# United States v. Sargent Electric Co., Lord Electric Co., Inc., W v. Pangborne and Co., Inc., J.A. Bruce Pinney > Court of Appeals for the Third Circuit · April 18, 1986 · 785 F.2d 1123 URL: https://www.frixlaw.com/law-library/cases/9474615 ## Case - **Full name:** UNITED STATES of America, Appellant, v. SARGENT ELECTRIC CO., Lord Electric Co., Inc., W v. Pangborne and Co., Inc., J.A. Bruce Pinney - **Court:** Court of Appeals for the Third Circuit - **Decided:** April 18, 1986 - **Citations:** 785 F.2d 1123 - **Precedential status:** Published - **Opinion:** Dissent by Adams - **Judges:** Adams, Gibbons, Stapleton - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474615 ## How later opinions describe it (automated extraction) - discussing changes in market share between an indictment and trial ## Opinion text ADAMS, Circuit Judge, dissenting. Defendants’ guilt is not at issue in this appeal. Indeed, it is conceded by defendants that for many years they engaged in the rigging of bids for electrical contracting projects at various steel plants and oil refineries throughout Pennsylvania, in violation of the antitrust laws. What is at issue here is whether the indictment of defendants for bid-rigging in the present case, following their convictions or nolo contendere pleas in previous prosecutions for bid-rigging, violates their constitutional right not to be twice placed in jeopardy for a single crime. The Fifth Amendment of the Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The bar against double jeopardy was taken from the English common law, where the concept developed as early as the thirteenth century. See, e.g., United States v. Wilson, 420 U.S. 332 , 339-40 & n. 6, 95 S.Ct. 1013 , 1019-20 & n. 6, 43 L.Ed.2d 232 (1975); Bartkus v. Illinois, 359 U.S. 121, 151-55 , 79 S.Ct. 676, 695-697 , 3 L.Ed.2d 684 (1959) (Black, J., dissenting); Kirk, “Jeopardy” During the Period of the Year Books, 82 U.Pa.L.Rev. 602 (1934). Among other things, the clause was designed to protect against a second prosecution for a single offense and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969). The Supreme Court has repeatedly stressed that the guarantee against double jeopardy is “a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056, 2062 , 23 L.Ed.2d 707 (1969). The opinion announcing the judgment of the Court concludes that the district court erred both in fact and in law in determining that defendants were potential competitors at the various facilities at which bid-rigging was practiced, and that their bid-rigging activities were conducted pursuant to a single over-arching conspiracy in violation of section one of the Sherman Act, 15 U.S.C. § 1 (1982). It asserts that defendants and their alleged co-conspirators were not competitors at each of the locations, and holds as a matter of law that noncompetitors cannot conspire in restraint of trade. The opinion thus determines that the conspiracy charged in this prosecution and those charged in prior indictments are not the same, and that defendants’ double jeopardy rights therefore are not abridged. Because I disagree with that legal analysis, and with the application of such an analysis to the facts present in the record, and because I differ from the conclusion of the concurring opinion that this Court is free to disturb the trial court’s finding of a single conspiracy, I respectfully dissent. I. Defendants Lord Electric Company (Lord) and Sargent Electric Company (Sargent) were indicted in July 1983 for rigging bids at the Western Pennsylvania Works of United States Steel Corporation. Also indicted were Fischbach & Moore, Inc., the parent corporation of W.V. Pangborne & Co., Inc. (Pangborne), a defendant in this action, and a number of other electrical contracting companies and their individual officers. On March 7, 1984, Lord, Sargent, and Fischbach & Moore were convicted of violating section one of the Sherman Act and each was fined $1,000,000, the maximum penalty allowable under the Act. See United States v. Fischbach & Moore, Inc., 750 F.2d 1183 (3d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1397 , 84 L.Ed.2d 785 (1985). Defendants Pangborne and J.A. Bruce Pinney, the Executive Vice President of Pangborne, were indicted on March 8, 1984 on charges of rigging bids for electrical *1135 contracting work at the Philadelphia refinery of Gulf Oil Company, in violation of section one of the Sherman Act. They pleaded nolo contendere to the charges and were sentenced on June 19, 1984. The indictment underlying the present prosecution was returned by a grand jury in June 1984, on the same day that Pang-borne and Pinney were sentenced for their bid-rigging activities at the Gulf Oil refinery. It charged Pangborne, Pinney, Lord and Sargent with conspiring to rig bids at the Pairless Hills plant of United States Steel Corporation, in violation of section one of the Sherman Act. Prior to trial, all four defendants moved to dismiss the indictment on the ground that the activities leading to their previous convictions or nolo pleas were part of the same conspiracy as the bid-rigging alleged in the Fairless Hills indictment. They thus contend that the second indictment for the same offense under the Sherman Act, based upon identical evidence of conspiracy, infringed their rights under the double jeopardy clause. After conducting an extensive hearing on the issue, the district court found as a fact that the bid-rigging conducted at the Western Pennsylvania Works, the Gulf Oil refinery, and the Fairless Hills plant, as well as that at several other Pennsylvania facilities, 1 had taken place pursuant to a single, broad conspiracy in which Lord, Sargent, Pangborne and Pinney had been participants. It therefore granted defendants’ motion to dismiss the indictment on the basis of double jeopardy. II. A. As explained in Judge Gibbons’ opinion, each of the companies that solicited bids from defendants and their co-conspirators maintained selected bidders’ lists. When a project became available, only those electrical contracting firms currently named on the bidders’ list were invited to submit bids. The same names did not always appear on a given company’s list, although some names were included more often than others. Because of the policy of employing selected bidders’ lists, competition for any given project was limited to those electrical contractors who were invited to submit bids. Judge Gibbons’ opinion asserts that the use of bidders’ lists by the targets of the bid-rigging scheme precludes as a matter of law a finding that the bid-rigging conducted at Fairless Hills, the Western Pennsylvania facilities, and Gulf Oil was embraced by a single conspiracy in which all four defendants were participants. It states that, because the bidders’ lists restricted the scope of competition for a project to those named in the lists, a conspiracy between contractors “qualified” to bid and those not invited to bid could not in any way restrain trade. Since section one of the Sherman Act prohibits only conspiracies in restraint of trade, the argument continues, it follows that qualified bidders and unqualified bidders cannot be parties to a single conspiracy to rig bids. The lone case cited that arguably adopts the position espoused by Judge Gibbons, which is of course crucial to his conclusion, is United States v. Ashland-Warren, Inc., 537 F.Supp. 433, 443, 445 (M.D.Tenn.1982). There, Ashland-Warren argued that its previous convictions for bid-rigging in the highway paving industry in Virginia barred its prosecution for similar bid-rigging in Tennessee. The district court rejected the argument, stating that, as Virginia paving contractors did not compete with Tennessee contractors for paving jobs, they could not all be participants in a single bid-rigging conspiracy. Ashland-Warren is distinguishable from this case on a number of grounds. First, in Ashland-Warren, the only contractor that had participated in both the Virginia and the Tennessee bid-rigging schemes was Ashland-Warren. Id. at 440 . With this minimal degree of overlap, there could have been no showing of interdependence *1136 between the two schemes, such as was made here. Second, the highway paving industry is significantly different from the electrical contracting industry in that the geographical area within which a paving contractor may provide services is limited by the nature of its business. As the Ash-land-Warren court pointed out, since hot asphalt cannot be hauled more than forty miles before it hardens, the location of a paving contractor’s plant imposes geographical restrictions upon the area within which it can compete. Id. at 438, 443 . In light of these conditions, Ashland-Warren concluded that Virginia paving contractors and Tennessee contractors did not compete for the same jobs. Id. The record in this case reveals no such geographical constraints upon defendants’ ability to compete. Because of its unique facts, AshlandWarren’s statement that only competitors can conspire to restrain trade is subject to varying interpretations. However, it is significant that at least two courts have expressly declined to follow Ashland-Warren. See United States v. Waldbaum, Inc., 612 F.Supp. 1307, 1313 (D.Conn.), aff'd sub nom. United States v. Korfant, 771 F.2d 660 (2d Cir.1985); United States v. Beachner Construction Co., 555 F.Supp. 1273, 1282 (D.Kan.1983), aff'd, 729 F.2d 1278 (10th Cir.1984). Even assuming that Judge Gibbons' view that noncompetitors can never conspire to restrain trade has some validity in theory, it seems unlikely that a situation would actually arise in which two conspirators that are truly not in competition would agree to engage in an anticompetitive practice when that agreement could in no way benefit either conspirator. 2 Any such agreement to restrain trade would be ineffectual absent the participation of other conspirators who were in competition with both of the noncompeting parties. Only the involvement of such additional conspirators would create the potential for successful anticompetitive practices. To illustrate, suppose contractors A and B conspire to rig bids with C at one facility, with D at a second facility, and with E at a third. 3 Further suppose that C, D, and E would each submit bids at all three locations if they could, but are presently limited to bidding at a single location by the facilities’ policy of using selected bidders’ lists. Under the majority’s analysis, each of these instances of bid-rigging is necessarily the object of a separate conspiracy to restrain trade, as C, D, and E do not compete with one another for contracts. This is so even if the three facilities are situated in the same city. Thus, under the majority’s view, contractors A and B could be indicted three times, once for their activities at each of the three plants. Yet, on the hypothesized facts, it is clear that the continuing cooperation of A and B is essential to successful bid-rigging at all three locations. If a dispute arises between A and B at the first location, which results in a rupture in their conspiratorial *1137 relationship, that rupture will cause them to cease rigging bids at the second and third locations as well. Thus, the effects of any disagreement or lack of trust between A and B will be felt by their three co-conspirators, regardless of whether the dispute arises out of bid-rigging at only one facility. Because this is so, although C, D, and E do not rig bids at all three plants, each has an interest in and will encourage bid-rigging at each location. This shared purpose that bid-rigging shall occur at all three plants is even stronger if C, D, and E have reason to believe that changes in the selected bidders’ lists may result in their becoming eligible to bid at each facility. In my view, if the bid-rigging at the various plants is the purpose and result of a single agreement among the five contractors, the existence of selected bidders’ lists does not preclude the conclusion that there is a single conspiracy to restrain trade both under section one of the Sherman Act and under the double jeopardy clause. The hypothetical fact pattern set forth above fairly describes the situation presented by the record in the case at hand. While it may be true that neither Lord nor Sargent competed for contracts at the Gulf Oil refinery, both of them submitted bids at the Western Pennsylvania Works and at Fairless Hills, and thus competed with a number of other bidders at the latter two locations. Likewise, although Pangborne did not compete for bids at the Western Pennsylvania plants (its parent corporation, Fischbach & Moore, Inc., did, however), it competed at Gulf Oil and at Fairless Hills. In short, there was considerable overlap among the bidders competing for projects at the three locations specified in the indictments here, as well as among the bidders competing for jobs at all of the facilities that the district court found were within the scope of the bid-rigging conspiracy. As a consequence, Lord and Sargent had an interest in the continued successful rigging of bids and in the cooperation of competitors at Gulf Oil despite their lack of participation at that location. This was so because if the conspirators at Gulf Oil were unable to rely upon one another to rig bids at that location, they would inevitably withdraw from the bid-rigging at other locations where Lord and Sargent did compete. Indeed, the district court found that two incidents occurred which showed that suspicions regarding the reliability of one conspirator at one location would affect the viability of the conspiracy at other locations. In one instance, Sargent inadvertently underbid the designated low bidder for a job at Fairless Hills. As a result, a meeting was immediately held to resolve the matter and to determine whether Sargent could still be “counted in.” The district court found that “[t]he parties recognized that if Sargent could no longer be trusted, agreements could not be reached on any contract Sargent was a party to, both at the Fairless works and at the Western Pa. works.” App. at 192-93 (emphasis added). The district court thus found that, before bid-rigging could continue at any location at which Sargent was a bidder, Sargent’s co-conspirators had to be reassured of its reliability. If bid-rigging had ceased at both Fairless Hills and the Western Pennsylvania plants because of Sargent’s lapse, even contractors not qualified to bid at Fairless Hills, where the incident occurred, would have been affected adversely. The second indication of reciprocity that the district court found to have taken place involved an occurrence when Tri-City Electric Company, a contractor who bid at Fair-less Hills and the Western Pennsylvania Works, was denied the position of designated low bidder for a project at one location, and in response, withdrew from the bid-rigging at both locations. Again, the relations of the conspirators at one plant affected those at the other plants, regardless of whether they were qualified to bid at the first plant. On these facts, the district court could reasonably have found, as it did, that the bid-rigging practiced at the various locations was interdependent, and that the success of each instance of bid-rigging depended to some extent upon the success of the bid-rigging elsewhere. Thus, although all the conspirators did not *1138 directly compete with one another for each job at each location, the district court reasonably determined that they all did share a common, continuing objective to rig bids, and that each was benefited by the continued successful rigging of bids, at all locations. Furthermore, the district court found that, despite the target companies’ policy of maintaining selected bidders’ lists, all conspirators were potential competitors. It reasoned that the contractors “were all available and capable of being added to the bid list at each facility,” and that if “added to the list, they would then [have been] eligible to bid for jobs.” App. at 194. Judge Gibbons rejects this finding, stating that there was no potential for competition where an unqualified bidder could not “by some action within its own control or the control of the other alleged conspirators” have its name placed on a selected bidders’ list. Ante at 1129. The linchpin of Judge Gibbons’ reasoning is that because inclusion on the bidders’ lists was controlled by the target corporations rather than by the conspirators, a finding that the conspirators were potential competitors is foreclosed as a matter of law or is clearly erroneous. There was evidence that the make-up of the lists fluctuated over the period of the conspiracy. These variations in the bidders’ lists raised the possibility that contractors who had been excluded from the bidding at a given location might be added to the list, and thereby become qualified to bid. Under these circumstances, a conspirator could be said to be a potential competitor at all locations at which it was physically able to provide its services. Cf. Ashland-Warren, 537 F.Supp. at 443 . And, perhaps more importantly, each conspirator would have an additional purpose in encouraging continued bid-rigging at all locations because of the possibility that a change in the bidders’ list of one of the target companies might make the contractor eligible to bid, and thus to rig bids, at that target’s facility- B. Because I disagree with Judge Gibbons’ conclusion that the district court’s finding of a single conspiracy was reached under an erroneous application of principles of antitrust law, it remains to address the question whether the district court improperly concluded that the evidence established a violation of defendants’ double jeopardy rights. As Judge Gibbons concedes, since defendants made a nonfrivolous showing that their double jeopardy rights were infringed by the indictment at issue, the government bore the burden of proving by a preponderance of the evidence that the indictment was not based upon the same offense for which defendants had already been indicted and sentenced. See United States v. Felton, 753 F.2d 276, 278 (3d Cir.1985); United States v. Inmon, 568 F.2d 326, 332 (3d Cir.1977) {Inmon I). It is also conceded that we may reject the district court’s findings of historical fact only if clearly erroneous, and that we must affirm the district court’s finding of a single conspiracy unless the “inference of a single conspiracy was on this record clearly erroneous as a matter of fact or legally impermissible.” Ante at 1126; see Felton, 753 F.2d at 278 ; Inmon I, 568 F.2d at 332 . This Court has adopted the “same evidence” test for assessing double jeopardy claims. See United States v. Young, 503 F.2d 1072, 1076 (3d Cir.1974). Under this test, a second indictment for an offense violates the double jeopardy clause “only when the evidence required to support a conviction upon [the offense] would have been sufficient to warrant a conviction upon” a prior indictment. Id. at 1075 (quoting United States v. Pacelli, 470 F.2d 67, 72 (2d Cir.1972)). However, Young cautioned that application of the same evidence test “must be tempered ... with the consideration that a single conspiracy may not be subdivided arbitrarily for the purposes of prosecution.” Id. As we explained there, “[different alleged overt acts are not necessarily inconsistent with an improper division of a single conspiracy into multiple crimes. It is the agreement *1139 which constitutes the crime, not the overt acts.” Id. at 1076. See also Felton, 753 F.2d at 278 . Other courts, noting the difficulties of applying the same evidence test in assessing claims that a second indictment on a charge of conspiracy violates the double jeopardy clause, have adopted a “totality of the circumstances” standard. See, e.g., Korfant, 771 F.2d at 662 ; United States v. Thomas, 759 F.2d 659, 661-62 (8th Cir.1985); United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir.1983); cert. denied, — U.S. -, 105 S.Ct. 86 , 83 L.Ed.2d 33 (1984); United States v. Castro, 629 F.2d 456, 461 (7th Cir.1980); United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978). Under the totality of the circumstances approach, a court will consider the degree of overlap between the two charged conspiracies in the following factors: (1) the criminal offenses charged in the successive indictments; (2) the participants; (3) the time periods involved; (4) similarity of operation; (5) the overt acts alleged; (6) the geographic scope of the alleged conspiracies or locations where overt acts occurred; and (7) the objectives of the alleged conspiracies. Additionally, it will look to whether any other signs of interdependence between the two charged conspiracies exist. See Korfant, 771 F.2d at 662 ; Thomas, 759 F.2d at 661-62 . The ultimate question under the totality of the circumstances approach, as under the same evidence test, is “whether there [was] more than one agreement.” Sinito, 723 F.2d at 1256 . See also Beachner Construction Co., 729 F.2d at 1281 (bid-rigging case); Braverman v. United States, 317 U.S. 49, 53 , 63 S.Ct. 99, 101 , 87 L.Ed. 23 (1942) (“The gist of the crime of conspiracy is the agreement.”); Young, 503 F.2d at 1076 . Although this Court has thus far declined expressly to adopt the totality of the circumstances approach, Felton, 753 F.2d at 281 , it has followed that approach in practice, see id. at 278-81 ; United States v. Inmon, 594 F.2d 352, 353-54 (3d Cir.), cert. denied, 444 U.S. 859 , 100 S.Ct. 121 , 62 L.Ed.2d 79 (1979) (Inmon II). And it would appear that consideration of all relevant facts is necessary to a determination whether two charged offenses are “in law and in fact the same offense.” Young, 503 F.2d at 1075 (citing United States v. Ewell, 383 U.S. 116, 124-25 , 86 S.Ct. 773, 778 , 15 L.Ed.2d 627 (1966)). I therefore believe that the district court properly considered-all relevant circumstances in determining that the government had failed to carry its burden of establishing by a preponderance of the evidence that the Fairless Hills bid-rigging and that conducted at Gulf Oil and in Western Pennsylvania were the subjects of separate conspiracies rather than one over-arching conspiracy. As the district court observed, the time spans of the three bid-rigging schemes charged overlapped “for a substantial part of the period between 1971 and 1981,” and “[t]he arrangements at each facility ended at approximately the same time.” App. at 187. It also found that, to the extent that the arrangements at each facility ended at different times, they did so because work was drying up at the different locations at different times, an event over which the conspirators had no control. Thus, any variance in the termination dates of the bid-rigging at the different plants did not indicate a lack of interdependence among the arrangements. The district court further noted that the participants at the different facilities overlapped substantially. The overlap is even more extensive when one considers Fischbach & Moore and Pangborne, its subsidiary, as one participant. 4 The court dismissed the government’s argument that not all participants were active in every area of the conspiracy and that not all participants knew each other by correctly pointing out that members of a conspiracy need not know or have direct contact with *1140 each other. App. at 188; Blumenthal v. United States, 332 U.S. 539, 550 , 68 S.Ct. 248, 253 , 92 L.Ed. 154 (1947); United States v. Consolidated Packaging Corp., 575 F.2d 117, 127 (7th Cir.1978). It stated that: In accordance with the operating agreement in place here, there was no need to inform every member about every action taken in furtherance of the conspiracy. The only time it was necessary for a contractor to know of bid rigging activities on a particular project was when it was on the bid list for that project. A single conspiracy may be made up of a small group of core conspirators who interact with different sub groups at different times to achieve an overall plan. United States v. Boyd, 595 F.2d 120 (3d Cir.1978). This is what occurred here. The core group, made up of Sargent Electric, Lord Electric, Foley, Ortlip and Fischback [sic] and Moore with its subsidiary Pangborne, conspired together and with different sub groups to eliminate competitive bidding in each location at which members of the conspiracy bid. The agreement was not limited to the Fairless works or the Western Pa. works or the Gulf refinery, it extended to every facility where bidders on a project were members of the conspiracy. Whenever a new bidder was added at a facility, the contractor simply plugged into that aspect of the conspiracy. App. at 189. Judge Gibbons’ opinion states that it is “undisputed ... that the Foley Co. did not rig bids at Western Works or at Lukens Steel while it participated in bid-rigging at Gulf’s Philadelphia refinery and at Fairless Hills,” and that “while Lord rigged bids at Western Works and at Fairless Hills, it did not do so at Lukens Steel.” Ante at 1130. The first of these assertions is clearly disputed: as the government concedes, and the record indicates, the Foley Company did rig bids at the Western Pennsylvania facilities. See Brief for Appellant at 6 n. 11. Furthermore, although it is true that Foley did not rig bids on the intermittent occasions when it was invited to submit bids at Lukens Steel, the district court explained that there was no evidence that the bid-rigging had spread to the Lukens Steel plant at the time Foley bid competitively. App. at 191. As for Lord’s nonparticipation at Lukens Steel, Lord only bid at that facility once or twice in the early 1970’s, both times through a general contractor, and there is no evidence as to the identities of the other bidders on those occasions. App. at 925, 1003. Again, in the face of Lord’s admitted participation in the bid-rigging at Fair-less Hills and the Western Pennsylvania facilities, where it was regularly included on the bidders’ lists, its failure to rig one or two bids, submitted through a general contractor, at Lukens Steel is not sufficient to satisfy the government’s burden of proof. Judge Gibbons also stresses that separate records were kept of the allocation of jobs at each facility, and that the meetings at which the designated low bidders were chosen were held at a different location for each facility. But as the district court explained, these were merely adaptations of the common practice which were necessitated by the individual characteristics of the different target companies. Only Gulf Oil consistently used the same list of selected bidders, so only there could a regular rotation be used to allocate jobs. At the other facilities, the conspirators tried to apportion the work fairly “based upon the value of the contract and who had been awarded the previous contracts, with a variation in the order of rotation available ‘if someone needed the work.’ ” App. at 174. And surely the fact that the meetings to allocate jobs were held at locations convenient to the area participants is of little help to the government in establishing the existence of multiple conspiracies. In short, on this record the district court reasonably could have concluded that there was a single bid-rigging conspiracy that encompassed the activities at Fairless Hills, which underlie the indictment at issue, and the activities at the Western Pennsylvania facilities and Gulf Oil, for which defendants have already been sentenced. Judge Stapleton in his concurring opinion concludes that “the district court’s finding *1141 of an overarching conspiracy is clearly erroneous.” Ante at 1132. He argues that the record “either strongly favors or is consistent with a finding of multiple conspiracies,” id., and that the facts relied upon by the trial court “do not provide unambiguous evidence of an overarching conspiracy.” Id. at 1133. I do not disagree that the record might support an inference that multiple conspiracies existed. That, however, is beside the point. The government bore the burden of proving the existence of multiple conspiracies, and thus the absence of a double jeopardy violation, by a preponderance of the evidence. See Felton, 753 F.2d at 278 ; Inmon I, 568 F.2d at 332 . Where the record might reasonably support either the inference of multiple conspiracies or the inference of a single conspiracy, and the government had the burden of proving individual and separate conspiracies, it cannot be said that the district court was clearly erroneous in concluding that the burden was not sustained. The district court, sitting as the finder of fact, concluded after a full hearing at which witnesses testified regarding the nature of the conspiracy, that defendants’ activities were carried on pursuant to a single all-encompassing conspiracy. As the Supreme Court has recently emphasized, If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, — U.S.-, 105 S.Ct. 1504, 1512 , 84 L.Ed.2d 518 (1985). The district court’s view of the evidence clearly is a plausible one. Furthermore, it is especially inappropriate to disturb the district court’s finding where, as here, that finding is consonant with protection of defendants’ constitutional rights. I would therefore hold that the district court did not err in dismissing the indictment on the ground that it infringed defendants, double jeopardy rights. m. It is essential to emphasize that this is a case of constitutional dimensions. The policies underlying the double jeopardy clause are fundamental to our system of justice. As the Supreme Court has declared, “[Wjhen a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense.” Wilson, 420 U.S. at 343 , 95 S.Ct. at 1021 . In the present ease, each of the defendants has already been indicted and sentenced for participating in virtually identical criminal activities to those charged in the indictment that initiated this prosecution. I would hold that principles of fairness and finality militate against allowing defendants to be placed in jeopardy a second time. Because I believe that the antitrust principles applied in the opinion announcing the judgment of the Court are not applicable in this case, and disagree as to the evaluation of the evidence and the weight to be assigned to certain portions of the evidence, I would affirm the district court order dismissing the indictment. . These facilities included the Lukens Steel plant in Coatesville, the Sun Oil Company plant in Marcus Hook, and the Atlantic Richfield refinery in Philadelphia. . In cases involving per se violations of section one of the Sherman Act, such as bid-rigging, a determination of market power is deemed unnecessary, see, e.g., United States v. Socony-Vacuum Co., 310 U.S. 150 , 60 S.Ct. 811 , 84 L.Ed. 1129 (1940); Fischbach & Moore, Inc., 750 F.2d at 1192 , as it is presumed that such pernicious practices have an adverse impact on competition. Indeed, in Socony-Vacuum, the Supreme Court stated that to establish a violation of section one in a per se case, the prosecution need show no more than a purpose to engage in the illegal practice, and that it is unnecessary to establish either the commission of an overt act or "that the conspirators had the means available for accomplishment of their objective____” Id. at 225 n. 59, 60 S.Ct. at 846 n. 59. Thus, while in a case subject to the rule of reason an identification of the relevant market might be useful in determining the scope of an anticompetitive conspiracy for double jeopardy purposes, that is not the situation here. . The hypothesized facts may be visualized thus: Facility One A B C Facility Two A B D Facility Three A B E . The Supreme Court recently held that "the coordinated activity of a parent and its wholly owned subsidiary must be viewed as that of a single enterprise for purposes of § 1 of the Sherman Act.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 , 104 S.Ct. 2731, 2742 , 81 L.Ed.2d 628 (1984). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474615. Public record. Not legal advice.