U.S. v. Giordano, No. 99-12788

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBLACK
Citation261 F.3d 1134
Docket NumberNo. 99-12788
Decision Date15 August 2001
Parties(11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY J. GIORDANO, SR., ANTHONY J. GIORDANO, JR., RANDOLPH J. WEIL, ATLAS IRON PROCESSORS, INC., DAVID GIORDANO, Defendants-Appellants

Page 1134

261 F.3d 1134 (11th Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ANTHONY J. GIORDANO, SR., ANTHONY J. GIORDANO, JR., RANDOLPH J. WEIL, ATLAS IRON PROCESSORS, INC., DAVID GIORDANO, Defendants-Appellants.
No. 99-12788
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
August 15, 2001

Page 1135

Appeals from the United States District Court for the Southern District of Florida.

Before EDMONDSON, BLACK and MCKAY*, Circuit Judges

BLACK, Circuit Judge:

On November 13, 1997, Appellants Anthony Giordano, Sr. (Anthony, Sr.), Anthony Giordano, Jr. (Anthony, Jr.), David Giordano (David), Randolph Weil (Weil), and Atlas Iron Processors, Inc. (Atlas), were indicted in an antitrust conspiracy.1 Appellants were charged with conspiring to restrain competition in the scrap metal industry for a one-month period between October 24 and November 23, 1992, in violation of the Sherman Act, 15 U.S.C. § 1. The indictment alleged that the owners and operators of two south Florida scrap metal companies-Atlas and Sunshine Metal Processing, Inc. (Sunshine)-had, in the wake of Hurricane Andrew,2

Page 1136

fixed the prices of scrap metal and allocated suppliers of scrap metal. A jury found all Appellants guilty as charged. Appellants appeal their convictions and sentences, raising the following issues: (1) the Government failed to properly plead and prove jurisdiction; (2) the Government presented insufficient evidence to sustain Appellant Weil's conviction; (3) certain evidence admitted under Fed. R. Evid. 404(b) should not have been admitted; (4) the jury should have been allowed to consider the reasonableness of Appellants' alleged price-fixing agreement; and (5) the district court erred in applying the Sentencing Guidelines.3 We affirm Appellants' convictions and sentences for the reasons stated below.

I. BACKGROUND

On appeal, we must consider the evidence in the light most favorable to the verdict, drawing all reasonable inferences and making all credibility determinations in favor of the jury's decision. United States v. Aquafredda, 834 F.2d 915, 916-17 (11th Cir. 1987). Viewed in this light, the evidence at trial established the following.

Atlas, a Cleveland-based scrap metal company owned by the Giordano family, operated Miami River Recycling, a scrap facility located in Miami.Anthony, Sr. was an owner of Atlas who also served as the chairman of its board.Anthony, Jr. was an owner of Atlas and also served as its president and chief executive officer. David was an owner of Atlas and served as its treasurer. Sunshine was a scrap metal recycling company located in Opa Locka, Florida. Weil was an owner of Sunshine, and he also served as its president and chief executive officer.

In mid-1992, Atlas transferred scrap buyer Sheila McConnell (McConnell) from its Cleveland facility to Atlas-Miami River in Miami. In McConnell's view, Sunshine was Atlas' primary competition in South Florida. In order to procure a steady supply of scrap for Atlas-Miami River, McConnell routinely offered scrap metal suppliers prices that were higher than those offered by Sunshine. As a result, Atlas-Miami River and Sunshine became engaged in a "price war" soon after McConnell's arrival in Miami.

On October 24, 1992, Anthony, Jr. summoned McConnell and told her they would be attending a meeting with representatives of Sunshine, including Weil, "to see what we can do about these prices." Anthony, Jr. said he, Anthony, Sr., and Weil had "grave reservations" about McConnell attending the meeting because she was not a principal of either company. Anthony, Jr. felt she needed to be there, however, because she understood prices in the Miami market, and he did not. McConnell testified that she told Anthony, Jr. that it was illegal to have a meeting to discuss prices with one's competitors, but Anthony, Jr. "just laughed."

Anthony, Jr. drove McConnell to the Sea Ranch condominium complex in Ft. Lauderdale, Florida, where they met Anthony, Sr., Weil, and Henry "Skip" Kovinsky (Kovinsky), a part owner and secretary/treasurer of Sunshine. At trial,

Page 1137

McConnell and Kovinsky testified about the meeting, and the extensive notes McConnell took at the meeting were introduced into evidence. According to McConnell, Anthony, Jr. began the meeting by stating, "We all know why we are here. We need to get these prices down. We are competing with one another. The only one making any money is the auto wrecker and we need to get these prices in line." Weil then proceeded to read prices from a computer print-out of a price list. At Anthony, Jr.'s instruction, McConnell wrote these prices in her notebook. Weil announced prices for several geographic areas. He then discussed maximum buying prices for individual suppliers.

After fixing prices for flattened and whole cars, the participants in the meeting addressed Weil's demand that McConnell stop quoting prices to certain dealers located near Sunshine. Anthony, Jr. stated that Atlas-Miami River needed more scrap, and Atlas-Miami River, unlike Sunshine, was not conveniently located near several auto wrecking yards. Anthony, Jr. agreed to keep McConnell away from the dealers near Sunshine in exchange for "some cars that [Weil] had accumulated in the Bahamas." Subsequently, Atlas-Miami River did in fact receive a shipment of cars from the Bahamas pursuant to the Sea Ranch Agreement.

On the way back to Miami after the Sea Ranch meeting, McConnell complained to Anthony, Jr. that the agreement would prevent her from competing with Sunshine, that the agreement was illegal, and that Weil could not be trusted. Anthony, Jr. told McConnell to "drop the prices" and "just see what happens, just see how it goes." When they arrived in Miami, Anthony, Jr. met with his brother, David, who had not attended the Sea Ranch meeting. After he spoke with Anthony, Jr., David ordered McConnell to "drop the prices." David also gave Weil's phone number to McConnell and told her to call Weil if she had questions about the agreement.

Kovinsky testified that Weil said he thought the Sea Ranch Agreement was "worthwhile" because Hurricane Andrew had created a surplus of scrap metal. Weil thought it should be possible to purchase the hurricane scrap at low prices, and he wanted to "see how far [the Sea Ranch Agreement] runs for the moment."

McConnell testified that she lowered her prices in accordance with the Sea Ranch Agreement, and that Weil lowered Sunshine's prices. Receipts showed that Atlas-Miami River's and Sunshine's prices decreased in a manner consistent with the prices McConnell recorded in her notebook at the Sea Ranch meeting. McConnell was concerned about the agreement not only because it was illegal, but also because she thought it would cause Atlas to lose customers. These concerns led McConnell to cheat on the agreement to some extent; she quoted prices as "picked up" instead of "delivered," even though Appellants had agreed that prices should be quoted as "delivered." McConnell explained, "I quoted the number that was agreed upon, but I quoted it picked up, which gave me the advantage." Weil discovered that McConnell was cheating, and he complained to Anthony, Jr., who in turn asked McConnell if she was following the agreement. She "basically lied to him" and said she was.

On November 23, 1992, Anthony, Jr., Anthony, Sr., David, Weil, and Kovinsky met at a steakhouse in Hialeah, Florida. Kovinsky testified that at this meeting, the Giordanos accused Weil of cheating on the Sea Ranch Agreement. After the meeting, the Giordanos told McConnell they thought Weil was cheating on the Sea Ranch Agreement. Atlas-Miami River was having trouble purchasing the scrap it needed, and Anthony, Jr. instructed

Page 1138

McConnell to raise prices to two large scrap dealers in order to regain their business. The Giordanos, however, were apparently not ready to abandon the Sea Ranch Agreement entirely, because they would not allow McConnell to raise her prices to other suppliers. Sunshine and Atlas pricing documents established that some of their prices followed the Sea Ranch Agreement until at least December 31, 1992.

II. DISCUSSION

A. Jurisdiction

Appellants argue that the indictment failed to plead and the Government failed to prove the jurisdictional element of the Sherman Act. This jurisdictional element may be pleaded and proven under either of the following two theories: (1) the offending activities took place in the flow of interstate commerce (flow theory); or (2) the defendants' general business activities had or were likely to have a substantial effect on interstate commerce (effects theory). United States v. Fitapelli, 786 F.2d 1461, 1462 (11th Cir. 1986).

In this case, the jury was charged under both the flow theory and the effects theory. We must therefore first examine the indictment to determine whether both theories have been sufficiently pleaded.4 If we conclude the indictment properly pleaded both theories, we must then examine whether the Government sufficiently proved either theory at trial. See id. at 1463-64.

Looking first at the issue of proper pleading, Appellants claim the indictment failed to plead the flow theory. The flow theory focuses directly on the challenged anti-competitive conduct, rather than on the defendants' general business activities. See id. at 1462. Appellants argue that the indictment in this case was fatally defective because it alleged only that Appellants' general business activities, not specifically the anti-competitive activities at issue in this case, were within the flow of interstate commerce. The indictment contains the following language:

The business activities of the defendants and co-conspirators that are the subject of this Indictment were within the flow of, and substantially affected, interstate and foreign trade and commerce.

(emphasis added).

By stating that the business activities "that are the subject of this Indictment were within...

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19 practice notes
  • U.S. v. Baker, No. 00-13083.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 13, 2005
    ...Finally, we review the admissibility of evidence under Rule 404(b) for an abuse of discretion. United States Page 1206 v. Giordano, 261 F.3d 1134, 1140 (11th 2. The Defendants' Evidentiary Claims Having set forth the relevant legal standards, we first discuss each alleged evidentiary error ......
  • ANTITRUST VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...a Sherman Act claim must allege some nexus between the defendants’ conduct and interstate commerce.”); United States v. Giordano, 261 F.3d 1134, 1138 (11th Cir. 2001) (holding that an activity must take place in the f‌low of interstate commerce or have a substantial effect on interstate com......
  • North Jackson Pharmacy, Inc. v. Express Scripts, No. CIV.A. CV-03-HS-2696.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • October 13, 2004
    ...assert that the price-fixing constitutes a per se violation of § 1. See SAC at ¶¶ 67, 76; see generally, e.g., United States v. Giordano, 261 F.3d 1134, 1142 (11th Cir.2001) (referring to the "long-established rule that a horizontal price-fixing agreement ... is per se In their motion to di......
  • United States v. Peake, No. 14–1088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 14, 2015
    ...this is a presumption that the defendant may rebut by offering evidence that some sales were not affected. United States v. Giordano, 261 F.3d 1134, 1146 (11th Cir.2001).In this case, the district court had before it data produced by Sea Star indicating that its total revenue between 2005 a......
  • Request a trial to view additional results
16 cases
  • U.S. v. Baker, No. 00-13083.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 13, 2005
    ...Finally, we review the admissibility of evidence under Rule 404(b) for an abuse of discretion. United States Page 1206 v. Giordano, 261 F.3d 1134, 1140 (11th 2. The Defendants' Evidentiary Claims Having set forth the relevant legal standards, we first discuss each alleged evidentiary error ......
  • North Jackson Pharmacy, Inc. v. Express Scripts, No. CIV.A. CV-03-HS-2696.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • October 13, 2004
    ...assert that the price-fixing constitutes a per se violation of § 1. See SAC at ¶¶ 67, 76; see generally, e.g., United States v. Giordano, 261 F.3d 1134, 1142 (11th Cir.2001) (referring to the "long-established rule that a horizontal price-fixing agreement ... is per se In their motion to di......
  • United States v. Peake, No. 14–1088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 14, 2015
    ...this is a presumption that the defendant may rebut by offering evidence that some sales were not affected. United States v. Giordano, 261 F.3d 1134, 1146 (11th Cir.2001).In this case, the district court had before it data produced by Sea Star indicating that its total revenue between 2005 a......
  • United States v. Aiyer, 18cr333 (JGK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 6, 2020
    ...trading data in this case traveled by wire from New York to New Jersey and then on to the United Kingdom. See United States v. Giordano, 261 F.3d 1134, 1139 (11th Cir. 2001) (interstate commerce requirement of Sherman Act was satisfied where the subject of the price-fixing agreement was all......
  • Request a trial to view additional results
3 books & journal articles
  • ANTITRUST VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...a Sherman Act claim must allege some nexus between the defendants’ conduct and interstate commerce.”); United States v. Giordano, 261 F.3d 1134, 1138 (11th Cir. 2001) (holding that an activity must take place in the f‌low of interstate commerce or have a substantial effect on interstate com......
  • Criminal Antitrust
    • United States
    • Antitrust Bulletin Nbr. 61-4, December 2016
    • December 1, 2016
    ...(emphasis added).40. 310 U.S. at 223 (emphasis added).41. 598 F. 2d 1101, 1106 (7th Cir. 1979). See also United States v. Giordano, 261 F. 3d 1134 (11th Cir. 2001).42. Supra note 41.43. Supra note 19.Weller Second, as noted, McDonnell and Skilling manifest a reawakened Supreme Court interes......
  • The End of Criminal Antitrust's per Se Conclusive Presumptions
    • United States
    • Antitrust Bulletin Nbr. 58-4, December 2013
    • December 1, 2013
    ...added) (footnote omitted) (citation omitted). 9 598 F.2d 1101, 1106 (7th Cir. 1979) (emphasis added). See also United States v. Giordano, 261 F.3d 1134 (11th Cir. United States v. Hudson & Goodwin, 11 U.S. 32, 34 (1812). 670 : THE ANTITRUST BULLETIN: Vol. 58, No. 4/Winter 2013 ularly in the......

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