NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10211
Plaintiff-Appellee, D.C. Nos. 3:18-cr-00203-EMC-1 v. 3:18-cr-00203-EMC
CHRISTOPHER D. LISCHEWSKI, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding
Argued and Submitted June 16, 2021 San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
After a five-week trial, a jury convicted Christopher Lischewski of conspiring
to fix prices in the canned tuna market, in violation of 15 U.S.C. § 1. Lischewski
appeals, challenging various jury instructions and the district court’s decisions to
admit two emails. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. We review a district court’s “formulation of jury instructions for abuse
of discretion.” United States v. Liew, 856 F.3d 585, 595 (9th Cir. 2017). We review
“de novo whether those instructions correctly state the elements of the offense and
adequately cover the defendant’s theory of the case.” Id. at 596. If an instruction is
erroneous, we generally “apply harmless error analysis to determine whether an
improper instruction constitutes reversible error.” United States v. Munguia, 704
F.3d 596, 598 (9th Cir. 2012). If a defendant fails to object with sufficient specificity
to a jury instruction, we review for plain error. See United States v. Conti, 804 F.3d
977, 981 (9th Cir. 2015).
a. Lischewski first challenges the constitutionality of the “per se” rule in
Sherman Act criminal cases. But Lischewski acknowledges we are bound by
precedent upholding the per se rule and raises this issue only to preserve it for further
review. See, e.g., Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 344 (1982)
(holding that there is “a conclusive presumption that the restraint is unreasonable”
when parties engage in horizontal price-fixing); United States v. Brown, 936 F.2d
1042, 1045–46 (9th Cir. 1991) (holding that the government need not show “an
intent to produce anticompetitive effects”).
b. Lischewski next challenges the jury instructions on conspiracy and
conspiracy to fix prices because they stated that “the government had to prove an
agreement ‘or mutual understanding.’” Lischewski argues that a “mutual
2 understanding” falls short of an “agreement” because a “mutual understanding”
could have just been a “commonly held view.” Plain error review applies because
Lischewski failed to object to the language at issue, and his proposed instructions
did not “bring into focus the precise nature of the alleged error.” Hunter v.
Sacramento, 652 F.3d 1225, 1231 (9th Cir. 2011) (quotations omitted). Regardless,
Lischewski’s challenge would fail under any standard of review.
We must “determine whether the instructions, viewed as a whole, were
misleading or inadequate to guide the jury’s deliberation.” United States v. Kaplan,
836 F.3d 1199, 1215 (9th Cir. 2016) (quotations omitted). Lischewski’s argument
lacks merit because he improperly reads the phrase “mutual understanding” in
isolation. Contrary to Lischewski’s argument, various portions of the instructions
made clear that “agreement” and “mutual understanding” were used synonymously.
In addition, the instructions clearly required jurors to find that Lischewski entered
into an unlawful agreement to fix prices, while providing that a “mere similarity of
conduct among various persons” or “common aims and interests” was not sufficient.
c. The district court also did not err in instructing the jury on when a
corporate officer is individually liable for conspiring to violate the Sherman Act.
Plain error review applies because Lischewski failed to preserve with sufficient
specificity the objection he now raises here. See Hunter, 652 F.3d at 1230.
Regardless, the result would be the same even if de novo review applied.
3 The jury was instructed that it could find Lischewski “knowingly
participate[d] in effecting the illegal conspiracy by directly participating in the
conspiracy and/or indirectly or directly authorizing, ordering, or helping a
subordinate perpetrate the crime.” Officers are “liable for the illegal actions of
subordinates if they knowingly authorized or consented to such behavior.” Brown,
936 F.2d at 1047. And an officer who “authorizes, orders, or helps perpetrate” a
conspiracy “knowingly participates” in that conspiracy. Id. at 1047–48 (quoting
United States v. Wise, 370 U.S. 405, 416 (1962)). The instructions here accurately
described when Lischewski could be liable for conspiracy to violate the Sherman
Act, while making clear that “mere knowledge of a conspiracy without participation”
was “insufficient.” “[V]iewed as a whole,” the “individual liability” instruction was
not improper or misleading. Kaplan, 836 F.3d at 1215.
d. The district court did not err in giving a “Pinkerton instruction.”
Lischewski challenges the instruction as “superfluous and confusing” because he
was only charged with one count of conspiracy under the Sherman Act, not with a
substantive crime committed by a co-conspirator. But the instruction correctly stated
the law, and Lischewski fails to explain how the instruction could cause material
confusion or prejudice him. Instead, he concedes that under the instruction, he was
only “responsible for the acts of his alleged co-conspirators if the jury found that he
had joined the conspiracy” and had “already found Lischewski guilty.”
4 e. The district court did not abuse its discretion in instructing the jury on
the per se rule or prohibiting Lischewski from offering evidence about the supposed
reasonableness of his price-fixing conspiracy. See Hunter, 652 F.3d at 1230; United
States v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014). As noted, Lischewski admits
that the district court was bound to follow the per se rule. Lischewski nonetheless
maintains that the jury instruction on the per se rule was excessive, especially when
combined with the district court preventing Lischewski from arguing that the pricing
agreement was reasonable and caused no harm. But the instructions and the
government’s statements correctly reflected the substantive law, and Lischewski has
not explained why reversal would be warranted.
f. Even if Lischewski’s arguments on the jury instructions had merit (and
he had properly preserved all of his arguments below), “it is clear beyond a
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10211
Plaintiff-Appellee, D.C. Nos. 3:18-cr-00203-EMC-1 v. 3:18-cr-00203-EMC
CHRISTOPHER D. LISCHEWSKI, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding
Argued and Submitted June 16, 2021 San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
After a five-week trial, a jury convicted Christopher Lischewski of conspiring
to fix prices in the canned tuna market, in violation of 15 U.S.C. § 1. Lischewski
appeals, challenging various jury instructions and the district court’s decisions to
admit two emails. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. We review a district court’s “formulation of jury instructions for abuse
of discretion.” United States v. Liew, 856 F.3d 585, 595 (9th Cir. 2017). We review
“de novo whether those instructions correctly state the elements of the offense and
adequately cover the defendant’s theory of the case.” Id. at 596. If an instruction is
erroneous, we generally “apply harmless error analysis to determine whether an
improper instruction constitutes reversible error.” United States v. Munguia, 704
F.3d 596, 598 (9th Cir. 2012). If a defendant fails to object with sufficient specificity
to a jury instruction, we review for plain error. See United States v. Conti, 804 F.3d
977, 981 (9th Cir. 2015).
a. Lischewski first challenges the constitutionality of the “per se” rule in
Sherman Act criminal cases. But Lischewski acknowledges we are bound by
precedent upholding the per se rule and raises this issue only to preserve it for further
review. See, e.g., Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 344 (1982)
(holding that there is “a conclusive presumption that the restraint is unreasonable”
when parties engage in horizontal price-fixing); United States v. Brown, 936 F.2d
1042, 1045–46 (9th Cir. 1991) (holding that the government need not show “an
intent to produce anticompetitive effects”).
b. Lischewski next challenges the jury instructions on conspiracy and
conspiracy to fix prices because they stated that “the government had to prove an
agreement ‘or mutual understanding.’” Lischewski argues that a “mutual
2 understanding” falls short of an “agreement” because a “mutual understanding”
could have just been a “commonly held view.” Plain error review applies because
Lischewski failed to object to the language at issue, and his proposed instructions
did not “bring into focus the precise nature of the alleged error.” Hunter v.
Sacramento, 652 F.3d 1225, 1231 (9th Cir. 2011) (quotations omitted). Regardless,
Lischewski’s challenge would fail under any standard of review.
We must “determine whether the instructions, viewed as a whole, were
misleading or inadequate to guide the jury’s deliberation.” United States v. Kaplan,
836 F.3d 1199, 1215 (9th Cir. 2016) (quotations omitted). Lischewski’s argument
lacks merit because he improperly reads the phrase “mutual understanding” in
isolation. Contrary to Lischewski’s argument, various portions of the instructions
made clear that “agreement” and “mutual understanding” were used synonymously.
In addition, the instructions clearly required jurors to find that Lischewski entered
into an unlawful agreement to fix prices, while providing that a “mere similarity of
conduct among various persons” or “common aims and interests” was not sufficient.
c. The district court also did not err in instructing the jury on when a
corporate officer is individually liable for conspiring to violate the Sherman Act.
Plain error review applies because Lischewski failed to preserve with sufficient
specificity the objection he now raises here. See Hunter, 652 F.3d at 1230.
Regardless, the result would be the same even if de novo review applied.
3 The jury was instructed that it could find Lischewski “knowingly
participate[d] in effecting the illegal conspiracy by directly participating in the
conspiracy and/or indirectly or directly authorizing, ordering, or helping a
subordinate perpetrate the crime.” Officers are “liable for the illegal actions of
subordinates if they knowingly authorized or consented to such behavior.” Brown,
936 F.2d at 1047. And an officer who “authorizes, orders, or helps perpetrate” a
conspiracy “knowingly participates” in that conspiracy. Id. at 1047–48 (quoting
United States v. Wise, 370 U.S. 405, 416 (1962)). The instructions here accurately
described when Lischewski could be liable for conspiracy to violate the Sherman
Act, while making clear that “mere knowledge of a conspiracy without participation”
was “insufficient.” “[V]iewed as a whole,” the “individual liability” instruction was
not improper or misleading. Kaplan, 836 F.3d at 1215.
d. The district court did not err in giving a “Pinkerton instruction.”
Lischewski challenges the instruction as “superfluous and confusing” because he
was only charged with one count of conspiracy under the Sherman Act, not with a
substantive crime committed by a co-conspirator. But the instruction correctly stated
the law, and Lischewski fails to explain how the instruction could cause material
confusion or prejudice him. Instead, he concedes that under the instruction, he was
only “responsible for the acts of his alleged co-conspirators if the jury found that he
had joined the conspiracy” and had “already found Lischewski guilty.”
4 e. The district court did not abuse its discretion in instructing the jury on
the per se rule or prohibiting Lischewski from offering evidence about the supposed
reasonableness of his price-fixing conspiracy. See Hunter, 652 F.3d at 1230; United
States v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014). As noted, Lischewski admits
that the district court was bound to follow the per se rule. Lischewski nonetheless
maintains that the jury instruction on the per se rule was excessive, especially when
combined with the district court preventing Lischewski from arguing that the pricing
agreement was reasonable and caused no harm. But the instructions and the
government’s statements correctly reflected the substantive law, and Lischewski has
not explained why reversal would be warranted.
f. Even if Lischewski’s arguments on the jury instructions had merit (and
he had properly preserved all of his arguments below), “it is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent
the error.” Munguia, 704 F.3d at 604 (quotations omitted). The evidence that
Lischewski participated in a scheme to fix prices in the canned tuna market was
overwhelming. In addition to documentary evidence, several of Lischewski’s co-
conspirators testified at the trial that the conspiracy existed, that Lischewski knew
about the conspiracy, and that he was a member of it. This included testimony that
Lischewski was substantially involved in orchestrating, implementing, and
enforcing the price-fixing agreements.
5 2. We turn next to Lischewski’s claims that the district court erred in
admitting two emails. We review the district court’s “decision to admit evidence . . .
for an abuse of discretion.” United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir.
2016). For preserved claims, evidentiary errors do not warrant reversal if “it is more
probable than not that the error did not materially affect the verdict.” United States
v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015).
a. The district court did not abuse its discretion in admitting Renato
Curto’s email as a business record under Federal Rule of Evidence 803(6). The
district court reasonably concluded that Curto wrote the email “at or near the time”
of the conversation with Lischewski because Curto prepared the email the following
day. See, e.g., United States v. Huber, 772 F.2d 585, 591 (9th Cir. 1985). The record
also supported the district court’s conclusion that the Curto email was kept in the
course of a regularly conducted activity of a business and was prepared as part of
the business’s regular practice. Fed. R. Evid. 803(6)(B)–(C); see also City of Long
Beach v. Standard Oil Co., 46 F.3d 929, 937 (9th Cir. 1995).
Nor did the district court exceed its “wide discretion” in determining that the
Curto email met Rule 803(6)’s “trustworthiness standard.” United States v. Scholl,
166 F.3d 964, 978 (9th Cir. 1999). Curto acknowledged that he was writing only
what he remembered of the conversation. The jury heard Curto’s testimony and
6 could properly weigh it. See id. (explaining that “inaccuracies, ambiguities, or
omissions go to the weight and not the admissibility of the evidence”).
b. The district court did not abuse its discretion in admitting an email
between StarKist executives that discussed a conversation one of them had with
Lischewski. See Alvirez, 831 F.3d at 1120. The email was admissible to show the
state of the mind of the persons on the email. Fed. R. Evid. 801(c)(2); see also
Gadson, 763 F.3d at 1211–12.
The district court also repeatedly instructed the jury that the email was
admitted for that purpose and not for the truth of the matter asserted. While
Lischewski claims these instructions were insufficient to alleviate claimed prejudice,
we have “repeatedly held that a district court’s careful and frequent limiting
instructions to the jury, explaining how and against whom certain evidence may be
considered, can reduce or eliminate any possibility of prejudice arising from” the
admission of evidence. See United States v. Fernandez, 388 F.3d 1199, 1243 (9th
Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005). That is the case here.
c. Even if the two emails were improperly admitted or the limiting
instructions on the second email insufficient, any error was harmless given the
overwhelming evidence that Lischewski participated in a price-fixing conspiracy.
Torres, 794 F.3d at 1063.
7 3. Finally, Lischewski’s cumulative error theory lacks merit because he
fails to show that the district court committed any errors, let alone multiple ones.
See United States v. Begay, 673 F.3d 1038, 1047 (9th Cir. 2011) (“We have not
recognized any error below, so there is no cumulative prejudicial effect to analyze.”).
AFFIRMED.