United States v. Evans Concrete, LLC
| Decision Date | 20 April 2023 |
| Docket Number | CR 420-081 |
| Parties | UNITED STATES OF AMERICA v. EVANS CONCRETE, LLC JAMES CLAYTON PEDRICK GREGORY HALL MELTON JOHN DAVID MELTON TIMOTHY TOMMY STRICKLAND |
| Court | U.S. District Court — Southern District of Georgia |
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
After careful consideration of the briefs and arguments made at the November 15, 2022 hearing, the Court REPORTS and RECOMMENDS the following motions seeking dismissal or suppression be DENIED, (doc. nos. 178, 185, 193, 197, 198, 206, 221). The Court issues a separate Report and Recommendation under seal for David Melton's Motion to Dismiss Indictment Due to Prosecutorial Misconduct, (doc. no. 223).
On September 2, 2020, a grand jury returned a four-count Indictment that alleges, in Count One, Defendants conspired with Companies 1, 2, and 3, Individual A, and others, from as early as 2010 until July 2016, to “suppress and eliminate competition by fixing prices, rigging bids, and allocating markets for sales of ready-mix concrete.” (Doc. no. 1, Indictment ¶¶ 1-19.) The Indictment explains ready-mix concrete has residential and commercial applications, and the market is localized because concrete must be poured quickly, typically within an hour, after being mixed and loaded onto a truck. (Id. ¶ 4.)
Count One describes and charges the alleged co-conspirators. Headquartered in Claxton, Georgia, Defendant Evans Concrete LLC, manufactured and sold ready-mix concrete in the Southern District of Georgia. Defendant Timothy “Bo” Strickland served in various roles at Evans Concrete including owner, president, area manager, plant manager, and salesperson. Companies 1, 2, and 3 manufactured and sold ready-mix concrete in the Southern District of Georgia. Defendant Greg Melton was a division manager for Company 1 in its Pooler, Georgia office, and Defendant James Pedrick was a salesman for Company 1. Defendant David Melton was the general manager of Company 2, and Individual A was the owner of Company 2.
The Indictment alleges the following overt acts by Defendants and co-conspirators:
(Id. ¶ 14.)
Count Two charges Pedrick with making false statements to federal agents on February 5, 2018, by claiming he (1) never heard of collusion or price fixing in the Savannah market; and (2) never personally discussed concrete price increases with David Melton. (Id. ¶¶ 2022.) Counts Three and Four similarly charge Strickland with perjury and making false statements when he allegedly told federal agents on October 8, 2015, that (1) neither he nor anyone else communicated with Company 1 concerning a concrete job at the Georgia Southern University (“GSU”) biology building; (2) he never discussed with Greg Melton either prices of concrete or specific concrete jobs in Statesboro or at GSU; (3) he never discussed with Greg Melton or Pedrick, or anyone else at Company 1, specific concrete projects at The Islands, a GSU dining facility, Briggs and Stratton, a GSU recreational facility, Aspen Heights, and McDonald's; and (4) he never received from Pedrick any price increase letters before those letters were sent to customers. (Id. ¶¶ 23-28.)
The Indictment marked the third rather than first chapter in the federal government's investigation of price-fixing in the ready-mix concrete market. The Department of Justice (“DOJ”) Antitrust Division opened the first investigation in February 2012 and closed it in January 2013 without filing charges. Also in January 2013, the DOJ closed its Antitrust Division's Atlanta office due to restructuring. On April 17, 2013, Chris Young, a sales manager for the concrete company Argos, filed a qui tam action alleging False Claims Act violations against a bevy of concrete companies and individuals including Evans Concrete, Strickland, Pedrick, Greg Melton. United States ex rel. Young v. LaFarge, S.A., Case No. CV 413-095, doc. no. 1 (S.D. Ga. Apr. 17, 2013). The qui tam action prompted a second federal investigation by the U.S. Attorney for the Southern District of Georgia. Three years later in July 2016 the government declined to intervene, and the qui tam action was dismissed. Id., doc. nos. 32, 36. In 2017, the FBI, Postal Service, and DOJ Antitrust Division initiated a third investigation that culminated in the September 2020 grand jury session and current Indictment.
Defendants move to dismiss the Indictment, arguing procedures enacted to protect the health and safety of grand jurors violated Fed. R. Crim. P. 6 and the CARES Act, and thus Defendants' Fifth Amendment right to a valid grand jury indictment. (Doc. nos. 178, 206; see also doc. nos. 320, 336); see Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 15002(b), 134 Stat. 281 (Mar. 27, 2020). In response to the pandemic, Chief United States District Judge J. Randal Hall issued a Standing Order authorizing grand jurors to convene in the Augusta, Brunswick, and Savannah federal courthouses, depending on each grand juror's county of residence, rather than everyone meeting together in a Savannah courtroom as is customary. In Re: Coronavirus/COVID-19 Pandemic and the Use of Grand Jury Telecomm. Facilities, MC 120-011, (S.D. Ga. May 13, 2020) (hereinafter “Standing Order”).
Grand jurors in the Augusta and Brunswick courthouses participated by video teleconference in grand jury proceedings occurring at the Savannah courthouse, where the government and its witnesses were physically present. Id. The Court permitted no more than ten grand jurors to convene at any one courthouse and tasked Court Security Officers with safeguarding the grand jury from intrusions. Id. The parties stipulated the grand jury that issued the Indictment met in this manner September 2, 2020 in accordance with the Standing Order procedures. (Doc. no. 290.)
Whether the Standing Order violates Rule 6 and the CARES Act has already been addressed by United States District Judge Lisa Godbey Wood and Magistrate Judge Benjamin W. Cheesbro in United States v. Graham, No. 2:20-CR-47, 2021 WL 2593630, at *5-9 (S.D. Ga. June 24, 2021), adopted by 2021 WL 4352320 (S.D. Ga. Sept. 24, 2021). Their excellent analyses apply fully here and need not be repeated. For the reasons stated by Judges Wood and Cheesbro, the Standing Order does not violate the CARES Act, Rule 6, or the Fifth Amendment. The procedures sufficiently preserved grand jury secrecy and fell well within the Court's grand jury regulatory powers. Even if there were any procedural infirmities, the harmless error doctrine precludes dismissal. Accordingly, the motions to dismiss challenging the Standing Order should be DENIED. (Doc. nos. 178, 206.)
Defendants move to dismiss Counts One and Two for duplicity. (Doc. nos. 185, 197, 221.) For the reasons explained below, these motions should be DENIED.
“A count in an indictment is duplicitous if it charges two or more ‘separate and distinct' offenses.” United States v. Schlei, 122 F.3d 944, 977 (11th Cir. 1997) (citation omitted). Duplicitous counts are problematic because a jury may convict a defendant without unanimous agreement on the same offense, a defendant may suffer prejudice in a subsequent double jeopardy defense, and a court may find it difficult to rule on the admissibility of evidence. Id. However, “[w]here the language of a statute proscribes several means by which the defendant might have committed a violation, the government may plead the offense conjunctively and satisfy its burden of proof by any one of the means.” United States v Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (per curiam). “An indictment is not duplicitous if, in one count, it charges a defendant with violating [a] statute in [multiple] ways.” United States v. Burton, 871 F.2d 1566, 1574 (11th Cir. 1989) (per curiam); see United States v. Thomas, No. 1:12:CR-188-TWT/AJB, 2012 WL 6963671, at *3 (N.D.Ga. Dec. 31, 2012) (...
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