                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 25 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10519

                Plaintiff-Appellee,             D.C. No.
                                                4:14-cr-00580-PJH-2
 v.

JAVIER SANCHEZ,                                 MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    17-10528

                Plaintiff-Appellee,             D.C. No.
                                                4:14-cr-00580-PJH-3
 v.

GREGORY CASORSO,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-10113

                Plaintiff-Appellee,             D.C. No.
                                                4:14-cr-00580-PJH-1
 v.

MICHAEL MARR,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                     Argued and Submitted January 16, 2019**
                            San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and ADELMAN,*** District
Judge.

      Defendants Michael Marr, Javier Sanchez, and Gregory Casorso appeal their

jury convictions for conspiring to suppress and restrain competition by rigging bids

in property foreclosure sales in violation of Section 1 of the Sherman Antitrust Act,

15 U.S.C. § 1, which prohibits “contract[s], combination[s] . . . , or conspirac[ies]”

that unreasonably “restrain[] trade or commerce.”

      1. We are bound by United States v. Manufacturers’ Ass’n of Relocatable

Bldg. Industry, 462 F.2d 49 (9th Cir. 1972). See Miller v. Gammie, 335 F.3d 889,

893 (9th Cir. 2003) (en banc) (holding that a three-judge panel of this court is

bound by prior circuit law unless “the reasoning or theory of [the] prior circuit

authority is clearly irreconcilable with the reasoning or theory of intervening



      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.

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higher authority”). In Manufacturers’, we held that applying the per se rule in a

criminal antitrust case did not violate the defendant’s constitutional rights.

Manufacturers’ Ass’n, 462 F.2d at 52. Defendants’ argument that Manufacturers’

is clearly irreconcilable with intervening Supreme Court antitrust decisions is

unpersuasive, because the Supreme Court has continued to recognize categories of

per se violations. See Ohio v. American Express Co., 138 S. Ct. 2274, 2283 (2018)

(“A small group of restraints are unreasonable per se.”); F.T.C. v. Actavis, Inc.,

570 U.S. 136, 161 (2013) (noting that “it is per se unlawful to fix prices under

antitrust law”); Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006) (“Price-fixing

agreements between two or more competitors, otherwise known as horizontal

price-fixing agreements, fall into the category of arrangements that are per

se unlawful.” (emphasis added)). Defendants’ argument that Manufacturers’ is

clearly irreconcilable with intervening Supreme Court decisions relating to

mandatory evidentiary presumptions in criminal law is irrelevant, because

Manufacturers’ held that the per se rule is not an evidentiary presumption at all.

Manufacturers’ Ass’n, 462 F.2d at 52. The district court therefore did not err in

instructing the jury under the per se rule.

      2. Defendants’ proposed jury instruction, which would have instructed the

jury that two entities are not competitors for purposes of Section 1, and therefore

cannot conspire, if they are engaged in a joint venture, lacked support in the law or


                                              3
in the facts of this case. See United States v. Thomas, 612 F.3d 1107, 1120 (9th

Cir. 2010) (“A defendant is entitled to have the judge instruct the jury on [his or

her] theory of defense, provided that it is supported by the law and has some

foundation in the evidence.” (quoting United States v. Mason, 902 F.2d 1434, 1438

(9th Cir. 1990)). That Defendants cooperated with other persons and entities for

purposes of rigging bids does not mean they were not competitors. See Am.

Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 191 (2010) (explaining that

even “members of a legally single entity” have been held to have “violated § 1

when the entity was controlled by a group of competitors and served, in essence, as

a vehicle for ongoing concerted activity”). Thus, the district court did not err in

rejecting the proposed instruction. See Thomas, 612 F.3d at 1120-21 (explaining

that this court reviews de novo the question whether a proposed instruction was

supported by law, and “for abuse of discretion whether there is a factual foundation

for a proposed instruction”).

      3. Defendants did not preserve their argument that the district court’s

instruction defining bid rigging was overbroad. See Fed. R. Crim. P. 30 (“A party

who objects to any portion of the [jury] instructions . . . must inform the court of

the specific objection and the grounds for the objection before the jury retires to

deliberate.”). We thus review for plain error. See Fed R. Crim. P. 52(b); Puckett v.

United States, 556 U.S. 129, 135 (2009) (outlining four prongs to plain error


                                          4
review). Here, even assuming the portion of the instruction that Defendants claim

was overbroad should not have been included, it did not affect Defendants’

substantial rights because the bid-rigging conduct Defendants were accused of

clearly fell within the core of the instruction, not the allegedly overbroad part.

      4. To the extent Defendants have argued that the district court’s instructions

amounted to a constructive amendment of their indictment, that argument fails.

The indictment clearly stated that Defendants were accused of bid rigging. That

the indictment also quoted Standard Oil in generally describing the Sherman Act

violation—i.e., rigging bids in unreasonable restraint of trade and commerce—

does not alter the fact that the bid-rigging charge was a charge of a per se antitrust

violation. See United States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014)

(explaining that there is no constructive amendment “when the indictment simply

contains superfluously specific language describing alleged conduct irrelevant to

the defendant’s culpability under the applicable statute,” and that “[i]n such cases,

convictions can be sustained if the proof upon which they are based corresponds to

the offense that was clearly described in the indictment”); see also United States v.

Joyce, 895 F.3d 673, 679 (9th Cir. 2018) (holding that bid rigging was a per se

violation and that “the district court did not err by refusing to permit [the

defendant] to introduce evidence of the alleged ameliorative effects of his




                                           5
conduct,” in an appeal by another co-conspirator involved in the same scheme as

Defendants here).

      AFFIRMED.




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