Criminal Antitrust

• Author: Charles D. Weller
• DOI: 10.1177/0003603X16677783
• Published date: 01 December 2016
• Date: 01 December 2016
• Subject Matter: Articles

Article

Criminal Antitrust:

Five New Defenses

Charles D. Weller, Esq.*

Abstract

In the crucible of defending a criminal antitrust case working with outstanding criminal defense lawyers

soon after the Supreme Court revolutionized sentencing law by holding the Constitution requires the

jury, not the judge, to decide key sentencing fact issues in Booker and related cases led to areas of

criminal constitutional law outside the usual purview of antitrust. This unusual mix of law and people

combined to create the disc overy of five new constitu tional defenses contrary to long-accepted

practice in criminal antitrust that can be asserted to the Antitrust Division early in an antitrust

criminal investigation, in motions to dismiss an indictment, before or at a charging conference and

otherwise: (1) The standard antitrust practice of the judge, not the jury, deciding the ‘‘naked agree-

ment’’ element of a per se crime is unconstitutional. (2) The standard per se antitrust jury instruction

that conclusively presumes the statutory restraint of trade element of the crime is unconstitutional. (3)

The standard antitrust practice where the antitrust division, not the grand jury, decides the ‘‘naked

agreement’’ element is unconstitutional. (4) ‘‘Naked agreement’’facts are ‘‘essential facts’’ that must be

included in the indictment or the indictment is defective and unconstitutional. (5) All per se crimes are

common law court created crimes, and thus unconstitutional because only Congress can create

crimes.

Keywords

per se crime jury instructions, naked agreement element of per se crimes, constitutional jury trial

rights to fact finding at trial and by grand juries, conclusive presumption of elements of a crime,

including the unreasonable restraint of trade eleme nt, court created common law federal crimes

unconstitutional, judge versus jury fact issues

Working with outstanding criminal defense lawyers in the crucible of defending a criminal antitrust

case soon after the Supreme Court in Booker

1

and related cases revolutionized sentencing law by

* Retired, formerly with Jones Day, Baker Hostetler, the Antitrust Division of the Ohio Attorney General’s Office, Cleveland,

OH, USA

Corresponding Author:

Charles D. Weller, Esq., 1768 East 25th Street., Cleveland, OH 44114, USA.

Email: weller1@nxgh.net

1. United States v. Booker, 523 U.S. 220 (2005). See also Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey,

530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v. Calif., 549 U.S. 270 (2007); Alleyne v.

The Antitrust Bulletin

2016, Vol. 61(4) 599-610

ªThe Author(s) 2016

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DOI: 10.1177/0003603X16677783

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