Petitioners Reply Brief — National Dairy Products Corp. v. United States

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OocrosER TEM,‘ 1965

N ATIONAL DAIRY PRODUCTS CORPORATION,

Petitioner,

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UNITED STATES OF AMERICA ‘

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ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ZIGHTH CIRCUIT

REPLY BRIEF FOR PETITIONER

Chicago, Illinois: e060e

Of Coninsel:

Cuapwe., Knox, KAvarr, 4

Rueeizs & McLaren :

1701 Bryant Building

Diet, Kansas City, Missouri 64106

: Attorneys for Petitioner —

Of Counsel: Pee

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INDEX

PAGE | f

QUESTION 1 .

The Government’s Use of Grand Jury Transcript -, -

for Witness Refreshment ............cccccccsecs 1

QUESTION 2 | :

The Trial Court’s Instructions to the Jury on the - — oo 7

Robinson-Patman Charges ...................2.. 7

CONCLUSION ........... feu bexeoe ery cere 9

CrTaTIONS

Pittsburgh Plate Glass Co. v. United States, 360 U. Ss.

eo vbr x 0h es 0.05 6 CHER ERE EES OES a es 1, 2,6:

United States v. H. E. Koontz Seabee) kia et al.,

(D.Md., Cr. No. 26218, Transcript of Hearing, J uly

13, 1965) Lebinh una SeAO EDGR CANCE LORAO RO Haake 4

United States v. National ne Prediias Corporation,

Se EE 6 od sah we cineca dcdneienccedba 8

United- States v. Procter & Gamble Co., 356 US. 677

(1958) PRs sp eeb Viewed ao neh ea Si cbewbeesrvrnsgs 12,6 .

United States v. Socony- Vacuum Ou Co., 310 U.S. 150 :

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No. 758

“IN THE

Supreme Court of the United States

OcToBER Ter, ‘1965

N —— AL a PRODUCTS CORPORATION,

Petitioner, |

:‘V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI ‘TO THE UNITED —

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR PETITIONER -

QUESTION. 1

The Government's Use of Grand J ury

Transcript for Witness Refreshment —

' The Brief for the United States in Opposition? fails en-.

tirely to meet or even to discuss petitioner’s fundamental

position and authorities, that a particularized need for

limited disclosure to the defense arises when grand jury

transcript is used by the prosecution “‘to impeach a wit-

ness, to refresh his recollection, to test his credibility and — |

the like’.” Pittsburgh Plate Glass Co. v. United States, 360

U.S. 395, 399 (1959) (emphasis added); United States. v.

Procter '& Gamble Co., 356 U.S. 677, 683 (1958). (See

Pet. 10-13).

Le | Hereinaftei bt “GB. itp The. Petition for a Writ of |

Certiorari i is ai “Pet.

The Government: admits that when the prosecution uses

grand jury transcript for purposes of refreshing a witness’

recollection, “defendants have an interest in assuring that

testimony developed through its use is not distorted, inac-

curate, or the product of improper suggestion. A witness’

grand jury testimony may: contain passages which contra-

dict, qualify, or ‘explain the passages relied upon by the

government” (GB 12). Notwithstanding this admission,

and despite the above-quoted statement of principles in

Pittsburgh Plate Glass and Procter € Gamble, the Govern-

ment takes the position that petitioner was not entitled to

limited disclosure of grand jury transcript utilized for

refreshment because (1) the requested disclosure involved

a “blanket motion for examination of the transcript” (GB-

11) ; (2) the court prescribed and carefully observed certain

“safeguards” for the refreshment procedure followed; and

_ (3) the grand jury refreshment procedure involved matters

of little importance and the defense was not prejudiced.

1. In its version of the first question presented in this

matter (GB 2), and in other instances in its opposing brief .

(GB 11-14), the Governnfent implies that the defense made

_ a general, over-broad demand to inspect the grand jury

‘transcripts used for witness refreshment. In fact,.in each

instance, the defense carefully limited its request for dis-

closure to (1) the-portions of the transcript actually read —

to a particular witness, and (2) additional portions of the

testimony of the same witness on the same subject matter

(see. Pet. A-102-103).? Furthermore, contrary to the impli-

cation that petitioner wanted to conduct a wholesale

“search” through the grand jury transcript (see GB 12-13), -

defense counsel even Went. so far as to offer to accept

2. The defense made similar motions, similarly limited, when-

ever the gfand jury -transcript refres "38 | procedure was used

(see Pet. — 102-104, 120- 21; 127, 157-58, |173} 174-175, 177- 79).

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_Government counsel’s designation of- other testimony of

the witness covering the:same subject matter as that dis-

closed during the refreshment, without further review by

the-court or defense counsel to ascertain that this was in

fact all that was said on’ the subject. . .

2. The refreshment procedure adopted by the court as

a “safeguard” to petitioner’s interests simply involved the

trial judge’s reviewing designated portions of the tran-

script to make sure that the designated material was calcu-

lated to refresh the witness’ recollection; that the statement

- was not later corrected; and that Government counsel read

the designated portions of the transcript accurately and

without histrionics (see GB 10-11). There is no indication

that the trial judge undertook to analyze the other portions.

of the witnesses’ testimony on the same subject matter to

determine if they explained or qualified, or were incon-

sistent with, the testimony utilized by the prosecution,

Indeed, in two instances cited in our petition (p. 13, n. 25),

it is clear that the trial judge did not adequately protect

petitioner’ s rights.

_ But even if the trial ‘dint had wiidestelion “ analyze

the grarid jury testimony of witnesses who were refreshed

- in a search for explanatory or qualifying material, this

- would not adequately protect petitioner’s rights. Only

counsel for the. defense is equipped to ——— this task

(see Pet. 12).

In-any event, the rights of a defendant in this regard - i

should not be dependent upon the circuit in which he is

brought to trial, or the particular trial judge presiding.

3. The defense pore its willingness “to accept Mr. Jinkinson’s

{chief counsel for the prosecution] representation to the Court to

save the Court the burden of going through the a mang that

. thfs is all the man said on, the subject .). . z (R. 427). |

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fn the present case, the trial judge not only denied defense

‘ motions for limited disclosure but questioned his right to

* compel the requested disclosure of appropriate portions

of the grand jury transcript (see Pet. 10,n.19). In marked

contrast, Judge R. Dorsey Watkins of the United States

District Court for the District of Maryland, under precisely

similar circumstances in United States v. H. E.. Koontz .

Creamery, Inc. (Cr. No. 26128), granted defense requests

for limited disclosure of grand jury transcript, stating to

Government counsel: “[E]f you use the testimony, then

the other side has the right to examine any [relevant] por-

' tions. . . . [The witness] may have made one statement

at one time and then lie may have had a different refresh-

; ment which led him to a different conclusion . . . it would

seem to me that if you use it for the purpose ‘of seeking

4e have him testify along the particular line; then the other

side is entitled to examine any portions of the testimony

bearing upon the same thing.”

The restrictive holding by the — of Appeals for the .

+ ‘Eighth Circuit on this point is entirely inconsistent with

- . the more liberal’ disclosure rules followed in other circuits

STEN ey ~_ amtecomee es

(see Pet. 12, n. 23). The very fact that conflicting rules are

followed in the federal circuits and among different dis-

trict judges with regard to disclosure of grand j jury trans-

cript utilized for witness refreshment .provides strong

reason for the grant of certiorari in this case. A ruling by.

“4. In response to the Government’s argument that an effort

would be made only to elicit present recollection on a particular

point, Judge Watkins stated: “But his present recollection may - Pe

change to something else,two minutes later if he is shown something

further. His present recollection does not establish the fact..

there may have been some question asked him later on which will

lead him: to a different present recollection.” (Transcript of Hear-

ing, wad 13, 1965, Hp! 433-35). |

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hi Court on the subject is ‘necessary for tniformity. in

administration of ‘criminal justice.

3. It ill becomes the Government ‘now = ani argue that 3

the grand jury refreshment procedure below involved evi-

‘dence which was merely “cumulative or peripheral” (GB

15). In the trial court and in the ‘Court of Appeals the

Government. urged that matters as to which grand jury

transcript was used for refreshment involved “salient

points” which were “critical” to its case (Pet. 14). More- .

over, elsewhere in its Brief in Opposition in. this Court, the

Government has indicated that it was under a “compelling

need to use the grand jury minutes” for refreshment *(GB

12). And it admitted that the grand jury minutes actually

refreshed witnesses’ recollections on three occasions, and .

that on six: occasions the witnesses, although not being re-

freshed, adopted what they had said before the grand’

jury (G.B. 15).° It could hardly be clearer that in these

instances petitioner was deprived not only of the privilege

of further refreshment of these witnesses’ recollections

but of its basic right of cross or ie examination upon

_ points which, precisely because critical to the prosecution,

-were of the utmost importance to/the defense; this right

could be effectively exercised only after inspection al the

_ grand jury transcript covering . these points.

The basic authority relied upon by the Government i is the .

1940 decision aig this Court in United States v. -Socony-

5. The Government’s statement that in 15 instances where read-

ing of the grand jury transcript did not refresh the witness’ recol-

lection, “the matter was at an end” (GB 15), is contrary to the

record facts. In many instances where the witness indicated that

his recollection was not* refreshed, Government counsel: repeated

the reading of the refreshment material and questioned the witness

again and again on the point, coming very -close to impeachment

( Pet. 16, i 28¢ see bso Het. {A we a Wg -96, 100-102): bi |

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matter since it involved refreshment only on “minor facts”

and testimony which was “either cumulative or dealt only

with the minutiae of the conspiracy” (Pet. 14).° In a foot-

note (GB 14, n. 5) the Government suggests that petitioner

“does not ‘ask that Socony-Vacuum be re-examined.” Be- .-

cause it is distinguishable on its facts, such re-examination

appears unnecessary. However, to the extent that the hold-

ing or the philosophy of Socony-Vacuum may be in: conflict

with the principles more recently set forth in Pittsburgh

Plate Glass and Procter & Gamble, then Socony-Vacuum

should be re-examined, and this is an additional reason

for the grant of certiorari herein.”

6. Making no claim at all that the procedure utilized here was a

fair one, the Government urges the need. for maintaining the secrecy

of grand jury proceedings in order that it may obtain willing wit-

nesses (GB 12). This is a lame argument. Once partial disclosure

has been made—at the Government’s own election—there can be

little, if any, difference in the degree of reluctance. to testify if this

and other.testimony concerning the same subject matter is there-

after inspected by defense counsel. |

7..Under the heading “The Evidence” in its statement of the

case (GB 3-7) the, Government set forth what is little more than -

a paraphrase -of the indictment allegations ‘and: the. Government's

bills of particulars, entirely ignoring the substantial evidence that

‘dairies distributing milk in glass gallon jugs were the aggressors

in the sporadic price wars here in question, and’ that petitioner's

conduct was defensive rather than predatory, and independent

rather than conspiratorial. As the Court of Appeals noted (Pet.

A-2), the jury deliberated for nearly 3 days before reaching a

verdict in this case. We urge that the one-sided grand jury refresh-

Ment procedure may well have swung the balance against petitioner

on the 13 counts under which it was féund guilty.

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Vacuum Oil Co., 310 U.S. 150 ( 1940). In oupetition, we *

have shown that th#® case has no application to the present

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QUESTION 2

The Trial Court’s Instructions to the J ury

on the Robinson-Patman ‘Charges

‘In its Brief. in Opposition, the Government makes no

effort to deny or explain its admission in the Court of

Appeals that the trial judge erred in his.instructions to the |

jury concerning “cost” (see Pet. 19). Neither does it make

any explanation as to why—having assured this Court on .

the constitutionality appeal that the present indictment

charged petitioner with selling at prices below its “own

costs. of production”—it urged upon the trial court and the

Court of Appeals that it was sufficient for it to prove sales -

at prices below “fully distributed costs” (tbid).

On the question of the trial court’s charge to the jury on

intent, the Government does not deny that the jury was

instructed in terms of “general” intent under the S§erman .

Act counts, and it is unable to-cite a single instance where

’ the trial court informed the jury that a different character -

of proof was required to establish “specific” intent undér

the Robinson-Patman Act counts. In fact, the trial court

instructed but once on how the jury was to determine intent

(“. .. the law presumes that persons must be helfl to have

— the necessary and direct consequen of their

-acts .. .”—Pet. A-201, n.). The instruction | a work- -

~ man causing a death by throwing a beam down into the

street “is dealt with as if he foresaw it,” and “is guilty of

murder” clearly carried the presumed intent concept ‘into

the Robinson-Patman counts (see Pet. A-201), and the trial

judge’s repeated calling of the jury’s attention: to the

' alleged “effects” of petitioner’s pricing (see Pet. A-204-07)

could only heighten the jury’s impression that the requisite

_ imprgper intent could be presumed therefrom.

In arguing that the defense has “the burden of = teat ;

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forward with evidence on meeting competition” and that

the Government need not “negative . . . possible justifica-

tions” (GB 19), Government counsel repadiate: entirely the

earlier Tepresentations to this Court that petitioner was

~ charged with selling “at less than [its] own costs, without

reasonable justification,” and “[uJ]nless the government

proves this misconduct there must be an acquittal. me

In short, the specious arguments now made by the Gov- |

- ernment in defense of the trial judge’s prolix and confusing

instructions are a'far cry from the unqualified representa-

tions concerning the precise elements of the crime charged

against petitioner which the Goverriment made to this

‘Court in support of Section’3’s constitutionality. Although

‘ this Court upheld the constitutionality of Section 3 as

applied to the specifically limited charges of. the. present

indictment (see Pet. 5-6), the trial judge’s jury instructions |

permitted conviction of petitioner without proof of either

the “below cost” or “specific intent” elements of those

charges: the jury was instructed that its “ultimate duty”

—— to determine’ whether petitioner’s challenged prices

“were or were not unreasonably low” (Pet. A-200). The

Court of Appeals for the Eighth Circuit, upholding the

trial judge’s instructions, thereafter adopted a: non-objec-

tive interpretation of Section-3 which is not only of ques- .

_ tionable constitutionality, but broadly departs from the

standards laid down by this Court for this case in United

States v. National sical Products Corporation, (372 US. 29

(1963).°

The result is that present guidelines for Section 3—for

the district courts as well as for businessmen—are conflict-

8. Government Brief on Reargument, United States v. National

Dairy Products Corporation, No. 18, 1962 Term, p. 18 (emphasis

added). See also Pet. 24, n. 50.

9. See Pet. 6-8,20. ~

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ing and 4 highly confused. Having. general ssiptioetion to'the

subject of pricing, Section 3 bears directly upon the national

economy, and itS scope and meaning are of the utmost

importance. A pronouncement by this Court clarifying the |

. standards governing its application is essential.

2 CONCLUSION

For all the reasons hereinabove set forth and in ‘

earlier petition, the petition for a writ of certiorari should

be granted.

. Respectfully submitted, Mee

Joun T. CHADWELL

Ricnarp W. McLaren |

135 South LaSalle Street

Chicago, Illinois 60603

o

Of Counsel:

" CHapweL, Keck, Kayser,

Rueeres & McLaren ,

Martin . PURCELL;

1701 Bryant Building

Kansas City, Missouri 64106 |

Attorneys for Petitioner

Of Counsel: ? |

- Monuitsox, HECKER, Cozap

& Morrison

Dated: March 1966