no error in using this instruction because, unlike use in Sandstrom, use here did not relieve burden of proving any element of crime charged
How later courts described this case
- no error in using this instruction because, unlike use in Sandstrom, use here did not relieve burden of proving any element of crime charged
- evidence must show defendant “in good faith disavowed and completely withdrew” from the conspiracy
Written by the judges who cited it.
The opinion
JAMES HUNTER, III, Circuit Judge,
concurring:
I agree with the result reached by the majority in parts I, II, III, and IV(B)-V. Moreover, since this panel is bound by the decision of a prior panel in United States v. Gillen, 599 F.2d 541 (3d Cir. 1979), I concur in part IV(A) of the majority’s opinion. I feel compelled, however, to note my belief that the rule of law announced in Gillen , and followed by the majority here, is inconsistent with the Supreme Court’s holding in United States v. United States Gypsum Co., 438 U.S. 422 , 98 S.Ct. 2864 , 57 L.Ed.2d 854 (1978). Were it not for Gillen , I would vote to reverse the judgments of conviction entered against each defendant, and remand for a new trial.
In view of Judge Adams’ well reasoned concurring opinion in Gillen , a detailed critique of that case is unnecessary. Suffice it to say that Gypsum, as I read it, created the rule that “intent is a necessary element of a criminal antitrust violation,” 438 U.S. at 443 , 98 S.Ct. at 2876 , and held that the intent element can be satisfied only by proof that a defendant specifically intended to produce anticompetitive effects, or by proof that he knew anticompetitive effects would probably result from his conduct, coupled with evidence that such effects actually took place. Regrettably, the majority in Gillen chose to disregard the mandate of Gypsum, holding that intent as defined by Gypsum is not an element of all criminal antitrust violations, but rather only of those violations governed by the rule of reason. With regard to per se offenses, the majority held that “no inquiry has to be made on the issue of intent beyond proof that one joined or formed the conspiracy.” 599 F.2d at 545 .
Because this panel is governed by the holding in Gillen , I reluctantly agree with Judge Seitz and Judge Garth that the district court’s charge — which instructed the jury that to find the defendants guilty of conspiracy, it must conclude that the conspiracy “was knowingly formed” and “knowingly participated in” — was not reversible error. Were this panel free, how *469 ever, to judge the adequacy of the jury instructions under Gypsum rather than Gillen , a reversal would, in my judgment, be required. Since there was insufficient evidence introduced to enable the jury to find that the alleged conspiracy actually had anti-competitive effects, the government was obligated, under Gypsum, to prove that defendants possessed a specific intent to produce such an effect. The court’s charge, however, plainly failed to bring this element of the offense to the jury’s attention.