The End of Criminal Antitrust's per Se Conclusive Presumptions

Date01 December 2013
Published date01 December 2013
DOI10.1177/0003603X1305800408
Subject MatterDomestic Antitrust
ATB Front matter-Fall 2012 THE ANTITRUST BULLETIN: Vol. 58, No. 4/Winter 2013 : 665
The end of criminal antitrust’s
per se conclusive presumptions
BY CHARLES D. WELLER*
The Supreme Court in the Booker line of cases revolutionized
sentencing law by applying a criminal defendant’s constitutional
right for a jury, not a judge, to decide key sentencing fact issues.
Applying this constitutional line of cases in the course of defending a
criminal antitrust case led to bringing together four separate silos of
law with four revolutionary implications for antitrust: criminal
antitrust, Sixth Amendment rights to jury fact finding, constitutional
limits on the use of conclusive presumptions in jury instructions, and
the constitutional prohibition of federal common law crimes. The
four revolutionary implications for antitrust were as stunning for the
author as they are sure to be to the antitrust bar, any one of which,
when adopted by the courts or the Antitrust Division, will end
criminal antitrust’s long-accepted practices regarding per se
conclusive presumptions.
KEY WORDS: right to jury fact finding, per se criminal jury instructions,
conclusive presumption jury instructions, naked agreement fact issues,
indictment pleading, legal v. jury fact issues
* Charles D. Weller, LLC, Cleveland, Ohio.
AUTHOR’S NOTE: I served as antitrust counsel for the defense in United States v.
Alliance National Limited Partnership dba DeMilta Iron & Metal, Ltd., dis-
cussed in this article, and have practiced antitrust law since 1973. I was privileged to
work with outstanding criminal defense lawyers, Roger Synenberg, Wil iam Byer,
and members of their law firms.
© 2013 by Federal Legal Publications, Inc.

666 : THE ANTITRUST BULLETIN: Vol. 58, No. 4/Winter 2013
I.
INTRODUCTION
In Booker and related decisions,1 the Supreme Court revolutionized sen-
tencing law by applying a criminal defendant’s Sixth Amendment right
to have a jury, not a judge, decide key fact issues related to sentencing.
Serendipitously, in the course of defending a twelve-count crimi-
nal antitrust case that went to trial in Cleveland in June 2009, United
States v. Al iance National Limited Partnership dba DeMilta Iron & Metal,
Ltd. (DeMilta),2 four specialized areas and silos of law came
together—criminal antitrust, Sixth Amendment rights to jury fact
finding, constitutional limits on the use of conclusive presumptions in
jury instructions, and the constitutional prohibition of federal com-
mon law crimes.
A result as revolutionary for criminal antitrust law as the Booker
line of cases was for sentencing law is covered in part II, a result as
stunning for the author as it is sure to be to the antitrust bar: Per se
conclusive presumptions of the unreasonable restraint of trade ele-
ment in criminal jury instructions are unconstitutional, and there is
already a Supreme Court decision virtually directly on point. Further,
there are three constitutional jury trial fact finding and other defects
in how the “naked agreement” element of per se offenses is customar-
ily treated. If one or more of these four are adopted by the Antitrust
Division or by the courts, it will mean the end to long-accepted prac-
tices regarding per se conclusive presumptions in criminal antitrust.
Part III is for litigators. It provides highlights on winning the
DeMilta case. Appendix A is the very informative and rarely pub-
lished (in antitrust journals) judgment entered by the DeMilta trial
judge summarizing what happened each day of the three-week trial,
the twelve counts and the jury’s verdicts on each.
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. California, 549
U.S. 270 (2007); Alleyne v. United States, 133 S. Ct 2151 (2013).
2
No. 1: 08 CR 68 (N.D. Ohio June 29, 2009). Two individuals and a
company were charged with one antitrust violation, ten counts of false decla-
ration, and one count of obstruction of justice. Given the government’s insis-
tence on jail time and other matters, the case could not be settled and went to
trial in June 2009 in Cleveland.

E N D O F P E R S E P R E S U M P T I O N S : 667
II. THE END OF CRIMINAL ANTITRUST’S PER SE
CONCLUSIVE PRESUMPTIONS
A. Under Gypsum, jury instructions that conclusively presume
an element of a crime are unconstitutional— first intent, then
unreasonable restraint of trade
“Serious questions under the United States Constitution are raised
by the creation and use of presumptions in criminal cases,”3 a very
specialized legal issue little discussed in antitrust circles. Indeed, it
has long been assumed that jury instructions in per se criminal
antitrust cases can include a conclusive presumption of the “unrea-
sonable restraint of trade” element of the crime. The ABA’s Model Jury
Instructions in Criminal Antitrust Cases, for example, suggest the fol-
lowing jury instruction in per se cases:
The Sherman Act makes unlawful certain agreements that, because of
their harmful effect on competition and lack of any redeeming virtue, are
conclusively presumed to be an unreasonable restraint on trade and are always
illegal, without inquiry about the precise harm they have caused or the
business excuse for their use.4
Yet the Supreme Court has made clear that it is a violation of the
Sixth Amendment’s right to have a jury decide key factual issues to
have jury instructions conclusively presume an element of a crime,
taking the decision away from the jury.
In the leading case of Morissette v. United States,5 the defen-
dant was a junk dealer who took old bomb casings that had been
3
KENNETH BROUN, MCCORMICK ON EVIDENCE 583 (6th ed. 2006). I give
special thanks to Constitutional Law Professor Ovid Lewis for covering the
constitutional issues regarding criminal presumptions in 1971 at Case West-
ern Reserve Law School.
4
MODEL JURY INSTRUCTIONS IN CRIMINAL ANTITRUST CASES 54 (2009)
(emphasis added). See also ABA, Cartel and Criminal Practice Committee,
Model Criminal Antitrust Jury Instructions, http://www.abanet.org
/antitrust/at-committees/at-crim/resources/model_jury_instructions.shtml
(collected criminal jury instructions).
5
342 U.S. 246 (1952). Accord Sandstrom v. Montana, 442 U.S. 510, 523
(1979) (unanimous) (“As in Morissette and United States Gypsum Co., a conclu-
sive presumption in this case would ‘conflict with the overriding presumption

668 : THE ANTITRUST BULLETIN: Vol. 58, No. 4/Winter 2013
lying unused from an Air Force practice bombing range and sold
them for a profit. He was indicted and convicted of violating a statute
that made it a crime to knowingly convert government property but
made no mention of intent. The Court held that criminal intent is an
essential element of the crime and that its existence is a question of
fact that must be submitted to the jury for determination in the light
of all relevant evidence. The trial court may not withdraw or prejudge
the issue by instructing the jury that the law raises a presumption of
intent from a single act:
As we read the record, this case was tried on the theory that, even if crim-
inal intent were essential, its presence (a) should be decided by the court
(b) as a presumption of law, apparently conclusive, (c) predicated upon
the isolated act of taking, rather than upon all of the circumstances. In
each of these respects we believe the trial court was in error.
Where intent of the accused is an ingredient of the crime charged, its exis-
tence is a question of fact which must be submitted to the jury.
. . . .
A conclusive presumption which testimony could not overthrow would
effectively eliminate intent as an ingredient of the offense.6
Most importantly, the Supreme Court has already ruled in a crimi-
nal antitrust case that conclusive presumptions are unconstitutional. In
United States v. U.S. Gypsum Co.,7 the Supreme Court specifically
applied this precedent to an antitrust case. There the Court held clearly
that a jury instruction that conclusively presumed an element of an
antitrust violation, there the intent element, was unconstitutional:
A conclusive presumption [of intent] which testimony could not overthrow
would effectively eliminate intent as an ingredient of the offense.” The
challenged jury instruction, as we read it, had precisely this effect; the jury
was told that the requisite intent fol owed, as a matter of law, from a finding
that the exchange of price information had an impact on prices. Although
an effect on prices may well support an inference that the defendant had
of innocence with which the law endows the accused and which extends to
every element of the crime,’ and would ‘invade [the] factfinding function’
which, in a criminal case, the law assigns solely to the jury.”). See also Carella
v. California, 491 U.S. 263 (1989) (due process under the 14th Amendment).
6
Id. at 273–75.
7
438 U.S. 422 (1978).

E N D O F P E R S E P R E S U M P T I O N S : 669
knowledge of the probability of such a consequence at the time he acted,
the jury must remain free to consider additional evidence before accept-
ing or rejecting the inference. Therefore, although it would be correct to
instruct the jury that it may infer intent from an effect on prices, ulti-
mately the decision on the issue of intent must be left to the trier of fact
alone. The instruction given invaded this factfinding function.8
Gypsum involved the intent element of antitrust crimes,...

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