Brief for Appellee United States of America

The jurisdictional statement in Chris Beaver's brief is complete and correct.

1. Whether Chris Beaver waived the issue of the materiality of his false statements; whether the statements could be recanted; and whether the evidence was sufficient to support the jury's finding of materiality.
2. Whether the evidence was sufficient to support the jury's finding that Chris Beaver knowingly participated in a price-fixing conspiracy.
3. Whether the jury reasonably could have found the government's witnesses to be credible.

In 2003, the Department of Justice opened a grand jury investigation into price fixing of ready-mixed concrete in the Indianapolis, Indiana metropolitan area. The investigation ultimately exposed a price-fixing conspiracy consisting of five ready-mixed concrete producers: Builder's Concrete and Supply Co., Inc., Irving Materials, Inc., Hughey, Inc. d/b/a Carmel Concrete, Shelby Materials, Inc., and Ma-Ri-Al Corp., which does business as Beaver Materials Corp.

In 2000, Gus Nuckols, President of Builder's Concrete, Tr. I-30, received a telephone call from John Huggins, Executive Vice-President of Irving Materials, asking to meet him for a beer. Tr. I-64. According to Nuckols, when they met at Sahm's restaurant in Fisher, Indiana, Huggins

Tr. I-64-65. Specifically, "[w]e decided to meet in my horse barn and he called some people and I called some people." Tr. I-65.

The first meeting in Nuckols' horse barn took place on July 12, 2000. Tr. II-142. Nuckols explained that he invited his competitors to the horse barn because, "knowing it wasn't the right thing to do, we didn't want to be out in public doing this." Tr. I-46. See also Tr. II-142 (Haehl) ("[The horse barn] was private and, you know, what we were doing there was not legal.").

The participants were Scott Hughey, President of Carmel Concrete, Tr. II-289; Richard Haehl, Vice-President of Shelby Materials, Tr. II-122; his brother Philip Haehl; John Huggins from Irving Materials; and Nuckols and Tim Kuebler from Builder's Supply. Tr. I-66-67; II-143. Nuckols could not recall with certainty whether anyone from Ma-Ri-Al attended, but both Richard Haehl and Scott Hughey testified that Ricky Beaver represented Ma-Ri-Al. Tr. II-143 (Haehl); II-304 (Hughey).

Richard Haehl testified that "the main issue was the fact that selling prices were declining and we needed to do something to get the price up." Tr. II-144. See also Tr. II-304 (Hughey) ("pricing was getting out of hand, meaning getting lower and lower, and we thought we needed to get together and stabilize the market by limiting discounts and getting the price up."). List prices were not declining, but actual sales prices were, because the competitors were granting their customers discounts off the net price. Tr. II-144-45. In Nuckols' words, the purpose of the meeting therefore was "to come up with an agreed limited discount." Tr. I-46; see also Tr. I-67.

In May 2002, essentially the same group of conspirators held another price-fixing meeting at the Signature Inn, an Indianapolis-area hotel. Tr. I-68-69, 87. Nuckols explained that the meeting came about because "there was discussion with Scott Hughey I had, and again the prices were failing. And Scott said he would set it up and he reserved the room and we met there." Tr. I-69.

As with the initial horse barn meeting, the conspirators tried to keep their meeting secret because they knew the discussion was illegal. Nuckols and Hughey chose the hotel site because "[w]hat we were discussing was illegal," so the meeting was "not a meeting you want to have out in public. So it was kind of an off beat path place to meet." Id. See also Tr. II-147 (Haehl) (conspirators met "in a conference room there that was out of the way where nobody would see us" because "what we were doing was illegal"); Tr. II-309 (Hughey) ("we didn't think it would be appropriate to meet at anyone's office. It was a secret type meeting, didn't want everyone knowing you were there."); Tr. II-220 (Irving was nervous because he suspected the meeting was illegal). Hughey paid cash for the conference room because "I didn't really want a record, written record that we had the meeting." Tr. II-309-10.

The participants were Nuckols and another officer from Builder's; Price Irving, Vice-President and area manager for Indianapolis of Irving Materials, Tr. II-199, 217, 241, and his colleague Dan Butler; Hughey from Carmel Concrete; Richard Haehl from Shelby; and Ricky Beaver from Ma-Ri-Al. Tr. II-147-48, 219.

"The purpose of this meeting was to just reaffirm the bidding $5.50 [discount limit]," Tr. II-148 (Haehl), i.e., to police the price-fixing agreement. Again, an agreement was made to limit discounts. Tr. I-72 (Nuckols); Tr. II-312 (Hughey) (agreement that "on bid work no one would bid more than I believe the discount was $3.50 off. And that if anybody found a number or was told they had a number less than this, they wouldn't deviate from that without talking to somebody or seeing it in writing.").

As at the 2000 horse barn meeting, no one indicated any objection to the agreement. Tr. I-88 (Nuckols). "Nobody disagreed. Nobody dissented." Tr. II-150 (Haehl).

In October 2003, Nuckols and Hughey met at a Hardee's restaurant in Fishers, Indiana and discussed "[t]hat our prices just were not doing well and they were going in the gutter and that we should get together and talk with our competitors." Tr. I-48. They planned a group meeting in Nuckols' horse barn and called the other competitors. Tr. I-48-49. The participants were Nuckols and Blatzheim from Builder's; Dan Butler and Price Irving from Irving Materials; Hughey from Carmel; and Richard and Philip Haehl from Shelby.

This time, Chris Beaver, rather than Ricky Beaver, attended the meeting for Ma-Ri-Al. Tr. I-47-48; Tr. II-153. Hughey testified that Nuckols told him "that Chris will be there instead of Rick. And he told me the reason was that Rick seemed to be confused about the discount." Tr. II-321. Irving similarly testified that he was told by his partner Dan Butler "that Rick [Beaver] had taken the prices or taken the previous agreement and made a mistake with it and it had let them [Ma-Ri-Al] quote jobs at too high a price. So they [Ma-Ri-Al] lost some business. And he was replaced by Chris." Tr. II-232. Put differently, Ricky Beaver had, by mistake, not carried out the conspirators' agreement properly, and the conspirators believed that Chris Beaver would not make the same mistakes. Tr. II-233 (Irving) ("If there was a mistake made, changing the personnel to correct that mistake would be an appropriate action.").

Nuckols had no doubt that an agreement was reached, Tr. I-52, and testified that he personally believed he had an agreement with each of the other competitors, specifically including Ma-Ri-Al and Chris Beaver, that no one would offer discounts of more than $5.50. Tr. I-53-54. Richard Haehl similarly testified that everyone, including Chris Beaver, agreed "to limit discounts on bid work to no more than $5.50 off the net selling price of concrete." Tr. II-155. See also Tr. II-317 (Hughey) (agreement reached "was that the maximum discount would be $5.50 off of net and at a time in the future that they would go to $3.50 off"); Tr. II-236 (Irving) ("When I left the meeting, I assumed that everybody was in agreement to stick to that [$5.50 discount limit]."). As in the previous meetings, "[n]obody disagreed. Nobody dissented. Nobody stood up and objected." Tr. II-156 (Haehl); Tr. II-237 (Irving).

Chris Beaver was present for the entire meeting. Richard Haehl and Price Irving testified that Chris Beaver participated in the discussion, but they could not recall any of Chris Beaver's specific words. Tr. II-155 (Haehl), 236 (Irving). Nuckols did not recall Chris Beaver objecting to anything that was discussed or doing anything to indicate that he would not go along with the agreement. Tr. I-54-55, 114. And when a question arose of who would contact Prairie Materials and American Concrete, who were not represented at the meeting, "Chris [Beaver] said we're talking to [American] . . . about some software they had and that he would try to get ahold of Jason Mann and get him the message on what we agreed on." Tr. II-320 (Hughey); Tr. II-378 (Chris Beaver said he would "deliver the message to Jason Mann"); Tr. II-381 (Chris Beaver "was going to talk to him [Mann] about what we had agreed on").

In addition to their agreements on price discounts, the conspirators agreed on mechanisms to enforce their price-fixing agreements, and then attempted to carry out that enforcement. Nuckols explained that at the Signature Inn meeting the conspirators agreed to call each other by telephone and question each other's prices "[i]f you saw another competitor not going along with" the agreed discount limit. Tr. I-73. Irving testified that "[w]hen we left the meeting, we felt that everybody was in agreement to call each other and confirm prices." Tr. II-224. See also Tr. II-222 (group agreed to "confirming prices by calling the competitors to see if they actually quoted that price").

Similarly, at the October 2003 meeting in Nuckols' horse barn, it was agreed that if a competitor was seen to be pricing out of line with the agreement, the conspirators were "[s]upposed to pick up the phone and, you know, call one of the people, one of the competitors and try to verify the price." Tr. II-157 (Haehl). See also Tr. I-55 (Nuckols) ("if you see someone not going along with the program, give them a call"); Tr. II-322 (Hughey) (agreement "not to deviate unless you see it in writing or call somebody"); Tr. II-282-283 (Irving) (multiple conversations with competitors to verify prices).

The conspiracy ended on May 25, 2004, when the FBI executed search warrants on several ready-mixed concrete companies' offices. Richard Haehl explained that "when the FBI came in with search warrants we contacted legal counsel and we decided the best thing we can do is tell the truth." Shelby's counsel then contacted the Department of Justice and applied for amnesty. Tr. II-134; GX 8.

The FBI conducted 15-20 interviews simultaneously on May 25, 2004, in conjunction with the search warrants, in order to gather information and "to determine who knew that information, where perhaps evidence of the crimes could be located so we could gather that information." Tr. III-406 (FBI Special Agent Schlobohm). It was also important to conduct the interviews simultaneously so that witnesses could not "get together and either destroy evidence and/or concoct a story to protect their culpability." Tr. III-406-07.

Some conspirators admittedly lied to the FBI and destroyed evidence. Hughey testified that when the FBI interviewed him, he did not tell everything that he knew about the conspiracy, and then destroyed notes relating to the conspiracy on the same day. Tr. II-300. Nuckols similarly admitted that he did not tell the truth in his FBI interview. Tr. I-43, 74-75.

FBI Special Agent Freeman interviewed Chris Beaver at his home and then assisted in execution of a search warrant. Tr. III-436. The interview lasted about an hour and a half. Beaver was forthcoming and calm, and did not appear to be under the influence of drugs, alcohol, or medication. Tr. III-436-38. Beaver said he had become more involved with pricing and sales at Ma-Ri-Al since 2002, and that he would be replacing his father as president. Tr. III-438-39.

This was a classic case of a multi-year price-fixing conspiracy by the dominant producers of a commodity product. Four members of the conspiracy, who knew the Beaver family and their company, testified squarely that there was a conspiracy to fix prices by limiting the discounts offered to customers; that the agreement was made and enforced at several secret meetings, including meetings in Butch Nuckols' horse barn; and that Chris Beaver participated in one of the most important meetings and joined the conspiracy. There is nothing "cynical" (Beaver Br. 3-5) about prosecuting someone who several witnesses identify as committing a crime.

Chris Beaver waived any argument about the materiality of his admittedly false statements by deliberately choosing not to raise the issue, in any form, before the district court. But even if the issue could be considered on appeal, his contention that the statements were not material because quickly "corrected" is wrong as a matter of law because the materiality of false statements is determined at the time they are uttered. 18 U.S.C. 1001 makes no provision for recanting or correcting false statements, and materiality turns on whether the statements were capable of influencing the government, not on whether they actually did so. In any event, the evidence was sufficient for the jury to find materiality as it did.

Likewise, the evidence was more than sufficient to meet the government's burden of showing that Chris Beaver knowingly joined an existing conspiracy. The government witnesses testified repeatedly that they agreed to fix prices and believed that Ma-Ri-Al, through Chris Beaver, was part of the agreement because of his affirmative acts ­ participating in the October 2003 meeting, volunteering to help expand the conspiracy by contacting Jason Mann of American Concrete, and later reaffirming his adherence to the discount limit. That the conspirators sometimes "cheated" by offering more than the agreed discount means only that the conspiracy was not perfect; it did not prevent the jury from finding beyond a reasonable doubt that there was a functioning conspiracy.

Finally, Chris Beaver's argument that a reasonable jury could not believe the government's witnesses, because their testimony was "unreliable" (Beaver Br. 5), is baseless. This Court does not overturn jury verdicts by substituting its view of witness credibility for the jury's. Differences in recollection on secondary issues, which is all that Chris Beaver can cite, are commonplace in criminal trials and are for the jury to resolve. Four co-conspirators testified against Chris Beaver, and the district judge, who observed all the testimony, noted that Hughey's testimony alone was sufficient to support a guilty verdict. Tr. III-459. Under these circumstances, there is no reason to second-guess the jury's guilty verdict.

An intentional waiver precludes appellate review. United States v. Olano, 507 U.S. 725, 733-34 (1993); United States v. Jacques, 345 F.3d 960, 962 (7th Cir. 2003); United States v. Thompson, 23 F.3d 1225, 1231 (7th Cir. 1994). An accidental or negligent failure to object invokes the "strict standards of the plain error doctrine . . . which allows appellate courts to correct only particularly egregious errors for the purpose of preventing a miscarriage of justice." United States v. McClellan, 165 F.3d 535, 552 (7th Cir. 1999) (internal quotation and citations omitted); United States v. Kuipers, 49 F.3d 1254, 1258 (7th Cir. 1995).

Chris Beaver never made any argument to the district court about the false statement charge or conviction, much less the specific issue of materiality. First, at the close of the government's case when defendants moved for judgment of acquittal, his counsel argued two issues: (1) "that the government . . . has failed to establish a conspiracy that would permit this case to go to the jury on behalf of the corporation," Tr. III-455, and (2) "that there is no indication that these individuals [Chris and Ricky Beaver] on their own behalf have in any way fathomed any kind of evidence that would indicate that they have joined the conspiracy." Tr. III-455-56. Defense counsel stated expressly that the motion was directed to "the count of the indictment returned on the issue of conspiracy to commit price fixing," Tr. III-456, and he never mentioned the false statement count or materiality. When the court asked whether defense counsel wanted to offer argument "on the other count against your client," counsel for Chris Beaver replied "Oh, no, sir. I have no motion to make about that at this stage of the proceedings." Tr. III-457.

Second, defendants never objected to the district court's jury instruction on materiality. See Instruction No. 26, Tr. IV-672-73. In fact, when the government suggested a modification to the instruction during the charge conference, counsel for Chris Beaver replied: "No objection." Tr. III-578. See also Tr. III-581 ("On behalf of Chris Beaver and Rick Beaver we have no objection to the instructions as modified and amended.").

Third, defendants' post-trial Motion for a Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c) makes no mention of the false statement conviction and never uses the word "materiality." The motion argues only that there was insufficient evidence of a price-fixing agreement and insufficient evidence that Chris and Ricky Beaver joined the conspiracy. 11/22/2006 Defendants Motion for a Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c).

The district court did not understand defendants to be challenging the false statement conviction because, when the court denied defendants' motion, the court's Order mentions only that the jury "convicted all three defendants of the price fixing charge in Count I of the Indictment," does not mention the false statement conviction or materiality, and holds only that the jury could believe the government's witnesses and find sufficient evidence to convict Chris and Ricky Beaver of participating in the conspiracy. 01/23/2007 Order on Defendants' Motion for Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c).

Defense counsel's refusal to make any arguments concerning the false statement count, his failure to object to the jury instruction on materiality, and his failure to make any argument concerning the false statements count in his post-trial motion all indicate an intentional waiver. But even if defendants' repeated failure to raise any alleged error on the false statement charge could be construed as accidental, Chris Beaver's contention does not withstand review for plain error.

Absent any objection from the defendants, it was not error, much less an egregious error, for the district court to submit the issue of materiality, which is clearly a jury question, to the jury. On one hand, defense counsel cross-examined the FBI witnesses in an attempt to show that the FBI knew all the important facts about the conspiracy before Chris or Ricky Beaver were interviewed, so that their false statements made no difference. E.g., Tr. III-409 ("Q[.] So that wouldn't have been a surprise to you on May 25^th, 2004, to learn that there had been meetings because you already knew that?"); Tr. III-410 ("Q[.] So . . . on the 25^th, that information about at least two horse barn meetings was known to the FBI, correct?"); Tr. III-412-13. On the other hand, while the FBI witnesses conceded that they knew some basic facts before interviewing the Beavers, the agents explained that they did not know all of the critical facts. E.g., Tr. III-409 ("We do [sic] not know everyone who had attended the horse barn meeting."); Tr. III-411 (FBI knew only that "Chris Beaver was somehow involved in the conspiracy"); Tr. III-415 (FBI did not know when the conspiracy began or how it began). Given this testimony, it was not plain error to allow the jury to weigh the evidence and conclude that the false statements were material.

Chris Beaver's second issue is a sufficiency of the evidence argument, the crux of which is his claim that "the United States presented no evidence of an oral agreement, and no evidence of overt acts," Beaver Br. 28, and "it was not proven beyond a reasonable doubt that Chris Beaver joined a conspiracy to fix prices." Id. at 32.

"We have said many times that a defendant making a sufficiency of the evidence challenge bears a heavy burden and faces a nearly insurmountable hurdle." United States v. Seawood, 172 F.3d 986, 988 (7th Cir. 1999). Accord, e.g., United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004) ("The standard of review facing the defendants on their claim that the jury had insufficient evidence to convict is a daunting one.").

United States v. Andreas, 216 F.3d 645, 670 (7th Cir. 2000) (citations and internal quotations omitted; emphasis in original).

Chris Beaver's brief acknowledges that under the Sherman Act, the agreement to fix prices constitutes the violation, and the government need not prove separate overt acts. Beaver Br. 27-29; see also Tr. III-463 (district court comments: "it is the agreement, itself, that is the crime. And whether that crime ever gets carried out or not is not the issue for this jury.").

Three of the admitted conspirator witnesses testified that they made a price-fixing agreement at the July 2000 meeting in Nuckols' horse barn (Price Irving did not attend that meeting). In Nuckols' words:

17. You believe that you reached an agreement with your competitors as to discounts?

1. Yes.

17. Did everybody at the meeting agree on that discount?

1. To the best of my knowledge.

Tr. I-67-68. See also Tr. II-145-46 (Haehl); Tr. II-306 (Hughey) ("And we agreed to set some discounts on what we would bid at no more than, so much off.").

Three of the witnesses then testified that they made additional agreements, or reaffirmed the initial agreement, on at least two separate occasions. First, at the Signature Inn meeting in May 2002, as explained by Hughey:

17. As a result of the Signature Inn meeting did you believe that you had reached an agreement with your competitors?

1. Yes, I did.

17. And what was your understanding of that agreement?

1. That on bid work no one would bid more than I believe the discount was $3.50 off. And that if anybody found a number or was told they had a number less than this, they wouldn't deviate from that without talking to somebody or seeing it in writing.

Tr. II-312. See also Tr. I-72 (Nuckols); Tr. II-150 (Haehl) (meeting "concluded with the decision to limit the discounts on bid work").

Second, all four conspirators testified to an agreement made in Nuckols' horse barn in October 2003, as explained by Price Irving:

17. Who agreed to stick to the $5.50 discount at this meeting?

1. When I left the meeting, I assumed that everybody was in agreement to stick to that.

17. Who would everybody be?

1. Scott Hughey, Butch Nuckols, John Blatzheim, one of the Haehls, and Chris Beaver.

17. And were these the same companies that were at the previous meetings?

1. Yes.

17. Did you agree on a discount limit at this meeting, as well?

1. Yes.

17. What discount limit did you agree upon?

1. I think it was in the 5 to 5.50 off.

17. Was this the same discount you had agreed at the first horse barn meeting you attended?

1. I think so.

Tr. II-236, 279. See also Tr. I-52-54 (Nuckols); Tr. II-155-56 (Haehl); Tr. II-317 (Hughey) (agreement reached "was that the maximum discount would be $5.50 off of net and at a time in the future that they would go to $3.50 off"). All of this testimony was direct evidence of price-fixing agreements that the jury reasonably could choose to believe.

Chris Beaver's brief suggests that there was no conspiracy because the competitors "cheated" on each other by undercutting prices. Beaver Br. 30-31, 37-38. But the law does not restrict the government to prosecuting only conspiracies that function perfectly. That a price-fixing conspiracy may not be fully successful all of the time, or that its members may "cheat" on each other, is not uncommon and does not prevent the evidence from being sufficient to convict. E.g., United States v. Andreas, 216 F.3d 645, 679 (7th Cir. 2000) (cartel members "cheated each other when they could," but that did not negate conspiracy); United States v. Misle Bus & Equip. Co., 967 F.2d 1227, 1231 (8th Cir. 1992) ("Government witnesses testified that although Misle 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 Bogley does not preclude a finding that it joined the conspiracy") (citations omitted). Accordingly, the jury's verdict, which is based on the testimony of multiple government witnesses, is fully supported by the evidence notwithstanding any cheating that may have occurred.

"Coconspirators do not have to have a great deal of involvement with other conspirators." United States v. Donovan, 24 F.3d 908, 914 (7th Cir. 1994). A defendant "need not be aware of all the details of the conspiracy in order to be a coconspirator." Id. (citations omitted); United States v. Miller, 159 F.3d 1106, 1109-10 (7th Cir. 1998) (same). "[M]inor members of a conspiracy can be held accountable for every crime committed in furtherance and within the scope of the conspiracy because every member of the conspiracy benefits from the contribution of all of the other members." Donovan, 24 F.3d at 914.

Once the existence of a conspiracy is established, the jury need find only a "participatory link" between the conspiracy and the defendant. United States v. Hunt, 272 F.3d 488, 495 (7th Cir. 2001), superseded by statute on other grounds; United States v. Krankel, 164 F.3d 1046, 1054 (7th Cir. 1998).

The evidence here more than satisfied what Chris Beaver himself describes as this "low threshold." Beaver Br. 29. First, Chris Beaver does not dispute that he attended the October 2003 meeting in Nuckols' horse barn. Beaver Br. 6. The government witnesses all testified that the purpose of that meeting was to fix prices and that the meeting's outcome was both an agreement to limit price discounts and an agreement to enforce the price-fixing agreement among the conspiring companies. Accordingly, while mere presence is insufficient to show that a defendant was acting in furtherance of a conspiracy, the jury reasonably could infer that Chris Beaver knew about the conspiracy and intended to go along with it because "presence or a single act will suffice if circumstances show that the act was intended to advance the ends of the conspiracy." United States v. Crowder, 36 F.3d 691, 695 (7th Cir. 1994); United States v. Binkley, 903 F.2d 1130, 1134 (7th Cir. 1990) (same).

The circumstances here showed that there was no reason to attend this meeting other than to learn about and participate in the conspiracy. Even Allyn Beaver, a defense witness, testified that he sent Chris Beaver to the meeting because he suspected that his company may have become involved in price fixing. Tr. III-544. Government witnesses testified to their understanding that Chris Beaver replaced Ricky Beaver so that Ma-Ri-Al would implement the price-fixing agreement correctly. See pp. 15-16, supra. Under these circumstances, the jury reasonably could attribute knowledge and participation to Chris Beaver. See, e.g., United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006) ("A conspiracy conviction will be upheld . . . when the circumstances surrounding a person's presence at the scene of conspiratorial activity are so obvious that knowledge of its character can fairly be attributed to him.") (citations omitted); United States v. Martinez, 190 F.3d 673, 676 (5th Cir. 1999) ("[a] jury may find knowledgeable, voluntary participation from presence when it would be unreasonable for anyone other than a knowledgeable participant to be present.").

Second, this was not a case of mere presence. Two witnesses testified that Chris Beaver participated in the discussion, although they could not recall Beaver's specific words. Tr. II-155 (Haehl); Tr. II-236 (Irving). Hughey also testified that "Chris [Beaver] said we're talking to [American] . . . about some software they had and that he would try to get ahold of Jason Mann and get him the message on what we agreed on." Tr. II-320; Tr. II-378 (Chris Beaver said he would "deliver the message to Jason Mann"); Tr. II-381 (Chris Beaver "was going to talk to him [Mann] about what we had agreed on"). The jury was entitled to believe Hughey and find from this testimony that Chris Beaver joined and agreed to assist the conspiracy by expanding it to another company that was not represented at the meeting.

Third, by both his actions ­ speaking at the meeting and volunteering to contact Jason Mann ­ and his non-actions ­ not objecting to the price-fixing agreement in any way and not leaving the meeting ­ Chris Beaver conveyed to the other conspirators that he was joining the agreement. That is what Richard Haehl meant when he testified: "[n]obody disagreed. Nobody dissented. Nobody stood up and objected." Tr. II-156 (Haehl); see also Tr. II-237 (Irving). In United States v. Foley, 598 F.2d 1323, 1332 (4th Cir. 1979), the court held that the evidence was sufficient for the jury to find that competitors, meeting at a dinner party, joined a price-fixing conspiracy where each of them "expressed an intention or gave the impression that his firm would adopt a similar [pricing] change." Chris Beaver gave the same impression.

Fourth, Hughey recalled post-meeting telephone conversations with Chris Beaver in which Beaver denied undercutting the price-fixing agreement and said he was abiding by it. Tr. II-329. See also Tr. II-392 (Hughey) ("[Beaver] was adhering to the agreement, and he was at the discount that was established in the agreement with everyone."). This is direct evidence of Chris Beaver's participation in the conspiracy.