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Federal prosecutors spent more than a month making their case against Tyson Foods Inc. and three managers accused of conspiring to smuggle illegal aliens into the country to work at Tyson’s poultry processing plants. Noting the glazed looks on jurors’ faces as the government’s case plodded on, defense attorney Thomas C. Green had a hunch that less would be more. He assured the Chattanooga, Tenn., panel that he’d present Tyson’s case in only two days. Astonished, the jurors applauded. When they returned from five hours of deliberations, Green and his team were the ones cheering. Tyson and the executives had been acquitted on all charges. Had the jury returned guilty verdicts, the employees would have gone to prison and Tyson could have been forced to forfeit at least $130 million. That’s the amount the Department of Justice claimed Tyson profited through the use of undocumented laborers. The company, the world’s largest processor of chicken, beef and pork, could have also faced a multimillion-dollar fine. The case attracted attention due to an aggressive effort by the federal government to apply criminal forfeiture, previously used against drug dealers’ ill-gotten gains, to a corporation. The prosecution was armed with 500 hours of tapes that showed Tyson managers contracting with undercover law enforcement agents to hire illegal aliens who’d been smuggled into the United States. Three Tyson managers caught in the sting pleaded guilty before trial, and two testified against the company. (The third committed suicide before trial.) The high stakes, obstacles to victory and deft lawyering that resulted in a defense win propelled the Tyson case to the top of The National Law Journal‘s list of the top 10 civil and criminal defense jury verdicts of 2003. The other nine winners appear beginning on Page 31. Three-year sting operation The federal government began building its case against Springdale, Ark.-based Tyson in 1997 with an undercover operation that ran for three years. Immigration and Naturalization Service agents-including one who had a video camera secreted in a giant belt buckle-passed themselves off to midlevel Tyson executives as labor recruiters. They arranged to provide undocumented workers to staff low-paying jobs at the company’s meat-processing plants. Tyson and six managers from three plants were indicted in 2001. Under the rule of vicarious liability, the prosecutors needed “only a modest showing of liability” to convict the corporation as well as its indicted employees, Green said. U.S. v. Tyson Foods Inc., No. CR-4-01-61 (E.D. Tenn.). Though the evidence against Tyson seemed overwhelming, the defense team felt it could reshape the courtroom debate by contrasting the actions of a few lawbreakers with Tyson’s strict hiring policies. “Shifting the terms of the debate from what a handful of lower-level employees did to the company’s policies about hiring and voluntary disclosure . . . .We thought right from the beginning,” said Mark D. Hopson, Green’s trial partner, “that was the ground we wanted to fight on.” Hopson, 45, and Green, 63, have been defending cases together since Green joined Sidley Austin Brown & Wood’s Washington office in 1990. Green represented Tyson a decade ago when it was accused of giving illegal gifts to Mike Espy, President Clinton’s agriculture secretary. Tyson pleaded guilty and paid $6 million. Green and Hopson were aided by Roger W. Dickson of Miller & Martin’s Chattanooga office. The case was tried in Chattanooga because Tyson has a plant in nearby Shelbyville. Green and Hopson prepare for trial by selecting a handful of key points they want the jury to retain. Their mantra for the Tyson case: Upper-level executives were ignorant of the undercover smuggling, and the company’s history showed it had readily complied with and even exceeded federal standards for verifying the legal status of its workers. “You can’t fight everything in a criminal case,” Hopson said. “If you do, that weakens your message . . . .What we didn’t do was challenge every story, where some low-level employee said: ‘On such-and-such a date, I told my employer that John Doe was illegal and he didn’t do anything about it.’ “ The defense covered about 70% of its message on cross-examination. The balance was built on direct examination of top Tyson executives, who testified about strict company policies against hiring undocumented workers and the meticulous verification of identification provided by prospective employees. Tyson’s upper-level managers didn’t necessarily have clean hands, asserted Assistant U.S. Attorney John P. MacCoon of the Eastern District of Tennessee, who led the government’s legal team. Rather, they had their underlings do the dirty work, MacCoon alleged. Despite the acquittals, the Tyson employees caught on tape pleaded guilty, which was a victory. “I think it’s kind of gotten lost in the glitz of the corporation itself that managers at various plants were convicted, and that has got to have some type of effect,” MacCoon said. “There were convictions and therefore, hopefully, deterrents.” In addition to a well-developed strategy, the Tyson team credited its win to some crucial missteps by the prosecution, whose case “started falling apart literally at the beginning,” Green said. The first witness was the INS’ lead investigating agent, Benjamin Maldanado, who brought a laptop computer to the stand. Noticing him reading from the screen, Green objected and obtained a copy of the agent’s notes. “In the first 20 minutes of the trial, I now have the script of everything the agent is going to say,” he said. “It just opened up a myriad of cross-examination opportunities for me . . . .I had him on the stand a couple of days and just blew his brains out.” MacCoon, the prosecutor, said the defense already had Maldanado’s written notes, which were similar to the information on his computer. Had the agent relied solely on his memory for the daily details of a three-year investigation, he would have been hammered. The defense was also delighted to possess a profanity-laced conversation recorded between Maldanado and a colleague. The tape, which had been inadvertently left running after an undercover incident, included banter about strippers, the stupidity of Tyson managers and jokes about pocketing the money used in the sting operation. “He’d portrayed himself to the jury as a kind of choirboy agent,” Green said, ” . . . and what comes out of his mouth is locker room verbiage . . . .The government was mortified.” MacCoon disagreed. “It wasn’t anything that terrible,” he said, adding: “Choirboys don’t make very good undercover agents. You’ve got to be a little conversant with the street to pull it off. I didn’t think it was any big deal . . . .I didn’t see the jury gasping in horror.” Another break came before the jury got the case. The judge dismissed 24 of the 36 counts, citing lack of evidence because Tyson had shown that undercover agents were smuggling and transporting workers without the company’s knowledge or approval. Jurors deliberated for five hours before returning their verdict on March 26, 2003.

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