-02-06 Zupan et al.
3656493 SCREEN WASHING APPARATUS 1972-04-18 Black et al.
3645562 COUPLING DEVICE 1972-02-29 Fandetti et al.
3524589 LIQUID-SPRAY DEVICE 1970-08-18 Pelton, Jr.
3435683 MANOMETER 1969-04-01 Keller et al.
3420106 MANOMETER 1969-01-07 Keller et al.
D208903 N/A October, 1967 Zadron et al.
D205760 N/A September, 1966 Hocutt et al.
3240398 Vented spray gun cup 1966-03-15 Dalton, Jr.
0574880 N/A 1897-01-12 Schmidt et al.
CH203668A 1939-03-31 Gefäss zur Vakuumkonservierung, insbesondere von Lebens- und Genussmitteln.
GB190900523A 1909-06-10 Improvements in and relating to Colour Dispersers.
Printout from Internet www.ehow.com explaining how to choose a spray gun and stating in item 2 “Nozzle sizes vary between about 1 mm and 2 mm.”, printed Sep. 7, 2012 (Exhibit 1023 in IPR 2013-0111).
Printout from Internet www.bodyshopbusiness.com explaining how to choose nozzle setup in paragraph bridging pp. 1 and 2, giving general rule of thumb of nozzle sizes from 1.3 mm to 2.2 mm, depending on material being sprayed, printed Sep. 7, 2012 (Exhibit 1024 in IPR 2013-0111).
Printout from Internet of pages from brochure of Walther Pilot showing nozzle sizes for spray guns ranging from 0.3 mm to 2.5 mm, dated 2007, (Exhibit 1025 in IPR 2013-0111).
Printout from Internet www.alsacorp.com showing in the paragraph bridging pp. 2 and 3, Model VS-7200 Saber LVLP spray gun with nozzle size 1.3 mm with sizes 1.3 to 2.0 available, printed Aug. 26, 2012 (Exhibit 1026 in IPR 2013-0111).
Printout from Internet of p. 28 from current 3Mtm brochure showing Tip/Nozzle/Air Cap Selection Guide with nozzle sizes from 0.5 mm to 3.0 mm., (Exhibit 1027 in IPR 2013-0111).
Decision by EPO regarding opposition proceedings to revoke patent No. 99926841.0—2425/ 1108476, corresponding to '387 patent, 2012, (Exhibit 1029 in IPR 2013-0111).
SATA News Publication Dan-Am Jul.-Sep. 1996, (Exhibit 1034 in IPR 2013-0111).
SATA News Publication Dan-Am Oct.-Dec. 1996, (Exhibit 1035 in IPR 2013-0111).
SATA News Publication Dan-Am Apr.-Jun. 1998 (Exhibit 1036 in IPR 2013-0111).
Dan-Am SATA Catalog 6 for spray guns 1991 (Exhibit 1037 in IPR 2013-0111).
Dan-Am SATA Catalog 8 for spray guns 1994 (Exhibit 1038 in IPR 2013-0111).
Dan-Am Catalog 6—51pp published 1991, (Exhibit 1042 in IPR 2013-0111).
Japanese Industrial Standards B 9809 English translation, 1992 (Exhibit 1049 in IPR 2013-0111).
Japanese Industrial Standards B 9809 revised Mar. 1, 1993 (Exhibit 1050 in IPR 2013-0111).
SATA News, vol. 21, 2009 (Exhibit 2010 in IPR 2013-0111).
Collision Hub TV Document (image from video clip) printed Oct. 9, 2013 (Exhibit 2011 in IPR 2013-0111).
MyRielsMe.com document from press release printed Oct. 9, 2013 (Exhibit 2012 in IPR 2013-0111).
How to set Air pressure, Utube screenshot printed Oct. 9, 2013 (Exhibit 2013 in IPR 2013-0111).
Ohio EPA Letty to Tony Larimer, response to letter dated Aug. 2006 (Exhibit 2014 in IPR 2013-0111).
Pinahs Ben-Tzvi et al, A conceptual design . . . , Mechatrronics 17 (2007) p. 1-13 (Exhibit 2015 in IPR 2013-0111).
On line ad from Amazon.com printed Oct. 14, 2013 (Exhibit 2017 in IPR 2013-0111).
Rone et al, MEMS-Baed Microdroplet Generation with Integrated Sensing, COMSOL, 2011 (Exhibit 2018 in IPR 2013-0111).
International Search Report dated Jul. 14, 2016 for International Application No. PCT/EP2016/000809, filed May 17, 2016.
Written Opinion for International Application No. PCT/EP2016/000809, filed May 17, 2016.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2004/005381, filed May 19, 2004.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2004/011998, filed Oct. 23, 2004.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2005/000435, filed Jan. 18, 2005.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2005/00437, filed Jan. 18, 2005.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2008/063344, filed Oct. 6, 2008.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2010/002392 filed Apr. 20, 2010.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2011/002544 filed May 21, 2011.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2011/066665 filed Sep. 26, 2011.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2010/003399 filed Jun. 7, 2010.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2011/5842 filed Dec. 2, 2010.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2012/01939 filed May 5, 2012.
International Search Report, Written Opinion and International Preliminary Report on Patentability for PCT/EP2009/06992 filed Sep. 29, 2009.
Internet Archive Wayback Machine [online] [captured Sep. 25, 2012] [retrieved on Sep. 9, 2014] retrieved from the Internet URL:http://web.archive.org/web/20120925210554/http://www.sata.com/index.php?id=sal-check&no cache=1&L=11.
JP Office Action issued against JP Patent App. 2012-508926 dated Feb. 25, 2014 with English translation.
Notification of the First Office Action with search report dated Aug. 24, 2015 for Chinese Application No. 201280020519.5 (related to U.S. Appl. No. 14/113,649), 13 pages.
Notification of the Second Office Action dated May 16, 2016, for Chinese Application No. 201280020519.5 (related to U.S. Appl. No. 14/113,649), 5 pages.
Japanese Office Action for JP2014-517485 (related to U.S. Appl. No. 14/113,649), dated Jul. 5, 2016, 16 pages.
Second Chinese Office Action dated Jun. 24, 2015 for Chinese Application No. 2011800266029.
Third Chinese Office Action dated Nov. 30, 2015 for Chinese Application No. 2011800266029.
Final Office Action dated Aug. 29, 2016 for U.S. Appl. No. 14/113,649.
Office Action dated Nov. 2, 2016 for U.S. Appl. No. 11/949,122.
Canadian Office Action dated Nov. 21, 2012 for related application CA2741703.
Chinese Search Report dated Dec. 5, 2012 for related application CN200980135429.9.
Chinese Office Action dated Dec. 13, 2012 for related application CN200980135429.9.
German Search Report for DE 20 2008 014 389.6 completed Jul. 13, 2009.
Restriction Requirement Office Action dated Apr. 17, 2017 for U.S. Appl. No. 14/815,210.
Notice of Allowance dated Apr. 10, 2017 for U.S. Appl. No. 29/579,824.
Response to Final Office Action filed May 9, 2017 in U.S. Appl. No. 13/698,417.
Response to Office Action filed May 17, 2017 in U.S. Appl. No. 14/113,649.
Response filed Dec. 21, 2015 to Office Action dated Jul. 20, 2015 for U.S. Appl. No. 14/113,649.
Response to Office Action filed Feb. 16, 2016 for U.S. Appl. No. 13/698,417.
Screen shot of a SATA product (SATAjet B) description retrieved on Feb. 12, 2016 from www.sata.com/index.php.
“The Hot Rolling Process;” California Steel; retrieved on Feb. 12, 2016 from http://www.californiasteel.com/GetPublicFile.aspx?id=53.
Office Action dated Feb. 19, 2016 for U.S. Appl. No. 14/113,649.
May 22, 2018 Final Office Action for U.S. App. No. 14/113,649.
Jun. 25, 2018 Response to Office Action for U.S. Appl. No. 14/815,210.
International Preliminary Report on Patentability for PCT/EP2015/001728 filed Aug. 25, 2015.
Final Office Action dated Mar. 16, 2017 from U.S. Appl. No. 13/698,417, 9 pages.
Final Office Action dated Dec. 7, 2017 for U.S. Appl. No. 14/815,210.
Response to Office Action dated Jun. 25, 2018 for U.S. Appl. No. 14/815,210.
Response to Final Office Action dated Aug. 22, 2018 for U.S. Appl. No. 14/113,649.
Notice of Allowance dated Jan. 27, 2016 for Design U.S. Appl. No. 29/510,723.
Response to Restriction Requirement filed in 14/815,210 dated Jun. 19, 2017.
International Search Report dated Aug. 31, 2016 for PCT/EP2016/061057 filed May 18, 2016.
Written Opinion for PCT/EP2016/061057 filed May 18, 2016.
Final Office Action dated Feb. 25, 2016 for U.S. Appl. No. 13/698,417.
Restriction Requirement dated Mar. 25, 2016 for Design U.S. Appl. No. 29/516,082.
Response filed Mar. 31, 2016 to Office Action dated Dec. 31, 2016 for U.S. Appl. No. 14/572,998.
German Search Report dated Apr. 21, 2017 for application No. 10 2016 009 957.7.
Office Action dated Dec. 31, 2015 for U.S. Appl. No. 14/572,998.
Notice of Allowance dated Jan. 19, 2016 for Design U.S. Appl. No. 29/539,615.
Notice of Allowance dated Jan. 22, 2016 for U.S. Appl. No. 13/991,285.
Final Office Action in U.S. Appl. No. 14/113,649 dated Jun. 22, 2017.
Response filed in U.S. Appl. No. 15/143,698 dated Jul. 3, 2017.
May 22, 2018 Final Office Action for U.S. Appl. No. 14/113,649.
Office Action dated Nov. 18, 2014 for U.S. Appl. No. 14/113,649.
Notice of Allowance dated Nov. 19, 2014 for U.S. Appl. No. 29/486,223.
Office Action dated Dec. 31, 2014 for U.S. Appl. No. 13/380,949.
Restriction Requirement dated Jan. 9, 2015 for Design U.S. Appl. No. 29/469,049.
Response to Office Action filed Dec. 2, 2014 for U.S. Appl. No. 29/487,679.
Notice of Allowance dated Jan. 15, 2015 for Design U.S. Appl. No. 29/490,620.
Office Action dated Jan. 14, 2015 for Design U.S. Appl. No. 29/447,887.
Hercules Paint Gun Washers brochure publish date Jan. 2012, [online], [site visited Jan. 7, 2015], .
Jetclean GUn Cleaner Terry's Auto Supply, google publish date Aug. 4, 2011, [online], [site visited Jan. 7, 2015], .
Restriction Requirement dated Feb. 6, 2015 for Design U.S. Appl. No. 29/486,232.
Office Action dated Mar. 30, 2015 for U.S. Appl. No. 13/698,417.
Responde to Office Action filed Apr. 14, 2015 to Office Action dated Jan. 14, 2015 for U.S. Appl. No. 29/447,887.
Response filed Jul. 20, 2015 for Office Action dated Mar. 30, 2015 for U.S. Appl. No. 13/698,417.
Notice of Allowance dated Apr. 30, 2015 for U.S. Appl. No. 29/447,887.
Chinese Office Action dated Oct. 28, 2014 and Search Report dated Oct. 15, 2014 for Chinese Application No. 2011800266029.
Australian Examination Report dated Oct. 30, 2012 for Australian Application No. 2010268870.
Notice of Allowance dated Apr. 24, 2015 for Design U.S. Appl. No. 29/486,232.
Restriction Requirement dated Jan. 22, 2015 for U.S. Appl. No. 13/698,417.
Response filed Mar. 23, 2015 to Restriction Requirement dated Jan. 22, 2015 for U.S. Appl. No. 13/698,417.
Response filed Apr. 6, 2015 to Office Action dated Feb. 6, 2015 for Design U.S. Appl. No. 29/486,232.
Response filed Mar. 31, 2015 to Office Action dated Dec. 31, 2014 for U.S. Appl. No. 13/380,949.
Japanese Office Action dated Jun. 11, 2014 for Japanese Patent Application No. 2012-518769.
Australian Examination Report dated Nov. 11, 2014 for Australian patent Application No. 2011257605.
Japanese Notice of Allowance dated Jan. 13, 2015 for Japanese Patent Application No. 2012/518769.
Application filed Dec. 11, 2011 for U.S. Appl. No. 13/380,949.
Chinese Office Action dated Jan. 28, 2014 and Search Report dated Jan. 21, 2014 for Chinese Application No. 201080030935.4.
Search Report dated Apr. 24, 2010 for German Application No. 10 2009 032 399.6-51.
Application filed Oct. 24, 2013 for U.S. Appl. No. 14/113,649.
Response filed May 18, 2015 to Office Action dated Nov. 18, 2014 for U.S. Appl. No. 14/113,649.
Application filed Dec. 17, 2014 for U.S. Appl. No. 14/572,998.
German Search Report dated Mar. 25, 2014 for German Application No. 202013105779-7.
Application filed Nov. 16, 2012 for U.S. Appl. No. 13/698,417.
Application filed Jun. 2, 2013 for U.S. Appl. No. 13/991,285.
English translation of application filed Aug. 13, 2013 for Application filed Jun. 2, 2013 for U.S. Appl. No. 13/991,285.
Restriction Requirement dated May 27, 2015 for U.S. Appl. No. 13/991,285.
Application filed Jan. 29, 2015 for Design U.S. Appl. No. 29/516,073.
Application filed Jan. 29, 2015 for Design U.S. Appl. No. 29/516,082.
Application filed Mar. 3, 2015, 2015 for Design U.S. Appl. No. 29/519,198.
Final Office Action dated Jul. 20, 2015 for U.S. Appl. No. 14/113,649.
German Search Report for Application No. 10 2016 009 957.7 dated Apr. 21, 2017.
Response restriction requirement filed May 23, 2016 for Design U.S. Appl. No. 29/516,082.
Office Action dated Aug. 7, 2015 for U.S. Appl. No. 13/991,285.
Written Opinion dated Sep. 8, 2016 for International Application No. PCT/EP2016/061057 filed May 18, 2016.
Response filed Oct. 6, 2015 to Notice of Non-Compliant Amendment for U.S. Appl. No. 13/698,417.
Notice of Non-Compliant Amendment dated Aug. 10, 2015 for U.S. Appl. No. 13/698,417.
Final Office Action dated Oct. 16, 2015 for U.S. Appl. No. 13/698,417.
Extended European Search Report dated Apr. 17, 2015 for European Application No. 14004167.4.
Response to Final Office Action and RCE dated Nov. 29, 2016 in U.S. Appl. No. 14/113,649.
International Search Report (dated Jun. 20, 2008), Written Opinion (dated Jun. 20, 2008), and International Preliminary Report on Patentability (dated Sep. 14, 2010) from PCT/US2008/03318 filed Mar. 12, 2008.
Response filed Dec. 7, 2015 to Office Action dated Aug. 7, 2015 for U.S. Appl. No. 13/991,285.
Notice of Allowance dated Apr. 18, 2016 for U.S. Appl. No. 14/572,998.
Response filed Apr. 27, 2016 to Office Action dated Jan. 29, 2016 for U.S. Appl. No. 13/380,949.
German Search Report dated Apr. 12, 2016 for related German Application No. 10 2015 008 735.5.
Office Action from U.S. Appl. No. 15/143,698 dated Jan. 5, 2017.
German Search Report for German Application No. 10 2015 016 474.0 dated Aug. 9, 2016, 14 pages.
Notice of Allowance in U.S. Appl. No. 29/556,463 filed Mar. 1, 2016, 9 pages.
Notice of Allowance in U.S. Appl. No. 29/555,656 filed Feb. 24, 2016, 5 pages.
European Search Report dated May 8, 2017 for Application No. EP16203544.
“Spray Guns/sata.com”, Oct. 18, 2015, XP055364928 URL:http://web.archive.org/web/20151018205307/http://www.sata.com/index.php?id=lackierpistolen&L=11 [gefunden am Apr. 13, 2017]; reprinted on Dec. 8, 2017.
“SATAjet 5000 B Lackierpistolen | Bechersysteme | Atemschutz | Filtertechnik | Zubehor So flexibel wie Ihre Aufgaben” Apr. 11, 2017, XP055364477 Gefunden im Internet: URL:https/www.sata.com/uploads/tx_pxspecialcontent/00_SATAjet_5000_B.pdf [gefunden am Apr. 12, 2017]; English translation of full brochure attached.
Amendments submitted to European Patent Office on Dec. 3, 2017 for Application No. EP16203544 (with English translation of chart on p. 3).
U.S. Appl. No. 14/815,210 Office Action dated Apr. 3, 2018.
U.S. Appl. No. 14/113,649 Response filed Mar. 3, 2018.
German Search Report dated Apr. 10, 2018 for Application No. 10 2017 118 599.2.
Response to Restriction Requirement filed Jul. 27, 2015 to Restriction Requirement dated May 27, 2015 for U.S. Appl. No. 13/991,285.
Application filed Jul. 31, 2015 for U.S. Appl. No. 14/815,210.
Final Office Action dated Aug. 4, 2015 for U.S. Appl. No. 13/380,949.
Notice of Allowance dated Aug. 3, 2015 for U.S. Appl. No. 29/486,232.
1. The ornamental design for a paint spray gun, as shown and described.
FIG. 8 is a second side view of the paint spray gun of FIG. 1.

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Application No. 201280020519
Application No. 201280020519
Application No. 2011800266029
Application No. 2011800266029
application No. 10
Application No. 2011800266029
Application No. 2010268870
Application No. 2012
Application No. 2011257605
Application No. 2012
Application No. 201080030935
Application No. 10
Application No. 202013105779
Application No. 10
Application No. 14004167
Application No. 10
Application No. 10
Application No. 10


text:
Survey — Location of Disputed Line.
Decision in this cause reported in 123 N.C. 511, reaffirmed.
Jarvis Blow and A. C. Avery for petitioner.
W. B. Rodman and Ernest Haywood contra.
This case was before us at September Term, 1898 ( 123 N.C. 511), and it received a most careful consideration on the part of the Court, and at the conclusion, while the judgment of the court below was affirmed, there was a division of the Court, two members dissenting. After another argument, with full briefs on both sides, upon the rehearing we have reconsidered the proposition of law before us at that time, with the earnest purpose to rectify any mistake or error under which we may have then labored, if such error should be pointed out to us, and our convictions and opinions are not changed. It will be seen from a reading of the opinion of the Court heretofore delivered, and from the dissenting opinion already referred to, that the sole question in the case depends upon the location of the northern boundary line of the Smith grant. The admissions of counsel on both sides, their arguments and their briefs are an acknowledgment that that was the sole point in the case. It was agreed on all hands that the starting point of the Smith grant was represented by the letter A on the map. The stations B, C, D, E, F, were all admitted and acknowledged stations. The trouble begins from the call from F station. That call is in these words (from F), "west 290 poles into John Jordan's line." 290 poles (959) west from F station does not reach John Jordan's line, but 299 poles will reach John Jordan's line, and to that line the call must go. Bradford v. Hill, 2 N.C. 30; Cherry v. Slade, 7 N.C. 82; Mortgage Co. v. Long, 113 N.C. 123. The defendant contends, however, that the northern boundary line of the Smith grant was through mistake inserted in the grant as running west 290 poles, and that it ought to be changed so as to run north 74 west 420 poles, and that there was evidence to that effect which his Honor should have submitted to the jury. The only evidence in the case on that point was that of a surveyor, Taylor, that he had seen at the end of the line, contended for by the defendant, two old trees marked as pointers. That evidence was not sufficient to go to the jury on the point. If a line of marked trees, marked at the time of the original survey of the Smith grant, had been found along the line contended for by the defendant, although not called for in the grant, that would have been sufficient evidence to go to the jury to have the mistake in the course of the grant corrected and explained; or, if there had been evidence that the trees marked at the end of the line contended for by the defendant showed signs of having been marked, contemporaneously with the original survey, and had been recognized as a corner or point of the Smith grant, such evidence would have been competent for the same purpose. Graybeal v. Powers, 76 N.C. 66; Reed v. Schenck, 14 N.C. 65; Cherry v. Slade, supra; Baxter v. Wilson, 95 N.C. 137; Davidson v. Schuler, 119 N.C. 582. If there had been a natural object, known or admitted, at the end of the line from station F on the map to the Jordan line, then no parol evidence could have changed that line.
The defendant's counsel again insist that the line which he contends for, from station F to the Jordan line, can be proved to be the true line by a reversal of the Smith grant from the acknowledged starting (960) point A northward. Such a reversal can not be made in this case for the reasons, first, that from station A no surveyor could hit the next point northward, for no such point has been identified or admitted, and the call from the next to the last station, in the natural order of the survey, "is to the beginning" without any intimation of course or distance; and second, because, as we have seen, there is no evidence in the case fit to be submitted to the jury tending to show any uncertainty or mistake in the line from F west 290 poles to the Jordan line.
It is not essential to the decision of this case, but the writer of this opinion thinks that a prior or previous line, like the one in this case from F west 290 poles to the Jordan line, could be under proper evidence, altered and controlled by a line running in reversal from A northward, if it had been shown by competent proof that the call from F west 290 poles to the Jordan line was an uncertain line, and was made through mistake, and that the reverse line would show the true line from F to the Jordan line with greater certainty than the one as it now stands in the grant. Harry v. Graham, 18 N.C. 76; Norwood v. Crawford, 114 N.C. 513; Graybeal v. Powers, supra.
CLARK and DOUGLAS, JJ., dissent.

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Are you facing federal conspiracy charges? Whether you are being charged with both conspiracy and another offense or if you are only being accused of conspiracy, it is critically important that you hire an experienced Federal Defense Attorney. Here at the Law Office of Jeremy Gordon, we know how to defend against federal conspiracy charges. You need someone on your side to help you understand the strength of the Government’s case the legal complexities involved. Contact us today to discuss your case and let us see if we can help you.
Conspiracy is often charged in federal cases because it covers a broad range of conduct. These charges are challenging to defend and require a great amount of diligence and investigation on the part of a skilled defense attorney.
A criminal conspiracy is an illegal agreement between two or more people to violate the law. However, an agreement alone is not enough to be guilty under federal conspiracy law. The prosecution must also prove that the defendant had a specific intent to enter into the conspiracy and, under most statues, must prove an overt act to further the conspiracy.
Federal conspiracy charges are most commonly brought as violations of 18 U.S.C. § 371 (general conspiracy) or 21 U.S.C. § 846 (drug conspiracy). The general conspiracy statute makes it a federal crime to conspire to commit an offense against the United States or to conspire to defraud the United States. The drug conspiracy statute makes it a federal crime to conspire to commit federal drug offenses.
In order to convict a defendant of federal conspiracy, the prosecution in the case must prove all of the elements of the crime beyond a reasonable doubt; however, it is important to know that the law of conspiracy allows prosecutors to bring in more evidence than they would otherwise be able to in cases where conspiracy charges are not involved. For example, they might use statements of alleged co-conspirators without the usual safeguards that make it more difficult to admit co-defendant statements into evidence.
In general, to be convicted of federal conspiracy charges the Government must prove: (1) that there was an agreement between at least two parties; (2) the agreement was made to achieve an illegal goal; (3) the parties had knowledge of the conspiracy and actually participated in the conspiracy; (4) at least one of the conspirators committed an overt act in furtherance of the conspiracy. However, this last requirement is not needed to prove drug conspiracy charges under 21 U.S.C. § 846.
Under 18 U.S.C. § 286, it is a federal crime to conspire to defraud the United States through the submission of a false claim. The general conspiracy statute 18 U.S.C. § 371 has the requirement of an overt act while 18 U.S.C. § 286 does not require an overt act. The crime of conspiracy is punished by fines and imprisonment and some defendants convicted of conspiracy have to pay restitution and are subject to forfeiture laws. In certain cases, the maximum punishment for conspiracy charges is life in prison.
When a large number of people are involved in a conspiracy, it is possible that many of the alleged participants have neither met nor spoken to one another. In these cases, it is common for a person who was involved in a comparatively minor way to be accused of the larger conspiracy with others who allegedly had a larger role.
There are several defenses that a defendant may use if facing federal conspiracy charges.
Statute of Limitations – Under 18 U.S.C. § 3282, a five-year statute of limitations applies to federal conspiracy charges. A conspiracy is generally held to run from the date of the last overt act committed in furtherance of the conspiracy. Under 18 U.S.C. § 286, the statute of limitations begins when a conspirator abandons the conspiracy or abandons accomplishing its objectives.
Variance – The Sixth Amendment of the U.S. Constitution requires that a criminal defendant be given adequate notice of the charges against them. A defendant charged with federal conspiracy charges can raise this defense if there is a variance between the number of conspiracies charged in the indictment and the number of conspiracies proved at trial.
Mere Presence – A defendant in a federal conspiracy case cannot be convicted if they were merely present with the co-conspirators but did not act in a way that would suggest any connection to the conspiracy.
Isolated Buyer/Seller – If a defendant in a federal conspiracy case commits a single, ordinary act, this is not enough to convict them of conspiracy since the crime of conspiracy requires two or more participants. If a mere buyer/seller relationship existed, this is generally not enough to convict a defendant of being a co-conspirator in a case involving drug conspiracy charges.
Coercion – The defense of coercion may be used if the person with conspiracy charges agreed to participate in the conspiracy because of threatened force. The defendant must prove that there was an imminent threat, fear that the threat would be carried out, and no opportunity to escape.
Withdrawal – If a defendant enters into a conspiracy but then withdraws before committing an overt act to further the conspiracy the crime of conspiracy may not have been completed.
The various federal conspiracy laws and defenses have subtle but important differences, and it’s critical to have the assistance of a skilled an experienced Federal Defense Attorney to protect your name, your freedom and your life. Don’t let conspiracy charges ruin your life. Your freedom and good name are invaluable. We know the law. We have the experience. And we will fight for you. Contact us today.


April 30, 2007. Rehearing Denied May 14, 2007.
Appeal from the District Court, Donald E. Campbell, J.
Dennis Hartley, P.C., Dennis Hartley, Colorado Springs, Colorado Attorney for Petitioner.
John R. Newsome, District Attorney, Fourth Judicial District, William Edie, Deputy District Attorney, Robyn J. Cafasso, Deputy District Attorney, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for Respondent.
Justice EID delivered the Opinion of the Court.
In People v. Julien, 47 P.3d 1194 (Colo. 2002), we held that a trial court judge's prior employment as a district attorney did not automatically require the judge's disqualification from a criminal matter. The mere existence of such a professional relationship is not sufficient to create either actual bias or the appearance of impropriety.
Today we apply our holding in Julien to personal relationships. We hold that the mere existence of a trial court judge's friendship with a member of a prosecution team, by itself, does not create either actual bias or the appearance of impropriety. Rather, as in Julien, we must look to the specific circumstances of the case in order to determine whether the closeness of that friendship and the extent of the friend's involvement in the underlying case are of such intensity as to require the judge's disqualification.
Applied to the facts of this case, we hold that a judge is not required to disqualify himself where a friend with whom the judge has little present social involvement makes a single appearance before the judge on behalf of the district attorney's office. The court of appeals was correct to reverse the ruling of a successor trial court judge that disqualification was necessary under these circumstances.
In the case before us, Petitioner Sanford B. Schupper was charged in El Paso County District Court with a single count of felony theft. Judge Larry Schwartz, a former El Paso County district attorney, presided over Schupper's case. Judge Schwartz also presided over four separate criminal cases filed against Schupper. In the course of the proceedings in this case, Schupper filed three motions to disqualify Judge Schwartz on grounds ranging from the judge's previous employment as a district attorney to actual bias arising from Judge Schwartz's refusal to appoint counsel for Schupper. Judge Schwartz denied each of these motions.
Schupper's case was tried to a jury in March 2002. The trial court denied Schupper's request for court-appointed counsel, and Schupper represented himself at trial. The jury convicted Schupper and the trial court sentenced him to six years' imprisonment. Schupper appealed his conviction.
The grounds originally asserted, and ultimately rejected by Judge Schwartz, included allegations that Judge Schwartz is a named victim in an offense charged against Schupper, Judge Schwartz potentially could be a witness in other cases pending against Schupper, Judge Schwartz was inconsistent in his rulings on indigency for purposes of providing counsel, and Judge Schwartz ignored repeated acts of prosecutorial misconduct.
[My friend and former supervisor] has recently entered his appearance on behalf of the prosecution. He was my supervisor in the past at the [district attorney's] office. While we have little social involvement at present, I consider him a friend. It appears that the personal antagonism between counsel demonstrated in the past will continues While I would not have problems dealing with these various personal issues among other counsel, I will feel uncomfortable handling them if [my friend and former supervisor] is involved. Likewise, the Court would have no problem dealing with one of [my friend and former supervisor's] cases in which similar personal issues were not involved. However, I conclude that under these present circumstances it would create an appearance of impropriety if I retain these cases.
Based on Judge Schwartz's disqualification, Schupper filed a motion with the court of appeals requesting a limited remand to determine whether the disqualification should be applied retroactively to Schupper's conviction. Schupper noted that the same member of the prosecution team with whom Judge Schwartz is a friend — Judge Schwartz's former supervisor in the El Paso County District Attorney's Office — also appeared at a February 1997 hearing in this case. The court of appeals granted Schupper's request and ordered a limited remand to another trial court judge (the "Successor Judge") to hear the disqualification motion.
Following a hearing, the Successor Judge held that Judge Schwartz should be retroactively disqualified from this case, and on this basis the Successor Judge set aside Schupper's conviction and ordered a new trial. The Successor Judge primarily based his ruling on the same two factors that Judge Schwartz offered when he disqualified himself in the unrelated criminal actions: (1) Judge Schwartz's friendship with his former supervisor, and (2) the level of animosity between Schupper's counsel and the district attorney's office. The Successor Judge expressly found that Judge Schwartz's former supervisor appeared at a single hearing held in Schupper's case in February 1997.
Our review of the record reveals that, in addition to the supervisor's appearance at the February 1997 hearing, the supervisor's name also appears in the captions of two pleadings filed by the People in Schupper's case in 2001. The supervisor did not sign the pleadings, however, and neither Schupper nor the Successor Judge cited these pleading as evidence of the supervisor's Involvement in Schupper's case.
Based on these facts, the Successor Judge held that "the circumstances upon which Judge Schwartz relied to disqualify himself were true from the time the case was first assigned to him," and therefore required his disqualification in this case. The Successor Judge also indicated that Judge Schwartz's order compelling Schupper to proceed pro se added to the appearance of partiality, further requiring retroactive disqualification.
Relying on the Successor Judge's order vacating Schupper's conviction and ordering a new trial, the court of appeals dismissed Schupper's appeal of his (now vacated) theft conviction without prejudice. The prosecution appealed the Successor Judge's order vacating the conviction, and it is this limited issue that is before us today. The merits of the other issues raised in Schupper's appeal of his conviction were left undecided by the court of appeals and are not before us.
The court of appeals reversed the Successor Judge's order in a published opinion. People v. Schupper, 124 P.3d 856 (Colo.App. 2005). The court of appeals held that the Successor Judge erred by finding "the same circumstances that led the trial judge to recuse himself from defendant's other cases also existed before the commencement of [the March 2002] trial in this case." Id. at 858. Instead, the court noted that "it was the transformation of defendant's cases into `personal grudge match[es]' that, in combination with his friendship with one lawyer, led to his recusal." Id. The court determined that "there was nothing about the friend's involvement early in [this] case that would have required the trial judge to recuse himself before trial or sentencing," id. at 859, noting in particular that the animosity cited by Judge Schwartz arose in the other criminal cases after Schupper's conviction in this case. Finally, the court refused to determine whether the trial judge should have forced Schupper to proceed pro se in his March 2002 trial, stating, "whether rightly or wrongly decided, the merits of those rulings are not pertinent to the recusal issues raised in this appeal." Id.
We granted Schupper's petition for a writ of certiorari to consider whether the court of appeals was correct to reverse the Successor Judge's order vacating Schupper's judgment of conviction. For reasons explained below, the Successor Judge erred by finding that Judge Schwartz should have disqualified himself before Schupper's trial and sentencing. We therefore affirm the court of appeals' opinion. Once the trial court has reinstated the conviction and sentence, Schupper may proceed to file a direct appeal challenging his conviction on grounds other than those resolved by this opinion.
A judge should disqualify himself or herself in a proceeding in which the judge's partiality might reasonably be questioned, including but not limited to instances where . . . [a] judge has a personal bias or prejudice concerning a party . . . [or] a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. . . .
As explained by the official comment to Canon 3, "a judge formerly employed by a governmental agency . . . should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association."
We interpreted Canon 3 in Julien, 47 P.3d 1194, where we held that a judge should not be disqualified simply because, as here, the judge formerly was employed by a district attorney's office. In fact, Julien went further by holding that a judge is not subject to disqualification even where, as here, he was employed by the district attorney's office when the case at issue was initiated. See Julien, 47 P.3d at 1198. Disqualification only is required where the judge performed a role in the case or has personal knowledge of disputed matters arising from his prior employment. See id.
In this case, Schupper does not allege — and the record does not reveal — any fact suggesting that Judge Schwartz knew about this case while he was employed at the El Paso County District Attorney's Office. Rather, Schupper relies upon the Successor Judge's finding that Judge Schwartz's personal friendship with his former supervisor, along with the "level of animosity" between Schupper and the district attorney's office, created an appearance of partiality that required Judge Schwartz's retroactive disqualification. In this respect, the Successor Judge relied upon the two factors offered by Judge Schwartz when he disqualified himself from the four other cases involving Schupper. But the Successor Judge applied these factors to an entirely different context — Schupper's case before us today. In this case, Judge Schwartz's friend appeared only at a single hearing held more than five years before Schupper's trial.
In fact, the Successor Judge noted in his order that the parties stipulated that Judge Schwartz had no involvement in — or knowledge of — the case stemming from his prior employment.
While Julien dealt with a different factual issue of judicial disqualification based on prior employment, our legal analysis in that case is instructive here because it establishes that the mere existence of a relationship — whether personal or professional — is insufficient grounds for disqualification. See id. at 1199. Rather, it is the closeness of the relationship and its bearing on the underlying case that determines whether disqualification is necessary.
In our view, the Successor Judge erred in conducting the disqualification analysis by failing to consider either the closeness of the friendship between Judge Schwartz and his former supervisor or his former supervisor's minor involvement in this case, and mistakenly found that the mere existence of the friendship required disqualification. A number of federal courts have rejected the per se rule applied by the Successor Judge, and instead have held that disqualification is not automatically required whenever a judge shares a friendship with a lawyer appearing before him. See, e.g., Henderson v. Dep't of Pub. Safety Corrections, 901 F.2d 1288, 1295 (5th Cir.1990); United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986). Determining whether disqualification is necessary because of friendship between the judge and an attorney requires a case-by-case inquiry. See Murphy, 768 F.2d at 1538 (stating that "[s]ocial relations take so many forms that it would be imprudent to gauge all by a single test"); cf. Osborn v. Dist. Court, 619 P.2d 41, 47 (Colo. 1980) (explaining the need for a "careful case by case review" in disqualification matters). A rule requiring a judge to disqualify himself whenever a friend appears before him would be unnecessarily restrictive in a community where friendships among judges and lawyers are common. See Murphy, 768 F.2d at 1537. Therefore, we look for those situations where the friendship is so close or unusual that a question of partiality might reasonably be raised. See id. at 1538 (concluding "that an objective observer reasonably would doubt the ability of a judge to act with utter disinterest and aloofness when he was such a close friend of the prosecutor that the families of both were just about to take a joint vacation").
Because the United States Code also mandates that a judge recuse in a proceeding in which his or her impartiality might reasonably be questioned, see 28 U.S.C. § 455(a), we find instructive federal precedent interpreting the federal statute governing judicial recusal. See Julien, 47 P.3d at 1198.
Nothing in the record below shows such a close friendship. In fact, Judge Schwartz stated in his disqualification order that he had "little social involvement at present" with his former supervisor. In our view, a friendship devoid of any current social involvement does not rise to the level of requiring Judge Schwartz's disqualification from the present case. To hold otherwise would be to adopt by implication the very per se rule concerning relationships that we expressly rejected in Julien.
The Successor Judge also did not consider the extent of the former supervisor's involvement in this case, an important factor in determining whether Judge Schwartz's friendship with his former supervisor would create either bias or the appearance of partiality. Cf. United States v. Watt, Nos. 95-50331 96-50408, 1998 WL 180402, at *2 (9th Cir. Apr.16, 1998) (unpublished) (finding no error in the judge's refusal to disqualify himself from a criminal matter where he previously prosecuted the accused while employed as a district attorney, since the judge only "played a very minor role" in that prosecution); Corn v. State, 659 N.E.2d 554, 556 (Ind. 1995) (holding that disqualification of a district attorney was unnecessary despite his prior representation of a criminal defendant, because the district attorney "had only a minimal role at the pre-trial hearing in the current case"). Judge Schwartz's friend appeared in this case on only a single occasion in February 1997 more than five years before Schupper's trial. It was not until after Schupper had been convicted and sentenced in this case that Judge Schwartz's friend became a more permanent fixture in the prosecution's team in the other criminal cases pending against Schupper. While Judge Schwartz may have believed it necessary to disqualify himself from Schupper's unrelated criminal cases when his friend became more closely involved in the prosecution, he was not required to do so in this case when his friend was at best only tangentially involved.
The Successor Judge further found that the level of animosity between the prosecution and Schupper's counsel in the other unrelated cases was an important factor in requiring Judge Schwartz's retroactive disqualification from this case. But even if the Successor Judge was correct to find that this case was particularly hostile, our holding is the same: a judge is not required to disqualify himself when a personal friend with whom he has little social involvement makes a single appearance in a case, even a contentious one.
In sum, we do not believe that Judge Schwartz's disqualification in the four unrelated criminal cases involving Schupper required his retroactive disqualification from this case. As a matter of law, a judge is not required to disqualify himself where a personal friend, with whom the judge has little present social involvement, enters a single appearance on behalf of one of the parties. The Successor Judge's failure to consider the closeness of the relationship and the extent of the friend's involvement in the case before us today led him to conclude — erroneously, we find — that disqualification was required. We hold that disqualification was not required at the time of trial in this case, and therefore we affirm the court of appeals' reversal of the Successor Judge's order and reinstatement of Schupper's conviction and sentence. Schupper now will have the opportunity to advance his remaining challenges to his conviction and sentencing on direct appeal, since his original appeal was dismissed without prejudice on account of the Successor Judge's order.
The Successor Judge also erred by suggesting that Judge Schwartz's decision to compel Schupper to proceed pro se contributed to an appearance of partiality. An indigency determination, like the one made by Judge Schwartz in this case, generally is insufficient to show bias. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ("[J]udicial rulings alone almost never constitute [a] valid basis for a bias or partiality motion. . . . Almost invariably, they are proper grounds for appeal, not for recusal."); Saucerman v. Saucerman, 170 Colo. 318, 326, 461 P.2d 18, 22 (1969) ("[R]ulings of a judge, although erroneous, numerous and continuous, are not sufficient in themselves to show bias or prejudice."). Whether Judge Schwartz was correct in his ruling is a decision left for Schupper's direct appeal.
Because we find that the retroactive disqualification was improper in this case, we need not decide whether Colorado law permits retroactive judicial disqualification and, if it does, what the defendant must show in order for a conviction to be vacated based on a post-judgment motion for disqualification. We expressly leave those questions for another day.
For the foregoing reasons, we affirm the court of appeals' decision instructing the trial court to reinstate defendant's judgment of conviction and sentence.
Justice BENDER dissents, and Chief Justice MULLARKEY and Justice MARTINEZ join in the dissent.