It follows three unsuccessful trials where the government sought convictions for alleged “no-poach” or “wage-fixing” agreements. In April 2022, the DOJ lost its first attempt at prosecuting “wage-fixing” in a case involving physical therapists and assistants.Also in April 2022, the DOJ lost its first attempt at prosecuting alleged “no-poach” conduct when a jury acquitted DaVita, Inc. and its former CEO, who were accused of conspiring not to solicit employees with other healthcare companies.In March 2023, the DOJ lost another attempt to prosecute alleged “wage-fixing” and “no-poach” conduct when a jury acquitted four managers of home healthcare agencies in Maine accused of agreeing to set wages and to refrain from hiring each other’s workers for one month.While these past losses ended in jury verdicts for the defendants, the DOJ’s most recent loss last week ended mid-trial (after the DOJ had presented its evidence but before the case went to the jury) when the court dismissed it under Federal Rule of Criminal Procedure 29. Rule 29 requires a judge to enter a judgment of acquittal if the evidence presented by the DOJ is insufficient to sustain a conviction.The court ultimately ruled that the evidence presented by the DOJ did not amount to a criminal market allocation agreement as a matter of law and that “no reasonable juror could conclude that there was a ‘cessation of “meaningful competition” in the allocated market.’”The DOJ cannot appeal a Rule 29 ruling, and therefore this ruling ends the case.This case should have a sobering effect on the DOJ. It resulted in a written decision that will be embraced and used by future defendants in similar cases. Even if the DOJ is willing to accept trial losses, it should not be willing to risk undermining theper sestandard that is vital to the success of its criminal enforcement program. Rulings in theDaVitacase and now the aerospace case have begun to do just that.Summary of the CaseOn December 15, 2021, a grand jury indicted six aerospace industry executives fo

shing Between Hemp and MarijuanaAt trial, the government’s expert testified that the cannabis discovered in Ms. Rivera’s luggage was marijuana. On cross-examination by the lawyer for the Defendant, the government’s expert stated that he did not determine the precise amount of delta-9 tetrahydrocannabinol (THC) in the cannabis. The amount of THC is critical because the 2018 Agricultural Improvement Act (aka the Farm Bill) amended the Controlled Substances Act (CSA) to exclude hemp from the definition of marijuana. Both hemp and marijuana are the plant Cannabis sativa L, but hemp has a THC concentration of 0.3% or less. Following this change in law, hemp is no longer considered a controlled substance.Unfortunately for Ms. Rivera, she and her lawyer did not introduce at trial evidence of the THC content of the cannabis in her suitcases. In fact, after the government presented its evidence, Ms. Rivera rested without presenting any evidence and instead moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. Under Federal Rule of Criminal Procedure 29, a defendant is entitled to judgment of acquittal if, viewing the record in the light most favorable to the government, no rational jury could have found the defendant guilty beyond a reasonable doubt.Ms. Rivera argued that the government failed to prove its case beyond a reasonable doubt because it did not present evidence that there was more than 0.3% THC in the seized substance. The District Court deferred ruling on the motion until after the jury returned a verdict. The jury acquitted Ms. Rivera of the conspiracy offense and convicted her of the possession offense. After the jury returned its verdict, the District Court denied Ms. Rivera’s motion for judgment of acquittal.Shifting Burdens When Whether Cannabis is Hemp v. Marijuana Becomes a Legal IssueMs. Rivera appealed her conviction, and the United States Court of Appeals for the Third Circuit upheld her conviction. Why was Ms. Rivera’s conviction upheld when the government did not p

1, 2023). While acquitted conduct was not explicitly addressed in the Guidelines, the U.S. Supreme Court has held that consideration of acquitted conduct is permitted under the Guidelines through the operation of §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), in conjunction with §1B1.4 (Information to be Used in Imposing Sentence) and §6A1.3 (Resolution of Disputed Factors (Policy Statement)). United States v. Watts, 519 U.S. 148 (1997). Therefore, the proposed amendment offers three options for amending the Guidelines to temper the impact of acquitted conduct on a defendant’s guideline range.Option 1The USSC would amend §1B1.3 and the Commentary to §6A1.3 to make clear that acquitted conduct is not relevant conduct for purposes of determining the guideline range. “Acquitted conduct” would be defined as conduct underlying or constituting an element of a charge of which the defendant had been acquitted in federal court or upon a motion of acquittal pursuant to Federal Rule of Criminal Procedure 29. This proposed definition would exclude conduct that establishes, in whole or in part, the instant offense of conviction that was either admitted by the defendant during a guilty plea or found by a judge or jury beyond a reasonable doubt.Option 2The USSC would add a new note to the commentary for §1B1.3 providing that a downward departure from the sentencing guideline may be warranted if the use of acquitted conduct has a disproportionate impact in determining the guideline range relative to the offense of conviction. This option would also adopt the same definition of “acquitted conduct” as described in Option 1.Option 3The USSC would amend §6A1.3 to establish a preponderance of the evidence standard of proof for resolving disputes involving sentencing factors. However, the rule would exclude acquitted conduct from consideration unless the conduct was established by clear and convincing evidence. The USSC would also make conforming changes to the Commentary of §§6A1.3 and 1B1.3, and

rested, and before the defendants presented evidence, the court granted the defendants’ motion for judgment of acquittal on April 28. The court held that, based on the evidence the government presented, “[a]s a matter of law, this case does not involve a market allocation under the per se rule,” which was the only theory on which the government indicted the defendants. In the court’s view, “the alleged agreement itself had so many exceptions that it could not be said to meaningfully allocate” the relevant labor market. The “restrictions shifted constantly throughout the course of the conspiracy,” such that “often hiring was permitted, sometimes on a broad scale.” Thus, no reasonable juror could conclude that there was a “cessation of ‘meaningful competition’ in the allocated market,” which Judge Bolden (relying on the DaVita decision) held was required to show a market allocation.This appears to be the first time in decades that a court has thrown out criminal antitrust charges under Federal Rule of Criminal Procedure 29. While the DOJ has had no official comment on the acquittal thus far, one of the defendants’ attorneys told Law360 that the recent labor-market criminal prosecutions are a “misguided policy experiment” and that the DOJ is “[t]rying to criminalize HR issues.” We’ll be watching to see whether the DOJ appeals the district court’s decision. United States v. Manahe: Another Jury AcquittalIn Manahe, the DOJ indicted four managers of home healthcare agencies in Maine who allegedly conspired to (1) fix the rates their agencies paid personal support specialist (“PSS”) workers, and (2) not solicit each other’s PSS workers from April–May 2020. As in several other no-poach and wage-fixing cases, the district court denied the defendants’ motion to dismiss, but the defendants won an acquittal at trial in March. The DOJ has not commented on this result either. An attorney for the defendants told Reuters, “It is difficult to understand why the DOJ felt the need to bring the weight of a federal govern

poach agreement was per se unlawful.In December 2022, the court denied the defendants’ motion to dismiss accepting the facts as pled in the indictment. The court looked at the defendants’ no-poach agreement and rejected their argument that it fell outside the “limited categories of conduct” that justify per se treatment. Though the court concluded that not all no-poach agreements are per se illegal, it held the conduct at issue was “subject to per se treatment because it [was] properly pled as a market allocation,” sufficient to withstand a motion to dismiss. Prohibited “horizontal market allocations” are agreements between competitors at the same level of the market to minimize competition. Examples of prohibited market allocations include dividing geographic territory between competitors, dividing customers between competitors, or dividing an employment market.The case proceeded to trial in April 2023. Before the jury deliberated, the defendants moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. Judge Bolden granted the motion and found as a matter of law that the alleged agreement did not constitute a market allocation requiring per se treatment and ordered the defendants be acquitted.The court relied on Bogan v. Hodgkins, 166 F.3d 509 (2d Cir. 1999), which declined to apply the per se rule to a hiring restriction limiting independent contractors from moving positions within a specific geographic region. The court, finding no “meaningful difference” between the instant action and Bogan, applied the Second Circuit’s reasoning — finding the restriction was not per se illegal because it allowed employees to transfer positions with permission from their employers and in other limited circumstances — to the instant case. The court determined evidence of emails between the parties suggesting blanket agreements to restrict hiring were insufficient to demonstrate a per se violation because the agreements allowed for exceptions permitting hiring and the evidence demonstrated such ex

er charge for which the defendant had be previously acquitted after a trial by jury. The Supreme Court is expected to make a decision on his petition for certiorari shortly and may revisit the holding in Watts. Notably, 17 retired federal judges – appointed by both Democrats and Republicans – filed a brief supporting the petition, and many scholars expect the Court to consider the issue.Regardless of whether the Court grants certiorari, the U.S. Sentencing Commission has now taken matters into its own hands and proposed an amendment to the Sentencing Guidelines that would prohibit federal judges from considering acquitted conduct to calculate a defendant’s sentencing guidelines range unless the conduct was otherwise admitted by the defendant during a guilty plea colloquy. The Sentencing Commission’s definition of acquitted conduct encompasses both conduct of which the trier of fact has found a defendant not guilty and conduct that underlies a successful motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Public comments on the Commission’s proposal are due by March 14.