Criminal Antitrust

AuthorCharles D. Weller
Published date01 December 2016
Date01 December 2016
Subject MatterArticles
Criminal Antitrust:
Five New Defenses
Charles D. Weller, Esq.*
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
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
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,
Corresponding Author:
Charles D. Weller, Esq., 1768 East 25th Street., Cleveland, OH 44114, USA.
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
Reprints and permission:
DOI: 10.1177/0003603X16677783

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