US v. Suntar Roofing, Inc.

• Decision Date: 05 April 1989
• Docket Number: No. 88-20084-01.,88-20084-01.
• Citation: 709 F. Supp. 1526
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff, v. SUNTAR ROOFING, INC., and David Kevin Pratt, Defendants.

709 F. Supp. 1526

UNITED STATES of America, Plaintiff, v. SUNTAR ROOFING, INC., and David Kevin Pratt, Defendants.

No. 88-20084-01.

United States District Court, D. Kansas.

April 5, 1989.

COPYRIGHT MATERIAL OMITTED

Diane C. Lotko-Baker, U.S. Dept. of Justice, Antitrust Div., Chicago, Ill., for the U.S Bryon Neal Fox, Kansas City, Mo., Ronald P. Woods, Overland Park, Kan., Ronald E. Partee, Thomas M. Bradshaw, and Walter R. Randall, Jr., Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is before the court on the motion of the defendants Suntar Roofing, Inc., (Suntar) and David Kevin Pratt (Pratt) for judgment of acquittal or for a new trial. The posture of the case is as follows:

On September 21, 1988, Suntar and Pratt, Suntar's president, along with Ronan's Roofing, Inc., (Ronan's Roofing) and its president, Michael T. Ronan (Ronan), were indicted by a grand jury. The one count indictment alleged that the defendants conspired to allocate roofing customers in violation of section 1 of the Sherman Antitrust Act. In its voluntary bill of particulars filed on November 21, 1988, the government identified three unindicted coconspirators: (1) Tom Keaton (Keaton), a part-owner of Suntar and another roofing company, Keaton Brothers Roofing and Siding, Inc., (2) Andy Boxley (Boxley), a Suntar employee during the time frame of the alleged conspiracy, and (3) Samuel K. "Bud" Fleenor (Fleenor), an employee of Ronan's Roofing.

The case was tried to a jury, which on February 13, 1989, returned a verdict of not guilty as to the defendants Ronan's Roofing and Ronan, and a verdict of guilty as to the defendants Suntar and Pratt. Suntar and Pratt moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), or for a new trial pursuant to Rule 33. The defendants' motion is based on the following assertions:

(1) The evidence at trial was insufficient to support the jury's finding of conspiracy.

(2) The court improperly instructed the jury.

(3) The court erred in its ruling prior to trial that the alleged crime was a per se violation of the Sherman Act, thereby precluding the defendants from offering evidence of reasonableness, economic or other justification, or lack of intent to violate the law or restrain trade.

(4) The court improperly allowed the government to introduce similar acts evidence under Federal Rule of Evidence 404(b).

(5) The court erred in failing to require that Suntar's counsel withdraw because of an asserted conflict of interest.

(6) The court erred in its rulings on various motions before and during trial.

The government has responded to the defendants' motion, the parties have orally argued the motion at a hearing, and the court is now prepared to rule on the motion.

I. The Legal Standards.

The Tenth Circuit has stated the standards to be applied when considering a motion for a judgment of acquittal:

the trial court must view the evidence in the light most favorable to the government and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt.

United States v. White, 673 F.2d 299, 301 (10th Cir.1982) (citations omitted); see also United States v. Posey, 647 F.2d 1048, 1051 (10th Cir.1981). The court should "enter a judgment of acquittal only if the evidence that the defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." White, 673 F.2d at 301.

The court has broader discretion in considering a motion for a new trial. The court may evaluate the evidence and consider the credibility of witnesses in determining whether the verdict is contrary to the weight of the evidence such that a miscarriage of justice has resulted. However, the discretion of the court "should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." 3 C. Wright, Federal Practice and Procedure: Criminal § 553 (2d ed. 1982). Any error which would require reversal on appeal is a sufficient basis for granting a new trial. Id. § 556.

II. The Evidence.

A. The Agreement.

The defendants contend that the court should have sustained their Rule 29 motion at the close of the government's evidence and at the close of all evidence because there was insufficient evidence of an agreement and an effect on interstate commerce.

Ample evidence of an agreement involving Suntar and Pratt, on one hand, and Ronan's Roofing and/or Ronan, on the other hand, was provided at trial by Boxley and Fleenor. Boxley testified that he observed Ronan and Pratt leave the Suntar offices together. When Pratt returned, he told Boxley that Pratt and Ronan had agreed to end the price war and that Suntar and Ronan's Roofing would each get back their original customers. Fleenor testified that he and Pratt met and discussed the price war, told each other what they intended to do to end the price war, and then did what they had said that they would do. Fleenor also testified that he did not believe that he had an agreement with Pratt because he (Fleenor) intended to pursue his own, unstated agenda. However, the jury was entitled to weigh the evidence, and from all the testimony, the jury could reasonably conclude that an agreement was reached. The court concludes that neither a judgment of acquittal nor a new trial is merited on the basis of the alleged lack of evidence regarding an agreement.

B. The Verdict.

The defendants assert that given the jury's verdict, it was legally impossible for Suntar and Pratt to conspire as alleged in the indictment. Their argument is as follows: The indictment in this case alleged a conspiracy involving the defendants Suntar, Pratt, Ronan's Roofing, and Ronan, and three unindicted coconspirators: Boxley, Fleenor, and Keaton. Suntar and Pratt could not conspire with each other. Boxley, who was a Suntar employee, could not conspire with Suntar and Pratt. Similarly, Keaton, a Suntar owner who the government contended was the alterego of Suntar, could not conspire with Suntar and Pratt. Finally, the jury found that Ronan's Roofing and Ronan were not guilty of conspiring in violation of the Sherman Act, and thus neither they nor Fleenor, a Ronan's Roofing employee, conspired with Suntar and Pratt. Thus, the defendants argue, given the law and the jury's verdict, there was no party with whom Suntar and Pratt could conspire, and a judgment of acquittal or a new trial is merited.

The defendants are correct in stating that Suntar and Pratt could not conspire with each other. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769, 104 S.Ct. 2731, 2740, 81 L.Ed. 2d 628 (1984); Holter v. Moore & Co., 702 F.2d 854, 855 (10th Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 347, 78 L.Ed.2d 313 (1983). Further, Boxley and Keaton could not conspire with Suntar and Pratt, see id., as the government tacitly agrees by not addressing this issue in its brief before the court.

However, the defendants are incorrect in their assertion that because of the jury's determination that Ronan's Roofing and Ronan were not guilty of conspiring, the court should grant a new trial or enter a judgment of acquittal for Suntar and Pratt. In determining the merits of the defendants' motion, the court focuses on the evidence presented at trial rather than on the jury's verdict, and, as discussed above, ample evidence of an agreement was presented at trial.

Our review of the defendants' argument regarding the jury verdict begins with a recognition of the general tenet that consistency in verdicts is not required. See Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974) (citing United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932)). However, a traditional exception to this general rule states that a single conspirator¹ may not be convicted in the same proceeding or prosecution in which all of his alleged coconspirators are acquitted.²See United States v. Howard, 751 F.2d 336, 338 (10th Cir.1984) (stating the traditional exception and citing Romontio v. United States, 400 F.2d 618, 619 (10th Cir.1968), cert. dismissed, 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644 (1971)), cert. denied, 472 U.S. 1030, 105 S.Ct. 3507, 87 L.Ed.2d 638 (1985); see also United States v. Wright, 742 F.2d 1215, 1224 (9th Cir.1984), overruled, United States v. Valles-Valencia, 823 F.2d 381 (9th Cir. 1987); United States v. Morales, 677 F.2d 1, 3 (1st Cir.1982); United States v. Williams, 503 F.2d 50, 54 (6th Cir.1974); United States v. Shuford, 454 F.2d 772, 779 (4th Cir.1971); Herman v. United States, 289 F.2d 362, 368 (5th Cir.), cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed. 2d 93 (1961), overruled, U.S. v. Andrews, 850 F.2d 1557 (11th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989); United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir.) (L. Hand, J.), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929).

The soundness of the traditional exception was questioned by the former Fifth Circuit³ in United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980). In Espinosa Cerpa, the defendant's alleged coconspirators were acquitted in a separate trial, and the defendant argued that the acquittal should have precluded his conviction on a conspiracy charge. Id. at 329. The court noted, see id. at 331, and then criticized the traditional exception:

The notion that the acquittal of one's alleged coconspirators concludes the fact of their noncomplicity misapprehends the true nature of an acquittal in the scheme of trial by jury in the American criminal justice system. It has long been recognized that criminal juries in the United States are free

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