NOT FOR PUBLICATION FILED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.

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