Bona Law Urges Ninth Circuit to Reverse Antitrust Bid-Rigging Conviction
June 23, 2021
Bona Law attorneys Jarod Bona and Aaron Gott urged the U.S. Court of Appeals for the Ninth Circuit to reverse their client’s one-count conviction for bid-rigging in an opening brief filed January 17, 2018.
Glenn Guillory was convicted of bid rigging following a jury trial last spring. He was one of many defendants in a highly publicized Department of Justice Antitrust Division investigation into alleged bid-rigging at real-estate foreclosure auctions in several San Francisco Bay-area counties. The government alleged that Mr. Guillory agreed not to bid at public auctions in Contra Costa County, instead bidding at secondary auctions called “rounds” for the property held by the bidders.
But while the government proved Mr. Guillory participated in rounds (which are not illegal themselves), it proffered scant evidence that he agreed not to bid in primary auctions. Quite unlike many of the related foreclosure auction bid-rigging trials, that evidence was conspicuously absent in the proceedings against Mr. Guillory. During its closing arguments, the government argued that “rounds are illegal” and urged the jury to convict him based on the evidence of his participation in rounds, rather than based on evidence of a naked bid-rigging agreement.
The brief argues that the jury misapplied the law in convicting Mr. Guillory, a result of the misleading statements about the law by the government and jury instructions that did not clearly explain the elements the government was required to prove. Compounding the problem was an earlier trial court ruling that prohibited Mr. Guillory from presenting business-justification under the guise of precluding evidence irrelevant to a per se antitrust offense.
The brief argues that this preclusion did more than that: it effectively precluded Mr. Guillory from negating the government’s case: one that rested on the argument that his participation in secondary auctions was necessarily evidence of his agreement to rig bids. Mr. Guillory should have been allowed to present evidence negating the necessary element of subjective intent, either directly or by submitting evidence that his participation in rounds was a procompetitive joint venture and not a naked bid-rigging agreement. If the Ninth Circuit agrees with those arguments, then Mr. Guillory’s conviction will be reversed and he will be granted a new trial.
In addition, the brief argues another ground for reversal: the government’s reliance on Mr. Guillory’s participation in rounds, and its scant evidence of Mr. Guillory’s subjective intent to enter into a bid-rigging agreement, was insufficient evidence to support a conviction and warrants a judgment of acquittal. Judgments of acquittal preclude retrial under the Double Jeopardy Clause of the U.S. Constitution.