1 No member of the panel nor judge in regular active service of the Court having requested

that the Court be polled on Rehearing En Banc (F ED

. R. A PP

. P. and 5th C IR

. R. 35), the Petition for

Rehearing En Banc is denied.

1 United States Court of Appeals

Fifth Circuit



## FILED

June 14, 2004

Charles R. Fulbruge III

Clerk REVISED AUGUST 10, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-20843

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THERM-ALL, INC., and

SUPREME INSULATION, INC.,

Defendants-Appellants.

___________________________________________________

Appeals from the United States District Court

For the Southern District of Texas

__________________________________________________

ON PETITION FOR REHEARING EN BANC

(Opinion December 3, 2003, 5 th Cir. 2003, ____F.3d____)

Before REAVLEY, JONES, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge.

Upon reconsiderati o n, we withdraw our previous opinion, reported at 352 F.3d 924, and

substitute the following. 1

After a seven-week trial, a jury convicted Therm-All, Inc. (“Therm-All”) and Supreme2

Insulation, Inc. (“Supreme”) of conspiring to fix prices in the building insulation industry, in violation

of Section 1 of the Sherman Act, 15 U.S.C. § 1. Therm-All and Supreme (collectively “Defendants”)

raise the following six issues on appeal: (1) whether sufficient evidence supports the jury finding that

a conspiracy existed; (2) whether the Government produced evi dence t hat the conspiracy existed

during the statute of limitations period; (3) whether a fatal variance existed between the indictment

and the proof at trial; (4) whether the district court improperly instructed the jury; (5) whether the

district court should have ordered a new trial based on prosecutorial misconduct; and (6) whether a

discovery error by the Government rises to the level of plain error. We conclude that the Defendants

do not prevail on any of these issues, so we affirm the judgment.

I. FACTS AND PROCEEDINGS

During the 1990’s, five companies, Therm-All, Supreme, Bay Insu lat io n Supply Company

(“Bay Insul ation”), Mizell Brothers Company (“Mizell Co.”), and CGI Silvercote (“CGI”), dominated

the market for laminated fiberglass. These companies laminated fiberglass so that it could be used

to insulate metal buildings. In 1992 and 1993, the metal-building industry expanded dramatically, and

consequently, prices of metal-building insulation plummet ed. In late 1993, the fiberglass

manufacturers—suppliers for the five fiberglass laminating companies listed above—announced a

price increase and an “allocation” system under which they would be producing more residential and

less metal building insulation.

At trial, the Government presented evidence that du ring t he fiberglass manufacturer’s

allocation period, the five laminat ing co mpanies acted in the following manner to bring about a

conspiratorial agreement. In Oct o ber 1993, during a convention in Dallas, Texas, the laminating

companies discussed forming a committee to establish product and safety standards for metal building2 Witness Peter Yueh provided evidence of a smaller regional competitor j o ining the

conspiracy. Yueh was a former vice president of a company that sold laminated fiberglass primarily

in Texas; he testified that his former company became part of the conspiracy in January 1994.

3 insulation. Subsequently, the president of Therm-All, Robert Smigel (“Smigel”), telephoned the

national sales manager for Mizell Co., Wally Rhodes (“Rhodes”), to discuss whether Mizell Co. had

any interest in supporting this committee. Near the end of their conversation, Smigel (of Therm-All)

mentioned the prevailing low prices in the industry, and characterized the situation as “a dog-eat-dog

market.” Smigel said he thought Bay Insulation, which was expanding into many new areas at the

time, was responsible for the low prices, and Rhodes (of Mizell Co.) agreed. Smigel then said that

he had agreed with the sales manager of Bay Insulation, Mark Maloof (“Maloof”), to increase and

maintain prices. This would be accomplished, Smigel explained, by publishing price sheets with

nearly identical prices, and “selling

. . . on the price sheet, not coming below the price sheet and not

jumping the brackets.” Rhodes “immediately” agreed that Mizell Co. would do the same. In January

1994, Rhodes had similar conversations with Maloof (of Bay Insulation) and with the president of

Supreme, Tula Thompson (“Thompson”), in which they agreed to raise prices, use bracket pricing,

and not deviate from the price sheets. Thus, by January 1994, Smigel, Thompson, Maloof, and

Rhodes had reached an agreement “to get the pricing up in the ind ust ry and make more money.”

Smigel then brought CGI into the conspiracy, as well as smaller regional competitors. 2

The conspirators faxed each other price sheets, and spoke on the phone “to get the pricing

in line with each other

. . . within a couple of dollars of each other in each [pricing] bracket,” trying

not to use the “exact” same prices so that customers would not get suspicious. For example, Rhodes

(of Mizell Co.) received a copy of Therm-All’s February 14, 1994 price sheet from Smigel’s ThermAll office in January 1994, at which time Rhodes was working on Mizell Co.’s prices. Rhodes then4

“tried [his] best to get the numbers as close as [he] could

. . . to [Therm-All’s] numbers without being

identical in every bracket.” When he finished, Rhodes faxed Mizell Co.’s draft price sheet to Smigel

a few days before it became effective.

Another example of conspiratorial conduct allegedly occurred when Rhodes (of Mizell Co.)

told Leif Nilson, Mizell Co.’s California plant manager, that he had an agreement with Thompson (of

Supreme) to keep the California prices up, and therefore, they were to stick to the price sheets. On

one occasion, Rhodes faxed Nilsen “Supreme’s price sheet” containing a Supreme fax header.

Several witnesses explained how the various companies policed and enforced the agreement.

Rhodes (of Mizell Co.) testified that when a conspirator believed another conspirator was offering

too low a price to a mutual customer, the conspirator could call Rhodes and verify the complaint or

obtain an explanation. Rhodes provided an example of this conduct, stating that Smigel (of ThermAll) called him several times in 1994 complaining that a Mizell Co. salesperson in Pennsylvania had

jumped a bracket. Nilsen (of Mizell Co.) also called Rhodes whenever he believed that Supreme was

pricing below the agreed-upon level. Rhodes responded to Nilsen that he would “call and see what

was going on,” and then called back to say that he had discussed the incident with Supreme and that

it would not happen again.

Evidence also existed that Supreme called co-conspirators when it suspected they were not

complying with the agreement. Supreme’s California salesman, Jim Miranda (“Miranda”), told his

plant manager that, according to a customer, Supreme’s quote to that custo mer was higher than

Mizell Co .’s quote. The plant manager relayed this information to Thompson (of Supreme), who

called Rhodes (of Mizell Co.), who to ld Thompson that the customer must have been “pulling

[Miranda’s] leg.”5

The following evidence is also noteworthy for purpo ses of this appeal. First, Miranda

provided testimony at trial (1) that Thompson (of Supreme) obtained a price sheet from Rhodes (of

Mizell Co.), and (2) that Miranda (of Supreme) himself had told this information to the grand jury.

Second, Rhodes (of Mizell Co.) testified that the conspiracy continued through June 1995. Third,

Mark Engebretson (“Engebretson”), a Therm-All employee, testified that he had conversations with

Roger Ferry (“Ferry”), a CGI employee, about pricing i nformation. The telephone records of

Engebretson (of Therm-All) revealed that on June 8, 1995, he had a short conversation with Ferry

(of CGI), and sent Ferry a fax on June 15, 1995. Fourth, Rhodes (of Mizell Co.) testified that a price

sheet that CGI had in its possession contained the handwriting of a Therm-All vice president, Dennis

Kaczmarek (“Kaczmarek”), on it.

The jury acquitted Smigel (of Therm-All) and Thompson (of Supreme), but found Therm-All

and Supreme guilty. Therm-All and Supreme filed motions for judgment of acquittal and new trial,

but the district court denied those motions. Thermal-All and Supreme timely appeal.

II. STANDARD OF REVIEW

This Court reviews de novo the denial of an appellant’s motion for acquittal. U nited States

v. Medina

, 161 F.3d 867, 872 (5th Cir. 2002). A motion for a judgment of acquittal challenges the

sufficiency o f the evidence to convi ct. S ee F ED

. R. C RIM

. P. 29(a). In ruling on the motion for

acquittal, this Court reviews the evidence, all reasonable inferences drawn from it, and all credibility

determinations in the light most favorable to the Government. G lasser v. United States, 315 U.S. 60,

80 (1942); Medina , 161 F.3d at 872.

This Court reviews the denial of a motion for new trial for abuse of discretion. M iss. Chem.

Corp. v. Dresser-Rand Co.

, 287 F.3d 359, 365 (5th Cir. 2002). This Court will uphold a jury verdict6

if “a rational trier of fact could have found that the evidence established the essential elements of the

offense beyond a reasonable doubt.” United States v. Lopez , 74 F.3d 575, 577 (5th Cir. 1996).

III. DISCUSSION

Defendants raise six issues on appeal. The first is whether the Government pro duced

sufficient evidence to show that a conspiracy existed. The second is whether evidence exists that the

alleged conspiracy continued during the limitations period. The third is whether a fatal variance exists

between the indictment and the proof at trial. The fourth is whether t he dist rict court improperly

instructed the jury. The fifth is whether the district court should have ordered a new trial based on

the Government’s closing argument. The sixth is whether a discovery error by the Government rises

to the level of plain error. We address each in turn.

A. Sufficiency of the evidence

Defendant s first argue that the evidence does not support the jury verdicts against them

because the jury

did no t co nvict Thompson (of Supreme), Rhodes (of Mizell Co.), or Smigel (of

Therm-All) of illegal activity. This argument fails. In U nited States v. Cargo Service Stations, Inc.,

657 F.2d 676, 684-85 (5th Cir. 1981), this Court faced the same iss ue. There, the Governm ent

alleged that several companies and their agents violated Section 1 of the Sherman Act. I d. The jury

convicted the companies but acquitted their agents. I d. at 684-85. On appeal, the companies argued

that the evidence did not support their convictions because e very person who could have acted as

their agent had been acquitted. Id. This Court rejected that argument, stating:

In this Circuit consistency is not required. That the verdict may have been the result

of compromise, or of a mistake on the part of the jury, is possi ble. But verdi cts

cannot be upset by speculation or inquiry into such matters. As the Supreme Court

explained in a similar case in which the corporati on was acquitted and the individual

was convicted, “whether the jury’s verdict was a result of carelessness or compromise3 For this same reason, we also reject Supreme’s brief argument that the verdict is against the

great weight of the evidence.

7 or a belief that the responsible individual should suffer the penalty instead of merely

increasing, as it were, the cost of running the business of the co rporation, i s

immaterial. Juries may indulge in precisely such motives or vagaries.” United States

v. Dotterw eich , 320 U.S. 277, 279 (1943).

Id. at 685 (internal citations and quotati ons omitted). Thus, because a consistency of verdicts is not

necessary to convict a corporation, the Defendants’ argument fails.

Defendants next contend that they co uld no t have been guilty of conspiring to fix prices

because circumstantial evidence demonstrates otherwise. Specifically, Therm-All cites evidence that

its price increases were correlated with the fiberglass manufacturers’ allocation period; Supreme cites

evidence that it increased sales during that period and took customers away from Mizell Co. and Bay

Insulation. This evidence, however, does not compel the conclusion that Therm-All and Supreme

could not have engaged in price-fixing activity. The jury could reasonably infer that despite market

conditions affecting the price, and despite competitive activity, the companies conspired to raise the

aggregate prices of their goods. Indeed, direct testimony supports such an inference. 3 The

Defendants’ circumstantial evidence thus falls well short of establishing that the jury verdict was an

unreasonable one.

B. Statute of limitations

The Defendants argue that the Government failed to produce any evidence that the conspiracy

occurred within the applicable statute of limitations period. The Government counters this argument

by contending that antitrust law does not require that it produce any evidence of the conspiracy’s

continued existence during the limitations per io d because Defendants failed to make a showing of

abandonment. For the reasons discussed below, we hold that in a price-fixing conspiracy, the8

government must produce evidence of the conspiracy’s continued existence duri ng t he limitations

period. We further hold that in this instance, the Government has satisfied that burden.

(1) Whether the Government was required to prove the conspiracy’ s existence in the

limitations period

The question of whether the government must produce evidence that a price-fixing conspiracy

continued to exist during the limitations period is res nova for this Court. The issue arises in part

from a statement made in a historic antitrust case, United States v. Kissel, 218 U.S. 601 (1910). In

Kissel

, the Supreme Court addressed whether the government must prove that a defendant has acted

in the limitations period to show that an antitrust conspiracy occurred during that time. 218 U.S. at

601. To answer this question, the Court first discussed the issue of whether a co nspiracy was a

continuing crime. I

d. at 607 (“[W]e first will consider whether a conspiracy can have continuance

in time.”). The defendants asserted that the conspiracy was a completed crime once the participants

had fo rmed the agreement—not a continuing crime. I d. Based on that assertion, the defen dants

further argued that despite subsequent acts in furtherance of the agr eement (which by themselves

were not actionable), the statute of limitations should run from the time of the original agreement.

Id. The Court rejected this argument, holding that the antitrust conspiracy was indeed a continuing

crime. I d. at 607-08. The Court reasoned that “if [the defendants] do continue such efforts in the

pursuance of the plan, the conspiracy continues up to the time of abandonment or success.” Id. at

608. This statement, then, was the basis for the Court rejecting the defendants’ argument that the

subsequent acts were not part of the original act of conspiracy.

The above statement can be interprete d t wo way s. The first interpretation posits that the

conspiracy is presume d t o co ntinue indefinitely, whereas the second posits that the conspiracy is9

presumed to continue up to the point of the last act in furtherance of the conspiracy. Under the first

interpretation, once a conspirator has committed an act of continuing effort, the conspiracy would

continue indefinit ely unless the conspirator made a showing of a b andonment or success. The

indefinit e presumed existence would imply that the conspiracy is indefinitely actionable. The

limitations period would always be tolled absent a showing of abandonment or success.

Under the second interpretation, once a conspirator has committed an act of continuing effort,

the conspiracy would continue from the point of the original conspiratorial agreement until the last

act of continuing effort. That presumption of its continued existence between those two points in

time would only be rebutted if the conspirator had made a showing of abandonment or success. In

effect, the statute of limitations would reset from that act of continuing effort. The indictment would

therefore have to be brought within the applicable limitations period after that act of continuing effort.

That is, the government would have to show that the conspirator c o mmitted an act of continuing

effort within a time period before the date that the indictment was brought.

The facts and reasoning of Kissel compel the second interpretation. As previously noted, the

Supreme Court stated that a “conspiracy continues up to the time of abandonment or success” in the

context of reject ing t he defendants claim that an act of continuing effort should not be part of the

same actionable conduct as the original conspiratorial agreement. K issel

, 218 U.S. at 608. The

Court held that the limitations period did not expire from the original conspiratorial act because—as

stated in the cited sentence—a presumption exists that the conspiracy continues between the original

conspiratorial act and the act of continuing effort (absent a showing of abandonment or success). I d.

In so holding, the Court relied upon the fact that “[t]he overt acts relied upon [occurred] within three

years of the indictment [and were] alleged to have been done in pursuance of the conspiracy . . . .”4 No t ably, the Court did not rely on the fact that the conspirators had failed to sho w

abandonment or success in concluding that the conspiracy continued to exist.

5 A leading antitrust tre at ise supports this understanding of the statute of limitations as it

relates to an antit rust conspi racy . 2 H ERBERT H OVENKAMP

, A NTITRUST L AW : A N A NALYSIS OF

A NTITRUST P RINCIPLES AND T HEIR A PPLICATION 208 (2d ed. 2000). In explaining co ntinuing

antitrust conspiracies, the treatise states that “[t]he idea of the continuing conspiracy or violation is

that the d efendant continues to commit acts in furtherance of the violation and each of these

additional acts causes additional injury. The statute is said to be tolled as long as such qualifying acts

continue to be committed.” Id.

6 Although Z

enith was a civil suit, the stated principle should also be true in the criminal

context because criminal proceedings require a higher burden of proof than civil proceedings.

10 Kissel , 218 U.S. at 609-10. The Court therefore reasoned that because the overt acts (1) occurred

within three years of the indictment (the limitations period), and (2) denoted efforts to carry out the

conspiracy, the original antitrust conspiracy continued into that period. 4 I d. Kissel thus implies that

if conspira t o rs co mmit overt acts in furtherance of a conspiracy, the statute of limitations period

resets from the com

missio n o f t hose acts. The statute of limitations runs from the last overt act. 5

Stated another way, an overt act must occur within a certain time period—as defined in the statute

of limitations—prior to the date on which the indictment is brought.

The Supreme Court further clarified this principle in the civil context of a continuing antitrust

conspiracy in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971). 6 The Court

stated:

Generally, a cause of action accrues and the statute begins to run when a defendant

commits an act that injures a plaint iff’s business.

. . . In the context of a continuing

conspiracy to violate the antitrust laws,

. . . this has usually been understood to mean

that each t ime a plaintiff is injured by an act of the defendants . . . the statute of

limitations runs from the commission of the act.

Id. at 338. Thus, the statute of limitations runs from the commission of each act that is subsequent

to the original conspiracy act. I d. T he party bringing the antitrust action must therefore show that11

the conspiracy continued into the limitations period.

a. Relevant Fifth Circuit precedent

This Court has addressed whether a continuing antitrust conspiracy extends into the statute

of limitations period in Poster Exchange, Inc. v. National Screen Service Corp.

, 517 F.2d 117 (5th

Cir. 1975), and again in Al George, Inc. v. Envirotech Corp., 939 F.2d 1271 (5th Cir. 1991). While

these cases arose in the civil contex t , t his fact does not distinguish the burden-of-proof principle

because civil proceedings require a less stringent burden of proof than criminal. In P oster Exchange

,

this Court considered whether an antitrust conspiracy continued into the limitations period where the

defendants, before the limitations period began, allegedly agreed not to sell items to the plaint iff. 517

F.2d at 117. This Court held that to invoke the continuing-conspiracy doctrine, the plaintiffs had to

show that “there had been a specific act o r wo rd o f refusal [by defendants to do business with

plaint iff] during the limitations period.” I d. at 129. Because the summary-judgment record did not

make clear that t he defendants had committed an act during the limitations period, this Court

remanded for further findings. Id. at 128-29.

In Al George, this Court again considered whether a plaintiff had to show an act within the

limitations period to allege an antitrust violation. 939 F.2d at 1273-74. This Court recognized that

“‘a newly accruing claim for damages must be based on some injurious act actually occurring during

the limitations period, not merely the abat able but unabated inertial consequences of some

pre-limitations action .’” 939 F.2d at 1274 (quoting Poster Exchange ) (emph asis in A l George ).

Becau se t he plaint iff failed to allege an overt act within the statute of limitations time period, this

Court held that the limitations period had run. Id. at 1275.

b. Ninth Circuit persuasive authority12

In United States v. Brow n, 936 F.2d 1042 (9th Cir. 1991), the Ninth Circuit faced the same

question as this Court does in the instant case. There, the court considered whether a district court

provided a correct jury instruction in a criminal price-fixing conspiracy case. I d. at 1048. The court

held that the district court “correctly stated” the law when the district court instructed the jury both

that (1) the government did not need to show an overt act in furtherance of a price-fixing conspiracy,

and (2) the government must show an overt act in order to establish that the price-fixing conspiracy

existed within the limitations period. I d. Thus, the B rown decision recognizes that even though the

government need not show an overt act in furtherance of a price-fixing conspiracy, the government

was still required to show some act within the limitations period.

Additional Ninth Circuit precedent further supports the above interpret at ion of K issel

. In

United States v. Inryco, Inc.

, 642 F.2d 290 (9th Cir. 1981), the court interpreted Kissel as standing

for the following statement of law:

While a Sherman Act conspi racy is technically ripe when the agreement to restrain

competition is formed, it remai n s actionable until its purpose has been achieved or

abandoned, and the statute of limitations does not run so long as the co-conspirators

engage in overt acts designed to accomplish its objectives. U

. S. v. Kissel

, 218 U.S.

601, 607-608 (1910).

Id. at 293 (emphasis added). This passage sets forth the rule of law that the statute of limitations is

tolled only if a conspirator engages in overt acts. While the passage also presumes that a conspiracy

continues to exist until its purpose has been ach i eved or abandoned, this statement cannot be

construed to mean that this presumed cont inued existence automatically tolls the statute of

limitations. Were the statement read as such, it would render the passage’s explicit condition for

tolling meaningless. In order for the presumption to continue, there must be an overt act. Absent

an overt act, the pre sumpt io n that a conspiracy remains actionable must end after the limitations7 The Government argues that the rationale of a recent Second Circuit opinion, United States

v. Spero , 331 F.3d 57 (2d Cir. 2003), should control here. We disagree. In S pero

, the Second

Circuit held that a RICO co nspiracy would continue, even into the limitations period, until the

defendants made an affirmative showing that they had withdrawn. U nited States v. Spero

, 331 F.3d

at 60-61. As a preliminary matter, this case is two steps removed from the instant case. First, this

case occurs in the Second Circuit—not the Fifth. Second, this case arises in the RICO context—not

antitrust. The Second Circuit has not actually applied the cited rationale in the context of a pricefixing agree ment . For these two reasons, alone, S pero is not persuasive. More importantly, the

rationale of Spero ap pears to conflict with K issel, and expressly conflicts with Al George, Poster

Exchange, Brow n , and Inryco.

Even if precedent did not speak to this issue, Spero is not persuasive. “Limitations serve the

same functions in anti-trust as elsewhere in the law: to put old liabilit ies to rest, to relieve courts and

parties fr o m ‘st ale’ claims where the best evidence may no longer be available, and to create

incentives for those who believe themselves wronged to investigate and bring their claims promptly

. . . .” 2 H ERBERT H OVENKAMP

, A NTITRUST L AW : A N A NALYSIS OF A NTITRUST P RINCIPLES AND

T HEIR A PPLICATION 205 (2d ed. 2000). Adopting the Second Circuit’s rule would circumvent the

policy underlying the law of limitations. The rule of Spero allows the government to bring claims well

after any evidence is found to substantiate the original act of conspirac y. It nullifies much of the

incentive to bring a claim after the last alleged injurious act because the statute of limitations would

only begin running from the time that the defendant made a showing of abandonment. We therefore

decline to adopt the Second Circuit’s rationale in the context of a price-fixing conspiracy.

13 period has run from the time of the last overt act. Thus, the passage means that the statute of

limitations is tolled only if a conspirator commits an overt act.

c. Conflicting authority

Despite the apparent c larity of the rule that the government must produce evidence that a

price-fixing conspiracy exists during the limitations period, the language of a Sixth Circuit opinion

ca n be construed as hol di ng otherwi se. 7 In U nited States v. Hayter Oil Co. Inc. of Greenville,

Tennessee, 51 F.3d 1265 (6th Cir. 1995), the Sixth Circuit faced an issue similar to that posed in the

instant case. The court explained the limitations law governing price fixing as follows:

Because the price-fixing agreement itself constitutes the crime, the government is only

required to prove that the agreement existed during the statute of limitations period

and that the defendant knowingly entered into that agreement. Proof of an overt act

taken in furtherance of the conspiracy within the statute of limitations period would

cl early demonstrate the continued existence of the conspiracy. H owever, once a14

conspiracy has been establi shed, it is presumed to continue until there is an

affirmative show ing that it has been abandoned

.

51 F.3d at 1270-71 (citation omitted) (emphasis added). The last sentence of this quotation implies

that once a conspiracy has been establishe d, even outside the limitations period, that conspiracy is

presumed to con t inue indefinitely until it has been abandoned. The facts of the case, however,

suggest that the court did not rely on this statement of law to show that the agreement continued into

the limitations period. The facts consisted of defendants committing multiple acts in furtherance of

the price-fixing conspiracy both o ut side of and within the limitations period. I d. at 1271.

Specifically, undisputed evidence demonstrated that prior to the limitations period a conspiracy

existed; evidence also existed that during the lim itations peri od, the conspi rators set pri ces at an

agreed-upon level and made telephone calls discussing prices. I d. Based on these alleged events, the

court concluded that “[t]here is

. . . sufficient evidence in the record that the conspiracy continued

past the relevant statute of limitations date.” I d. Accordingly, the court did not rely solely on the

proposition that there is a presumption of a continued conspiracy in holding that the defendants had

continued their price-fixing conspiracy during the limitations period. I d at 1270-71. The facts and

reasoning of Hayter Oil do not warrant construing the single cited sentence to be a sufficient reason

to presume the continued existence of the conspiracy within the limitations period.

The single se ntence in H ayter Oil also seems to conflict with the Sixth Circuit’s general

requirement that the government “is

. . . required to prove that the agreement existed during the

statute of limitations period.” 51 F.3d at 1270 (emphasis added). If the cited sentence were to mean

that the pr esumption continues even into the limitations period—regardless of whether the

government shows any act during that period—the court would have nullified its prior statement that15

the government is “required to prove” that the conspiracy existed during that time. Thus, to preserve

the meaning of the court’s statement regarding the government’s burden of proof, it seems necessary

to construe the cited sentence regarding the presumption of continued existence as mere support for

the court’s prior statement that any overt act demonstrates the conspiracy’s continued existence. In

effect, the Sixth Circuit seems to treat the identified presumption as a justification for allowing an

overt act—which might otherwise be insufficient to convict for conspiracy—to be sufficient to show

that the conspiracy occurred within the limitations period. This reading preserves t he meaning of

both the statement imposing a burden of proof on the government, and the statement concerning the

conspiracy’s continued existence. In any event, the H ayter Oil court did not rely only on this single

sentence to hold t hat t he Government satisfied its burden of proof to show that the conspiracy

continued into the limitations period. It would therefore be inappropriate to conclude that the cited

presumption satisfies the government’s burden “to prove that the agreement existed during the statute

of limitations period.” See id.

Thus, although the Sixth Circuit has possibly espoused a vi ew that appears to m ean that a

price-fixing conspiracy is presumed to continue into the limitations period, its statement is not

persuasive for th is Court to presume the conspiracy’s continued existence absent any evidence of

such. Supreme Court precedent, this Court’s precedent, and persuasive authority of the Ninth Circuit

lead us to conclude that the government must produce evidence that the conspiracy continued during

that time.

(2) Whether the Government did produce evidence in the limitations period

Defendants argue that the Government failed to produce evidence demonstrating that th e

price-fixing conspiracy exi st ed within the limitations period. The argument fails. The limitations8 Supreme does not appeal this point of error.

16 period is five years under 18 U.S.C. § 3282, and the grand jury indicted the Defendants on May 31,

2000. Accordingly, the Government was required to produce evidence showing the conspiracy’s

continued existence after May 31, 1995. The Government did so. Rhodes (of Mizell Co.) testified

that the conspiracy continued through June 1995. This testimony is direct evidence t hat the

participants were involved in conspiratorial acts, i.e., the acts of setting prices at agreed-upon levels,

during the limitations period. The Defendants’ limitations argument is thus unfounded. The jury

could have reasonably inferred that the conspiracy continued into the limitations period based on this

evidence.

C. The indictment and the proof at trial

Therm-All argues that a fatal variance exists between the indictment, which alleged a single,

nationwide conspiracy, and the proof at trial, which Therm-All claims only established mult iple

conspiracies. 8 T o prevail on this claim, Therm-All must prove “(1) a variance between the indictment

and the proof at trial, and (2) that the variance affected the defendant’s substantial rights.” United

States v. Herrera

, 289 F.3d 311, 318 (5th Cir. 2002). As discussed below, Therm-All fails to prove

either point.

(1) Alleged variance between the indictment and the proof at trial

No fatal variance appears between the indictment and the evidence. The indictment alleges

a single, nationwide conspiracy, and the evidence appears to support that allegation. When counting

conspiracies, “this Court will consider (1) the existen ce of a common goal, (2) the nature of the

scheme, and (3) overlapping of participants in the various dealings.” U nited States v. Morgan, 117

F.3d 849, 858 (5th Cir. 1997). “A jury’s finding that the government proved a single conspiracy17

must be affirmed unless the evidence, viewed in the light most favorable to the government, would

preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt.” Id.

“This [C]ourt has defined the ‘common goal’ factor used to count conspiracies broadly.”

Morgan

, 117 F.3d at 85 8; accord United States v. Morris , 46 F.3d 410, 415 (5th Cir. 1995)

(observing that the Fifth Circuit has broadly define d t his criterion and has adopted an expansive

no tion of “common purpose”). In M orris

, this Court held that the common goal of a single

conspiracy

was t o “to profit from the illicit purchase and selling of cocaine.” 46 F.3d at 415.

Similarly, the activity at issue here stems from a common goal of deriving illicit profits from the sale

of common goods. Direct testimony of Rhodes (of Mizell Co.) and Smigel (of Therm-All) supports

the inference that the Defendants had a common goal of raising and maintaining prices.

The nature of the scheme also points to the conclusion that the evidence supports an inference

of a single, nationwide conspiracy. This Court has defined the nature-of-the-scheme criterion to mean

that “if an agreement contemplates bringing to pass a continuous result that will not continue without

the continuous cooperati on of the conspirators to keep it up, then such agreement constitutes a single

conspiracy.” Morris , 46 F.3d at 415-16 (quoting United States v. Perez , 489 F.2d 51, 62 (5th Cir.

1973)). “The existence of a single conspiracy will be inferred where the activities of one aspect of

the scheme are necessary or advantageous to the success of another aspect or to the overall success

of the venture, where there are several parts inherent in a larger common plan.” I d. at 416 (emphasis

added). Here, evidence exists that prior to the alleged conspiracy, Bay Insulation aggressively priced

its goods at a low level that sent the market into a price war. Smigel (of Therm-All), who only did

business in the north, complained that Bay Insulation’s low prices resulted in a “dog-eat-dog market.”

Evidence thus suggests that without the continuous co o peration of all conspirators involved, the18

price-fixing conspiracy would have collapsed. It appears advantageous, and ultimately necessary, for

all alleged conspirators to have engaged in fixing prices if the alleged conspiracy were successful.

The third consideration—whether participants in the various dealings overlap—also supports

an inference of a sin gle conspiracy. In U nited States v. Richerson

, 833 F.2d 1147, 1154 (5th Cir.

1987), this Court opined that “[p]arties who knowingly participate with core conspirators to achieve

a common goal may be members of an overall conspiracy.” This Court further explained:

A si ngle co nspiracy exists where a “key man” is involved in and directs illegal

activities, while various combinat io ns o f other participants exert individual efforts

toward a common goal.

. . . The members of a conspiracy which functions through

a division of labor need not have an awareness of the existence of the other members,

or be privy to the details of each aspect of the conspiracy.

Id. (internal citation omitted); accord Morris, 46 F.3d at 416-17. Here, evidence exists that Rhodes

(of Mizell Co.) was a key actor in the alleged illegal price fixing, policing and contacting all other

conspirators, including Therm-All. Thus, the jury could have inferred that Rhodes acted as a “core

conspirator” to achieve the common goal of fixing prices for all participants.

Because evidence supports the existence of (1) a co mmo n goal, (2) the necessity of

continuous cooperati on among the conspirators for the conspiracy’s success, and (3) the presence

of a key actor coordinating the efforts of the conspirators, we conclude that no fatal variance arises

between the indictment and the proof at trial.

(2) Therm-All’s substantial rights

Assuming arguendo that a variance did exist between the indictment and the proof at trial,

Therm-All fails to show that it was prejudiced. “When the indictment alleges the conspiracy count

as a single conspiracy, but the government proves mult iple conspiracie s and a defendant’s

involvement in at lea st o ne o f t hem, then clearly there is no variance affecting that defendant’s19

substantial rights.” U

nited States v. Morrow

, 177 F.3d 272, 291 (5th Cir. 1999) (internal quotati ons

omitted). As discussed above, the evidence was sufficient to support the jury finding that Therm-All

was involved in the conspiracy.

D. Jury instruction

Defendants argue that the d ist rict court improperly instructed the jury in two ways: (1) by

failing to include a jury instruction on competitive pricing; and (2) by failing to include intent as an

element of the antitrust violation. Their argument fails. “We recognize that[] when a defendant

properly requests an instruction on a theory of defense that is supported by some evidence, it is

reversible error not to adequately present the theory.” U nited States v. All Star Industries

, 962 F.2d

465, 473 (5th Cir. 1992). Nevertheless, “[w]hen a charge is challenged on appeal, we evaluate it in

its entirety, looking to see whether the charge as a whole was correct.” U nited States v. Hagmann,

950 F.2d 175, 180 (5th Cir.1992); accord All Star , 962 F.2d at 473.

With respect to the Defendants’ first point of error, the district court instructed the jury as

follows:

Mere similarity of prices charged does not, without more, establish the existence of

a conspiracy

. . . . Nor is it illegal to . . . exchange pricing information without more.

. . . A person or company may lawfully charge pr ices identical to those charged by

competitors and may even copy the price lists of a competitor or follow and conform

exactly to the price policies and char ges of a competi tor as l ong as the person or

company does not do so pursuant to a price-fixing agreement or mutual understanding

with a competitor.

. . . Conduct that is as consistent with permissible competition or independent action as

with illegal collusion, standing alone, is not sufficient to pro ve t hat the Defendant

joined the conspiracy.

. . . You should consider all of the evidence, giving it the weight and credibility you think

it deserves, when determining whether similarit y of pricing resulted from independent20

acts of businesses competing freely in the open market or whether it resulted from a

mutual agreement or understanding between two or more conspirators.

These jury instructions demonstrate that the district court instructed the jury as to how evidence of

competitive pricing could be favorable to the Defendants. The first part of Defendants’ argument is

therefore without merit.

Defendants’ second assignment of error with respect to the jury charge is that the dist rict

court failed to include intent as an element of the antitrust violation. For this proposition, they rely

on United States v. Gypsum

, 438 U.S. 422, 430 (1978). In G ypsum

, the Governmen t produced

circumstantial evidence of a price-fixing conspiracy in the form of information exchanges between

the companies about prices. I d. The district court instructed the jury that it could presume the

element of intent if the effect of the information exchanges was to raise, fix, maintain, and stabilize

prices. Id. On appeal, the Supreme Court reversed the defendants’ convictions, stating that intent

is an “element of a criminal antitrust offense which must be established by evidence and inferences

drawn therefrom . . . .” Id. at 435.

This Court interpreted the Gypsum holding in United States v. Cargo Service Stations, Inc.,

657 F.2d 676 (5th Cir. 1981). In so doing, this Court opined that convictions in a price-fixing case

“would be valid even if they rested solely on circumstantial evidence so long as the jury was required

. . . to find that d efendants knowingly engaged in a conspiracy to fix prices.” C argo Service

, 657

F.2d at 683 n.5. In the inst ant case, the district court instructed the jury as follows: “[T]he

Government has to prove beyond reasonabl e doubt that the Defendant knowingly agreed with a

competitor to raise, fix and maintain prices, and that the Defendant actually intended to carry out the

agreement in fact.” According to C argo Service

, the district court’s jury instruction was completely21

valid. Defendants’ argument fails.

E. Alleged prosecutorial misconduct

Defendants contend that the district court erred in denying their motion for new trial because

the Government allegedly argued facts to the jury for which there was no supporting evidence. When

considering whether a prosecutor’s remarks cast doubt on a jury’s verdict, this Court examines “(1)

the magnitude of the statement’s prejudice, (2) the effect of any cautionary instructions given, and

(3) the strength of the evidence of the defendant’s guilt.” M orrow

, 177 F.3d at 298 (quoting United

States v. Tomblin

, 46 F. 3d 1369, 1389 (5th Cir.1995)). “A defendant must show that the

prosecutor’s statements affected his substantial rights.” Morrow , 177 F.3d at 298.

(1) Therm-All’s argument

Therm-All argues that the prosecutor incorrectly characterized an evidentiary document from

the price book of Rhodes (of Mizell Co.) as a “draft Therm-All price sheet.” Yet Smigel (of ThermAll) admitted that the document was a draft price sheet. Furthermore, the district court immediately

instructed the jury that the prosecutor’s statement was only “argument by counsel,” and that if this

argument “should differ from your views, you follow your own views of the evidence.” The

statement does not appear to have created prejudice.

Therm-All next contends that the prosecutor improperly stated that Kaczmarek (of ThermAll) “handed off” a price sheet to a CGI representative. In fact, however, the prosecutor stated that

Kaczmarek had denied providing CGI a price sheet, and then the prosecutor rhetorically asked if that

denial “mad e sense” in view of the fact that Smigel (of Therm-All) and Kaczmarek had worked

closely together. The prosecutor never actually stated that Kaczmarek provided CGI with a price

sheet. Moreover, even if the prosecutor had made such a statement, evidence supports that assertion.22

CGI produced the disputed do cument , indicating that it was in CGI’s possession, and Smigel had

testified that the document bore the handwriting of Kaczmarek.

Therm-All lastly contends that evidence doe s not support the prosecutor’s argum ent that

Engebretson (of Therm-All) sent Ferry (of CGI) a price sheet. We first note that Therm-All never

objected to the prosecutor’s statement before the district court, so we review the disputed statement

for plain error. S ee United States v. Munoz

, 150 F.3d 401, 415 (5th Cir. 1998). With respect to the

evidence, Engebretson testified that he had conversations with Ferry, and specifically remembered

that they had spoken about pricing. Engebretson’s telephone records reveal that on June 8, 1995,

he had a short conversation with Ferry, and se nt Ferry a fax on June 15, 1995. Based on that

evidence, the prosecutor argued that Engebretson was talking to Ferry about pricing, and that he was

“sending [Ferry] a price sheet—exchanging pricing.” The prosecutor also argued that Engretson was

faxing “stuff” to Ferry through June 15, 1995, and was talking to Ferry about prices.

Therm-All complains that these two comments are completely unsupported by the evidence.

This contention is unavailing. Even though no direct evidence may have existed that Engebretson

(of Therm-All) faxed a price sheet to Ferry (of CGI), the magnitude of the alleged prejudice appears

minimal given that evidence did exist that Engebretson conversed with Ferry about pricing, and faxed

documents to Ferry. Indeed, Engebretson’s testimony substantially supports the Defendants’ guilt

even without the assertion that he faxed a price sheet to Ferry. We thus concl ude that the

prosecutor’s suggestion that Engebretson faxed Ferry a price sheet does not constitute plain error.

(2) Supreme’s Argument

Supreme argues that the prosecutor improperly referred to th e grand jury testimony of

Supreme employee, Miranda. While it is t rue that the government may not bolster a witness’s23

credibility with prior grand jury testimony that is not in the record, see United States v. Murrah

, 888

F.2d 24, 26 (5th Cir. 1989), this sort of violation is not present here. Miranda testified at trial that

the answer he was providing was the same as his testimony to the grand jur y. Thus, the record

supp o rt ed t he prosecutor’s argument that the grand jury testimony supported the credibility of

Miranda’s statement. Moreover, the district court stated the following limiting inst ruct io n after

Supreme objected to the prosecutor’s statement: “There is no evidence from the grand jury before

us

. . . . But, even if there is any grand jury [testimony] . . . , it is not introduced for the truth. You

may not rely on grand jury testimony, period, for anything except

. . . credibility of a witness . . . .”

Given the content of the record, and the limit ing instruction of the district court, denying the motion

for new trial was not an abuse of discretion.

Supreme also argues that the prosecutor improperly referred to the plea agreement of Rhodes

(of Mizell Co.) as evidence of a nationwide price-fixing conspiracy. This argument is t enuous,

howe ver, because after referring to the plea agreement as such, the prosecutor recanted his

statements. The district court instructed the prosecutor to “make it clear that [Rhodes’] plea of guilty

is to be considered by the jury only as it weighs on his own credibility.” The prosecutor then stated

to the jury: “I just got in a little trouble. . . . Mr. Rhodes’ plea agreement comes in to you to solely

assess his credibility and not as evidence against the Defendant in this case. And that’s absolutely

true.” The district court then added: “The existence of that plea agreement is not evidence against

anybo dy in this trial.” Given these statements, the district court appears to have corrected any

prejudicial effect of the reference to Rhodes’ plea agreement. No abuse of discretion is apparent.

F. Discovery violation

Therm-All argues that the Gove rnment violated Federal Rule of Criminal Procedure9 Supreme does not appeal this point of error.

24 16(a)(1)(C) by failing to turn over certain t elephone records of Therm-All employees during

discovery. 9 As a preliminary matter, we note that Therm-All forfeited this argument by failing to raise

it before the district court. “[P]lain forfeited errors affecting substantial rights should be corrected

on appeal only if they ‘seriously affect the fairness, integri t y, or public reputati on of judicial

proceedings.’” United States v. Calverley

, 37 F.3d 160, 164 (5th Cir. 1994) (quoting United States

v. Olano

, 507 U.S. 725, 736 (1993)). Consequently, unless the error is plain and affects Therm-All’s

substantial rights, we decline to find an abuse of discretion for the court’s alleged failure to correct

the error. See id. at 162.

The phone records that the Government failed to turn over represented ph o ne calls that

Therm-All employees made during the early 1990s. Therm-All points out that those records did not

show that Engebretson (of Therm-All) or Smigel (of Therm-All) called Rhodes (o f Mizell Co.) or

Maloof (of Bay Insulation). Therm-All contends that this evidence demonstrated an absence of

contact between the alleged conspirators, thereby making the evidence material to its defense.

Therm-All’s argument does not rise to the level of plain error. Direct evidence existed that

Therm-All participated in the conspiracy, including testimony that Smigel (of Therm-All) agreed to

set prices, that Smigel and Rhodes policed the agreement, and that Engebretson (of Therm-All) was

involved, all of which were corroborated by documentary evidence. Furthermore, if telepho ne

records were important to its defense, Therm-All had the means and opportuni ty to establish what

its own telephone records either proved or did not prove. In short, Therm-All has in no way

demonstrated that the Government’s action affected the fairness or integrity of the trial.

IV. CONCLUSION25

For the foregoing reasons, we AFFIRM the district court’s judgment against both Therm-All

and Supreme.