In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1381

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER A. BEAVER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 06 CR 61—Larry J. McKinney, Judge.

____________

ARGUED OCTOBER 22, 2007—DECIDED FEBRUARY 4, 2008

____________

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. A federal jury found Christopher

Beaver guilty of participating in a price-fixing conspiracy,

15 U.S.C. § 1, and making false statements to a federal

law enforcement agent who was investigating that conspiracy, 18 U.S.C. § 1001(a)(1). Beaver challenges his

convictions on appeal, arguing that the government

failed to prove at trial that a price-fixing conspiracy

existed, that he joined the conspiracy, or that he made

false statements. We affirm.
2 No. 07-1381

I. HISTORY

In October 2003, Gary Matney, a manager at the Indianapolis office of Prairie Material Ready-Mix Concrete,

approached the Federal Bureau of Investigation to report

the existence of a price-fixing conspiracy involving several

of Prairie Material’s competitors. According to Matney,

Prairie Material was being pressured to join the conspiracy, a claim that led the FBI to investigate the pricing

activities of five ready-made concrete producers in the

Indianapolis metropolitan area: (1) Shelby Materials, Inc.;

(2) Builder’s Concrete & Supply Co., Inc.; (3) Irving

Materials, Inc.; (4) Hughey, Inc.; and (5) Ma-Ri-Al, which

does business as Beaver Materials Corp. The investigation reached a turning point on May 25, 2004, when FBI

agents executed search warrants on the five companies,

and interviewed the companies’ corporate officers and

employees regarding the existence of the conspiracy.

Information recovered at that time substantiated many

of Matney’s claims, and set into motion a chain of events

that would mark the demise of the price-fixing scheme.

Shelby Materials’s Vice-President, Richard Haehl, immediately admitted his criminal conduct and offered to

help the government investigate the cartel; the government, in turn, granted Haehl amnesty conditioned on his

continued cooperation and, if required, truthful testimony

at trial. Shortly thereafter, the government obtained

indictments against Builder’s Concrete, Irving Materials,

and Hughey, Inc., and their respective corporate officers,

Gus “Butch” Nuckols, Price Irving, and Scott Hughey.

Nuckols, Irving, and Hughey eventually admitted their

roles in the conspiracy and entered into plea agreements,

in which they, too, offered to help the government investigate the cartel and testify truthfully at trial if called.

Upon enlisting the cooperation of Haehl, Nuckols, Irving,

and Hughey, the government sought an indictment
No. 07-1381 3

1 Beaver Materials was charged with one count of participating

in the price-fixing conspiracy. Like Christopher Beaver, Ricky

Beaver was charged with participating in the conspiracy and

making false statements to the FBI. Also named in the indictment was John Blatzheim, Executive Vice-President of

Builder’s Concrete. Blatzheim was likewise charged with

participating in the conspiracy and making false statements

to the FBI, but rather than go to trial he pled guilty to the

charges.

against Beaver Materials and its corporate officers. The

government’s efforts paid off in April 2006, when a federal

grand jury returned a four-count indictment against

Beaver Materials, Ricky Beaver—the company’s Commercial Sales Manager—and Christopher Beaver—the

Operations Manager. Two of the counts were directed at

Christopher. First, the indictment charged Christopher

with participating in a price-fixing conspiracy in violation of § 1 of the Sherman Antitrust Act. Specifically, the

indictment alleged that he met with competitors at “a

horse barn owned by Gus B. Nuckols, III a/k/a Butch

Nuckols, president of Builder’s Concrete and Supply Co.,”

at which they agreed to increase prices, limit discounts,

and implement surcharges; carried out and enforced

their agreement; and attempted to conceal the conspiracy.

See 15 U.S.C. § 1. The indictment also charged Christopher with making false statements regarding his participation in the conspiracy to an FBI agent who investigated it. See 18 U.S.C. § 1001(a)(1). Unlike their alleged

cohorts, Christopher, Ricky, and Beaver Materials eschewed plea agreements and instead exercised their

rights to a jury trial, at which the three were tried jointly.1

The evidence introduced at trial, which we review in a

light most favorable to the government, see United States

v. Andreas, 216 F.3d 645, 670 (7th Cir. 2000), was as

follows:
4 No. 07-1381

The government presented the testimony of Haehl,

Nuckols, Irving, and Hughey, who each provided details

as to the origins of the price-fixing conspiracy and Christopher Beaver’s role within the scheme. The men explained

that, at the turn of the century, the ready-made-concrete

market in the Indianapolis area was extremely competitive. The market was primarily occupied by eight concrete

producers that often vied for the same customers by

bidding on their construction projects. The companies’

bidding and pricing processes were largely uniform. At the

beginning of construction season in the spring of each

year, the producers would send price lists to potential

clients to inform them of the lowest possible rates at

which they could provide concrete. The price lists usually

featured five dollar amounts that went into the calculation of the quoted price. First, there was the base

price—or, as it was called, the gross price—of the desired

amount of a particular mix of concrete. Next, the price

list provided the available discount off the gross price

for promptly submitting payment; the price list then

deducted this discount, which yielded the net price. But

the producers’ net prices were identical more often than

not, so to distinguish themselves and undercut their

competition the producers would include a fourth dollar

amount on the price list: an additional discount from

the net price. The producers would then calculate and

quote to potential clients the resulting discounted net

price as the lowest price at which they could provide

the concrete. But as the competition for customers

grew over the years, the producers offered increasingly

larger net-price discounts that, in turn, depressed the

market value of concrete, and, consequently, reduced the

producers’ overall profits.

The four men each continued that, in July 2000, Nuckols

decided that it was time to address the falling market

value of concrete. He accordingly organized a meeting
No. 07-1381 5

at his horse barn in Fishers, Indiana, of corporate officers

of area concrete producers so they could discuss methods

of “getting the price up.” The meeting was attended by,

among others, Haehl, Irving, Hughey, and Beaver Materials’s representative, Ricky Beaver. All those present

discussed ways in which they could “stabilize the market,”

leading someone (it is not exactly clear who) to propose

a $5.50 limit on each producers’ gross-price discount for

a cubic yard of concrete; the gross-price-discount limit, in

turn, translated to a net-price-discount limit of $3.50

per cubic yard. Although no vote was taken on the proposal, no one in attendance objected to it, nor did anyone

refuse to impose the limit; as Haehl described it, “Nobody

objected, nobody disagreed, nobody walked away.” Indeed,

each witness testified that he left the meeting with the

firm understanding that an agreement to limit net-price

discounts had been reached.

However, each of the four co-conspirators stated, the

members of the concrete cartel did not always abide

by their agreement. This periodic cheating contributed to

the continuing downward spiral of concrete market

prices, despite the cartel’s efforts. As a result, individual

members of the cadre separately met with each other at

various times and locations to shore up the plan. But when

those meetings failed to raise the price of concrete,

Nuckols and Hughey called a second meeting of the entire

cartel in May 2002, this time at the Signature Inn in

Fishers. Every company participating in the cartel was

represented, and, again, Nuckols, Haehl, Irving, Hughey,

and Ricky Beaver attended. The purpose of the meeting

was, as Haehl described it, “to just reaffirm” the agreement to limit their net-price discounts at $3.50. Just like

at the earlier meeting at Nuckols’s horse barn, no one

objected to imposing the limit. Moreover, those in attendance all agreed to a method of enforcing the limit: if they

became aware that another cartel member was offering a
6 No. 07-1381

net-price discount greater than $3.50, they would confront that producer about his cheating. And based, in part,

on this plan, the meeting at the Signature Inn ended with

Haehl, Nuckols, Irving, and Hughey each believing the

attendees had reaffirmed the discount limit.

The four witnesses each continued to testify that in the

days after the meeting at the Signature Inn, they attempted to enforce the net-price-discount limit by contacting those producers whom they believed were cheating on the cartel agreement. In fact, each man stated

that, at one time or another they either confronted someone whom they believed was cheating, or were themselves accused of cheating. Nevertheless, their efforts

to police the scheme proved incapable of reversing the

downward spiral of concrete prices; as Nuckols testified,

in the days following the meeting “our prices just were

not doing well and they were going in the gutter.” So

Nuckols arranged another meeting at his horse barn in

October 2003 to discuss the discount limits further.

Haehl, Irving, and Hughey again attended, but this time

Ricky Beaver did not; as it turned out, Ricky had not

accurately conveyed the details of the agreement to the

appropriate individuals at Beaver Materials. As Price

and Hughey elaborated, Beaver Materials underbid

Hughey, Inc., on two separate occasions after the July

2000 meeting, causing Hughey to telephone Christopher

Beaver directly and ask him if Beaver Materials was

cheating. Christopher, according to Hughey, denied that

was the case, and stated that “he was at the discount

that was established in the agreement with everyone.”

But, apparently, Ricky was confused about that discount,

leading him to provide Christopher with the wrong information, and, in turn, causing Beaver Materials to quote

prices in dereliction of the agreement. Therefore, to avoid

the potential for any further confusion, Christopher took

over representing Beaver Materials.
No. 07-1381 7

The four co-conspirators each further testified that

the October 2003 began with Hughey bemoaning the fact

that no one was abiding by the agreement, and urging

those who did not want to follow the agreement to leave

the meeting. Hughey recounted his exhortation: “ ‘You

know, guys, this thing is not being adhered to. And we

need to decide are we going to agree on this and do what

we say we’re going to or just walk on out of here.’ ” But no

one walked out. Instead, Hughey’s lecture spurred a

discussion among all the attendees—including Christopher

Beaver—during which they again reassured one another

that they each would limit their discounts to $3.50 off of

the net price. The discussion did not end there, however.

The group also agreed to increase the net price of each

cubic yard of performance-mix concrete by $2, and by $2.50

for each cubic yard of bag-mix concrete. They further

agreed to add a collective $2-per-cubic-yard surcharge for

all concrete produced in the winter. Moreover, those

present reasserted their commitment to police the agreement by confronting apparent cheaters.

Just like at the two earlier meetings, Haehl, Nuckols,

Irving, and Hughey each stated that they understood

that the attendees at the October 2003 meeting agreed to

limit their net-price discounts to $3.50, in addition to

adopting additional pricing restraints. No one present at

the meeting—Christopher Beaver included—objected to

the net-price-discount limit. Even more, Hughey testified,

Christopher volunteered to contact the manager at American Concrete, another Indianapolis ready-made-concrete

producer that was not represented at the meeting, “ ‘and

get him the message on what we agreed on.’ ”

After each of the four co-conspirators testified, the

government presented the testimony of several FBI agents

who recounted the agency’s investigation into the concrete cartel. As relevant here, Special Agent Neil Free-
8 No. 07-1381

man testified that when the FBI conducted its searches

and interviews on May 25, 2004, he questioned Christopher Beaver regarding the existence of the conspiracy;

different FBI agents simultaneously interviewed Ricky

Beaver and Allyn Beaver, Christopher’s father and company President. During their conversation, Christopher

stated that he had been employed by Beaver Materials

for 21 years, and that in the “last couple years” he had

become more involved in the pricing of the company’s

products because he would soon be replacing his father

as President. When Freeman asked Christopher if he

had attended any meetings at Nuckols’s horse barn,

Christopher answered, “No.” Christopher also stated

that he did not know of any other employee of Beaver

Materials having attended such a meeting. He further

told Freeman that he saw Beaver Materials’s competitors

only when attending meetings of the industry trade

group, the Indiana Ready-Mix Association. In all, Freeman

stated, Christopher “denied being involved with any

kind of discussion of price fixing,” and further disavowed

ever meeting with any of the competing producers to

discuss pricing and discount agreements.

The government rested its case after it presented the

evidence regarding the origins of the price-fixing conspiracy, Christopher Beaver’s participation, and his

statements to Special Agent Freeman. Christopher then

moved for a judgment of acquittal on the basis that the

government had failed to introduce “any kind of evidence

that would indicate that [Christopher] joined the conspiracy.” See Fed. R. Crim. P. 29(a). After the district

court denied the motion, Christopher presented the

testimony of his sole witness—Chuck Mosely, who worked

at Beaver Materials from 1991 until 2006 as a concrete

salesman. Mosely testified that, during his time as a

salesman, Christopher never told him how to price concrete. However, Mosely also stated that he knew that
No. 07-1381 9

Christopher attended “a price fixing meeting at Butch

Nuckols’s horse barn.”

Beaver Materials, on the other hand, presented the

testimony of Allyn Beaver and Charles Sheeks, Beaver

Materials’s corporate counsel. Allyn testified that Christopher Beaver had some influence over the company’s

prices, including the authority to authorize certain discounts. Allyn also stated that he was unaware of any pricefixing agreement between Beaver Materials and

its competitors, though he did know that Ricky Beaver

had been communicating with some of the other area

concrete producers. Moreover, Allyn testified that he

knew that Christopher had attended the October 2003

meeting at Nuckols’s horse barn, that Christopher told

him that those in attendance talked about prices, and

that “the way that the meeting was going,” it seemed

like that the attendees “must be doing this all the time.”

However, Allyn did not know whether Christopher entered

into any agreement with Beaver Materials’s competitors.

Sheeks then testified that the day after the FBI conducted its interviews, he met with Christopher Beaver,

Ricky Beaver, and Allyn Beaver at Beaver Materials’s

corporate office. There, Christopher and Ricky told Sheeks

that they lied to the FBI about their presence at the

meetings at Nuckols’s horse barn. In response to this

news, Sheeks sent a letter to the Department of Justice

on May 28, in which he stated only that “[o]ne of the

employees of my client made a misstatement to one of

your agents to the effect he had not attended a meeting

at what has been referred to as ‘Butch’s barn.’ He did, in

fact, attend the meeting.”

After the defense rested the district court submitted

the case to the jury, which found Christopher Beaver

guilty on both the price-fixing-conspiracy and false-state-
10 No. 07-1381

2 The jury also found Beaver Materials and Ricky Beaver guilty

on all counts.

ments counts.2 Christopher then renewed his motion for

a judgment of acquittal, see Fed. R. Crim. P. 29(c), challenging the evidence supporting his price-fixing-conspiracy conviction, but not his conviction for making

false statements. After the court denied the motion, it

sentenced Christopher to 27 months’ imprisonment.

II. ANALYSIS

Christopher Beaver raises two arguments on appeal.

First, he argues that the district court erred by denying

his motion for a judgment of acquittal because, he asserts,

the government failed to prove at trial that a price-fixing

conspiracy existed, or that he participated in the conspiracy. Christopher also challenges his false-statements

conviction by asserting that the government failed to

prove that the lies he told to Special Agent Freeman

were material “as a matter of law.” We address these

arguments in turn.

A. The Existence of, and Christopher Beaver’s Participation in, the Price-Fixing Conspiracy

To prevail on his argument that the district court erred

by denying his motion for a judgment of acquittal, Christopher Beaver must show that the court incorrectly concluded that there was sufficient evidence to sustain his

conviction under the Sherman Antitrust Act. See Fed. R.

Crim. P. 29(a); Andreas, 216 F.3d at 670. Although we

review Christopher’s argument de novo, see United States

v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002), he faces a

“ ‘nearly insurmountable’” burden on appeal, United States
No. 07-1381 11

3 Although Christopher argues that the government failed to

show that the concrete producers agreed to limit their net-price

discounts, he abandons any challenge to the illegality of the

agreement itself. See Crestview Vill. Apartments v. U.S. Dep’t of

Hous. & Urban Dev., 383 F.3d 552, 555 (7th Cir. 2004). This is

wise; the net-price-discount limit constituted an illegal pricefixing arrangement, and thus was a per se illegal restraint of

trade under § 1 of the Sherman Antitrust Act. See Texaco Inc. v.

Dagher, 547 U.S. 1, 5-7 (2006); United States v. Kahan & Lessin

Co., 695 F.2d 1122, 1125 (9th Cir. 1982).

v. Jackson, 177 F.3d 628, 630 (7th Cir. 1999) (quoting

United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.

1997)). Viewing the evidence presented at trial in the

light most favorable to the government, we will overturn

Christopher’s guilty verdict “ ‘only if the record contains

no evidence, regardless of how it is weighed,’” from

which the jury could have concluded beyond a reasonable

doubt that he is guilty. See Andreas, 216 F.3d at 670

(quoting United States v. Agostino, 132 F.3d 1183, 1192

(7th Cir. 1997)).

Christopher Beaver attempts to shoulder this burden by

arguing that the government failed to prove that the

concrete producers agreed to restrict their discounts on

the net prices of concrete. Specifically, he contends

that the evidence at trial showed that “no person voiced

their assent to the supposed conspiracy.” Thus, according

to Christopher, the government failed to establish

that the producers entered into an agreement in the

first place.3

To prove a violation of § 1 of the Sherman Antitrust Act,

the government had to introduce evidence showing that

the concrete producers conspired to restrain trade, see

15 U.S.C. § 1; United States v. Socony-Vacuum Oil Co.,

310 U.S. 150, 224 & n.59 (1940); Andreas, 216 F.3d at

666; United States v. Hayter Oil Co., 51 F.3d 1265, 1270
12 No. 07-1381

(6th Cir. 1995), by agreeing to fix the price of concrete

through limiting their net-price discounts, see Texaco Inc.,

547 U.S. at 5-7; Kahan & Lessin Co., 695 F.2d at 1125;

United States v. Am. Radiator & Standard Sanitary

Corp., 433 F.2d 174, 185-87 (3d Cir. 1970). Although the

existence of such an agreement is “the essence” of the

government’s § 1 conspiracy allegation, see United States

v. Consol. Packaging Corp., 575 F.2d 117, 126 (7th Cir.

1978); see also Nelson v. Pilkington, 385 F.3d 350, 356-57

(3d Cir. 2004), the government did not need to show that

the producers reached a “formal agreement” to limit their

discounts, Am. Tobacco Co. v. United States, 328 U.S. 781,

809 (1946); see also United States v. Whaley, 830 F.2d

1469, 1474 (7th Cir. 1987). Rather, the government was

required only to establish that the concrete producers

had “a tacit understanding based upon a long course of

conduct” to limit their discounts. United States v. Beachner

Constr. Co., 729 F.2d 1278, 1283 (10th Cir. 1984); see

also Andreas, 216 F.3d at 670; cf. Monsanto Co. v.

Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984) (“[T]he

antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the

manufacturer and others ‘had a conscious commitment

to a common scheme designed to achieve an unlawful

objective.’ ” (quoting Edward J. Sweeney & Sons, Inc. v.

Texaco, Inc., 637 F.2d 105, 111 (3d Cir. 1980))).

The government introduced ample evidence at trial

that showed that the concrete producers shared a “tacit

understanding” that they were to limit their net-price

discounts collectively. In fact, the trial record is replete

with details regarding the cartel’s meetings in July 2000,

May 2002, and October 2003, at which the producers

discussed the net-price-discount limit, policing the

limit, and other price restraints. Haehl, Nuckols, Irving,

and Hughey each testified that, beginning in July 2000,

the entire cartel met on at least three occasions with the
No. 07-1381 13

known purpose of addressing the falling price of concrete.

During each of those meetings, the competitors discussed

the ways in which they could “stabilize the market,”

leading to the proposed net-price-discount limit. And

although no formal vote was taken on the discount limit,

no one disagreed with the proposal or stated that he

would not participate in the scheme. Indeed, when Hughey

gave the producers the opportunity to oppose the pricefixing arrangement and leave the conspiracy, “Nobody

objected, nobody disagreed, nobody walked away.” Instead,

the producers discussed additional methods of aligning

their pricing practices, such as instituting general price

increases and a winter surcharge. And based on these

meetings and related discussions, Haehl, Nuckols, Irving,

and Hughey each understood that an agreement was

reached. See Andreas, 216 F.3d at 670; Beachner Constr.

Co., 729 F.2d at 1282.

Moreover, Haehl, Nuckols, Irving, and Hughey each

testified that the concrete producers’ communications

were not limited to the July 2000, May 2002, or October 2003 meetings; they also enforced the discount

restraint by confronting those who were cheating on the

cartel. Each witness also testified that, on various occasions, they either confronted someone whom they believed

was cheating or were themselves accused of cheating.

Hughey likewise stated that on two separate occasions

Christopher Beaver reassured him that Beaver Materials

was abiding by the discount limit. In the face of this

evidence, Christopher’s assertion that “no person voiced

their assent to the supposed conspiracy” rings hollow.

Such assent was voiced when the co-conspirators either

confronted others about cheating on the cartel, or reassured others—like Christopher did—that they were

abiding by the agreement. See Beachner Constr. Co., 729

F.2d at 1282; cf. In re High Fructose Corn Syrup Antitrust

Litig., 295 F.3d 651, 654 (7th Cir. 2002) (stating that price-
14 No. 07-1381

fixing conspiracy can be proved by “actual, verbalized

communication”).

Christopher Beaver asserts, however that the concrete

producers’ occasional cheating on the discount limit

shows that no agreement was ever reached. But this

argument is illogical; certainly Christopher would agree

that a breach of contract does not mean that the parties

never entered into the contract in the first place. And the

argument is also beside the point because § 1 of the

Sherman Antitrust Act does not outlaw only perfect

conspiracies to restrain trade. It is not uncommon for

members of a price-fixing conspiracy to cheat on one

another occasionally, and evidence of cheating certainly

does not, by itself, prevent the government from proving a

conspiracy. See, e.g., Andreas, 216 F.3d at 679 (stating

that cheating cartel members did not negate conspiracy);

United States v. Misle Bus & Equip. Co., 967 F.2d 1227,

1231 (8th Cir. 1992) (“Government witnesses testified that

although [the defendant] occasionally ‘cheated’ his coconspirators 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 [the

defendant company] does not preclude a finding that it

joined the conspiracy.” (citations omitted)). Thus, we

cannot say that the producers’ occasional cheating prevented the government from sufficiently proving that

they conspired to fix the price of concrete.

Christopher Beaver continues his challenge to the

sufficiency of the evidence underlying his price-fixingconspiracy conviction by arguing that the government

failed to show that he personally participated in the cartel.
No. 07-1381 15

In Christopher’s view, the testimony of Haehl, Nuckols,

Irving, and Hughey implicating him in the conspiracy

was not credible because “no two competitors said anything as a whole which would corroborate the testimony

of the others.” But this argument fails from the start. “We

will not second-guess the jury’s credibility decisions in

evaluating [Christopher’s] challenge to the sufficiency of

the evidence,” United States v. Johnson-Dix, 54 F.3d 1295,

1306 (7th Cir. 1995); United States v. Henderson, 58 F.3d

1145, 1148 (7th Cir. 1995), even if his co-conspirators’

claims were uncorroborated, see United States v. Crowder,

36 F.3d 691, 696 & n.1 (7th Cir. 1994).

But the credibility of Haehl, Nuckols, Irving, and

Hughey aside, their testimony sufficiently implicated

Christopher Beaver in the conspiracy. Specifically, each

man testified that Christopher (1) was present at the

October 2003 meeting at Nuckols’s horse barn; (2) participated in discussions on how to limit the price of concrete;

(3) did not object to the net-price-discount limit; (4) agreed

to confront other conspiracy members if he found them

cheating on the agreement; and (5) agreed on additional

pricing constraints. Moreover, Hughey testified that, at

the meeting, Christopher volunteered to contact the

manager at American Concrete “and get him the message

on what we agreed on.”

Looking beyond the testimony of Haehl, Nuckols,

Irving, and Hughey, the uncontradicted evidence regarding

Christopher Beaver’s responsibilities at Beaver Materials

further bolsters the jury’s conclusion that he participated the conspiracy. Christopher admitted to Special

Agent Freeman that, as Operations Manager, he was

involved in the pricing of the company’s products, a role

that would have allowed the jury to infer that Christopher

was able to effectuate the net-price-discount limit. This

inference is further supported by Hughey’s testimony

that he spoke with Christopher personally on two occa-
16 No. 07-1381

sions, and that during those conversations Christopher

reaffirmed Beaver Materials’s commitment to the discount limit. And the testimony of both Mosely and Allyn

Beaver failed to contradict the evidence of Christopher’s

involvement. Both men stated that they knew

that Christopher had met with competitors at Nuckols’s

horse barn in October 2003, and Allyn further stated

that Christopher told him that pricing was discussed at

that meeting. We thus cannot say that the government

failed to prove that Christopher participated in the pricefixing conspiracy, or that the district court erred by

denying his motion for a judgment of acquittal. See

Andreas, 216 F.3d at 670.

B. Christopher Beaver’s False Statements

Christopher Beaver next challenges his conviction under

18 U.S.C. § 1001(a)(1) for falsely stating to Special Agent

Freeman that neither he, nor Beaver Materials, participated in the price-fixing conspiracy. Specifically, Christopher argues that the government did not prove that his

statements were material “as a matter of law.” As he

explains, the government needed to show at trial that his

statements to Freeman were material, see 18 U.S.C.

§ 1001(a)(1); United States v. Moore, 446 F.3d 671, 677 (7th

Cir. 2006), meaning that the statements had the tendency

to influence, or were capable of influencing, the FBI’s

investigation of the price-fixing conspiracy, see United

States v. Brantley, 786 F.2d 1322, 1326 (7th Cir. 1986);

United States v. Di Fonzo, 603 F.2d 1260, 1266 (7th Cir.

1979); cf. United States v. Fernandez, 282 F.3d 500, 508

(7th Cir. 2002) (explaining materiality in context of federal
No. 07-1381 17

4 In all, the government was required to prove at trial that

(1) Christopher Beaver made a statement, or had a duty to

disclose the information; (2) the statement was false, or that

Christopher undertook acts amounting to concealment; (3) the

statement or concealed facts were material; (4) Christopher

made the statement or concealed the facts knowingly and

willfully; and (5) the statement or concealed information concerned a matter within the jurisdiction of a federal department

or agency. See 18 U.S.C. § 1001(a)(1); Moore, 446 F.3d at 677.

Christopher, however, asserts only that the government failed to

establish the materiality of his false statements. Thus, he has

abandoned any further challenge to the sufficiency of the

evidence underlying his false-statements conviction. See

Crestview Vill. Apartments, 383 F.3d at 555.

mail-fraud statutes, 18 U.S.C. §§ 1341 and 1346).4 According to Christopher, his false statements could not have

influenced the FBI’s investigation because his attorney,

Sheeks, contacted the Department of Justice to correct

the statements before they could lead the FBI astray.

Before we weigh the merits of Christopher Beaver’s

argument, however, we must take a moment to alleviate

the confusion that apparently exists regarding his challenge. Specifically, Christopher mischaracterizes the

issue of his false statements’ materiality as “a matter of

law.” But the materiality of false statements is not a

legal determination; it is, rather, a factual determination

that is made by the jury only. As the U.S. Supreme Court

explained in United States v. Gaudin, 515 U.S. 506, 522-23

(1995), the Sixth Amendment guarantees a criminal

defendant’s right to have a jury decide each and every

element of the offense with which he is charged, including the element of materiality when the defendant is

charged with making false statements. See also United

States v. Ringer, 300 F.3d 788, 791-92 (7th Cir. 2002);

Waldemer v. United States, 106 F.3d 729, 730-31 (7th Cir.
18 No. 07-1381

1996); United States v. Ross, 77 F.3d 1525, 1538-39 (7th

Cir. 1996). Indeed, the jury in Christopher’s trial was

instructed specifically to determine whether the government proved beyond a reasonable doubt that the false

statements he made to Special Agent Freeman were

material, and, by virtue of its guilty verdict, concluded

that they were. Accordingly, Christopher’s argument

that the government failed to prove that his false statements were material requires us to examine whether

the government introduced sufficient evidence to support

the jury’s conclusion. See Moore, 446 F.3d at 676-80;

United States v. Kosth, 257 F.3d 712, 718-20 (7th Cir.

2001); see also Ringer, 300 F.3d at 791-92.

The government, in turn, contends that Christopher

Beaver has “waived” any challenge to the sufficiency of the

evidence supporting his false-statements conviction. As

the government points out, Christopher did not challenge the evidence showing that he lied to Special Agent

Freeman either when he moved for a judgment of acquittal at the close of the government’s case, or when he

renewed his motion after the jury’s verdict; instead, he

challenged only the evidence supporting his price-fixingconspiracy conviction. Thus, the government asserts,

Christopher intentionally relinquished the argument that

insufficient evidence supported his false-statements

conviction by failing to raise it specifically before the

district court, and that such a “waiver” precludes our

review of this argument.

The government is correct that Christopher Beaver

“waived” his sufficiency-of-the-evidence argument regarding his false-statements conviction. See United States v.

Groves, 470 F.3d 311, 324 (7th Cir. 2006); United States v.

Buchmeier, 255 F.3d 415, 419 (7th Cir. 2001); see also 2A

Charles Alan Wright, Federal Practice & Procedure:

Criminal § 466 (3d. 2000). However, the government
No. 07-1381 19

incorrectly asserts that Christopher’s failure to raise the

point in his motion for a judgment of acquittal prevents us

from addressing the argument on appeal; as we have

stated many times, we review sufficiency-of-the-evidence

arguments that were not presented in a motion for a

judgment of acquittal under the plain-error standard. See,

e.g., Groves, 470 F.3d at 324; United States v. Allen, 390

F.3d 944, 947 (7th Cir. 2004); United States v. Baker, 40

F.3d 154, 160 (7th Cir. 1994). In this regard, the failure to

challenge the sufficiency of the evidence is perhaps more

precisely characterized as forfeiture rather than “waiver.”

Cf. United States v. Brodie, 507 F.3d 527, 530-31 (7th Cir.

2007) (differentiating between “waiver” and “forfeiture” in

context of Fed. R. Crim. P. 12). Compare Groves, 470 F.3d

at 324 (stating that sufficiency-of-evidence argument not

presented in motion for judgment of acquittal is “waived,”

but nevertheless reviewed under plain error), with United

States v. Moore, 425 F.3d 1061, 1069 n.5 (7th Cir. 2005)

(“ ‘Waiver precludes appellate review, but forfeiture

permits review for plain error.’ ” (quoting United States v.

Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005))). But

regardless of what we call Christopher’s failure to raise his

challenge before the district court, we nevertheless proceed

with a plain-error analysis, see Groves, 470 F.3d at 324;

Allen, 390 F.3d at 947, meaning that Christopher can

prevail only if he can show that, “absent reversal, a

manifest miscarriage of justice will result,” Allen, 390 F.3d

at 947; see also United States v. Rock, 370 F.3d 712, 714

(7th Cir. 2004). Under this “most demanding standard,

reversal is warranted only ‘if the record is devoid of

evidence pointing to guilt, or if the evidence on a key

element was so tenuous that a conviction would be shocking.’ ” Allen, 390 F.3d at 948 (quoting United States v.

Taylor, 226 F.3d 593, 597-98 (7th Cir. 2000)).

Moving (finally) to the merits of Christopher Beaver’s

argument, we reject his assertion that his false state-
20 No. 07-1381

ments were not capable of influencing the FBI’s investigation because his attorney, Sheeks, contacted the Department of Justice to correct the statements before the

FBI could actually be influenced by them. In fact, the

argument fails for several reasons. First, the record does

not even support Christopher’s contention that he attempted to correct his false statements. The letter Sheeks

sent to the Department of Justice did not say that Christopher made false statements to the FBI; the letter merely

stated that “one of the employees” of Beaver Materials

“misstated” that “he” was not at a meeting at Nuckols’s

horse barn. This “correction” could be understood as

referring to Christopher, Ricky Beaver, Allyn Beaver, or

any employee at Beaver Materials that spoke with FBI

agents on May 25, 2004, but not as an admission by

Christopher, himself, that he misled the FBI. Instead,

the letter’s vague language perpetuated Christopher’s

lies by implying that someone else had misled the FBI.

Moreover, Christopher Beaver is incorrect that he can

avoid a conviction under § 1001 by correcting his false

statements days after he spoke them. Contrary to Christopher’s suggestions, § 1001 contains no recantation defense.

See United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir.

2001). Christopher nevertheless attempts to impute

such a defense by citing one case in which a circuit court

of appeals held that a criminal defendant can escape

prosecution under § 1001 by correcting false statements

“almost immediately”—United States v. Cowden, 677 F.2d

417, 420 (8th Cir. 1982). But Christopher did not attempt to cure his false statements “almost immediately”;

Sheeks did not send the letter on Christopher’s behalf to

the Department of Justice until three days after Christopher lied to Special Agent Freeman. Cf. United States v.

Salas-Camacho, 859 F.2d 788, 792 (9th Cir. 1988) (distinguishing Cowden and declining to find false statements

immaterial when defendant corrected statements only
No. 07-1381 21

when confronted by federal agents); United States v. Fern,

696 F.2d 1269, 1275 (11th Cir. 1983) (distinguishing

Cowden and declining to find false statements immaterial

when defendant corrected statements only once Internal

Revenue Service became suspicious). Christopher’s reliance

on Cowden is thus misplaced, and absent any further

support he essentially asks us to interpolate a recantation

defense into § 1001. But given Congress’s silence on the

issue, we decline his invitation to do so. See Sebaggala, 256

F.3d at 64 (“[W]e see no basis for writing into section 1001

a recantation defense that Congress chose to omit. After

all, ‘courts may not create their own limitations on legislation, no matter how alluring the policy arguments for

doing so.’ ” (quoting Brogan v. United States, 522 U.S. 398,

408 (1998))).

Because § 1001 contains no recantation defense, the

materiality of Christopher Beaver’s false statements

must be assessed at the moment he uttered them. See

United States v. Lee, 359 F.3d 412, 417 (6th Cir. 2004);

United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir.

1998) (stating that not measuring materiality of false

statement at time of utterance would “allow witnesses who

lie under oath to escape prosecution if their statements

before a grand jury are obviously false”). And in so assessing the false statements, we conclude that they were

material. Special Agent Freeman testified that

Christopher denied meeting with any of Beaver Materials’s

competitors to develop discount limits or pricing constraints. According to Freeman, Christopher went so far

as to say that the only time that he saw Beaver Materials’s

competitors was at Indiana Ready-Mix Association meetings. Because Christopher’s statements concealed his

actual role in the conspiracy, they could have hindered the

FBI’s investigation by directing its attention away from

the October 2003 meeting at Nuckols’s horse barn, away

from Beaver Materials as a company involved in the

cartel, and away from himself as an individual participant
22 No. 07-1381

5 Beaver also asks us to grant him “amnesty” to reward the

“affirmative steps” he took “to alleviate the harm” caused by his

lies. But for the same reasons we will not impute a recantation

defense into § 1001, see Sebaggala, 256 F.3d at 64, we will not

create out of whole cloth an amnesty doctrine applicable to

Beaver’s wrongdoings, particularly when such a doctrine

would essentially reward Beaver’s instinct to lie to federal

authorities about his role in the price-fixing conspiracy, cf.

Brogan, 522 U.S. at 408 (“Courts may not create their own

limitations on legislation, no matter how alluring the policy

arguments for doing so, and no matter how widely the blame

may be spread.”).

USCA-02-C-0072—2-4-08

in the conspiracy. Thus, we see no fault with the jury’s

determination that Christopher’s false statements were

material, much less can we say that we are shocked by his

conviction. See Moore, 446 F.3d at 676-80; Allen, 390

F.3d at 948; Kosth, 257 F.3d at 718-20.5

III. CONCLUSION

We AFFIRM Beaver’s price-fixing-conspiracy conviction

under 15 U.S.C. § 1, and his false-statements conviction

under 18 U.S.C. § 1001(a)(1).

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit