Antitrust-Training “Illegality” Testimony as Context (Curable by Instruction) and Evidence Threshold for Per Se Sherman Act Conspiracy in Coordinated Bidding/Pricing

Introduction

In United States v. John David Melton (11th Cir. June 2, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed John David Melton’s (“David”) conviction for a Sherman Act § 1 conspiracy in the ready-mix concrete industry in the Southern District of Georgia.

The indictment alleged that competitors and their representatives—including David (Elite Concrete), Greg Melton (Argos), Argos salesman James Pedrick, and others—coordinated annual price increases, rigged bids, and allocated jobs/customers/market areas. After a four-day trial, a jury convicted David and the district court sentenced him to 26 months’ imprisonment followed by three years of supervised release.

On appeal, David raised three issues: (1) insufficiency of the evidence of an agreement to fix prices, rig bids, or allocate markets; (2) entitlement to a new trial due to allegedly prejudicial testimony from Pedrick and Chris Young (a former Argos employee) referring—based on corporate antitrust training—to “illegal” conduct; and (3) dismissal of the indictment due to COVID-era grand jury procedures.

Summary of the Opinion

  • Sufficiency: The court held the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that David knowingly participated in a conspiracy to fix prices, rig bids, and/or allocate markets. The panel emphasized testimony and corroborating recordings/documents showing coordinated bidding and pricing, including “stay above” directives and “divvying up” customers/areas.
  • New trial: The court held there was no abuse of discretion in denying a Rule 33 motion. Pedrick’s and Young’s references to corporate antitrust training were admitted as context for their own actions and understanding, not as legal conclusions. Any prejudice was cured by repeated limiting instructions that only the court states the law.
  • Grand jury (COVID protocols): The challenge was foreclosed by United States v. Graham, which upheld similar COVID-era grand jury videoconference procedures.

Analysis

Precedents Cited

Standards of Review

  • United States v. Pirela Pirela, 809 F.3d 1195 (11th Cir. 2015): supplied the de novo review standard for sufficiency-based denials of a motion for judgment of acquittal.
  • United States v. Vicaria, 12 F.3d 195 (11th Cir. 1994): provided the abuse-of-discretion standard for Rule 33 new-trial rulings.
  • United States v. Graham, 80 F.4th 1314 (11th Cir. 2023): set the framework for reviewing motions to dismiss indictments on Fifth Amendment/Rule 6 grounds and, crucially, foreclosed David’s COVID grand jury argument on the merits.

Sufficiency of the Evidence (General Criminal Principles)

  • United States v. Jiminez, 564 F.3d 1280 (11th Cir. 2009): required viewing evidence in the light most favorable to the government and affirming if a reasonable factfinder could find guilt beyond a reasonable doubt.
  • United States v. Martin, 803 F.3d 581 (11th Cir. 2015): reiterated that circumstantial evidence may sustain a conviction, so long as reasonable inferences support the verdict.
  • United States v. Bell, 112 F.4th 1318 (11th Cir. 2024), cert. denied, 145 S. Ct. 2847 (2025): reinforced that the evidence need not exclude every reasonable hypothesis of innocence.
  • United States v. Ross, 131 F.3d 970 (11th Cir. 1997): supplied the multi-object conspiracy rule—conviction stands if evidence supports any object alleged (here, price fixing, bid rigging, or market allocation).

Substantive Sherman Act Framework: Per Se Horizontal Restraints

  • Ohio v. Am. Express Co., 585 U.S. 529 (2018): explained “restraint of trade” as “undue restraint,” and distinguished per se illegality (typically horizontal restraints) from other antitrust analyses.
  • United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940): established that combinations formed to raise/depress/fix/stabilize prices are per se unlawful, grounding the panel’s treatment of alleged price coordination.
  • United States v. Dynalectric Co., 859 F.2d 1559 (11th Cir. 1988): recognized bid rigging as a per se Sherman Act violation.
  • Palmer v. BRG of Ga., Inc., 498 U.S. 46 (1990): treated market allocation (e.g., territories) among competitors as per se unlawful.
  • United States v. Flom, 558 F.2d 1179 (5th Cir. 1977): described bid rigging (“not submit a bid lower than another”) as “price fixing of the simplest kind” and per se illegal; also recognized allocation of contracts as an allocation form.
  • United States v. Cadillac Overall Supply Co., 568 F.2d 1078 (5th Cir. 1978): recognized customer allocation as an actionable form of market allocation.
  • Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc): explained why Fifth Circuit decisions before October 1, 1981 (including Flom and Cadillac Overall Supply Co.) are binding precedent in the Eleventh Circuit.
  • NYNEX Corp., v. Discon, Inc., 525 U.S. 128 (1998): articulated the rationale for per se rules—conduct so harmful and rarely justified that anticompetitive effect need not be proven case-by-case.
  • Levine v. Centr. Fla. Med. Affiliates, Inc., 72 F.3d 1538 (11th Cir. 1996): reinforced that in per se cases the key question is whether an agreement existed, because unreasonableness is presumed.
  • Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752 (1984): supplied the definition of § 1 agreement (“unity of purpose,” “meeting of minds”) and clarified that purely unilateral conduct does not violate § 1.

Information Exchange vs. Agreement; Inference of Price Fixing

  • Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486 (11th Cir. 1985): drew a critical line—mere exchange of price information is not per se unlawful; what makes it unlawful is an agreement to fix prices.
  • United States v. Cargo Serv. Stations, Inc., 657 F.2d 676 (5th Cir. 1981): supported the proposition that a jury may infer a price-fixing agreement from evidence of price information exchanges (especially when paired with additional proof).

Evidentiary Relevance, Prejudice, and Curative Instructions

  • United States v. Arbolaez, 450 F.3d 1283 (11th Cir. 2006), abrogated in part on other grounds by, Michigan v. Bryant, 562 U.S. 344 (2011): set the “substantial impact on the verdict” requirement for granting a new trial based on erroneous admission of statements.
  • Old Chief v. United States, 519 U.S. 172 (1997): explained relevance as a “step on one evidentiary route” to an ultimate fact.
  • United States v. Gbenedio, 95 F.4th 1319 (11th Cir. 2024) and United States v. Macrina, 109 F.4th 1341 (11th Cir. 2024): emphasized the low threshold for relevance, supporting admission of testimony explaining witnesses’ conduct and state of mind.
  • United States v. Melgen, 967 F.3d 1250 (11th Cir. 2020): held reversal is warranted despite curative instructions only if prejudice is so high as to be incurable.
  • United States v. Almanzar, 634 F.3d 1214 (11th Cir. 2011): reiterated the presumption that jurors follow the court’s instructions.

Legal Reasoning

1) Why the Evidence Was Sufficient for a Per Se Sherman Act Conspiracy

The panel applied the per se framework: if the conduct is price fixing, bid rigging, or market allocation among competitors, the dispositive question becomes whether the government proved an agreement (not market power or anticompetitive effects). Citing Levine v. Centr. Fla. Med. Affiliates, Inc. and NYNEX Corp., v. Discon, Inc., the court treated the case as turning on proof of concerted action.

The court then explained why the record allowed a rational jury to find that concerted action existed:

  • Coordinated annual price increases: testimony (supported by audio recordings and documents) that David provided and received pricing information used to craft annual price increase letters, with the express purpose of raising prices—moving the case beyond “mere information exchange” under Amey, Inc. v. Gulf Abstract & Title, Inc..
  • Bid coordination / non-competitive bids: evidence that bids were discussed so competitors could submit higher bids; an example included a $80 vs. $82 pricing dynamic and a “stay above” instruction—classic bid-rigging indicia under United States v. Dynalectric Co. and United States v. Flom.
  • Allocation of customers/jobs/areas: evidence of “divvying up” shares of customer work (e.g., allocating a large portion of VB Construction’s work), fitting market/customer allocation under Palmer v. BRG of Ga., Inc. and United States v. Cadillac Overall Supply Co..

Addressing defense arguments, the panel invoked United States v. Bell to reject the premise that the government had to negate all innocent explanations (e.g., that David was not “instructed” on each bid). It also relied on United States v. Cargo Serv. Stations, Inc. for the principle that a jury may infer price fixing from pricing exchanges when the circumstances suggest coordinated action.

Finally, under United States v. Ross, even if the evidence were stronger as to some objects than others, the multi-object conspiracy conviction stands so long as one object (price fixing, bid rigging, or market allocation) is sufficiently supported.

2) Why “Illegal” Testimony Tied to Corporate Training Did Not Require a New Trial

David argued that Pedrick and Young improperly offered legal conclusions—calling the conduct “illegal” based on corporate antitrust training. The court treated the testimony differently: it was relevant background explaining the witnesses’ understanding and actions (such as why they were concerned, why they recorded conversations, and why they served as intermediaries).

The relevance analysis leaned on the “low bar” articulated in United States v. Macrina, and on Old Chief v. United States’s recognition that evidence can be “of consequence” even if it is only an intermediate step toward an ultimate fact. The court also noted the testimony’s usefulness once the defense attacked the witnesses’ motives and credibility on cross-examination (making the witnesses’ state of mind and context more probative).

Crucially, the panel held that any risk that jurors would treat the testimony as a statement of law was addressed by repeated limiting instructions. Under United States v. Almanzar, jurors are presumed to follow instructions; under United States v. Melgen, reversal is warranted only if the prejudice is “incurable,” which the panel found was not shown here. Applying United States v. Arbolaez, the court saw no “significant possibility” that the testimony had a “substantial impact” on the verdict given the rest of the evidence.

3) Why the COVID-Era Grand Jury Challenge Failed

The court treated the grand jury argument as controlled by United States v. Graham, which upheld pandemic protocols allowing grand juries to convene and vote from secure locations via videoconference without altering the grand jury’s “basic nature” or “fatally infecting” the indictment. David conceded foreclosing precedent.

Impact

  • Evidence of “agreement” in per se Sherman Act prosecutions: The opinion reinforces that juries may find an agreement from a mix of (i) coordinated annual price increase communications, (ii) job-specific bid discussions yielding non-competitive bids, and (iii) “divvying up” customers/jobs. It illustrates how “information exchange” evidence becomes incriminating when paired with testimony about a shared objective to raise prices.
  • Witness “training” testimony: The decision is a practical roadmap for admitting potentially sensitive “corporate compliance/antitrust training” testimony for non-hearsay contextual purposes (state of mind, motive, investigative steps), while reducing appellate risk through prompt and repeated limiting instructions.
  • COVID grand jury procedures: In the Eleventh Circuit, the opinion underscores the continuing force of United States v. Graham against Fifth Amendment/Rule 6 challenges based solely on secure, court-ordered videoconference grand jury procedures used during the pandemic.
  • Precedential weight: Because the opinion is “NOT FOR PUBLICATION,” it is not binding precedent, but it is still informative as to how the Eleventh Circuit applies established Sherman Act and evidentiary doctrines to common fact patterns in bid-rigging/price-fixing prosecutions.

Complex Concepts Simplified

  • Per se violation: Some conduct is considered so predictably harmful to competition (like competitors fixing prices or rigging bids) that the government need not prove actual economic harm in that specific market; it must prove the agreement.
  • Horizontal restraint: An agreement between competitors at the same level of the market (here, competing concrete suppliers), as opposed to agreements between suppliers and customers.
  • Bid rigging: Competitors coordinate bids so the “winner” is effectively predetermined or bids are kept artificially high (for example, agreeing to “stay above” another’s price), undermining genuine competition.
  • Market/customer allocation: Competitors decide not to compete for certain territories, customers, or contracts—essentially dividing the business among themselves.
  • Information exchange vs. agreement: Competitors can sometimes share pricing-related information legally; it becomes illegal when the sharing is part of a plan to coordinate prices or bids.
  • Curative (limiting) instruction: The judge tells jurors the proper and improper uses of a piece of evidence (e.g., “consider this only for the witness’s understanding, not as the law”). Appellate courts usually assume jurors follow those instructions.
  • Multi-object conspiracy: If one conspiracy count alleges multiple illegal goals, the conviction can stand if the evidence proves any one of those goals.

Conclusion

United States v. John David Melton affirms a Sherman Act § 1 conspiracy conviction by applying settled per se antitrust principles to concrete evidence of coordinated price increases, bid discussions producing non-competitive bids, and allocation of customer work. The opinion also provides a useful evidentiary lesson: references to “illegality” rooted in corporate antitrust training can be admissible as contextual testimony about witness understanding and conduct, particularly when paired with clear, repeated limiting instructions that the court—not witnesses—states the law. Finally, the decision reiterates that COVID-era grand jury videoconference procedures are not a basis for dismissal in the Eleventh Circuit in light of United States v. Graham.