U.S. District Court
Southern District of New York (Foley Square)
CRIMINAL DOCKET FOR CASE #: 1:00-cr-00584-JSR-6


Case title: USA v. DiCarlo, et al

Date Filed: 05/31/2000
Date Terminated: 08/09/2001

Assigned to: Judge Jed S. Rakoff

Defendant (6)
Landmark Food Corp
TERMINATED: 08/09/2001
represented byJohn Francis Kaley
Doar, Rieck, Kaley & Mack
217 Broadway
Suite 707
New York, NY 10007-2911
212-619-3730
Fax: 212-962-5037
Email: jkaley@doarlaw.com
LEAD ATTORNEY
Designation: Retained

Pending Counts

Disposition
15:1.F ANTITRUST VIOLATIONS
(1)
Probation: 60 months.

Highest Offense Level (Opening)
Felony

Terminated Counts

Disposition
None

Highest Offense Level (Terminated)
None

Complaints

Disposition
None


Plaintiff
USA represented byDouglas Michael Tween
Baker & McKenzie LLP
1114 Avenue of The Americas
NY, NY 10036
(212) 626-4100
Fax: (212) 310-1600
Email: douglas.tween@usdoj.gov
LEAD ATTORNEY

Date Filed #Docket Text
05/31/2000SEALED INDICTMENT as to John DiCarlo (1) count(s) 1, Nicholas A. Penachio (2) count(s) 1, Gordon Kerner (3) count(s) 1, DiCarlo Distributors, Inc. (4) count(s) 1, Nick Penachio Co., Inc. (5) count(s) 1, Landmark Food Corp. (6) count(s) 1 (jm) Modified on 08/08/2000 (Entered: 06/01/2000)
05/31/2000ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co., Inc., Landmark Food Corp. to seal indictment ( Signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed. (jm) Modified on 08/08/2000 (Entered: 06/01/2000)
06/01/2000ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co. Inc., Landmark Food Corp., Unsealing Indictment ( Signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed. (jm) Modified on 08/08/2000 (Entered: 06/01/2000)
06/01/2000  Indictment unsealed as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co., Inc., Landmark Food Corp. (jm) Modified on 08/08/2000 (Entered: 06/01/2000)
06/08/2000  First Appearance as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co., Inc., Landmark Food Corp. held (rag) Modified on 08/08/2000 (Entered: 06/09/2000)
06/08/2000  Arraignment as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co., Inc., Landmark Food Corp. held John DiCarlo (1) count(s) 1, Nicholas A. Penachio (2) count(s) 1, Gordon Kerner (3) count(s) 1, DiCarlo Distributors (4) count(s) 1, Nick Penachio Co Inc (5) count(s) 1, Landmark Food Corp (6) count(s) 1 before Magistrate Judge Andrew J. Peck. AUSA Mikkeljohn present. Deft. Joh DiCarlo present w/atty Sorroca. Deft. pleads n/g. Bail cont'd $1.5 million PRB cos by wife and brother. Surr pp. Travel limits NY,NJ,CT,GA, MA. Deft. Gordon Kerner present w/atty Rosen. Deft. pleads n/g. Bail cont'd $2,000,000 PRB cos by wife and Victor. PP surr. Travel NY,NJ,CT,NV,CA and FL. Deft. Nicholas A. Penachio present w/atty Shargel. Deft. pleads n/g. Bail cont'd $3,000,000 PRB, sec. by residence, both sons houses. COS by wife, 2 sons and daughter in law, surr PP. Travel NY,NJ, CT and FLA. Deft. Dicarlo Distributors present w/atty Rocco. Deft. pleads n/g. Deft. Penachio Co. Inc. present w/atty Shargel. Deft. pleads n/g. Deft. Landmark Food present w/atty Kaley. Deft. pleads n/g. Case assigned to Judge Rakoff for all purposes. (rag) Modified on 08/08/2000 (Entered: 06/09/2000)
06/08/2000  PLEA entered by John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp . Court accepts plea. Not Guilty: John DiCarlo (1) count(s) 1, Nicholas A. Penachio (2) count(s) 1, Gordon Kerner (3) count(s) 1, DiCarlo Distributors (4) count(s) 1, Nick Penachio Co Inc (5) count(s) 1, Landmark Food Corp (6) count(s) 1 (rag) Modified on 08/08/2000 (Entered: 06/09/2000)
06/08/2000  CASE Assigned to Judge Jed S. Rakoff (rag) (Entered: 06/09/2000)
06/13/2000  Pre-Trial Conference as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp held. Defendants John DiCarlo present witha ttorney Michael Siroka. Defendants Nicholas Penachio and Nicholas Penachio Co. Inc. prensent with attorney Gerald Shargel. Defendant Gordon Kerner present with attorney Michael Rosen. Defendant DiCarlo Distributor, INC. present with attorney Victor Rocco. Defendnat Landmark Food Corp. present with attorney John F. kaley. U.S.A. represented by attorney Rebecca Meiklejohn from Department of Justice Anti-Trust Division. Court reporter Vincent Bologna present. Discovery is to be completed by 8/18/00. Motions, other than discovery motions, are to be filed by 7/28/00. Answer papers to motios should be served by 8/11/00. Reply papers to be filed by 8/18/00. Any discovery motion should be filed by 8/25/00. The court scheduled an oral arguments on all motions for 9/7/00 at 9:00 am. Time excluded from 6/13/00 until 9/7/00 in the interest of justice. (mr) Modified on 08/08/2000 (Entered: 06/29/2000)
06/15/2000ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp, As per the Court's ruling in open court on 6/13/00, see transcript, the schedule for discovery and motion practice in this case in as follow: All discovery is to be completed by no later that 8/18/00. Any motion by any party other than a motion directly relating to discovery itself shall be filed no later that 7/28/00. Answering papers to any such motion shall be filed by 8/11/00, and reply papers shall be filed by 8/18/00. Any motion directly relating to discovery itself shall be filed no later than 8/25/00, and shall be the subject of oral response at the next conference. The Court will hold that conference on 9/7/00, at 9:00 am., at which time it will hear oral argument on any all all motions that have been filed and will set a firm trial date, most likely in 11/2000. ( Signed by Judge Jed S. Rakoff ); Copies mailed. (mr) Modified on 08/08/2000 (Entered: 06/16/2000)
08/04/200013 MOTION by USA as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co., Inc., Landmark Food Corp., for Joinder pursuant to Rule 13. Return date not specified. (bw) (Entered: 08/08/2000)
08/07/200014 TRANSCRIPT of record of proceedings as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 6/13/00 before Judge Rakoff. (rag) (Entered: 08/08/2000)
08/09/2000  Telephone Conference as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp held (mr) (Entered: 08/24/2000)
08/11/200016 ANSWER by USA to defendant John Dicarlo's [11-1] motion to dismiss the indictment., [11-2] motion review grand jury transcripts., [11-3] motion preclude certain evidence., [11-4] motion grant such other releif as the court may deem just and proper. (bw) (Entered: 08/14/2000)
08/18/200018 REPLY by USA to Defendants John DiCarlo's and DiCarlo Distributors Inc.'s Joint Memorandum in Opposition to the Government's Motion for Joinder. (bw) (Entered: 08/22/2000)
08/31/2000  Telephone Conference as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp held before Judge Rakoff. (rag) (Entered: 09/28/2000)
09/01/200022 Government's surreply to defendant's motion to dismiss the indictment and for other releif as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp (mr) (Entered: 09/05/2000)
09/13/200023 ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp, Time excluded from 9/13/00 until 2/13/01 to Continue in Interests of Justice ( Signed by Judge Jed S. Rakoff ); Copies mailed. (mr) (Entered: 09/14/2000)
11/13/200025 TRANSCRIPT of record of proceedings before Judge Rakoff as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 9/12/00. (lf) (Entered: 11/13/2000)
01/08/200128 MOTION by USA as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp to continue Pursuant to 18USC 3161(b)(3)(A) and (h)(8)(A) (sl) (Entered: 01/09/2001)
01/10/200130 ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp, reset Jury trial for 9:00 2/28/01 for John DiCarlo, for Nicholas A. Penachio, for Gordon Kerner, for DiCarlo Distributors, for Nick Penachio Co Inc, for Landmark Food Corp , the time from 2/13/01 to 2/28/01 to be excluded to Continue in Interests of Justice ( Signed by Judge Jed S. Rakoff ); Copies mailed. (sl) (Entered: 01/10/2001)
01/10/200131 ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Inc., Nick Penachio Co., Inc., Landmark Food Corp. ... Upon the motion of the gov't for leave to take the deposition of Arthur Goldberg to preserve his testimony for trial, and upon consideration of the filings by the parties, IT IS HEREBY ORDERED, pursuant to Fed. R. Crim. P. 15, that Arthur Goldberger be deposed by video before January 24, on dates to be agreed to by the parties, and that such deposition take place under such conditions as may be prescribed by Arthur Goldberg's physician so as to prevent undue strain to Mr. Goldberg, subject to review by the Court (including the possibility of a presiding magistrate judge. ( Signed on 1/9/01 by Judge Jed S. Rakoff ); Copies mailed. (bw) (Entered: 01/10/2001)
01/18/2001  Status conference as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp held. Video disposition- Courtroom 18A- referred by Judge Rakoff. Arthur Goldbern, sworn (witness) for the government, Rebecca Meikeljohn. Charles Stillman Esq. for defendant John DiCarlo. Victor J. Rocco, Esq for defendant DiCarlo Distributor, Inc. Court reporter Brad Rainoff and Sabrina D' Agostino and Michael Chait and Ely Chait of Chait Video Inc., Director/Camera present. Direct and Cross Examination. (mr) (Entered: 01/23/2001)
01/19/2001  Status conference as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp held. Video disposition of Arthur Goldberg continued and concluded. Court adjourned. (mr) (Entered: 01/23/2001)
02/20/200132 ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp, The government will not be permitted to introduce the basis of Rule 404(b)the other crimes evidence described in the second paragraph of the 2/5 hearing. The Government will also not be permitted to introduce in its case-in-chief on the basis of Rule 404(b) the other crimes evidence described in the third paragraph of the 2/5 notice. Finally, with respect to the Government's final category of 404(b) evidence, as set forth in the 4th paragraph of the 2/5 notice, the Court reconfirms its prior determination to defer ruling on the admissibility under Rule 404(b) of the various " false statement" items comprising this final category until they are actually offered at trial. ( Signed by Judge Jed S. Rakoff ); Copies mailed. (sl) (Entered: 02/21/2001)
02/23/200138 ORDER as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp, The motion to permit the Government to use leading questions in its direct examination of 2 current DiCarlo employees is granted, but the motion to preclude the defendants from using leading questions in their corresponding cross-examination of these witnesses is denied. The motion to permit the government to introduce the plea allocutions of non-testifying co-conspirators is denied. The motion to preclude defendants from cross-examining Selyn Lempert with respect to his 1975 attempt petty larceny is granted. The motion to exclude all evidence of post-conspiracy bids to the Board of Education by DiCarlo Distributors is denied. The motion to strike from the indictment paragraph 8 and any reference to the nature of the school lunch program as involving children is denied as untimely. The moiton to instruct the jury at the outset of the case that the case does not involve any allegation that the food provided by defendants to the Board of Education was inferior is denied as unwarranted and potentially confusing. ( Signed by Judge Jed S. Rakoff) Copies mailed. (sl) (Entered: 02/26/2001)
02/26/2001  Change of Plea Hearing as to Landmark Food Corp held. Deft. present with atty John F. Kaley, AUSA Rebecca Meiklehohn and Court reporter Albi Gorn. Deft, through atty John Kaley, withdrew plea of not guilty and entered a plea of guilty. PSI ordered. Sentencing set for July 27, 2001 at 9:00 a.m. (rag) (Entered: 03/01/2001)
02/26/2001  Change of Not Guilty Plea to Guilty Plea by Landmark Food Corp Landmark Food Corp (6) count(s) 1 (rag) (Entered: 03/01/2001)
02/26/2001  PLEA entered by Landmark Food Corp . Court accepts plea. Guilty: Landmark Food Corp (6) count(s) 1 (rag) (Entered: 03/01/2001)
02/26/2001  Court Orders pre-sentence investigation as to Landmark Food Corp (rag) (Entered: 03/01/2001)
02/26/2001  Sentencing set for 9:00 7/27/01 for Landmark Food Corp , Landmark Food Corp (6) count(s) 1 (rag) (Entered: 03/01/2001)
02/28/2001  Telephone Conference as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp held (mr) (Entered: 03/01/2001)
03/02/200148 TRANSCRIPT of record of proceedings as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 1/30/01. (sl) (Entered: 03/02/2001)
03/02/200149 TRANSCRIPT of record of proceedings as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 1/29/01. (sl) (Entered: 03/02/2001)
03/06/200150 SEALED DOCUMENT as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp (da) (Entered: 03/07/2001)
04/05/200152 TRANSCRIPT of record of proceedings as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 2/1/01. (db) (Entered: 04/05/2001)
04/05/200153 TRANSCRIPT of record of proceedings as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 2/13/01. (db) (Entered: 04/05/2001)
04/09/200156 TRANSCRIPT of record of proceedings as to Gordon Kerner, Landmark Food Corp for dates of 2/26/01 before Judge Rakoff . (mr) (Entered: 04/09/2001)
04/11/200157 TRANSCRIPT of record of proceedings as to John DiCarlo, Nicholas A. Penachio, Gordon Kerner, DiCarlo Distributors, Nick Penachio Co Inc, Landmark Food Corp for dates of 2/6/01 before Judge Rakoff. (rag) (Entered: 04/11/2001)
08/02/200162 SENTENCING MEMORANDUM by USA as to Gordon Kerner, Landmark Food Corp (jb) (Entered: 08/06/2001)
08/02/200163 SENTENCING MEMORANDUM by Landmark Food Corp as to Landmark Food Corp (jb) (Entered: 08/06/2001)
08/09/2001  Sentencing held Landmark Food Corp (6) count(s) 1. (ja) (Entered: 08/14/2001)
08/09/200168 FILED JUDGMENT IN A CRIMINAL CASE. (For Offenses Committed On or After November 1, 1987). Defendant Landmark Food Corp (6) plead guilty to count(s) 1. Probation: 60 months. The defendant shall not possess a firearm as defined in 18 U.S.C., Sec. 921. SPECIAL CONDITIONS OF SUPERVISION: 1) The corporation, thru its representative, shall report to the nearest probation office within 72 hours of imposition of sentence. 2) The corporation is to make restitution in the amount of $1,500,000.00 to the New York City Board of Education jointly and severally with co-defendant Gordon Kerner. Restitution is to be paid over the five year period of probation on a schedule to be determined by the probation department in accordance with the Court's guidelines, see transcript of sentence hearing on August 9, 2001. 3) The defendant shall cooperate with the I.R.S. as to any outstanding tax returns. Assessment: $400.00. Restitution: $1,500,000.00. Payment of the total fine and other criminal monetary penalties shall be due as follows: In full immediately. Restitution of $1,500,000.00 is to be paid in accordance with the instruction set forth on page three of this judgment. Statement of Reasons attached. Judgment and Commitment issued to U.S. Marshal. Docketed as a Judgment #01,1536 on 8/14/01. (Signed by Judge Jed S. Rakoff) (ja) Modified on 08/16/2001 (Entered: 08/14/2001)
09/26/200174 TRANSCRIPT of record of proceedings as to Landmark Food Corp for dates of 8/9/01, held before Judge Jed S. Rakoff . (yv) (Entered: 09/26/2001)
08/08/2002  Payment of Fine by Landmark Food Corp in the amount of $200,000.00 restitution: Date Received: 8/8/02. (mn) (Entered: 08/08/2002)
08/11/2003  Payment of Fine by Landmark Food Corp in the amount of $200,000.00: Date Received: 8/8/03 restitution. (mn) (Entered: 08/11/2003)
07/26/2004  Payment of RESTITUTION from Landmark Food Corp in the amount of $200,000.00. Date Received: 7/26/04. (mn, ) (Entered: 07/26/2004)
08/08/2005  Payment of restitution from Landmark Food Corp in the amount of $200,000.00. Date Received: 8/8/05. (mn, ) (Entered: 08/08/2005)
01/17/2006  Payment of RESTITUTION from Landmark Food Corp in the amount of $800.00. Date Received: 1/10/2006. (jd, ) (Entered: 01/17/2006)
07/24/2006  Payment of restitution from Landmark Food Corp in the amount of $200,000.00. Date Received: 7/21/06. (mn, ) (Entered: 07/24/2006)
09/18/200686 SATISFACTION OF JUDGMENT as to Landmark Food Corp re 68 Judgment,,,,,, in the amount of $1,500,400.00. Judgment satisfied on 9/18/06. (pr, ) (Entered: 09/26/2006)