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Conspiracy, false statements convictions stand

Jennifer Nelson
January 1, 2008
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The 7th Circuit Court of Appeals has affirmed the convictions of participating in a price-fixing conspiracy and making false statements to federal law enforcement of an Indianapolis man involved in a concrete price-fixing scheme.

In United States of America v. Christopher A. Beaver, No. 07-1381, Beaver appealed his convictions, arguing the government failed to prove at trial a price-fixing conspiracy existed, that he joined the conspiracy, or that he made false statements.

Beaver, as operations manager of Beaver Materials Corp., was one of several Indianapolis-area ready-made concrete producers who collaborated in the beginning of the decade to fix the prices of concrete. Representatives from the five concrete companies met several times over the course of a few years in a horse barn in Fishers to discuss the falling market value of concrete. No one ever voted on the prices to charge customers, objected to the price-fixing, nor did anyone refuse to impose the limit. In fact, some even stated they would confront a company involved in the scheme if they did not follow the prices.

Beaver began attending the meetings in the place of another Beaver Materials employee and never objected to the scheme.

The FBI received a tip about the scheme and executed search warrants on the five companies in 2004. All the companies and those involved with the scheme except for Beaver and Beaver Materials admitted their roles in the conspiracy and entered into plea agreements. Four representatives from those companies agreed to help the government investigate and said they would answer truthfully at trial if called.

Beaver told the FBI agent that he never attended any meetings in the horse barn, did not know of another employee who attended the meetings, never saw the other companies except at an annual meeting, and denied any price-fixing. Beaver chose to go to trial and was indicted by a federal grand jury of participating in a price-fixing conspiracy and making false statements to a federal law enforcement agent. At trial, Beaver filed a motion for judgment of acquittal, challenging the evidence supporting his price-fixing conspiracy conviction; the District Court denied the motion.

Beaver appealed, arguing that the District Court erred by denying his motion for judgment of acquittal because the government failed to prove a conspiracy existed or that he participated. He also challenged his false-statements conviction by asserting the government failed to prove the lies he told the FBI agent were material as "a matter of law."

To be convicted of conspiracy under the Sherman Antitrust Act, the government only had to establish the concrete producers had a "tacit understanding based upon a long course of conduct" to limit their discounts and fix prices, wrote Judge Michael Kanne. The concrete makers held meetings to discuss fixing prices and discounts and no one disagreed with the proposals. The concrete producers also would enforce the agreement against those they believed were deviating from it. At trial, several concrete-makers involved in the conspiracy testified Beaver attended the meetings, participated in discussions to limit prices, and agreed to confront other members if they failed to conform. Even his own father, who was president of the company, testified he knew Beaver attended the meetings.

Beaver mischaracterized the issue of his false statements as "a matter of law," wrote Judge Kanne, and the materiality of false statements is a factual determination made by a jury. The federal appellate court rejected Beaver's assertion his false statements couldn't influence the FBI's investigation because his attorney sent a letter to the Department of Justice several days later to inform them that one of the employees lied during the investigation. However, the letter doesn't give the name of the employee, so it is not know whom the letter is about. Also, Beaver is incorrect in thinking he can avoid a conviction by correcting a false statement days after making it. His false statements could have hindered the FBI's investigation, so the appellate court sees no fault with the jury convicting Beaver of providing false statements.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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