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CHAPTER IX
GUIDELINES FOR RELATED OFFENSES
In addition to charges brought under the Sherman Act, antitrust cases
frequently include charges of other crimes. The Antitrust Division has
pledged that its enforcers will continue aggressively to seek to combine
cartel charges with collateral charges.1 The Department of Justice may
also pursue a collateral charge involving anticompetitive behavior
instead of prosecuting an antitrust violation. Many recent prosecutions
have been based on related offenses either independent of or in
conjunction with the Sherman Act. Penalties for these related offenses
can far exceed the penalties for underlying antitrust violations and can
raise distinct issues. Antitrust counsel must, therefore, be familiar with
the application of the United States Sentencing Guidelines (Guidelines)
for these related offenses.
Mail and wire fraud are the two statutes that are both most likely
either to be included with Sherman Act charges, or to be used on their
own instead of the Sherman Act. This chapter begins with a discussion of
the potential effects of the inclusion of mail and wire fraud charges on
the Guidelines analysis. The chapter then addresses the Guidelines for
other crimes that can be charged in connection with or in place of
antitrust violations, including perjury and obstruction of justice, false
statements, major fraud against the United States, the Foreign Corrupt
Practices Act (FCPA), conspiracy, and tax and money laundering.
A. Mail and Wire Fraud Guidelines
The Antitrust Division regularly prosecutes mail and wire fraud
offenses.2 The facts of some investigations lend themselves to charges
1. Scott D. Hammond, Deputy Ass’t Att’y Gen., Antitrust Div., U.S. Dep’t
of Just., Recent Developments, Trends, and Milestones in the Antitrust
Division’s Criminal Enforcement Program, Remarks for the ABA Section
of Antitrust Law, 56th Annual Spring Meeting 9 (Mar. 26, 2008),
available at www.justice.gov/atr/file/519651/download.
2. See 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1349
(conspiracy). For some examples of cases prosecuted by the Antitrust
Division under the Sherman Act and mail or wire fraud statutes, see
Second Superseding Indictment, United States v. Salyer, No. 10-CR-
198 Antitrust Cartel Leniency and Sentencing Handbook
under both the Sherman Act and mail or wire fraud statutes. Examples
include the real estate auction fraud investigations,3 or cases involving
collusion of public agency bids.4 The Division has also charged mail or
wire fraud without charging a Sherman Act offense after determining
00061 (E.D. Cal. Aug. 17, 2011), available at www.justice.gov/atr/case-
document/file/509266/download.
3. See, e.g., Press Release, U.S. Dep’t of Justice, Two Northern California
Real Estate Investors Plead Guilty to Bid Rigging and Fraud at Public
Foreclosure Auctions (July 8, 2015), available at
www.justice.gov/opa/pr/two-northern-california-real-estate-investors-
plead-guilty-bid-rigging-and-fraud-public (noting “56 individuals have
pleaded guilty to criminal charges as a result of the department’s ongoing
antitrust investigations into bid rigging and fraud at public foreclosure
auctions in Northern California”); Press Release, U.S. Dep’t of Justice,
Real Estate Investor Pleads Guilty to Bid Rigging and Fraud Conspiracies
at Georgia Public Foreclosure Auctions (Oct. 7, 2015), available at
www.justice.gov/opa/pr/real-estate-investor-pleads-guilty-bid-rigging-
and-fraud-conspiracies-georgia-public (ninth real estate investor
prosecuted in Georgia public foreclosure auctions); Information, United
States v. Podber, No. 15-CR-360 (N.D. Ga. Sept. 28, 2015), available at
www.justice.gov/atr/file/781911/download (charging Sherman Act bid
rigging conspiracy and mail fraud conspiracy); Information, United States
v. Barbour, No. 1:15-CR-00187-WS (S.D. Ala. Aug. 26, 2015)
www.justice.gov/atr/file/769571/download (charging Sherman Act bid
rigging conspiracy and mail fraud conspiracy); Information, United States
v. Shiells, No. 14-CR-581 (N.D. Cal. Nov. 19, 2014), available at
www.justice.gov/file/510746/download (Sherman Act bid rigging
conspiracy and mail fraud); see also United States v. McDonald, 654 F.
App’x 118 (3d Cir. 2016) (unpublished) (affirming convictions for
Sherman Act bid rigging and conspiracy to defraud the United States,
among other charges).
4. See, e.g., United States v. Shelton, 99 F. App’x 136, (9th Cir. 2004)
(affirming conviction and remanding for resentencing), aff’d after
remand, 193 F. App’x 711 (9th Cir. 2006); United States v. Fernandez,
282 F.3d 500 (7th Cir. 2002) (affirming convictions for bid rigging as
mail fraud, along with theft of funds and money laundering for public
official engaged in a scheme designed to defraud the municipality by
steering building projects to friends and then laundering the proceeds);
Superseding Indictment, United States v. Shelton, No. 01-CR-00007 (D.
Guam Mar. 14, 2001) (Director of Guam’s Department of Parks and
Recreation charged with schemes to rig bids to repair typhoon damage
including Sherman Act, wire fraud, bribery and money laundering
counts), available at www.justice.gov/atr/case-document/superseding-
indictment-11.
