United States v. Javier Sanchez ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10519
Plaintiff-Appellee, D.C. No.
4:14-cr-00580-PJH-2
v.
JAVIER SANCHEZ, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-10528
Plaintiff-Appellee, D.C. No.
4:14-cr-00580-PJH-3
v.
GREGORY CASORSO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10113
Plaintiff-Appellee, D.C. No.
4:14-cr-00580-PJH-1
v.
MICHAEL MARR,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted January 16, 2019**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and ADELMAN,*** District
Judge.
Defendants Michael Marr, Javier Sanchez, and Gregory Casorso appeal their
jury convictions for conspiring to suppress and restrain competition by rigging bids
in property foreclosure sales in violation of Section 1 of the Sherman Antitrust Act,
15 U.S.C. § 1, which prohibits “contract[s], combination[s] . . . , or conspirac[ies]”
that unreasonably “restrain[] trade or commerce.”
1. We are bound by United States v. Manufacturers’ Ass’n of Relocatable
Bldg. Industry, 462 F.2d 49 (9th Cir. 1972). See Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc) (holding that a three-judge panel of this court is
bound by prior circuit law unless “the reasoning or theory of [the] prior circuit
authority is clearly irreconcilable with the reasoning or theory of intervening
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
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higher authority”). In Manufacturers’, we held that applying the per se rule in a
criminal antitrust case did not violate the defendant’s constitutional rights.
Manufacturers’ Ass’n, 462 F.2d at 52. Defendants’ argument that Manufacturers’
is clearly irreconcilable with intervening Supreme Court antitrust decisions is
unpersuasive, because the Supreme Court has continued to recognize categories of
per se violations. See Ohio v. American Express Co., 138 S. Ct. 2274, 2283 (2018)
(“A small group of restraints are unreasonable per se.”); F.T.C. v. Actavis, Inc.,
570 U.S. 136, 161 (2013) (noting that “it is per se unlawful to fix prices under
antitrust law”); Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006) (“Price-fixing
agreements between two or more competitors, otherwise known as horizontal
price-fixing agreements, fall into the category of arrangements that are per
se unlawful.” (emphasis added)). Defendants’ argument that Manufacturers’ is
clearly irreconcilable with intervening Supreme Court decisions relating to
mandatory evidentiary presumptions in criminal law is irrelevant, because
Manufacturers’ held that the per se rule is not an evidentiary presumption at all.
Manufacturers’ Ass’n, 462 F.2d at 52. The district court therefore did not err in
instructing the jury under the per se rule.
2. Defendants’ proposed jury instruction, which would have instructed the
jury that two entities are not competitors for purposes of Section 1, and therefore
cannot conspire, if they are engaged in a joint venture, lacked support in the law or
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in the facts of this case. See United States v. Thomas, 612 F.3d 1107, 1120 (9th
Cir. 2010) (“A defendant is entitled to have the judge instruct the jury on [his or
her] theory of defense, provided that it is supported by the law and has some
foundation in the evidence.” (quoting United States v. Mason, 902 F.2d 1434, 1438
(9th Cir. 1990)). That Defendants cooperated with other persons and entities for
purposes of rigging bids does not mean they were not competitors. See Am.
Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 191 (2010) (explaining that
even “members of a legally single entity” have been held to have “violated § 1
when the entity was controlled by a group of competitors and served, in essence, as
a vehicle for ongoing concerted activity”). Thus, the district court did not err in
rejecting the proposed instruction. See Thomas, 612 F.3d at 1120-21 (explaining
that this court reviews de novo the question whether a proposed instruction was
supported by law, and “for abuse of discretion whether there is a factual foundation
for a proposed instruction”).
3. Defendants did not preserve their argument that the district court’s
instruction defining bid rigging was overbroad. See Fed. R. Crim. P. 30 (“A party
who objects to any portion of the [jury] instructions . . . must inform the court of
the specific objection and the grounds for the objection before the jury retires to
deliberate.”). We thus review for plain error. See Fed R. Crim. P. 52(b); Puckett v.
United States, 556 U.S. 129, 135 (2009) (outlining four prongs to plain error
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review). Here, even assuming the portion of the instruction that Defendants claim
was overbroad should not have been included, it did not affect Defendants’
substantial rights because the bid-rigging conduct Defendants were accused of
clearly fell within the core of the instruction, not the allegedly overbroad part.
4. To the extent Defendants have argued that the district court’s instructions
amounted to a constructive amendment of their indictment, that argument fails.
The indictment clearly stated that Defendants were accused of bid rigging. That
the indictment also quoted Standard Oil in generally describing the Sherman Act
violation—i.e., rigging bids in unreasonable restraint of trade and commerce—
does not alter the fact that the bid-rigging charge was a charge of a per se antitrust
violation. See United States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014)
(explaining that there is no constructive amendment “when the indictment simply
contains superfluously specific language describing alleged conduct irrelevant to
the defendant’s culpability under the applicable statute,” and that “[i]n such cases,
convictions can be sustained if the proof upon which they are based corresponds to
the offense that was clearly described in the indictment”); see also United States v.
Joyce, 895 F.3d 673, 679 (9th Cir. 2018) (holding that bid rigging was a per se
violation and that “the district court did not err by refusing to permit [the
defendant] to introduce evidence of the alleged ameliorative effects of his
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conduct,” in an appeal by another co-conspirator involved in the same scheme as
Defendants here).
AFFIRMED.
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