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The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. Intent generally remains an indispensable element of a criminal offense. This is as true in a sophisticated criminal antitrust case as in one involving any other criminal offense.
Several major gypsum board manufacturers and various of their officials were indicted for violations of § 1 of the Sherman Act by allegedly engaging in a price-fixing conspiracy. One of the types of actions allegedly taken in formulating and effectuating the conspiracy was interseller price verification, i. e., the practice of telephoning a competing manufacturer to determine the price being currently offered on gypsum board to a specific customer. After some of the defendants pleaded nolo contendere and were sentenced, the remaining defendants were convicted after a trial of some 19 weeks. The Government's case focused on the interseller price-verification charge, which the defendants defended on the ground that the price-information exchanges were to enable them to take advantage of the meeting-competition defense contained in § 2 (b) of the Clayton Act, as amended by the Robinson-Patman Act (which permits a seller to rebut a prima facie price-discrimination charge by showing that a lower price to a purchaser was made in good faith to meet an equally low price of a competitor). On the verification issue, the trial judge charged the jury that if the price-information exchanges were found to have been undertaken in good faith to comply with the Robinson-Patman Act, verification alone would not suffice to establish an illegal price-fixing agreement, but that if the jury found that the effect of verification was to fix prices, then the parties would be presumed, as a matter of law, to have intended that result. The judge further charged that since only a single conspiracy was alleged, liability could only be predicated on the knowing involvement of each defendant, considered individually, in the conspiracy alleged, the judge having refused the defendants' requested charge directing the jury to determine what kind of agreement, if any, existed as to each defendant before any could be found to be a member of the conspiracy. With respect to the defendants' evidence as to withdrawal from the conspiracy, the judge instructed the jury that withdrawal had to be established by either affirmative notice to every other member of the conspiracy or by disclosure of the illegal enterprise to law enforcement officials. The judge refused the defendants' requested instruction that vigorous price competition during the period in question could also be considered as evidence of abandonment of the conspiracy. After all the testimony had been presented, the jurors were sequestered for deliberation, and apparently disagreement among them arose. After approximately seven days of deliberations, the foreman of the jury informed the judge that he wanted to discuss the jury's condition, and this resulted, with the parties' consent, in an ex parte meeting between the judge and the foreman. Most of the discussion at the meeting involved the jurors' deteriorating health but the foreman also referred to the jury's deadlock; there followed an exchange strongly suggesting that the foreman may have carried away from the meeting the impression that the judge wanted a verdict "one way or the other." The jury rendered its guilty verdict the following morning. The Court of Appeals reversed the convictions on various grounds, holding, inter alia, that verification of price concessions with competitors for the sole purpose of taking advantage of the meeting-competition defense of § 2 (b) constitutes a "controlling circumstance" precluding liability under § 1 of the Sherman Act, and thus an instruction allowing the jury to ignore the defendants' purpose in engaging in the alleged misconduct could not be sustained.
Is intent an element of a criminal antitrust offense?
The Supreme Court affirmed a judgment reversing the convictions of respondents, six manufacturers and their corporate officials, for violations of the Sherman Act, 15 U.S.C.S. § 1, in petitioner United States' action. The jury instructions regarding the elements of the price-fixing offense charged in the indictment were error because an "effects alone" test could not be applied. The Court held that a defendant's state of mind or intent was an element of a criminal antitrust offense. Ultimately the decision on the issue of intent must be left to the trier of fact. The good-faith standard remained the benchmark against which the seller's conduct was to be evaluated. The Court agreed with the court of appeals that reversal was required not only because of infirmities in the antitrust instruction, but also because the trial judge had encroached on the jury's authority and had foreclosed a possible no verdict outcome by the ex parte communications. The Court concluded that the charge concerning participation in the conspiracy was sufficient, but the instruction on withdrawal was error because it limited the jury's consideration.