Antitrust Law Daily Wrap Up, ANTITRUST—11th Cir.: Savanna-area concrete executive’s conviction for price-fixing affirmed on appeal, (Jun 3, 2026)

By Justin Marcus Smith, J.D.

Evidence does not need to exclude every reasonable hypothesis of innocence, and the Eleventh Circuit found “more than sufficient evidence” in the record to sustain the conviction.

The federal district court in Savannah, Georgia, did not err when it denied a motion for judgment of acquittal at the close of the government’s evidence in a Sherman Act criminal conspiracy trial, held the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit explained, in considerable detail, how a reasonable jury could have found, beyond a reasonable doubt, that the convicted executive participated in an agreement to fix prices, rig bids, or allocate markets. The Eleventh Circuit also said it was “unconvinced” that the district court abused its discretion in denying the executive’s motion for a new trial. The testimony of certain employee witnesses about their corporate antitrust training was pertinent to other elements of their testimony; it was especially relevant to the extent the defendant executive attacked the witnesses’ motives; and to avoid prejudice, the court issued a curative instruction that it was to be the sole source of instruction about the law. Last, the convicted executive conceded that case law directly on-point foreclosed his argument that COVID-19 grand jury protocols fatally compromised his indictment (U.S. v. Melton, No. 24-13674 (11th Cir. June 2, 2026)).

Background. In 2024, the federal district court in Savannah, Georgia, sentenced local concrete executives Gregory Melton and David Melton to 41 months and 26 months in prison, respectively, for conspiring to fix prices, bid rigs, and allocate Georgia concrete markets, in violation of Section 1 of the Sherman Act. The district court also required the Meltons to pay fines of $50,000 and $10,000, respectively. The Meltons went to trial, but other participants in the conspiracy pleaded guilty (see Antitrust Law Daily, Oct. 18, 2024).

The district court denied the Meltons’ motion for a new trial on the basis that they failed to point out any trial error much less an error substantial enough to cause prejudice. The U.S. Court of Appeals for the Eleventh Circuit also previously dismissed David Melton’s appeal of his indictment on the basis that it was neither final nor appealable.

David Melton appealed again, arguing this time that the district court: (1) erred by denying his motion for a judgment of acquittal after the close of the government’s evidence because the evidence was insufficient to establish he was part of an unlawful agreement; (2) abused its discretion by denying his motion for a new trial; and (3) erred by denying his motion to dismiss the indictment based on the grand jury being improperly comprised during the COVID-19 pandemic.

The Eleventh Circuit affirmed in all respects after applying de novo review to the denial of a judgment of acquittal; abuse of discretion review to the denial of a new trial; and abuse of discretion review to the denial of the motion to dismiss the indictment.

Denial of acquittal. The Eleventh Circuit held the district court did not err in denying David’s motion for a judgment of acquittal. In cases involving per se illegal restraints, the only inquiry is whether there was an agreement. Unreasonableness is presumed. The Eleventh Circuit found the record reflected that a reasonable jury could have found, beyond a reasonable doubt, that David participated in an agreement to fix prices, rig bids, or allocate markets.

The Eleventh Circuit said the evidence suggested that David provided information to competitors for annual price increase letters for the purpose of raising prices; discussed specific bids with competitors so they would make non-competitive bids; and divided market areas and customers between competitors. For example, there was evidence that David’s brother Greg, a manager at Argos, another concrete company, said he wanted to discuss, and did discuss, the pricing for certain jobs with David while he worked at Elite Concrete. The evidence showed Greg was aware that price increase letters were being taken to competitors before their release for the purpose of coordinating prices. Among other evidentiary details, there was also testimony by a salesperson, corroborated by contemporaneous audio records and documents, that David gave him price information to pass on to Greg and others, and that he also received price information from David to draft the price increase letters.

As for David’s claim there was no evidence that anyone instructed him to make particular bids, the Eleventh Circuit said its “case law is clear that evidence need not exclude every reasonable hypothesis of innocence for a reasonable jury to find guilt beyond a reasonable doubt.”

The Eleventh Circuit said it remained “unpersuaded” by the next argument that the price increase letters only showed permissible information sharing. Witness testimony established that the information exchange of price increase letters before the distribution of the letters to customers was part of an agreement with the express purpose of raising prices. A jury may infer price fixing from evidence of an exchange of price information, as the testimony indicated. There was “more than sufficient evidence” for the jury to find knowing engagement in price fixing, bid rigging, or market allocation to sustain a conviction for conspiracy to violate the Sherman Act.

New trial denial. The Eleventh Circuit said it was also “unconvinced” that the district court abused its discretion in denying the motion for a new trial. David emphasized that certain witnesses based their testimony about “illegal conduct” on their own corporate antitrust training. He urged that the district court erred in determining that the characterization about the antitrust training was not improper or harmful.

The Eleventh Circuit said the record showed that the two witnesses testified about their corporate training. In the view of the Eleventh Circuit, the witnesses did so “in order to establish their impression of David’s and others’ actions and to provide context for their own actions over the course of the investigation.” What they said about their training explained why they were concerned about certain conduct and bothered to record certain conversations. The Eleventh Circuit found the testimony especially relevant to the extent David attacked, on cross-examination, the witnesses’ motives as witnesses.

Regardless, the district court cured any prejudicial effect through its repeated admonition that the jury was only to consider the witnesses’ testimony as to their understanding, not as an articulation of the law, because only the district court was the exclusive source of jury instruction about the law. Jurors are presumed to follow district court instructions, and David did not identify anything to overcome that presumption or to show anything incurably prejudicial.

Denial of indictment dismissal. Last, the Eleventh Circuit found no merit in David’s claim that the district court abused its discretion in denying his motion to dismiss his indictment as a putative violation of the Fifth Amendment and Fed. R. Crim. P. 6. In the opinion of the Eleventh Circuit, nothing in the COVID-19 pandemic grand jury protocols, including videoconferencing, changed the “basic nature of the grand jury or fatally infected the defendant’s indictment.” David conceded that United States v. Graham, 80 F.4th 1314, 1317–19 (11th Cir. 2023) foreclosed his argument here. Graham was directly on-point that nothing in the COVID-19 grand jury protocols changed the basic nature of the grand jury or fatally infected indictments.

The Case is No. 24-13674.

Judge: Per curiam.

Attorneys: Stratton Christopher Strand, U.S. Department of Justice, for the U.S. Amy Lee Copeland (Rouse & Copeland, LLC) for John David Melton. Michael R. Greer (Heath & Lyman, P.C.) for Ascension Health Alliance. Fiona A. Schaeffer (Milbank LLP) for Amsurg, LLC.

Companies: Amsurg, LLC

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