FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S.
Oscar Markus, with whom Mona E. Markus, A. Margot Moss, and
Markus/Moss PLLC were on brief, for appellant.
Sandoloski, Attorney, Antitrust Division, United States
Department of Justice, with whom Brent Snyder, Acting
Assistant Attorney General, James J. Fredricks and Lisa M.
Phelan, Attorneys, Antitrust Division, were on brief, for
Howard, Chief Judge, Selya and Lipez, Circuit Judges.
Frank Peake, smarting under the double sting of his
conviction for antitrust conspiracy and this court's
affirmance of that conviction, asked the district court to
wipe the slate clean and grant him a new trial based on
freshly discovered evidence. The district court demurred.
Peake appeals. After careful consideration, we affirm the
sketch the facts, mindful that the reader who hungers for
more exegetic detail may consult our earlier opinion
affirming the underlying conviction and the district
court's thoughtful rescript denying the appellant's
motion for a new trial. See United States v. Peake
(Peake I), 804 F.3d 81 (1st Cir. 2015), cert.
denied, 137 S.Ct. 36 (2016); United States v.
Peake (Peake II), No. 11-cr-512, 2016 WL
8234673 (D.P.R. Oct. 18, 2016).
government's case against the appellant had its roots in
"one of the largest antitrust conspiracies" in
United States history. Peake I, 804 F.3d at 84.
Between 2002 and 2008, Sea Star Line (Sea Star) and Horizon
Lines (Horizon), both leading freight carriers, agreed to fix
rates and surcharges for Puerto Rico-bound cargo in a
multi-pronged effort to maintain market share and to squelch
competition. See id. at 85. In 2003, the
appellant became Sea Star's chief operating officer and,
later, its president. During his tenure, Sea Star reaped over
half-a-billion dollars in total revenue. See id. at
the appellant joined the conspiracy in 2005, we fast-forward
to November of 2011, at which time, a federal grand jury
indicted the appellant on a charge of conspiracy to violate
section one of the Sherman Act, which proscribes
"agreements in restraint of trade or commerce 'among
the several [s]tates.'" Id. at 86 (quoting
15 U.S.C. § 1). During the appellant's nine-day
trial in 2013, the government introduced testimony from three
cooperating witnesses: Gabriel Serra (a Horizon senior vice
president), Greg Glova (a mid-level Horizon executive who
reported to Serra), and Peter Baci (a Sea Star executive who
reported to the appellant). These three witnesses
consistently described the conspiracy's modus operandi
and hierarchical structure. Pertinently, Baci and Glova would
resolve day-to-day issues relating to pricing and
market-share allocation, while the appellant and Serra would
settle any lingering disputes. For instance, Serra testified
that when Walgreens, a significant importer of consumer goods
to Puerto Rico, decided to deal exclusively with Horizon
rather than splitting shipping contracts between Horizon and
Sea Star, Serra and the appellant agreed that Horizon
"would compensate" Sea Star for its lost revenue
"by shifting cargo to Sea Star vessels" and paying
Sea Star to carry Horizon cargo. Id. at 85. This
trio of witnesses also described meetings that the appellant
had with Horizon officials regarding the conspiracy,
including a 2006 summit meeting in Orlando at which the
appellant and Serra resolved price-fixing and
government's case included a trove of incriminating
e-mails linking the appellant to the conspiracy. Among these
e-mails was one sent by the appellant to a Horizon executive
discussing prices quoted to a customer and expressing the
appellant's desire to "avoid a price war."
Id. In other e-mails, the appellant consulted with
Horizon officials before sending proposals to potential
customers so that the two companies would maintain balanced
all, an "overwhelming amount" of evidence,
including travel and telephone records, corroborated the
appellant's leading role in orchestrating the conspiracy.
Id. at 94. Indeed, the evidence showed that the
appellant and Serra had more than 300 conversations, using
their personal telephones, between 2003 and 2008.
addition, Ron Reynolds, a United States Department of
Agriculture (USDA) agent, testified about the
conspiracy's impact on federal food assistance programs.
Gabriel Lafitte, the purchasing director for nearly 200
Burger King restaurants in Puerto Rico, testified about the
conspiracy's impact on the chain's island-wide costs
appellant did not offer any witnesses at trial. Nor did he
spend much time attacking the existence of the charged
conspiracy. Instead, his counsel argued that the government
had failed to prove that the appellant knowingly participated
in the conspiracy. In this vein, counsel made much of the
fact that William Stallings, a former Sea Star executive
cooperating with the government, had recorded conversations
with conspiracy participants for two months, but had never
recorded any statements by the appellant.
jury rejected the appellant's defense and found him
guilty. The district court sentenced him to sixty months'
imprisonment, and we affirmed ...