United States v. Beaver, Chris ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1381
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER A. BEAVER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 CR 61—Larry J. McKinney, Judge.
____________
ARGUED OCTOBER 22, 2007—DECIDED FEBRUARY 4, 2008
____________
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. A federal jury found Christopher
Beaver guilty of participating in a price-fixing conspiracy,
15 U.S.C. § 1, and making false statements to a federal
law enforcement agent who was investigating that con-
spiracy, 18 U.S.C. § 1001(a)(1). Beaver challenges his
convictions on appeal, arguing that the government
failed to prove at trial that a price-fixing conspiracy
existed, that he joined the conspiracy, or that he made
false statements. We affirm.
2 No. 07-1381
I. HISTORY
In October 2003, Gary Matney, a manager at the India-
napolis office of Prairie Material Ready-Mix Concrete,
approached the Federal Bureau of Investigation to report
the existence of a price-fixing conspiracy involving several
of Prairie Material’s competitors. According to Matney,
Prairie Material was being pressured to join the con-
spiracy, a claim that led the FBI to investigate the pricing
activities of five ready-made concrete producers in the
Indianapolis metropolitan area: (1) Shelby Materials, Inc.;
(2) Builder’s Concrete & Supply Co., Inc.; (3) Irving
Materials, Inc.; (4) Hughey, Inc.; and (5) Ma-Ri-Al, which
does business as Beaver Materials Corp. The investiga-
tion reached a turning point on May 25, 2004, when FBI
agents executed search warrants on the five companies,
and interviewed the companies’ corporate officers and
employees regarding the existence of the conspiracy.
Information recovered at that time substantiated many
of Matney’s claims, and set into motion a chain of events
that would mark the demise of the price-fixing scheme.
Shelby Materials’s Vice-President, Richard Haehl, im-
mediately admitted his criminal conduct and offered to
help the government investigate the cartel; the govern-
ment, in turn, granted Haehl amnesty conditioned on his
continued cooperation and, if required, truthful testimony
at trial. Shortly thereafter, the government obtained
indictments against Builder’s Concrete, Irving Materials,
and Hughey, Inc., and their respective corporate officers,
Gus “Butch” Nuckols, Price Irving, and Scott Hughey.
Nuckols, Irving, and Hughey eventually admitted their
roles in the conspiracy and entered into plea agreements,
in which they, too, offered to help the government in-
vestigate the cartel and testify truthfully at trial if called.
Upon enlisting the cooperation of Haehl, Nuckols, Irving,
and Hughey, the government sought an indictment
No. 07-1381 3
against Beaver Materials and its corporate officers. The
government’s efforts paid off in April 2006, when a federal
grand jury returned a four-count indictment against
Beaver Materials, Ricky Beaver—the company’s Com-
mercial Sales Manager—and Christopher Beaver—the
Operations Manager. Two of the counts were directed at
Christopher. First, the indictment charged Christopher
with participating in a price-fixing conspiracy in viola-
tion of § 1 of the Sherman Antitrust Act. Specifically, the
indictment alleged that he met with competitors at “a
horse barn owned by Gus B. Nuckols, III a/k/a Butch
Nuckols, president of Builder’s Concrete and Supply Co.,”
at which they agreed to increase prices, limit discounts,
and implement surcharges; carried out and enforced
their agreement; and attempted to conceal the conspiracy.
See 15 U.S.C. § 1. The indictment also charged Chris-
topher with making false statements regarding his par-
ticipation in the conspiracy to an FBI agent who investi-
gated it. See 18 U.S.C. § 1001(a)(1). Unlike their alleged
cohorts, Christopher, Ricky, and Beaver Materials es-
chewed plea agreements and instead exercised their
rights to a jury trial, at which the three were tried jointly.1
The evidence introduced at trial, which we review in a
light most favorable to the government, see United States
v. Andreas, 216 F.3d 645, 670 (7th Cir. 2000), was as
follows:
1
Beaver Materials was charged with one count of participating
in the price-fixing conspiracy. Like Christopher Beaver, Ricky
Beaver was charged with participating in the conspiracy and
making false statements to the FBI. Also named in the in-
dictment was John Blatzheim, Executive Vice-President of
Builder’s Concrete. Blatzheim was likewise charged with
participating in the conspiracy and making false statements
to the FBI, but rather than go to trial he pled guilty to the
charges.
4 No. 07-1381
The government presented the testimony of Haehl,
Nuckols, Irving, and Hughey, who each provided details
as to the origins of the price-fixing conspiracy and Christo-
pher Beaver’s role within the scheme. The men explained
that, at the turn of the century, the ready-made-concrete
market in the Indianapolis area was extremely competi-
tive. The market was primarily occupied by eight concrete
producers that often vied for the same customers by
bidding on their construction projects. The companies’
bidding and pricing processes were largely uniform. At the
beginning of construction season in the spring of each
year, the producers would send price lists to potential
clients to inform them of the lowest possible rates at
which they could provide concrete. The price lists usually
featured five dollar amounts that went into the calcula-
tion of the quoted price. First, there was the base
price—or, as it was called, the gross price—of the desired
amount of a particular mix of concrete. Next, the price
list provided the available discount off the gross price
for promptly submitting payment; the price list then
deducted this discount, which yielded the net price. But
the producers’ net prices were identical more often than
not, so to distinguish themselves and undercut their
competition the producers would include a fourth dollar
amount on the price list: an additional discount from
the net price. The producers would then calculate and
quote to potential clients the resulting discounted net
price as the lowest price at which they could provide
the concrete. But as the competition for customers
grew over the years, the producers offered increasingly
larger net-price discounts that, in turn, depressed the
market value of concrete, and, consequently, reduced the
producers’ overall profits.
The four men each continued that, in July 2000, Nuckols
decided that it was time to address the falling market
value of concrete. He accordingly organized a meeting
No. 07-1381 5
at his horse barn in Fishers, Indiana, of corporate officers
of area concrete producers so they could discuss methods
of “getting the price up.” The meeting was attended by,
among others, Haehl, Irving, Hughey, and Beaver Materi-
als’s representative, Ricky Beaver. All those present
discussed ways in which they could “stabilize the market,”
leading someone (it is not exactly clear who) to propose
a $5.50 limit on each producers’ gross-price discount for
a cubic yard of concrete; the gross-price-discount limit, in
turn, translated to a net-price-discount limit of $3.50
per cubic yard. Although no vote was taken on the pro-
posal, no one in attendance objected to it, nor did anyone
refuse to impose the limit; as Haehl described it, “Nobody
objected, nobody disagreed, nobody walked away.” Indeed,
each witness testified that he left the meeting with the
firm understanding that an agreement to limit net-price
discounts had been reached.
However, each of the four co-conspirators stated, the
members of the concrete cartel did not always abide
by their agreement. This periodic cheating contributed to
the continuing downward spiral of concrete market
prices, despite the cartel’s efforts. As a result, individual
members of the cadre separately met with each other at
various times and locations to shore up the plan. But when
those meetings failed to raise the price of concrete,
Nuckols and Hughey called a second meeting of the entire
cartel in May 2002, this time at the Signature Inn in
Fishers. Every company participating in the cartel was
represented, and, again, Nuckols, Haehl, Irving, Hughey,
and Ricky Beaver attended. The purpose of the meeting
was, as Haehl described it, “to just reaffirm” the agree-
ment to limit their net-price discounts at $3.50. Just like
at the earlier meeting at Nuckols’s horse barn, no one
objected to imposing the limit. Moreover, those in atten-
dance all agreed to a method of enforcing the limit: if they
became aware that another cartel member was offering a
6 No. 07-1381
net-price discount greater than $3.50, they would con-
front that producer about his cheating. And based, in part,
on this plan, the meeting at the Signature Inn ended with
Haehl, Nuckols, Irving, and Hughey each believing the
attendees had reaffirmed the discount limit.
The four witnesses each continued to testify that in the
days after the meeting at the Signature Inn, they at-
tempted to enforce the net-price-discount limit by con-
tacting those producers whom they believed were cheat-
ing on the cartel agreement. In fact, each man stated
that, at one time or another they either confronted some-
one whom they believed was cheating, or were them-
selves accused of cheating. Nevertheless, their efforts
to police the scheme proved incapable of reversing the
downward spiral of concrete prices; as Nuckols testified,
in the days following the meeting “our prices just were
not doing well and they were going in the gutter.” So
Nuckols arranged another meeting at his horse barn in
October 2003 to discuss the discount limits further.
Haehl, Irving, and Hughey again attended, but this time
Ricky Beaver did not; as it turned out, Ricky had not
accurately conveyed the details of the agreement to the
appropriate individuals at Beaver Materials. As Price
and Hughey elaborated, Beaver Materials underbid
Hughey, Inc., on two separate occasions after the July
2000 meeting, causing Hughey to telephone Christopher
Beaver directly and ask him if Beaver Materials was
cheating. Christopher, according to Hughey, denied that
was the case, and stated that “he was at the discount
that was established in the agreement with everyone.”
But, apparently, Ricky was confused about that discount,
leading him to provide Christopher with the wrong infor-
mation, and, in turn, causing Beaver Materials to quote
prices in dereliction of the agreement. Therefore, to avoid
the potential for any further confusion, Christopher took
over representing Beaver Materials.
No. 07-1381 7
The four co-conspirators each further testified that
the October 2003 began with Hughey bemoaning the fact
that no one was abiding by the agreement, and urging
those who did not want to follow the agreement to leave
the meeting. Hughey recounted his exhortation: “ ‘You
know, guys, this thing is not being adhered to. And we
need to decide are we going to agree on this and do what
we say we’re going to or just walk on out of here.’ ” But no
one walked out. Instead, Hughey’s lecture spurred a
discussion among all the attendees—including Christopher
Beaver—during which they again reassured one another
that they each would limit their discounts to $3.50 off of
the net price. The discussion did not end there, however.
The group also agreed to increase the net price of each
cubic yard of performance-mix concrete by $2, and by $2.50
for each cubic yard of bag-mix concrete. They further
agreed to add a collective $2-per-cubic-yard surcharge for
all concrete produced in the winter. Moreover, those
present reasserted their commitment to police the agree-
ment by confronting apparent cheaters.
Just like at the two earlier meetings, Haehl, Nuckols,
Irving, and Hughey each stated that they understood
that the attendees at the October 2003 meeting agreed to
limit their net-price discounts to $3.50, in addition to
adopting additional pricing restraints. No one present at
the meeting—Christopher Beaver included—objected to
the net-price-discount limit. Even more, Hughey testified,
Christopher volunteered to contact the manager at Ameri-
can Concrete, another Indianapolis ready-made-concrete
producer that was not represented at the meeting, “ ‘and
get him the message on what we agreed on.’ ”
After each of the four co-conspirators testified, the
government presented the testimony of several FBI agents
who recounted the agency’s investigation into the con-
crete cartel. As relevant here, Special Agent Neil Free-
8 No. 07-1381
man testified that when the FBI conducted its searches
and interviews on May 25, 2004, he questioned Christo-
pher Beaver regarding the existence of the conspiracy;
different FBI agents simultaneously interviewed Ricky
Beaver and Allyn Beaver, Christopher’s father and com-
pany President. During their conversation, Christopher
stated that he had been employed by Beaver Materials
for 21 years, and that in the “last couple years” he had
become more involved in the pricing of the company’s
products because he would soon be replacing his father
as President. When Freeman asked Christopher if he
had attended any meetings at Nuckols’s horse barn,
Christopher answered, “No.” Christopher also stated
that he did not know of any other employee of Beaver
Materials having attended such a meeting. He further
told Freeman that he saw Beaver Materials’s competitors
only when attending meetings of the industry trade
group, the Indiana Ready-Mix Association. In all, Freeman
stated, Christopher “denied being involved with any
kind of discussion of price fixing,” and further disavowed
ever meeting with any of the competing producers to
discuss pricing and discount agreements.
The government rested its case after it presented the
evidence regarding the origins of the price-fixing con-
spiracy, Christopher Beaver’s participation, and his
statements to Special Agent Freeman. Christopher then
moved for a judgment of acquittal on the basis that the
government had failed to introduce “any kind of evidence
that would indicate that [Christopher] joined the con-
spiracy.” See Fed. R. Crim. P. 29(a). After the district
court denied the motion, Christopher presented the
testimony of his sole witness—Chuck Mosely, who worked
at Beaver Materials from 1991 until 2006 as a concrete
salesman. Mosely testified that, during his time as a
salesman, Christopher never told him how to price con-
crete. However, Mosely also stated that he knew that
No. 07-1381 9
Christopher attended “a price fixing meeting at Butch
Nuckols’s horse barn.”
Beaver Materials, on the other hand, presented the
testimony of Allyn Beaver and Charles Sheeks, Beaver
Materials’s corporate counsel. Allyn testified that Christo-
pher Beaver had some influence over the company’s
prices, including the authority to authorize certain dis-
counts. Allyn also stated that he was unaware of any price-
fixing agreement between Beaver Materials and
its competitors, though he did know that Ricky Beaver
had been communicating with some of the other area
concrete producers. Moreover, Allyn testified that he
knew that Christopher had attended the October 2003
meeting at Nuckols’s horse barn, that Christopher told
him that those in attendance talked about prices, and
that “the way that the meeting was going,” it seemed
like that the attendees “must be doing this all the time.”
However, Allyn did not know whether Christopher entered
into any agreement with Beaver Materials’s competitors.
Sheeks then testified that the day after the FBI con-
ducted its interviews, he met with Christopher Beaver,
Ricky Beaver, and Allyn Beaver at Beaver Materials’s
corporate office. There, Christopher and Ricky told Sheeks
that they lied to the FBI about their presence at the
meetings at Nuckols’s horse barn. In response to this
news, Sheeks sent a letter to the Department of Justice
on May 28, in which he stated only that “[o]ne of the
employees of my client made a misstatement to one of
your agents to the effect he had not attended a meeting
at what has been referred to as ‘Butch’s barn.’ He did, in
fact, attend the meeting.”
After the defense rested the district court submitted
the case to the jury, which found Christopher Beaver
guilty on both the price-fixing-conspiracy and false-state-
10 No. 07-1381
ments counts.2 Christopher then renewed his motion for
a judgment of acquittal, see Fed. R. Crim. P. 29(c), chal-
lenging the evidence supporting his price-fixing-con-
spiracy conviction, but not his conviction for making
false statements. After the court denied the motion, it
sentenced Christopher to 27 months’ imprisonment.
II. ANALYSIS
Christopher Beaver raises two arguments on appeal.
First, he argues that the district court erred by denying
his motion for a judgment of acquittal because, he asserts,
the government failed to prove at trial that a price-fixing
conspiracy existed, or that he participated in the conspir-
acy. Christopher also challenges his false-statements
conviction by asserting that the government failed to
prove that the lies he told to Special Agent Freeman
were material “as a matter of law.” We address these
arguments in turn.
A. The Existence of, and Christopher Beaver’s Participa-
tion in, the Price-Fixing Conspiracy
To prevail on his argument that the district court erred
by denying his motion for a judgment of acquittal, Christo-
pher Beaver must show that the court incorrectly con-
cluded that there was sufficient evidence to sustain his
conviction under the Sherman Antitrust Act. See Fed. R.
Crim. P. 29(a); Andreas, 216 F.3d at 670. Although we
review Christopher’s argument de novo, see United States
v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002), he faces a
“ ‘nearly insurmountable’ ” burden on appeal, United States
2
The jury also found Beaver Materials and Ricky Beaver guilty
on all counts.
No. 07-1381 11
v. Jackson, 177 F.3d 628, 630 (7th Cir. 1999) (quoting
United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.
1997)). Viewing the evidence presented at trial in the
light most favorable to the government, we will overturn
Christopher’s guilty verdict “ ‘only if the record contains
no evidence, regardless of how it is weighed,’ ” from
which the jury could have concluded beyond a reasonable
doubt that he is guilty. See Andreas, 216 F.3d at 670(quoting United States v. Agostino, 132 F.3d 1183, 1192
(7th Cir. 1997)).
Christopher Beaver attempts to shoulder this burden by
arguing that the government failed to prove that the
concrete producers agreed to restrict their discounts on
the net prices of concrete. Specifically, he contends
that the evidence at trial showed that “no person voiced
their assent to the supposed conspiracy.” Thus, according
to Christopher, the government failed to establish
that the producers entered into an agreement in the
first place.3
To prove a violation of § 1 of the Sherman Antitrust Act,
the government had to introduce evidence showing that
the concrete producers conspired to restrain trade, see
15 U.S.C. § 1; United States v. Socony-Vacuum Oil Co.,
310 U.S. 150, 224 & n.59 (1940); Andreas, 216 F.3d at
666; United States v. Hayter Oil Co., 51 F.3d 1265, 1270
3
Although Christopher argues that the government failed to
show that the concrete producers agreed to limit their net-price
discounts, he abandons any challenge to the illegality of the
agreement itself. See Crestview Vill. Apartments v. U.S. Dep’t of
Hous. & Urban Dev., 383 F.3d 552, 555 (7th Cir. 2004). This is
wise; the net-price-discount limit constituted an illegal price-
fixing arrangement, and thus was a per se illegal restraint of
trade under § 1 of the Sherman Antitrust Act. See Texaco Inc. v.
Dagher, 547 U.S. 1, 5-7 (2006); United States v. Kahan & Lessin
Co., 695 F.2d 1122, 1125 (9th Cir. 1982).
12 No. 07-1381
(6th Cir. 1995), by agreeing to fix the price of concrete
through limiting their net-price discounts, see Texaco Inc.,
547 U.S. at 5-7; Kahan & Lessin Co., 695 F.2d at 1125;
United States v. Am. Radiator & Standard Sanitary
Corp., 433 F.2d 174, 185-87 (3d Cir. 1970). Although the
existence of such an agreement is “the essence” of the
government’s § 1 conspiracy allegation, see United States
v. Consol. Packaging Corp., 575 F.2d 117, 126 (7th Cir.
1978); see also Nelson v. Pilkington, 385 F.3d 350, 356-57
(3d Cir. 2004), the government did not need to show that
the producers reached a “formal agreement” to limit their
discounts, Am. Tobacco Co. v. United States, 328 U.S. 781,
809 (1946); see also United States v. Whaley, 830 F.2d
1469, 1474 (7th Cir. 1987). Rather, the government was
required only to establish that the concrete producers
had “a tacit understanding based upon a long course of
conduct” to limit their discounts. United States v. Beachner
Constr. Co., 729 F.2d 1278, 1283 (10th Cir. 1984); see
also Andreas, 216 F.3d at 670; cf. Monsanto Co. v.
Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984) (“[T]he
antitrust plaintiff should present direct or circumstan-
tial evidence that reasonably tends to prove that the
manufacturer and others ‘had a conscious commitment
to a common scheme designed to achieve an unlawful
objective.’ ” (quoting Edward J. Sweeney & Sons, Inc. v.
Texaco, Inc., 637 F.2d 105, 111 (3d Cir. 1980))).
The government introduced ample evidence at trial
that showed that the concrete producers shared a “tacit
understanding” that they were to limit their net-price
discounts collectively. In fact, the trial record is replete
with details regarding the cartel’s meetings in July 2000,
May 2002, and October 2003, at which the producers
discussed the net-price-discount limit, policing the
limit, and other price restraints. Haehl, Nuckols, Irving,
and Hughey each testified that, beginning in July 2000,
the entire cartel met on at least three occasions with the
No. 07-1381 13
known purpose of addressing the falling price of concrete.
During each of those meetings, the competitors discussed
the ways in which they could “stabilize the market,”
leading to the proposed net-price-discount limit. And
although no formal vote was taken on the discount limit,
no one disagreed with the proposal or stated that he
would not participate in the scheme. Indeed, when Hughey
gave the producers the opportunity to oppose the price-
fixing arrangement and leave the conspiracy, “Nobody
objected, nobody disagreed, nobody walked away.” Instead,
the producers discussed additional methods of aligning
their pricing practices, such as instituting general price
increases and a winter surcharge. And based on these
meetings and related discussions, Haehl, Nuckols, Irving,
and Hughey each understood that an agreement was
reached. See Andreas, 216 F.3d at 670; Beachner Constr.
Co., 729 F.2d at 1282.
Moreover, Haehl, Nuckols, Irving, and Hughey each
testified that the concrete producers’ communications
were not limited to the July 2000, May 2002, or Oct-
ober 2003 meetings; they also enforced the discount
restraint by confronting those who were cheating on the
cartel. Each witness also testified that, on various occa-
sions, they either confronted someone whom they believed
was cheating or were themselves accused of cheating.
Hughey likewise stated that on two separate occasions
Christopher Beaver reassured him that Beaver Materials
was abiding by the discount limit. In the face of this
evidence, Christopher’s assertion that “no person voiced
their assent to the supposed conspiracy” rings hollow.
Such assent was voiced when the co-conspirators either
confronted others about cheating on the cartel, or reas-
sured others—like Christopher did—that they were
abiding by the agreement. See Beachner Constr. Co., 729
F.2d at 1282; cf. In re High Fructose Corn Syrup Antitrust
Litig., 295 F.3d 651, 654 (7th Cir. 2002) (stating that price-
14 No. 07-1381
fixing conspiracy can be proved by “actual, verbalized
communication”).
Christopher Beaver asserts, however that the concrete
producers’ occasional cheating on the discount limit
shows that no agreement was ever reached. But this
argument is illogical; certainly Christopher would agree
that a breach of contract does not mean that the parties
never entered into the contract in the first place. And the
argument is also beside the point because § 1 of the
Sherman Antitrust Act does not outlaw only perfect
conspiracies to restrain trade. It is not uncommon for
members of a price-fixing conspiracy to cheat on one
another occasionally, and evidence of cheating certainly
does not, by itself, prevent the government from proving a
conspiracy. See, e.g., Andreas, 216 F.3d at 679 (stating
that cheating cartel members did not negate conspiracy);
United States v. Misle Bus & Equip. Co., 967 F.2d 1227,
1231 (8th Cir. 1992) (“Government witnesses testified that
although [the defendant] occasionally ‘cheated’ his co-
conspirators by bidding lower than was agreed,
he . . . reached mutual understandings with the other
participants about prices . . . and usually adhered to the
prices and market allocations upon which they agreed.”);
United States v. Foley, 598 F.2d 1323, 1333 (4th Cir. 1979)
(“Since the agreement itself, not its performance, is the
crime of conspiracy, the partial non-performance of [the
defendant company] does not preclude a finding that it
joined the conspiracy.” (citations omitted)). Thus, we
cannot say that the producers’ occasional cheating pre-
vented the government from sufficiently proving that
they conspired to fix the price of concrete.
Christopher Beaver continues his challenge to the
sufficiency of the evidence underlying his price-fixing-
conspiracy conviction by arguing that the government
failed to show that he personally participated in the cartel.
No. 07-1381 15
In Christopher’s view, the testimony of Haehl, Nuckols,
Irving, and Hughey implicating him in the conspiracy
was not credible because “no two competitors said any-
thing as a whole which would corroborate the testimony
of the others.” But this argument fails from the start. “We
will not second-guess the jury’s credibility decisions in
evaluating [Christopher’s] challenge to the sufficiency of
the evidence,” United States v. Johnson-Dix, 54 F.3d 1295,
1306 (7th Cir. 1995); United States v. Henderson, 58 F.3d
1145, 1148 (7th Cir. 1995), even if his co-conspirators’
claims were uncorroborated, see United States v. Crowder,
36 F.3d 691, 696 & n.1 (7th Cir. 1994).
But the credibility of Haehl, Nuckols, Irving, and
Hughey aside, their testimony sufficiently implicated
Christopher Beaver in the conspiracy. Specifically, each
man testified that Christopher (1) was present at the
October 2003 meeting at Nuckols’s horse barn; (2) partici-
pated in discussions on how to limit the price of concrete;
(3) did not object to the net-price-discount limit; (4) agreed
to confront other conspiracy members if he found them
cheating on the agreement; and (5) agreed on additional
pricing constraints. Moreover, Hughey testified that, at
the meeting, Christopher volunteered to contact the
manager at American Concrete “and get him the message
on what we agreed on.”
Looking beyond the testimony of Haehl, Nuckols,
Irving, and Hughey, the uncontradicted evidence regarding
Christopher Beaver’s responsibilities at Beaver Materials
further bolsters the jury’s conclusion that he par-
ticipated the conspiracy. Christopher admitted to Special
Agent Freeman that, as Operations Manager, he was
involved in the pricing of the company’s products, a role
that would have allowed the jury to infer that Christopher
was able to effectuate the net-price-discount limit. This
inference is further supported by Hughey’s testimony
that he spoke with Christopher personally on two occa-
16 No. 07-1381
sions, and that during those conversations Christopher
reaffirmed Beaver Materials’s commitment to the dis-
count limit. And the testimony of both Mosely and Allyn
Beaver failed to contradict the evidence of Christopher’s
involvement. Both men stated that they knew
that Christopher had met with competitors at Nuckols’s
horse barn in October 2003, and Allyn further stated
that Christopher told him that pricing was discussed at
that meeting. We thus cannot say that the government
failed to prove that Christopher participated in the price-
fixing conspiracy, or that the district court erred by
denying his motion for a judgment of acquittal. See
Andreas, 216 F.3d at 670.
B. Christopher Beaver’s False Statements
Christopher Beaver next challenges his conviction under
18 U.S.C. § 1001(a)(1) for falsely stating to Special Agent
Freeman that neither he, nor Beaver Materials, partici-
pated in the price-fixing conspiracy. Specifically, Christo-
pher argues that the government did not prove that his
statements were material “as a matter of law.” As he
explains, the government needed to show at trial that his
statements to Freeman were material, see 18 U.S.C.
§ 1001(a)(1); United States v. Moore, 446 F.3d 671, 677 (7th
Cir. 2006), meaning that the statements had the tendency
to influence, or were capable of influencing, the FBI’s
investigation of the price-fixing conspiracy, see United
States v. Brantley, 786 F.2d 1322, 1326 (7th Cir. 1986);
United States v. Di Fonzo, 603 F.2d 1260, 1266 (7th Cir.
1979); cf. United States v. Fernandez, 282 F.3d 500, 508
(7th Cir. 2002) (explaining materiality in context of federal
No. 07-1381 17
mail-fraud statutes, 18 U.S.C. §§ 1341 and 1346).4 Accord-
ing to Christopher, his false statements could not have
influenced the FBI’s investigation because his attorney,
Sheeks, contacted the Department of Justice to correct
the statements before they could lead the FBI astray.
Before we weigh the merits of Christopher Beaver’s
argument, however, we must take a moment to alleviate
the confusion that apparently exists regarding his chal-
lenge. Specifically, Christopher mischaracterizes the
issue of his false statements’ materiality as “a matter of
law.” But the materiality of false statements is not a
legal determination; it is, rather, a factual determination
that is made by the jury only. As the U.S. Supreme Court
explained in United States v. Gaudin, 515 U.S. 506, 522-23
(1995), the Sixth Amendment guarantees a criminal
defendant’s right to have a jury decide each and every
element of the offense with which he is charged, in-
cluding the element of materiality when the defendant is
charged with making false statements. See also United
States v. Ringer, 300 F.3d 788, 791-92 (7th Cir. 2002);
Waldemer v. United States, 106 F.3d 729, 730-31 (7th Cir.
4
In all, the government was required to prove at trial that
(1) Christopher Beaver made a statement, or had a duty to
disclose the information; (2) the statement was false, or that
Christopher undertook acts amounting to concealment; (3) the
statement or concealed facts were material; (4) Christopher
made the statement or concealed the facts knowingly and
willfully; and (5) the statement or concealed information con-
cerned a matter within the jurisdiction of a federal department
or agency. See 18 U.S.C. § 1001(a)(1); Moore, 446 F.3d at 677.
Christopher, however, asserts only that the government failed to
establish the materiality of his false statements. Thus, he has
abandoned any further challenge to the sufficiency of the
evidence underlying his false-statements conviction. See
Crestview Vill. Apartments, 383 F.3d at 555.
18 No. 07-1381
1996); United States v. Ross, 77 F.3d 1525, 1538-39 (7th
Cir. 1996). Indeed, the jury in Christopher’s trial was
instructed specifically to determine whether the govern-
ment proved beyond a reasonable doubt that the false
statements he made to Special Agent Freeman were
material, and, by virtue of its guilty verdict, concluded
that they were. Accordingly, Christopher’s argument
that the government failed to prove that his false state-
ments were material requires us to examine whether
the government introduced sufficient evidence to support
the jury’s conclusion. See Moore, 446 F.3d at 676-80;
United States v. Kosth, 257 F.3d 712, 718-20 (7th Cir.
2001); see also Ringer, 300 F.3d at 791-92.
The government, in turn, contends that Christopher
Beaver has “waived” any challenge to the sufficiency of the
evidence supporting his false-statements conviction. As
the government points out, Christopher did not chal-
lenge the evidence showing that he lied to Special Agent
Freeman either when he moved for a judgment of ac-
quittal at the close of the government’s case, or when he
renewed his motion after the jury’s verdict; instead, he
challenged only the evidence supporting his price-fixing-
conspiracy conviction. Thus, the government asserts,
Christopher intentionally relinquished the argument that
insufficient evidence supported his false-statements
conviction by failing to raise it specifically before the
district court, and that such a “waiver” precludes our
review of this argument.
The government is correct that Christopher Beaver
“waived” his sufficiency-of-the-evidence argument regard-
ing his false-statements conviction. See United States v.
Groves, 470 F.3d 311, 324 (7th Cir. 2006); United States v.
Buchmeier, 255 F.3d 415, 419 (7th Cir. 2001); see also 2A
Charles Alan Wright, Federal Practice & Procedure:
Criminal § 466 (3d. 2000). However, the government
No. 07-1381 19
incorrectly asserts that Christopher’s failure to raise the
point in his motion for a judgment of acquittal prevents us
from addressing the argument on appeal; as we have
stated many times, we review sufficiency-of-the-evidence
arguments that were not presented in a motion for a
judgment of acquittal under the plain-error standard. See,
e.g., Groves, 470 F.3d at 324; United States v. Allen, 390
F.3d 944, 947 (7th Cir. 2004); United States v. Baker, 40
F.3d 154, 160 (7th Cir. 1994). In this regard, the failure to
challenge the sufficiency of the evidence is perhaps more
precisely characterized as forfeiture rather than “waiver.”
Cf. United States v. Brodie, 507 F.3d 527, 530-31 (7th Cir.
2007) (differentiating between “waiver” and “forfeiture” in
context of Fed. R. Crim. P. 12). Compare Groves, 470 F.3d
at 324 (stating that sufficiency-of-evidence argument not
presented in motion for judgment of acquittal is “waived,”
but nevertheless reviewed under plain error), with United
States v. Moore, 425 F.3d 1061, 1069 n.5 (7th Cir. 2005)
(“ ‘Waiver precludes appellate review, but forfeiture
permits review for plain error.’ ” (quoting United States v.
Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005))). But
regardless of what we call Christopher’s failure to raise his
challenge before the district court, we nevertheless proceed
with a plain-error analysis, see Groves, 470 F.3d at 324;
Allen, 390 F.3d at 947, meaning that Christopher can
prevail only if he can show that, “absent reversal, a
manifest miscarriage of justice will result,” Allen, 390 F.3d
at 947; see also United States v. Rock, 370 F.3d 712, 714
(7th Cir. 2004). Under this “most demanding standard,
reversal is warranted only ‘if the record is devoid of
evidence pointing to guilt, or if the evidence on a key
element was so tenuous that a conviction would be shock-
ing.’ ” Allen, 390 F.3d at 948 (quoting United States v.
Taylor, 226 F.3d 593, 597-98 (7th Cir. 2000)).
Moving (finally) to the merits of Christopher Beaver’s
argument, we reject his assertion that his false state-
20 No. 07-1381
ments were not capable of influencing the FBI’s investiga-
tion because his attorney, Sheeks, contacted the Depart-
ment of Justice to correct the statements before the
FBI could actually be influenced by them. In fact, the
argument fails for several reasons. First, the record does
not even support Christopher’s contention that he at-
tempted to correct his false statements. The letter Sheeks
sent to the Department of Justice did not say that Christo-
pher made false statements to the FBI; the letter merely
stated that “one of the employees” of Beaver Materials
“misstated” that “he” was not at a meeting at Nuckols’s
horse barn. This “correction” could be understood as
referring to Christopher, Ricky Beaver, Allyn Beaver, or
any employee at Beaver Materials that spoke with FBI
agents on May 25, 2004, but not as an admission by
Christopher, himself, that he misled the FBI. Instead,
the letter’s vague language perpetuated Christopher’s
lies by implying that someone else had misled the FBI.
Moreover, Christopher Beaver is incorrect that he can
avoid a conviction under § 1001 by correcting his false
statements days after he spoke them. Contrary to Christo-
pher’s suggestions, § 1001 contains no recantation defense.
See United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir.
2001). Christopher nevertheless attempts to impute
such a defense by citing one case in which a circuit court
of appeals held that a criminal defendant can escape
prosecution under § 1001 by correcting false statements
“almost immediately”—United States v. Cowden, 677 F.2d
417, 420 (8th Cir. 1982). But Christopher did not at-
tempt to cure his false statements “almost immediately”;
Sheeks did not send the letter on Christopher’s behalf to
the Department of Justice until three days after Christo-
pher lied to Special Agent Freeman. Cf. United States v.
Salas-Camacho, 859 F.2d 788, 792 (9th Cir. 1988) (distin-
guishing Cowden and declining to find false statements
immaterial when defendant corrected statements only
No. 07-1381 21
when confronted by federal agents); United States v. Fern,
696 F.2d 1269, 1275 (11th Cir. 1983) (distinguishing
Cowden and declining to find false statements immaterial
when defendant corrected statements only once Internal
Revenue Service became suspicious). Christopher’s reliance
on Cowden is thus misplaced, and absent any further
support he essentially asks us to interpolate a recantation
defense into § 1001. But given Congress’s silence on the
issue, we decline his invitation to do so. See Sebaggala, 256
F.3d at 64 (“[W]e see no basis for writing into section 1001
a recantation defense that Congress chose to omit. After
all, ‘courts may not create their own limitations on legisla-
tion, no matter how alluring the policy arguments for
doing so.’ ” (quoting Brogan v. United States, 522 U.S. 398,
408 (1998))).
Because § 1001 contains no recantation defense, the
materiality of Christopher Beaver’s false statements
must be assessed at the moment he uttered them. See
United States v. Lee, 359 F.3d 412, 417 (6th Cir. 2004);
United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir.
1998) (stating that not measuring materiality of false
statement at time of utterance would “allow witnesses who
lie under oath to escape prosecution if their statements
before a grand jury are obviously false”). And in so assess-
ing the false statements, we conclude that they were
material. Special Agent Freeman testified that
Christopher denied meeting with any of Beaver Materials’s
competitors to develop discount limits or pricing con-
straints. According to Freeman, Christopher went so far
as to say that the only time that he saw Beaver Materials’s
competitors was at Indiana Ready-Mix Association meet-
ings. Because Christopher’s statements concealed his
actual role in the conspiracy, they could have hindered the
FBI’s investigation by directing its attention away from
the October 2003 meeting at Nuckols’s horse barn, away
from Beaver Materials as a company involved in the
cartel, and away from himself as an individual participant
22 No. 07-1381
in the conspiracy. Thus, we see no fault with the jury’s
determination that Christopher’s false statements were
material, much less can we say that we are shocked by his
conviction. See Moore, 446 F.3d at 676-80; Allen, 390
F.3d at 948; Kosth, 257 F.3d at 718-20.5
III. CONCLUSION
We AFFIRM Beaver’s price-fixing-conspiracy conviction
under 15 U.S.C. § 1, and his false-statements conviction
under 18 U.S.C. § 1001(a)(1).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
5
Beaver also asks us to grant him “amnesty” to reward the
“affirmative steps” he took “to alleviate the harm” caused by his
lies. But for the same reasons we will not impute a recantation
defense into § 1001, see Sebaggala, 256 F.3d at 64, we will not
create out of whole cloth an amnesty doctrine applicable to
Beaver’s wrongdoings, particularly when such a doctrine
would essentially reward Beaver’s instinct to lie to federal
authorities about his role in the price-fixing conspiracy, cf.
Brogan, 522 U.S. at 408 (“Courts may not create their own
limitations on legislation, no matter how alluring the policy
arguments for doing so, and no matter how widely the blame
may be spread.”).
USCA-02-C-0072—2-4-08