Appendix — Hutto v. Finney

Supreme Court brief1979

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APPENDIX

Volume I, Pages 1-530

Gn the Supreme Court of the United States

Octroser Term, 1977

No. 76-1540

Uwnrtep States oF AMERICA, PETITIONER

Unrrep Srerts Gresum Company, rr AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

PETITION FOR CERTIORARI FILED MAY 9, 1977

CERTIORARI GRANTED OCTOBER 3, 1977

— — AD Ei NE ee — -

Motion for post trial interview......:...............

2 2238288 828882883881

Direct examination

Malcom Meyer:

Claude Huckleberry: Direct examination.........

Dhemwetien .....cccccccccccesssccesseeseeseeee

Excerpts from trial transeript—Continued

Arnold L. E. Meyer: *

Direct examination 531

D 560

Re-direct examination..................... 585

Oliver Eugene Burch: Re-cross examination 566

Robert Sikes:

Direct examination....................... 570

Cross examination 581

Re-direct examination.............. 587

Kenneth Atwell:

Direct examination........................ 50

EEE 626

EE SESE 634

Cross examination (resumed 638

Re-direct examination 651

Re-cross examination: 660

Ear! Kroth:

Direct examination 660

EEE 673

Re-direct examination 676

O. Max :

Direct examination........................ 678

Cross examination........................ 681

Charles D. Webster:

Direct examination 8

eee 692

Re-direct examination 90

Re-cross enanunatioon 702

Re-direct examination: 702

Loren Olsen:

Direct examination........................ 708

Cros, emamination........................ 707

Warren Cecil:

Direct examination...................... 708

Cross examination........................ 714

John T. Nelson: Direct examination... ss. 718

Iv v

Warren E. Hill, Jr.: Pes

Direct examination................. 6.665. 726

Cross enamin ation 728

Re-direct examination. ................6... 731

John William Hoffman: Direct examination...... 731

Marshal! Goddard

11111 . . «scccsenkd cbecdeoee 733

Cross examination. .................0ee05. 743

James F. Van Cleave: .

Direct examination...................«65. 746 |

111 , ..« o's 6sestnbesebivce. 74

Re~<ross examination..................... 759

Edward Pappert: Cross examination............ 760

Frederick A. Wagner:

Direct examination. ........ ~~. «666s enue. 761

GS eee. eee és ese ee 768

Richard Lawrence Downing: Direct examination 772

Dee eee ee eee eee ebe 773

Direct examination (resumed).............. 777

Cross examination. n 786

Re-direct examination..................... 797

Richard Alan Miller:

Direct examination............ ©... 6. ssc uu 799

Cross examination.............. 6.66. .e65- SOU

Dessen eG e 810

Re-direct ennmin ation 812

Wayne Tamblyn:

Direct examination........... ©. ©... 66s nnn 815

Cross examination............. « «6. seees 817

Re-direct examination..................... 819

Sanford B. Kellogg:

Direct examination............ ©... 66.665. 819

Cross examination............ ©... 66. seus. A

Homer D. Jarrett

Direct eramin ation 824

Cross examination. ...... ... ©. 666 sc ew nnn 835

Doris Anderson: Direct examination............ 836

Eric Fellinger: Direct examination.............. 1225

Gilbert M. Miller: Direct examination........... 1232

Richard Thompson

OCP 66 60650 1242

ee 1272

Re-divect eunminmation..................-.. 1286

Re-cross examination...................... 1290

Jerry Fisch: Direct examination................. 1291

Marshall Goddard: Direct examination 1300

Richard M. Cyert:

rere eee eee 1204

, ̃ A 1350

Re-direct examination 1378

Edward W. Duffy:

Direct examination 1384

IFES aE POOP EE Te 1406

Andrew J. Watt:

Z 1412

eee 1440

J. P. Nicely:

rr eee 1504

JI 1534

Re-direct enami nation 1561

Colon Brown:

rr sbecseedeceseeue 1563

Z 1594

Richard Alan Miller:

el 1601

Cross enamin sation 1608

eee esedessedeousases 1607

Prosecution closing argument 1624

— — “=

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Questions submitted by jury during deliberations

Court of Appeals order of September 16, 1975.........

Conversation between the court and the foreman

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[Pages 1971-2240 have been omitted from the appendix]

TRIAL EXHIBITS

Government exhibits:

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Government exhibits—Continued

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Government exhibits—Continued

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XII

Government exhibits—Continued

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XIII

Defendants’ exhibits:

U.S. Gypsum: **

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Defendants’ exhibits—Continued

U.S. Gypsum—Continued

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Defendants’ exhibits—Continued

National Gypsum—Continued

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DX (NG) 271

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XVI

Defendants’ exhibits—-Continued

National Gypsum—Continued Page

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— 3 a —

XVII

Defendants’ exhibits—Continued

National Gypsum—Continued

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Defendants exhibits—Continued

Georgia - PacifieContinued —

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XIX

Defendants’ exhibits—Continued

Georgia-Pacifice—Continued a

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Defendants’ exhibits—Continued Defendants’ exhibits—Continued

Georgia-Pacifie—Continued Page Georgia-Pacific—Continued Page

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Defendants’ exhibits—Continued

Celotex—Continued Page

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XXIII

Defendants’ exhibits—Continued

Brown—Continued

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DX (Brown) 25

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DX (Brown) 29

DX (Brown) 30

DX (Brown) 31

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Watt: DX (Watt) 1

Defendants’ joint exhibits:

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XXIV

Defendants’ exhibits—Continued

Defendants’ joint exhibits—Continued on

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Supreme Court’s Order of October 3, 1977, granting

the petition for a writ of certiorari. ......-.....++: 3479

—— 2

— lh te ln

DOCKET ENTRIES

1973. True bill.

1973. Indietment filed.

27, 1973. Request of US Atty for summons—appear by

1/11/74 to file appearance of counsel: U S Gypsum Co,

Natl Gypsum Co, Georgia Pacific Corp, Kaiser Gypsum

Co, Ine, Cellotex Corp, Flintkote Co.

Dec. 27, 1973. Summons issued for above named.

Dec. 27, 1973. Request by US Atty for summons—by 1/11/74.

file appearance of counsel and post $1000 own recog bond

each: Graham J Morgan, Andrew J Watt, Colon Brown,

J P Nicely. William H Hunt, Claude E Harper, Robert A

Costa, William D Herbert, George J Pecaro, James D

Moran.

Dec. 27, 1973. Summons issued for above named.

Dec. 27, 1973. Transcript of proceedings in grand jury return

filed (rep J. Goodworth).

Jan. 2, 1974. Praecipe for appearance for Wm. Hunt by Mal-

colmn Anderson, Esq. & E Narick.

Jan. 7, 1974. Praecipe for appearance for Kaiser Gypsum Co

Ine filed.

Jan. 9, 1974. Praecipe for appearance of Alexander Unkovic

for Flintkote Co, George J Pecaro and James D Moran

filed.

Jan. 9, 1974. $1000 O. R. for George J Pecaro taken in S. Dist of

New York, reed.

Jan. 9, 1974. $1000 O. R. for James D Moran taken in S. Dist.

of N. Y. reed and filed.

Jan 10, 1974. $1000 O.R. bond for William Herbert taken in

Middle Dist Fla and filed.

Jan. 10, 1974. Praecipe for appearance for Georgia Pacific Corp.

Jan. 10, 1974. Praecipe for appearance for Colon Brown and J

P Nicely filed.

Jan. 10, 1974. Praecipe for appearance for National LGypsum

Co filed.

Dec. 27,

Dec. 27

Dec.

(1)

250-346—-77——-1—-Vol. I

— —— 2 ͤ,:.᷑̃] ᷣͤͤ

Jan. 10, 1974. Praecipe for appearance for Celotex and Wm.

D Herbert by Reed, Smith.

Jan. 10, 1974. Praecipe for appearance for National Gypsum

Co by Wm. L Rieth filed.

Jan. 10, 1974. Order ent, after Reed, Smith, Shaw & McClay

ent appearance, directing case be assigned to another judge

for disposition (28, 455) (Marsh, J).

Jan. 11, 1974. $1000 O.R. bond for Graham Morgan taken in

N Dist of Illinois, reed & filed.

Jan. 11, 1974. $1000 O.R. bond for Andrew Watt taken in N.

Dist Illinois, reed & filed.

Jan. 11, 1974. Praecipe for appearance for U S Gypsum Co,

Graham J Morgan and Andrew Watt.

Jan. 14, 1974. $1000 O.R. bond for J P Nicely reed from W.

Dist of N Y and filed.

Jan. 14, 1974. $1000 O.R. bond for Colon Brown red from W.

Dist of N Y and filed.

Jan. 14, 1974. $1000 O. R. bond for Robert A Costa reed from

N Dist Calif and filed.

Jan. 15, 1974. Praecipe for appearance for Robert A Costa

filed.

Jan. 15, 1974. Order ent extending time limit for arraignment

to 1/28/74 (Teitelbaum, J).

Jan. 15, 1974. Notice setting arraignment for 1/28 at 1:30 PM

before Mgstr Sensenich and to be followed by pretrial

conference before Judge Teitelbaum.

Jan. 18, 1974. Praecipe for anpearance for Claude E Harper

filed.

Jan. 21, 1974. $1000 O.R. bond for Claude E Harper taken in

Hawaii recd and filed.

Jan. 23, 1974. Praecipe for appearance for Claude Harper filed

by John Doherty, Esq.

Jan. 24, 1974. Praecipe for appearance for Flintkote Co filed

by Pillsbury, Madison, Sutro.

Jan. 24, 1974. Motion to voluntarily absent himself from ar-

raignment and pretrial set for 1/28 filed by deft Claude E

Harper with consent to permit Atty to enter a Not Guilty

plea and order ent granting motion (Teitelbaum, J).

Jan. 24, 1974. Motion to withdraw appearance of counsel for

Claude E Harper filed by Dickie, McCamey & Chilcote,

Esqrs and Thelen, Marrin, Johnson, Bridges, Esqrs and

order ent granting same (Teitelbaum, J).

;

Jan. 28, 1974. Waiver of removal hearing as to deft Wm. H

Hunt reed from Dist of Oregon.

Jan. 28, 1974. $1000 own recog bond for deft NW. E. Hunt reed

from Dist of Oregon.

Jan. 28, 1974. Motion by cefis for extension of time for filing

motions with proposed order.

Jan. 28, 1974. Summonses ret served on U S Gypsum Co.,

Natl Gypsum Co, Georgia Pacific, Kaiser Gypsum, Cello-

tex Corp, Fiintkote Co, on 12/27/73—by certif mail.

Jan. 28, 1974. Nor Guitty P eas ent before Mgstr Sensenich

as to all 16 defts.

Jan. 28, 1974. Mgstr report of arraignments before Mgstr Sen-

senich filed.

Jan. 28, 1974. Order ent, attached to motion, extending time

to 4/1/74 for filing motions (Teitelbaum, J).

Jan. 28, 1974. Hearing on motion to extend time for filing mo-

tions held before Teitelbaum, J—Memo filed—(rep J

Goodworth) order ent (see 224

Jan. 29, 1974. Summonses ret served on 12/27 by Marshal on

Colon Brown, J. P. Nicely, Claude E Harper, Robert A.

Costa by certified mail.

Jan. 29, 1974. Summonses ret served on 12 27 by Marshal on

Graham J Morgan, George Pecaro, James D Moran by

certified mail.

Feb. 6, 1974. Waiver by deft Robert A Costa regarding conflict

of interest of Attys:

Feb. 6, 1974. Waiver by deft Kaiser Gypsum Co regarding con-

flict of interest of Attys.

Feb. 6, 1974. Consent of deft Robert Costa to proceedings in

his absence with proposed order.

Feb. 7, 1974. Consent of deft. James D. Moran to conduct

proceedings in his absence and proposed order filed.

Feb. 7, 1974. Consent of deft. George J. Pecaro, to conduct

proceedings in his absence and proposed order filed.

Feb. 7, 1974. Praecipe for appearance filed by William C. Miller.

James J. Walsh, Gary H. Anderson and Pillsbury, Madi-

son & Sutro as counsel for George J. Pecaro and James D.

Moran.

Feb. 7, 1974. Waiver of James D. Moran of his right to separate

counsel filed.

Feb. 7, 1974. Waiver of George J. Pecaro of his right to sepa-

rate counsel filed.

Feb. 7, 1974. Waiver of the Flintkote Co. of its right to sepa-

rate counsel filed. me i J,

Feb. 8, 1974. Waiver by U. S. Gypsum Co. regarding its attys

representation of another deft. filed. a 8 .

Feb. 8, 1974. Waiver by Andrew J. Watt regarding his attys

representation of another deft. filed.

Feb. 8, 1974. Waiver by Graham J. Morgan regarding his

attys’ representation of another deft. filed.

Feb. 8, 1974. Consent of Andrew J. Watt to proceedings in

his absence and proposed order filed. 2

Feb. 8, 1974. Consent of oe to proceedings in

his absence and proposed . ;

Feb. 8, 1974. Waiver by deft Wm. D. Herbert regarding his

atty’s representation of another deft. es ;

Feb. 8, 1974. Waiver by deft 2 Corp regarding its attys

representation of another deft.

Feb. 11. 1974. Consent of deft. William H. Hunt to proceed-

ings in his absence and proposed order filed.

Feb. 11, 1974. Waiver of deft Colon Brown of any appeal

rights based on his ec unsel's representation of J P Nicely

filed.

Feb. 11. 1974. Transcript of pretrial conf held 1/28 before

Teitelbaum, J (rep J Goodworth).

Feb. 11, 1974. Order ent directing consent of Robt A Costa

to proceedings in his absence be filed (Teitelbaum, J).

Feb. 11, 1974. Order ent directing consent of James D Moran

to conduct proceedings in his absence be filed (Teitel-

baum. J).

Feb. 11. 1974. Order ent directing consent of deft Georg J

Pecaro to conduct proceedings in his absence be filed

Teitelbaum, J).

Feb. 11. 1974. Order ent directing consent of andrew J Watt

to ings in his absence be filed (Teitelbaum, J).

Feb. 11, 1974. Order ent directing consent of Graham J Morgan

to proceedings in his absence be filed (Teitelbaum, J).

Feb. 11, 1974. Order ent directing consent of Wm. H. Hunt

to proceedings in his absence be filed (Teitelbaum, J).

Feb. 12. 1974. Transcript of proceedings held 1/24 before

Teitelbaum, J (rep J Goodworth). “

Feb. 12. 1974. Transcript of arraignments before Mgstr Sen-

senich on 1/28/74 (rep J. Goodworth).

Feb. 12, 1974. Transcript of hearing on motion for extension of

time to filed motions held before Teitelbaum, J on 1/28/74

(rep J. Goodworth).

Feb. 13, 1974. Written consent of J P Nicely to the conduct

of pretrial proceedings and trial in his absence with pro-

posed order.

Feb. 13, 1974. Waiver of J P Nicely of any appeal rights based

on his counsel's representation of Colon Brown filed.

Feb. 13, 1974. Written consent of deft Colon Brown to the

conduct of pretrial proceedings and trial in his absence

with proposed order.

Feb. 14, 1974. Memorandum order ent directing that no

individual deft need be present during pretrial proceed-

ings; Each indiv deft must be present at impaneling of

jury and when sentence is imposed, sh that become neces-

sary; Should indiv deft request to be absent during trial,

form filed with Clerk will acknowledge his waiver to be

present (Teitelbaum, J).

Feb. 14, 1974. Order ent, attached to consent. directing

consent of Deft J P Nicely to conduct pretrial proceed-

ings and trial in his absence (Teitelbaum, J) be filed.

Feb. 14, 1974. Order ent, attached to consent, directing consent

of Colon Brown to the conduct of pretrial and trial in his

absence be filed (Teitelbaum, J).

Feb. 22, 1974. Summons ret served on 12/27 on Andrew J Watt.

Feb. 22, 1974. Summons ret served on 12 27 on William H

Hunt.

Feb. 22, 1974. Summons ret served on 12/27 on William D

Herbert.

Feb. 28, 1974. Motion for bill of particulars and proposed

order of court filed by defts.

Mar. 13, 1974. Notice setting arg on all pending motions for

3/21 at 2 PM.

Mar. 13, 1974. Defts’ motion for discovery and inspection filed.

Mar. 18, 1974. Motion for bill of particulars filed by Wm. Hunt

with proposed order.

Mar. 21, 1974. Hearing on motion for bill of particulars and

motion for discovery and inspection held before Teitel-

baum, J-CAV-Memo filed (rep Thos Vivaro, for J Good-

worth).

Mar. 21, 1974. Praecipe for appearance for defts Graham J

Morgan and Andrew J Watt filed by Fred H Bartlit, Jr

of Chicago Illinois.

Mar. 21, 1974. Motion for withdrawal of appearance of counsel

filed and order ent granting withdrawal of Charles Price,

Robt Keck, James Hiering, Douglass Rohrman and Price,

Cushman, Keck, Mahin & Cate on behalf of defts Graham

J Morgan and Andrew J Watt (Teitelbaum, J).

Mar. 29. 1974. Joint motions of defts, The Flintkote Co. George

J. Pecaro and James D. Moran to dismiss the indictment

or, in the alternative, to sever and transfer as to them to

the Northern District of California filed.

Apr. 1, 1974. Supplemental motion to dismiss indictment and

proposed order filed by defts. William H. Hunt and Geor-

gia-Pacifie Corp.

Apr. 1, 1974. Motions of defts Robt Costa, Claude Harper, and

Kaiser Gypsum Co to dismiss indictment or to sever and

transfer to the N. Dist of Calif filed with affidavits thereon.

Apr. 1, 1974. Motion to dismiss indictment filed by defts. The

Flintkote Co., George J. Pecaro and James D. Moran.

Apr. 1, 1974. Supplemental motion of defts Morgan and Watt

to dismiss indictment filed.

Apr. 1, 1974. Supple motions for dismiss filed by defts Colon

Brown and J P Nicely.

Apr. 2, 1974. Consent of deft Wm D Herbert to proceedings in

his absence.

Apr. 4. 1974. Transcript of pretrial held before Teitelbaum, J

on 3/21 74 (rep Thomas Vivio).

Apr. 22, 1974. Motion by the prosecution for extension of time

for replying to defts’ motion for discovery and proposed

order filed.

Apr. 23, 1974. Order ent, attached to motion, extending time to

5 6 74 for prosecution for filing reply to defts’ motion for

discovery and inspection ( Teitelbaum, J).

May 2, 1974. Order ent directing discovery end by 7 1,74;

Defts’ brief on mot to dismiss due 5/31; US Brief in oppo-

sition to mot to dismiss due by 7 1/74; in event defts’ mot

to dismiss is denied, jury trial is set for 10 3 74 (Teitel-

baum, J).

May 7. 1974. Joint application for pretrial conference filed

with proposed order.

May 7, 1974. Stipulation and revised motion for bill of par-

— proposed order filed re Withdrawal of —

May 8, 1974. Order ent, attached to stip. directing that rial

conference be set for 5/16 at 3:30 PM (Teitelbaure. J)

May 8, 1974. Agreed order directing atta ‘.cu stipulation and

M “th 1904, Motion fan aco.

May . Motion for discovery under Fed. R. Crim. P.

16e) filed by U.S. Atty. 24 en

May 16, 1974. Conference before Teitelbaum, J—CAV—Memo

filed (rep J Goodworth ).

May 24, 1974. Order ent superseding the schedule set in Order

of Court dated 5/2/74 (Teitelbaum). (see order for more

Ma “We. 1974. Changes

May . in transcript of pretrial confere

held 3 21 filed by J Gary Kosinski. 8 5

June 10, 1974. Motion to withdraw appearance of counsel for

defts Kaiser Gypsum Co., Inc. and Robert A. Costa and

proposed order filed by David J. Armstrong, Dickie, Me-

Camey & Chileote, M. Richard Dunlap, Charles W. Ken-

rick, Thelen, Marrin, Johnson & Bridges and Gordon

Johnson.

June 10 1974. Praecipe for appearance filed by M. Richard

Dunlap & Gordon Johnson, Esq. as counsel for Kaiser Gyp-

sum Co., Ine.

June 10, 1974. Praecipe for appearance filed by David J. Arm-

any & Charles W. Kenrick, Esq. as counsel for Robert A.

June II. 1974. Order ent granting motion to withdraw as counsel

for Kaiser Gypsum and Robt Costa by Dickie, McCamey

& Chileote, David J. Armstrong, M. Richard Dunlap,

Charles W. Kenrick; Thelen, Marrin, Johnson, Bridges and

Gordon Johnson (Teitelbaum, J).

June 13, 1974. Transcript of Pretrail Conf held 5 16 74 before

Teitelb. m. J. filed.

June 18, 1974. Opinion filed and order ent denying motions to

sever and transfer without prejudice to defts rights to be

heard on their separately filed motion to dismiss ( Teitel-

baum, J.).

June 24, 1974. Copy of letter to Judge Teitelbaum from David

L MecClenahan dated 6 20 74.

4 „ Te wr nig, .

June 24, 1974. Affidavit in reply to individual defts’ brief in

opposition to rule 16 C Motion (affidavit of John C

July 2. 1974. Opinion and order directing individual defts

produce for inspection material to govt that they intend

to produce at trial except those excluded by Rule 16(c).

Indiv defts to comply with this order by 12/1/74 (Teitel-

baum, J.).

July 3, 1974. Memorandum order ent directing that eviden-

tiary hearing on those matters outside the face of the

indictment raised by defts’ motion to dismiss shall be

held on 9/4at 10 AM (Teitelbaum, J.).

July 9, 1974. Transcript of proceedings in re Grand Jury Re-

turn on 12 27/73 filed (rep J Goodworth ).

July 17, 1974. Praecipe for appearance of Wm. H Hauser as

counsel for Wm. H Hunt filed.

July 23, 1974. Order entered setting pre-evidentiary hearing

conference for 8/1/74 at 2 P.M.; further ordered that the

last sentence of Memorandum Order of 7/3/74 be amended

to read as follows: Therefore, in accordance with Rule 12

(b) (4) of the Federal Rules, Ir Is Onverep that an eviden-

tiary hearing on those matters outside the face of the in-

dictment raised by deft's motion to dismiss shall be held on

Monday, September 9, 1974 at 10 A.M. in Court Room

No. 12, 10th Floor, United States Post Office & Court-

house, Pgh. Pa. (Teitelbaum, J).

Aug. 1, 1974. Praecipe for appearance for Flintkote Co by

Stephen M Azinn, Wm. Frank, John V. Marinelli and

Skadden, Arps, Slate, Meager & Flom filed.

Aug. 1, 1974. Conference held before Teitelbaum, I- Memo

filed (rep M Brown) CA.

Aug. 13, 1974. Transcript of proceedings of pre evidentiary

hearing filed. (Rep. Brown).

Aug. 20, 1974. Notice of change of address filed by Celotex

Corp.

Aug. 26, 1974. Bill of particulars filed by USA.

Aug. 27, 1974. Praecipe for of S. M Axinn, A. Frank,

J V Marinelli and Skadden, Arps, Slate, Meagher & Flom

as counsel for George J Pecaro and James D Moran filed.

Sept. 3, 1974. Motion to quash subpoena duces tecum filed by

US. Atty.

— eee

Sept. 4, 1974. Supplemental motion to quash subpoena

tecum filed by U.S. Atty. N 2

Sept. 9. 1974. Waiver of deft Graham J Morgan with regard

to the absence of counsel. Fred H Bartlit, Ir, at eviden-

diary hearing beginning 9 9 74 filed.

Sept. 9, 1974. Supplemental affidavit of Stephen MI Axinn filed.

Sept. 9, 1974. Separate stmt of defts The Flintkote Co. James

D. Moran and Geo Pecaro with respect to gov't motion to

quash the subpoena duces tecum for evidentiary hearing.

Sept. 9, 1974. Evidentiary hearing, mot to quash subp duces

tecum, motion to dismiss held before Teitelbaum, J and

contd to 9/10 (mot to quash denied orally, except re work

products subject to camera inspection ).

Sept. 10, 1974. Hearing continues before Teitelbaum. J.

Sept. 11, 1974. Hearing continues before Teitelbaum J.

Sept. 11, 1974. Stipulation regarding exhibits at 9 9 eviden-

Sept. 12 1884 Nate bpoen

Sept. 12, . Motion to quash govt su ad

fled by dette q gov uces tecum

Sept. 12, 1974. Hearing continues before Teitelbaum, J. from

9/11, (oral ruling that subpoena duces tecum quashed ex-

' cept forU S Gypsum and Law firms representing that plf).

Sept. 13, 1974. Hearing continues before Teitelbaum, J. con-

cludes CAV-Memo filed (rep M Wike) (oral ruling, sub-

poena duces tecum quashed for U S Gypsum & law firms

rep — (exhibited sheet attached) (R. Grainer retained

Sept. 13, 1974. Protective order ent (Teitelbaum, J).

(Defense counse! shall not use documents except for evi-

dentiary hearing; and shall not reveal contents to any

other person; All documents shall be ret to counsel of

US who shall retain documents; all notes or records made

by defense counsel in inspection of documents, shall be

delivered to Clerk for impounding (Teitelbaum, J).

Sept. 16, 1974. Transcript of proceedings on evidentiary hear-

ing 9/9 before Teitelbaum, J (rep M Wike) Volumes 1

thru 5 (pages 1-1013).

Oct. 1 Objections of Wm. H. Hunt to bill of particulars

Oct. 10, 1974. Defts’ motion for further particulars and other

relief and proposed order filed.

Oct. 21, 1974. Orix tox and order ent denied motion of defts

to dismiss; Jury selection to commence 1/20/75; Trial to

commence 1/27/75 (Teitlbaum, J). ;

Oct. 21. 1974. Memorandum order ent denying motion on be-

half of all defts and on behalf of deft Wm. H Hunt re:

bill of particulars (Teitelbaum, J).

Oct. 24, 1974. Notice of change of address of Gordon Johnson,

one of the Attys of record to Two Embarcadero Center,

San Francisco, Calif 94111, filed. —

Nov. 25, 1974. Supplemental bill of particulars filed by plf.

Dec. 2, 1974. Motion of Theodore E Armstrong, Sr, to quash

subpoena ad testificandum or for protective order with

memorandum in support of same attached.

Dec. 5, 1974. Transcript of pretrial conference held 12/4 before

Teitelbaum, J (rep M Wike).

Dec. 9, 1974. Notice of change of address of Dechert Price &

Rhoads, counsel for Nat] Gypsum to 3400 Center Square

West, 1500 Market St, Phil, Pa. 19102.

Dec. 9, 1974. Motion of U. S. to compel compliance with orders

under Rule 16(¢) of FRCP with proposed order filed.

Dee. 11, 1974. Certificate of service filed (sh have been attached

to orig copy of Memo and motion of U S to compel

compliance). .

Dec. 10, 1974. Copy of order from Judge Parker, Dist of

Columbia, requesting transcripts filed.

Dec. 16, 1974. Copy of letter advising documents #109, 110,

111, 112, 113, transeripts, forwarded to Judge Parker, for

use, and will be ret to this Court.

Dec. 18, 1974. Hearing on conference held before Teitelbaum,

J.—CAV—Memo filed (rep M Wike).

Dec. 18, 1974. Order ent, denying motion of U S to compel

(attached to motion) (Teitelbaum, J).

Dec. 24, 1974. Transcript of proceedings of pretrial conference

12/18 74 filed. (Rep. Wike).

Jan. 3. 1975. Order ent setting hearing regarding change of plea

of certain defts for 1/16/75 at 10 AM (Teitelbaum, J).

Jan. 6, 1975. Second supplemental bill of Particulars filed by

Dept Justice.

Jan. 14, 1975. Motion to modify subpoena and proposed order

filed by deft. Georgia-Pacific Corp.

mee

Jan. 14, 1975. Motion to compel listing of Government wit-

nesses and certain other information and proposed order

filed by defts.

Jan. 16, 1975. Defts’ motion to take nolo cont pleas in camera

filed.

Jan. 16, 1975. Noro CON Nr Preas Env before Judge Tei-

telbaum by Kaiser Gypsum Co, Flintkote Graham J Mor-

gan, Robert A Costa, Claude Harper (rep M Wike) also by

William D Herbert, George J Pecaro, James D Moran,

William H Hunt.

Jan. 16, 1975. Third supplemental bill of particulars filed by

Us.

Jan. 16, 1975. Hearing re change pleas of certain defts in cam-

era held before Teitelbaum, J. Memo filed (rep M Wike)

(motion in camera proceeding denied orally) exh sheet

attached.

Jan. 17, 1975. Sentence of 1/16: Kaiser Gypsum Co: Pay

fine $50,000 and pay share costs to date. Fine and costs

to be paid in 30 days (Teitelbaum, J (rep M Wike).

Jan. 17, 1975. ce issued and notice mailed.

Jan. 17, 1975. Sewrence of 1/16 FiinrKore Co: Pay fine 850.

000 and pay share costs to date. Fine and costs to be paid in

30 days (Teitelbaum, J (rep M Wike).

Jan. 17, 1975. ce issued and notice mailed.

Jan. 17, 1975. SRX Exc of 1/16 of Granam J Morcan: Impr

6 mos. Ex pr sent susp placed on prob for 2 years. Pay fine

$40.000 and pay share of costs to date. Fine and costs to be

paid in 30 days (Teitelbaum, J (rep M Wike). Special

condition of prob is that fine and costs are to be paid from

deft's personal assets and deft shall not accept reitaburse-

ment from his corporatici directly and indirectly.

Jan. 17, 1975. ce issued and notice mailed.

Jan. 17, 1975. Sewrence of 1/16 of WIIau H. Hunt: Impr

6 mos. Ex pr sent susp. placed on prob for 18 mos. Pay fine

$40,000 and pay share of costs of prosecution to date. Fine

and costs to be paid in 30 days. Special condition of pro-

bation is that fine and costs are to be paid from deft's

personal assets and deft shall not accept reimbursement

from corporation directly or indirectly (Teitelbaum, J (rep

M Wike).

Jan. 17, 1975. ce issued and notice mailed.

Jan. 17, 1975. Sentence of 1/16 of CLavpe E. Harper: Impr for

6 mos. Ex pr sent susp, placed on probation for 18 mos. Pay

fine $40,000 and pay share of costs of prosecution to date.

Fine and costs to be paid in 3 mos. Special condition of

probation is that fine and costs are to be paid from deft's

personal assets and deft shall not accept reimbursement

from corporation directly or indirectly (Teitelbaum, J)

(rep M Wike).

Jan. 17,1975. ee issued and notice mailed.

Jan. 17, 1975. Sentence of 1/16 of Ropert A. Costa: Impr

30 days. Ex pr sent susp, placed on probation for 1 yr. Pay

fine $20,000 and pay share of costs of prosecution to date.

Fine and costs to be paid in 30 days. Special condition of

prob is that fine and costs be paid from deft's personal

assets and deft shall not accept reimbursement from his

corporation directly or indirectly (Teitelbaum, J) (rep M

Wike).

Jan. 17,1975. ce issued and notice mailed.

Jan. 17, 1975. Senrence of 1/16 of Wivitam D. Herserr:

Impr 30 days. Ex pr sent susp, placed on prob for 1 yr. Pay

fine $20,000 and pay share of costs of proseq to date. Fine

and costs to be paid in 30 days. Special condition of pro-

bation is that fine and costs be paid from deft's personal

assets and deft shall not accept reimbursement from his

corporation directly or indirectly (Teitelbaum, J) (rep M

Wike).

Jan. 17,1975. ee issued and notice mailed.

Jan. 17, 1975. Senence of 1/16 of Georce J. Pecaro: Impr 30

days, Ex pr sent susp, placed on probation for 1 year. Pay

fine $20,000 and pay share of costs of proseq to date. Fine

and costs to be paid in 30 days. Special condition of prob

is that fine and costs be paid from deft's personal assets

and deft shall not accept reimbursement from his corpora-

tion directly or indirectly (Teitelbaum, J) (rep M. Wike).

Jan. 17, 1975. ce issued and notice meiled.

Jan. 17, 1975. Sentence of 1/16 of James D. Moran: Impr for

30 days. Ex pr sent susp, placed on prob for 1 yr. Pay fine

$20,000 and pay share of costs of proseq to date. Fine and

costs to be paid in 30 days. Special condition of prob is that

fine and costs are to be paid from deft's personal assets and

deft shall not accept reimbursement from his corporation

directly or indirectly (Teitelbaum, J) (rep M Wike),

Jan. 17, 1975. ce issued and notice mailed.

Jan. 17. 1975. Defts’ motion to strike second supple bill of

particulars and 3rd supple bill of particulars filed with

proposed order.

Jan. 17, 1975. Hearing on pending motions held before Teitel-

baum, J—Memo filed (rep M Wike) (opinion and order

to be ent) (contd to 2 18 75),

Jan. 17. 1975. Memorandum order ent denying motion to take

the proferred nolo cont pleas in camera and to impound

until conclusion of jury trial (Teitelbaum, J).

Jan. 23, 1975. Transcript of hearing on change of pleas on

1 16 75 before Teitelbaum, J (rep M Wike).

Jan. 23, 1975. Transcript of hearing on pretrial motions held

1 17 75 before Teitelbaum (rep M Wike).

ea a Fourth Supplemental bill of particulars filed

y US,

Jan. 28, 1975. Order 1 27 denying defts motion for change

venue; oral motion of defts for continuance is granted;

Jury selection to commence 2 18; Defts motion to strike

2nd supple bill of particulars and 3rd supple bill of particu-

lars is denied: Deft Georgia Pacific's motion to modify sub-

poena is denied; defts; motion to compel listing of govt

— and certain information is denied (Teitelbaum,

Jan. 30, 1975. Certification of Resolution adopted by Bd of

Directors of The Flintkote Co by George H Cain, filed.

Jan. 30, 1975. Fifth supple bill of particulars filed by plf.

Feb. 7, 1975. Motion by U S and certain defts for continuance of

trial with proposed order.

Feb. 10, 1975. Order ent, attached to motion, contg ease from

2 18 to 3 3 or such later date as Court may order ( Teitel-

baum, J). g

Feb. 18, 1975. Order ent directing that subpoena and testifi-

eandum commanding Theodore E. Armstrong Sr to appear

in Dist Court is hereby quashed ( Teitelbaum. J).

Feb. 27, 1975. Defts’ motion to strike fourth supplemental bill

of particulars and fifth supplemental bill of particulars

and proposed order filed.

Feb. 27, 1975. Conference before Teitelbaum, J—-Memo filed

(rep M Wike). .

Feb. 28, 1975. proposed voir dire questions of U S Filed.

Feb. 28, 1975. Transcript of proceedings of 2/27/75 before Tei-

telbaum, J (rep M Wike). - .

Mar. 3, 1975. Defts’ requests for preliminary instructions to

jury filed. ne

Mar. 3, 1975. Defts’ requests for voir dire examination of pro-

spective jurors filed. ;

Mar. 3, 1975. Hearing on voir dire held before Teitelbaum, J—

CAV—Memo filed (rep M Wike). 1

Mar. 3, 1975. Waiver of deft Colon Brown during questioning

of jurors on voir dire filed. .

Mar. 3, 1975. Waiver of deft J P Nicely to be present during

questioning of jurors on voir dire.

Mar. 3, 1975. Waiver of deft Andrew J Watt to be present

during questioning jurors on voir dire.

Mar. 3, 1975. (Jury selected 9:45 AM to 3:30 PM). .

Mar. 4, 1975. Order ent 3/3 denying defts’ motion to strike

fourth supple bill of particulars and fifth supple bill of

particulars (Teitelbaum, J).

Mar. 4, 1975. Jury TAL Becun Berore TEITELBAUM, J as

to U S Gypsum, Natl Gypsum, Georgia Pacific, Celotex

Corp, Andrew J Watt, Colon Brown, J P Nicely (see at-

tached sheet. ; |

Mar. 4, 1975. Transcript of ju, trial commencing 3/3 before

Teitelbaum, J (rep M Wike).

Mar. 4, 1975. Praecipe for appearance for US Gypsum Co filed

by V. A. Weber, Jr., ES.

Mar. 4, 1975. Stipulation re: no jurors filed.

Mar. 5, 1975. Transcript of jury trial of 3/4 before Teitel-

baum, J (rep M Wike).

Mar. 5, 1975. Jury Tata, Continves (no oral motions). .

Mar. 6, 1975. Transcript of jury trial on 3/5/75 before Teitel-

baum, J. (Rep. M. Wike).

Mar. 6, 1975. Jury Trian Continues. (no oral motions).

Mar. 7, 1975. Transcript of jury trial held 3/6 filed (rep M

Wike).

Mar. 10, 108. Jury TRIAL Continves Berore Terreraauo, J

(no oral motions).

Mar. 11, 1975. Transcript of jury trial 3/10 before Teitelbaum,

J (rep M Wike).

Mar. 11, 1975. Jury TMA Continves.

Mar. 12, 1975. Transcript of jury trial 3/11 (rep M Wike).

Mar. 12, 1975. Jury Tria, Continues Berore TerrersauM, J

(no oral motions).

Mar. 13, 1975. "ory Tria, Continves (see sheet for oral

motion).

Mar 13, 1975. Transcript of jury trial of 3/12 filed (rep M

Wike).

Mar. 14, 1975. Transcript of jury trial of 3/13 (volume 8) filed

(rep M Wike).

Mar. 17, 1975. Jury Trrat Contrnves (no oral motions).

Mar. 18, 1975. Jury Trrat ContTInves.

Mar. 18, 1975. Transcript of jury trial commencing 3/13 before

Teitelbaum, J (rep M Wike).

Mar. 18, 1975. Notice of change of address of Price, Cushman,

Keck, Mahin, & Cate filed.

Mar. 19, 1975. Jury Tran Continues (see attached sheet for

oral motion).

Mar. 19, 1975. TranscriPr of jury trial of 3/18 before Teitel-

baum, J (rep M Wike).

Mar. 20, 1975. Jury Trrat Continves (see attached sheet for

oral motions).

Mar. 20, 1975. Transcript of jury trial 3/19 before Teitelbaum,

J (rep M Wike).

Mar. 24, 1975. Transcript of jury trial of 3/20 ( rep M Wike).

Mar. 24, 1975. Jury Tria Continves (no oral motions).

Mar. 25, 1975. Transcript of jury trial 3/24/75 ( rep M Wike).

Mar. 25, 1975. Jury Trrat Continves (no oral motions).

Mar. 25, 1975. Order to compel testimony of Malcolm Meyer

filed (Teitelbaum, J).

* * Tnaxschirr of jury trial 3/25 filed (rep M

e).

Mar. 26, 1975. Jury Tria, Contrnves (no oral motions).

Mar. 27, 1975. Jury Trrat Continves

Mar. 27, 1975. Transcripr of jury trial 3/26 (volume 15)

(rep M Wike).

Mar. 31, 1975. Transcripr of jury trial on 3/27 (volume

16) filed (rep M wike).

Mar. 31, 1975. Jury Tra Continves.

Mar. 31, 1975. Order to compel testimony of Robert C Gimlin.

and further directing no testimony shall be used against

him (Teitelbaum, J).

Mar. 31, 1975. Order ent denying motion on behalf of deft

Andrew Watt to strike portion of testimony of witness

Rhyne Simpson Jr (Teitelbaum, J). N

Apr. 1, 1975 Transcript of jury trial of 3 31 (rep M Wike)

(volume 17).

Apr. 1, 1975. Jury Triax continues before Teitelbaum, J (see

sheet for oral motions).

Apr. 1, 1975. Motion for Repuction or Sentence filed by

Claude E Harper. b

Apr. 1, 1975. Order ent vacating order of 3/31/75 (Teitelbaum,

J) (re witness Simpson). ,

Apr. 2, 1975. Transcript of jury trial on 4/1 (volume 18)

rep M Wike).

Ape. 2” 1078. Jury Triat continues before Teitelbaum, J

(see sheet for oral motion ).

Apr. 2, 1975. Order to compel testimony of K A McCaskill

(Teitelbaum, J).

Apr. 3, 1975. Transcript of jury trial of 4/2 (volume 19)

(rep M Wike).

Apr. 3, 1975. Jury Tria Continves (see sheet for oral

motion ).

Apr. 3, 1975. Drrrs' motion for order precluding govt from

introducing documents not designated in govt's bills of

particulars.

Apr. 4, 1975. Transcript of jury trial on 4/3 (volume 20)

(rep M Wike).

Apr. 7, 1975. Jury TRAIL CONTINUES. : 2

Apr. 8, 1975. Transcript of proceedings of jury trial on 4/7/75

(Volume 21) (Rep. Wike). .

Apr. 8, 1975. Hearing held on motion to preclude introducing

does not in bil! particulars and Watt’s motion strike testi-

mony and taken CAV before Teitelbaum, J. (Memo filed)

(Rep. M. Wike).

Apr. 8, 1975. Supplement of deft U. S. Gypsum Co. to defis

motion for an order precluding the Gov from introducing

into evidence docs not designated in the govs bills of par-

ticulars filed.

Ne ——B——7˖7—ðQ

Apr. S. 1975. Jury Tria ConTInves.

Apr. v. 1975. Transcript of jury trial on 4/8 filed (Rep. M.

Wike).

Apr. 9, 1975. Jury TMA. Continves before Teitelbaum. J.

Apr. 10, 1975. Transcript of jury trial on 4/9 (rep M Wike).

Apr. 10, 1975. Jury Triat Continves Berore Terretaara. J.

Apr. 11, 1975. Order of 4/10, amending sentence as to deft

Harper extending period in which fine and costs may be

paid to within 18 month period of supervised probation

as a condition of probation (Teitelbaum. J) ce issued.

Apr. 11, 1975. Transcripr of jury trial on 4 10 filed (rep M

Wike).

Apr. 14, 1975. Hearing on oral motions for mistrial. oral motion

to quash subpoenas held 4 12 before Teitelbaum. J (rep

M Wike).

Apr. 14, 1975. Transcript of hearing held Sat, 4/12 before

Teitelbaum, J (rep M Wike).

Apr. 14, 1975. Jury Tria, Continves.

Apr. 14, 1975. Hearing on oral motion to suppress testimony

of Robt Fredericks held before Teitelbaum, J—(denied

orally) (rep M Wike) (Memo filed.

Apr. 14, 1975. Order ent to compel testimony of Robert Fred-

ericks (Teitelbaum, J).

Apr. 14, 1975. Order to compel testimony of Oliver Eugene

Burch filed (Teitelbaum, J).

Apr. 15, 1975. Transcripr of jury trial 4 14 before Teitel-

baum, J (volume 26 (rep M Wike.

Apr. 15, 1975. Jury Tria continues.

Apr. 15, 1975. Order to compel testimony of Arnold L E Mever

(Teitelbaum, J).

Apr. 16, 1975. Transcript of jury trial on 4 15 (volume 27

(rep M Wike).

Apr. 16, 1975. Memorandum order ent denying deft Watt's

motion to strike; denying defts’ motion for mistrial: de-

nying defts’ motion to preclude evidence documents not

designated in bill of particulars (Teitelbaum. J).

Apr. 16. 1975. Jury TL Continves.

Apr. 16, 1975. Order to mpel testimony of Robert Sikes filed

(Teitelbaum, J).

Apr. 17, 1975 Jury Tatar Contrnves.

T=. = "s+ s =

Apr. 17, 1975. Transcript or Jury TIL on 4/16 (volume 28)

. M Wike). a

ian 1975. Transcript or Jury Triat on 4/17 (rep M

Wike) volume 29.

Apr. 21, 1975. Jury TRL Continves (defts 1, 2, 3, 5. 8,9, 10).

Apr. 22, 1975. Jury Tria, Continues before Teitelbaum, J.

Apr. 22, 1975. Order to compel testimony of Earl Kroth filed

(Teitelbaum, J. :

Apr. 22, 1975. Transcript of jury trial on 4/21 (volume 30)

(rep M Wike) ;

Apr. 22 1975 Order to compel testimony of Charles D Web-

ster filed (Teitelbaum, J). .

Apr. 23. 1975. Transcript of jury trial 4/23 (volume 31) rep

M Wike.

Apr. 23, 1975. Jury TAL Continves (see sheet for oral

motion ). ah :

Apr. 23, 1975. Certification of trial judge regarding juror pay-

ment (Teitelbaum, J) (copy filed) (orig in jury files).

Apr. 24, 1975. Jury Tria, Contrnves Berore TTTTETIBAU I J

(see attached sheet for oral motion). a

Apr. 24, 1975. Transcript or Jury TAL on 4/23 (volume 32)

filed (rep M Wike).

Apr. 25, 1975. Transcript or Jury TRL on 4/24 (volume 33)

filed (rep M Wike). .

Apr. 28, 1975. Jury Tria, Conttnves before Teitelbaum, J.

Apr. 29, 1975. Transcript of jury trial on 4/28 (volume 34)

(rep M. Wike).

Apr. 29,1975. Jury Triat ConTINUES.

Apr. 29, 1975. Order to compel testimony of Wayne I Tam-

blyn ent (Teitelbaum, J).

Apr. 29.1975. Order to compel testimony of Sanford B Kellogg

ent (Teitelbaum, J).

Apr. 30, 1975. Transcript or Jury Trrat on 4/29 (volume

35) (rep M Wike).

Apr. 30,1975. Jury TRIX ConTINUES.

Apr. 30,1975. Order to compel testimony of John P. Otterson

ent (Teitelbaum, J).

May 1, 1975. Transcript or Jory Trrat on 4/30 (volume 36)

(rep M Wike).

May 1. 1975. Jury TRIAL ConTINUES.

May 5, 1975. Transcript or Jury Triat on 5/1 (volume 37)

(rep M Wike).

May 5,1975. Jury Triat Continves.

May 6, 1975. Transcript of trial on 5/5 (volume 38) filed

(rep M Wike).

May 6, 1975. Motion of deft Jay P. Nicely for judgmt of

acquittal filed.

May 6, 1975. Motion of deft Colon Brown for judgmt of ac-

quittal filed.

May 6, 1975. Motion of deft Celotex Corp for judgmt of

acquittal filed.

May 7. 1975. Motion of Natl Gypsum Co for judgmt of ac-

quittal filed.

May 7. 1975. Motion of Georgia Pacific Corp for judgmt of

acquittal filed.

May 7, 1975. Motion of US Gypsum Co for judgmt of acquittal

filed.

May 7, 1975. Motion of defts’ to strike certain evidence filed.

May 7, 1975. Defts’ motion to dismiss indictment filed.

May 7, 1975. Hearing on all motions for judmt of acquittal

mot to strike, mot to dismiss begun—before Teitelbaum. J.

May 8, 1975. Transcript or HeEarInc—on 5/7 volume 39 ) (rep

M Wike)

May 8, 1975. Hearing on motions continues before Teitelbaum,

J and concludes—Memo filed (CAV) (rep M Wike).

May 9, 1975. Defts’ response to alleged contacts contained in

govt papers, ete filed.

May 9, 1975. Transcript of hearing on 3 8 before Teitelbaum.

J (volume 40) (rep M Wike).

May 12, 1975. Defts’ joint motion for immediate explanatory

jury instruction on price verification calls or, in the alter-

native, a mistrial filed.

May 12, 1975. Jury Tria, Continves Berore Terrersaum. J

(see attached sheet for oral motions).

May 13, 1975. Transcript of jury trial on 5/12 (volume 41)

(rep M Wike).

May 13, 1975. Jury Triat Continves,

May 14 1975. Transcrrpr or Jury Triat or May 13, 1975

(volume 42) (rep M Wike).

May 14, 1975. Jury Taran ConTINUvEs.

nee

May 15, 1975. Jury TL ConTINUES.

May 15, 1975. Transcript or Jury TN L of 5/14 (volume 43)

(rep M Wike).

May 16, 1975. Transcript or Jury TRL on 5/15 (volume 44)

(rep M Wike).

May 16, 1975. Affidavit of William A Montgomery filed.

May 19, 1975. Jury TriaL ConTINUES.

May 20, 1975. Transcript or Jury Triat on 5/19 (volume 45)

(rep M Wike).

May 20, 1975. Jury Tria ConTINUES.

May 21, 1975. Transcript or Jury Triat on 5 20 (volume 46)

(rep M Wike).

May 21, 1975. Motions of certain defts to quash govt subpoense

dated 5/20 75.

May 21, 1975. Jury Triat ConTINvES.

May 21, 1975. Hearing on motion to quash subpoenas held

before Teitelbaum, J—(granted orally) Documents to be

made available ( Memo filed) (rep M Wike).

May 22, 1975. Transcript of Jury trial on 5 21 (volume 47

(rep M Wike).

May 22. 1975. Jury Triat CONTINUES.

May 27, 1975. Hearing on motion to strike testimony held

before Teitelbaum. J on 5/22—CAV Memo filed (rep. I

Wike) (rulings in transcript of hearing).

May 27. 1975. Jury Tria Continves Berore Teiretaaro, J.

(see attached sheet re: motions).

May 27. 1975. Transcript or Jury Triat on 5 22 (volume 48

(rep M Wike). 7

May 28, 1975. Jury TRIAL ConTINves.

May 28, 1975. Transcript or Jury TRL on 5 27 (volume 49)

(rep M Wike).

May 29. 1975. Transcript or Jury Tria on 5 28 (volume 50

(rep M Wike).

May 29, 1975. Jury Trrat ConTINvEs,

May 30, 1975. Transcript or Jury TRL on 5 29 (volume 51)

(rep M Wike).

May 30. 1975. Jury Triat Cox Trix Uxs.

June 2, 1975. Transcript or Jenr Tat on 3 30 (volume

52) (rep M. Wike).

June 2. 1975. Jury Tria CONTINVES.

— — —

. — V — —̃ —

June 3. 1975. Transcript or Jury Triat on 6 2 (volume

53) (rep M. Wike).

June 3.1975. Jury Triat Continves.

June 3, 1975. Motion of Celotex Corp for order specifying

jury instructions, with exh =A attached.

June 4. 1975. Jury Tria Contixves Berore Terretaaco. J.

June 4, 1975. Transcript of jury trial on 6 3 (volume 54

(rep M Wike).

June 5, 1975. Jury Triat Continves.

June 5, 1975. Transcript of jury trial on 6 4 (volume 55) (rep

M Wike).

June 6, 1975. Transcript of jury trial on 6-5 (volume 56)

filed. (Rep. M. Wike).

June 10, 1973. Jury TIA Continves.

June 11, 1975. Transcript of jury trial on 6 10 (volume 57)

(rep M Wike).

June 11, 1975, Jury Ta Cox iN Us.

June 12, 1975. Jury Tat Continves.

June 12, 1975. Transcript of jury trial on 6 11 (volume 38

(rep M Wike).

June 13, 1975. Transcript of jury trial on 6/12 (volume 59)

(rep M Wike).

June 13, 1975. Jury TAL ConTINveEs.

June 13, 1975. Order ent directing US Gypsum produce tapes

for inspection to U 8, and govt personnel shall not be

permitted to question USG's employees (Teitelbaum, J).

June 16, 1975. Transcript of jury trial of 6/13 (volume 60)

(rep M Wike).

June 16, 1975. Jury Trrat Continves.

June 17, 1975. Transcript of jury trial on 6 16 (volume 61)

(rep M Wike).

June 17, 1975. Jury Traian Continves Berore Trrreraar™, J.

June 18, 1975. Transcript or Jury Triat on 6/17 (volume 62)

(rep M Wike).

June IS. 1975. Jory Tria, Continves Berore Terreraaro, J.

June 19, 1975. Trawscripr or Jury Tria on 6/18 (volume 63)

(rep M Wike).

June 19, 1975. Jury Tran Continves Berore Terreraaro, J.

June 20, 1975. Transcript of jury trial on 6/19 (volume 64)

(rep M Wike).

J... i eet

June 24, 1975. Transcript of jury trial on 6/24 (volume 65)

(rep M Wike).

June 24, 1975. Jury TMAL Continves.

June 25, 1975. Jury Tria ConTInves.

June 25, 1975. Motion of deft Georgia Pacific for judgmt

of acquittal filed.

June 26, 1975. Motion of National Gypsum Co for judgmt of

acquittal filed.

June 26, 1975. Motion of Andrew J. Watt for judgment of

acquittal filed.

June 26, 1975. Motion of Celotex for judgmt of acquittal

filed.

June 26, 1975. Motion of Defendants to Dismiss or Judgment

of Acquittal filed.

June 26, 1975. Motion of deft US Gypsum Co for judgmt

of acquittal filed.

June 27, 1975. Transcript of jury trial on 6/25 (volume 66)

(rep M Wike)

June 27. 1975. Defts motion to strike certain evidence filed.

June 27, 1975. Motion of deft Colon Brown for judgmt of

acquittal filed.

June 27, 1975. Hearing on points for charge held before Teitel-

baum, J—(motion to strike testimony oraily denies defts

and mot for judgmt of ecquittal orally denied all defts)

Memo filed (Rep M Wike).

June 27, 1975. Transcript of proceedings before Teitelbaum,

J filed (volume 67) rep M Wike.

June 27, 1975. Defts’ objections to manner of Court's rulings

on requested final jury instructions and motion for clarifi-

cation of court's rulings filed.

June 30, 1975. Jury TIN Continves Berore Terretaar™, J.

July 1, 1975. Transcript of proceedings of trial on 6 30 before

Teitelbaum, J (rep M Wike) Vol 68.

July 1, 1975. Jury TAL Continves.

July 1, 1975. Memorandum order entered stating that defts’

motion for clarification of court's rulings on final jury

instructions is rendered moot ( Teitelbaum, J.).

July 2, 1975. Transcript of Jury trial on 7/1 (volume 69)

(rep M Wike).

— — —— —

—

July 2. 1975. Jury TAI Continues.

July 2, 1975. Defts’ request for final jury instructions filed

(loose leaf binder).

July 2, 1975. Govt's request to charge filed.

July 2, 1975. National Gypsum Co's request for supplemental

jury instruction filed.

July 2, 1975. Georgia Paciric Corp's request for supple final

jury instructions filed.

July 2, 1975. Georgia Pacifie Corp's request for addtl final jury

instructions filed.

July 2, 1975. Objections to gov't request to charge filed.

July 2, 1975. Supple final instruction requested by deft Watt

regarding verification and the Robinson Patman Act filed.

July 2, 1975. Supplemental requests to charge filed by defts.

July 2, 1975. Supplemental final instruction requestd by deft

Watt regarding retroactivity of intervening change of law

affecting verification filed (denied).

July 3, 1975. Transcripr of Jury Trial on 7 2 (volume 70)

(rep M Wike).

July 3, 1975. Jury Triat Continves.

July 7, 1975. Transcripr or Jury Triat on 7 3 (volume 71)

(rep M Wike).

July 7, 1975. Jury TMAL Continves.

July 7, 1975. Govt's suppplemental request to charge re defts’

Robinson Patman Act Contentions.

July 8, 1975. Transcripr or Jury TMA on 7 7 (vol 72) (rep

M Wike)

July S. 1975. Georgia Pacifie Corp's supple requests as a result

of rebuttal summation filed.

July 8, 1975. Jury TAL Continves AND Concivupes before

Teitelbaum, J—Memo filed (rep M Wike) (see attached

sheet for oral motion ).

July 9. 1975. Transcnipr of jury trial on 7 8 (volume 73)

(rep M Wike).

July 10, 1975. Order re Jury accommodations filed (Teitel-

baum, J).

July 10, 1975. Transcripr or jury trial on 7 0 (volume 74)

(rep M Wike).

July 11, 1975. Transcript of proceedings on 7/10 before Teitel-

baum, J (rep M Wike).

July 11, 1975. Notice of service of letter to M Wike, reporter

and attachment entitled “Corrections to trial transeript

submitted by Celotex Corp filed.

July 13, 1975. Transcript of proceedings commencing July 11,

12, 1975 before Teitelbaum, J (rep Wike).

July 13, 1975. Transcript of proceedings July 13 (rep M Wike).

July 15, 1975. Jury return Vervicr of Gum as to Unrrep

Srares Gypsum Co, Verd sheet filed.

July 15, 1975. Jury return Verpict or GuILty as TO NATIONAL

Gypsum Co, Verdict Sheet filed.

July 15, 1975. Jury return Verpict or Guivty as To Grorcta

Pactric Corp, Verdict sheet filed.

July 15, 1975. Jury return Verpict or Guitty as to Cxtorxx

Corp. Verdict sheet filed.

July 15, 1975. Jury return Vervict or Gun as to ANDREW

J. Warr, Verdict sheet filed.

July 15, 1975. Jury return Vervict or Guiry as to J. P. Nicevy,

Verdict sheet filed.

July 15, 1975. Jury return Verpicr or Gum as to Coton

Brown, Verdict sheet filed.

July 15, 1975. Motion of deft Colon Brown for judgmt of ac-

quittal after discharge of jury or for new trial filed.

July 15, 1975. Motion of deft Jay P Nicely for judgmt of acquit-

tal or for new trial filed.

July 15, 1975. Oral motion of all defts for new trial or judmgt

of acquittal filed and denied orally by the Court.

July 15, 1975. Transcript of proceedings on 7/14 before Teitel-

baum, J (rep M Wike).

July 15, 1975. Questions received by Judge during trial and

jury deliberations which were submitted by jurors filed.

July 15, 1975. Sentence or US Gypsum Co: Pay fine $50,000

and pay share of costs of prosec. Fine and costs to be paid

in 30 days (Teitelbaum, J (rep M Wike.

July 15, 1975. ce issued.

July 15, 1975. Notice issued.

July 15, 1975. Sentence or Nationat Gypsum Co: Pay fine

$50,000 and pay share of costs of prosecution. Pay fine and

costs in 30 days (Teitelbaum, J (rep M Wike).

July 15, 1975. ce issued and notice issued.

July 15, 1975. Sentence or Grorota Paciric Corp: Pay fine

$50,000 and pay share of costs. Pay fine and costs in 30

days (Teitelbaum, J (rep M Wike).

July 15, 1975. ce issued and notice issued.

July 15, 1975. Sentence or Cerorex Corp: Pay fine $50,000

and pay share of costs of prosecution Pay fine and costs in

30 days (Teitelbaum, J (rep M. Wike.

July 15, 1975. ce issued and notice issued.

July 15, 1975. Sentence or ANDrew J Warr: Impr 6 mos. Ex

prs sent susp, placed on prob 1 yr Pay fine $10,000 and

share of costs during probation. Special condition of prob

being that deft obey all local, state and fed laws, comply

with rules of prob office and that fine imposed be paid

within term of probation and paid out of personal assets

of deft and that he not accepi reimbursement directly or

indirectly from his employer (Teitelbaum, J (rep M Wike.

July 15, 1975. ce issued and notice mailed.

July 15, 1975. Sentence or Coton Brown: Impr 6 mos. Ex

pr sent susp. placed on prob for 3 yrs and pay fine $50,000

and share of costs. Pay share of costs during probation.

Special condition of probation is that deft obey all local,

state and fed laws: Comply with rules and regulations of

prob office; and that fine imposed be paid during term of

probation and that it be paid out of personal assets of

deft; and that he not accept reimbursement directly or

indirectly from employer (Teitelbaum, J) (rep M Wike).

July 15, 1975. ce issued and notice issued.

July 15, 1975. Sentence or J P Nicety: Impr 6 mos. Ex pr

sent susp. placed on prob for 1 yr Pay fine $1000 and pay

share of costs of prosecution. Special condition of prob is

that deft obey all local, state, fed laws: comply with rules

and regulations of prob office and pay fine out of personal

assets and not accept reimbursement from employer (Tei-

telbaum, J) (rep M Wike).

July 15, 1975. ce issued and notice issued.

July 15, 1975. Conference held before Teitelbaum, J 7-15 Memo

filed (rep M Wike) Orally, all sentenced are stayed pend-

ing appeal. Bonds contd pending appeal Briefs to be file

re not for new trial and /or judmt of acquittal).

July 15, 1975. Transcript of proceedings 7/15 before Teitel-

baum, J filed (rep M Wike).

July 22, 1975. Withdrawal of Written Motions of Deft Jay P.

Nicely In Re: Judgment of Acquittal filed.

July 22, 1975. Withdrawal of Written Motion of Deft Colon

Brown In re: Judgment of Acquittal filed.

July 22, 1975. Notice of Appeal filed by Deft Andrew J. Watt.

July 22, 1975. Copy of Notice together with docket entries &

Crim Form mailed to U.S. court of Appeals. Copy of No-

tice given to Judge, Copy of Notice to Counsel, letters to

Counsel mailed.

July 22, 1975. Statement of U.S. Gypsum Co. that it will not

at this time file written post-trial motions for a new trial

or judgment of acquittal, in view of the Court's oral de-

nial, on July 15, of oral motion for new trial or judgment of

acquittal & the Court's remarks as reflected in the tran-

script of the post-sentencing hearings on 7 17 75. filed.

July 22, 1975. Defts’ motion for post trial interview or an in

camera interrogation of Jurors and alternate jurors and

for disclosure of impounded transcript and proposed order

filed by defts. I. S. Gypsum Co., Andrew J. Watt, Na-

tional Gypsum Co., Colon Brown, J. P. Nicely, Georgia-

Pacific Corp. and The Celotex Corp.

July 23, 1975. Notice of appeal filed by defendant Georgia Pa-

cifie Corp.

July 23, 1975. Copy of notice of appeal to U.S. Ct. of Appeals

with criminal form & docket entries; copy of notice to

Judge; copy of notice to appelle; letters to all counsel.

July 23, 1975. Notice of Appeai filed by U.S. Gypsum Co.

July 23, 1975. Copy of Notice given to Judge, Notice with

docket entries & Crim form mailed to US. — of

Appeals. Copy of notice to counsel and letters mailed.

July 24, 1975, Notice of appeal filed by National Gypsum Co.

July 24, 1975. Notice of appeal filed by Jay P. Nicely.

July 24, 1975. Notice of appeal filed by Colon Brown.

July 24, 1975. Copies of notices of appeals to U.S. Ct. of Appeals

with docket entries & criminal form; copies of notices to

Judge: copies of notices to appellee; letters to all counsel.

July 24, 1975. Notice of appeal filed by the Celotex Corp.

July 24, 1975. Copy of notice of appeal mailed US. Ct. of

—ͤ—ũ———' ee

—— —— —

Appeals with docket entries & Crim form copies to

appellee; letters to all counsel.

July 28, 1975. Defts’ motion to supplement their motion for

post trial interview or an in camera interrogation of jurors

and alternate jurors and disclosure of impounded tran-

script filed on 7-22-75 and proposed order filed.

July 28, 1975. Notice of delivering a letter regarding correction

of official transcript filed by defis.

July 28, 1975. Order ent directing that reporter transcribe

meeting between Court and George Russell, foreman of

jury, on 7/14, and that same be transmitted, under seal,

by Clerk to Thomas Quinn, Ct. of Appeals, and bear

inscription “Impounded by order of Court, (Teitel-

baum, J).

July 29, 1975. Order ent denying as moot defts mot to supple.

ment their mot for post trial interview or an in camera

interrogation of jurors and alternate jurors and dis-

closure of impounded transcript filed 7 22 (Teitelbaum, J).

July 30, 1975. Letter from Clerk Quinn to B. Schaffer re trans-

mitting record without the exhibits to the court of appeals,

July 31, 1975. Notice to counsel re Corrections to trial transeript

with attachment attached.

Aug. 1, 1975. Notice from ct of appeals advising appeal of U S

Gypsum docketed 75-1836; Natl Gypsum at 75-1837;

Georgia Pacific at 75-1838; Celotex Corp at 75-1839;

Colon Brown at 75-1840; Jay P Nicely at 75-1841; An-

drew J Watt at 75-1842; with orders setting briefing sched-

ule and copy of same to reporter M Wike.

Aug. 4, 1975. OR7üox AL Recorp Mattep Cr or Appears WITH

Docket EnrTriegs.

Aug. 4, 1975. Letters to counsel with docket entries.

Aug. S. 1975. Notice to counsel of letter mailed to rep M Wike

with attachment regarding corrections of transcripis filed

by Peter A Mullin, Atty, Dept of Justice.

Aug. 11, 1975. Receipt for original record rec: d from U.S. Ct. of

Appeals.

Aug. 11, 1975. Notice of Objection in re: changes in transcript

filed by Peter A. Mullin.

Aug. 12, 1975. Defts’ withdrawal of the portion of defts’ mo-

tion, dated 7-22-75, relating to disclosure of impounded

transcript filed.

Aug. 14, 1975. Order entered dtd 8/12/75 re: changes in tran-

script of Courts charge to the ry on 7/8/75 (Teitelbaum,

J).

Aug. 14, 1975. Memorandum opinicn 2nd order entered denying

motions for judgment of acquittal or new trial by defts,

U.S. Gypsum, National Gypsum, Georgia-Pacific, Celotex,

Watt, Brown and Nicely (Teitelbaum, J.).

Aug. 14, 1975. Does. 349, 350, 351, 352, 353 mailed as first supp.

Aug. 18, 1975. Transcript of in Camera conference held 7/14/75

filed (Sealed document. )

Aug. 18, 1975. Transcript marked doc. 354 and mailed as 2nd

supp.

Aug. 22, 1975. Notice to all counsel of record filed by Peter A.

Mullin Atty, Dept. of Justice stating that he, Mullin,

mailed to M. Wike, Ct. reporter letter with an attach-

ment regarding corrections to transcript (these are addi-

tional corrections).

Aug. 25, 1975. Receipt for Ist and 2nd supplement reed from

ct of appeals.

Aug. 25, 1975. Notice, of letter to M. Wike, reporter regarding

objections to gov't proposed corrections to transcript sub-

mitted 8/6. filed hy Andrew J Watt.

Aug. 25, 1975. Notice, letter to M. Wike; reporter regarding

corrections to transcript filed en behalf of Andrew J Watt.

Sept. 2, 1975. Requests for changes in transcript filed by Re-

porter M. Wike (in envelope).

Sept. 2, 1975. Documents, forwarded ct of appeals as 4th supple-

ment (353, 356, 357, 358) (#355 was mailed on 8/22/75

as third supplement).

Sept. 4, 1975. Notice of service by mail to Peter Mullin, Dept

Justice letter regarding certain changes in transcript pro-

posed by Govt in letter to M. Wike, dtd 8/6 filed by coun-

sel for Andrew J Watt.

Sept. 4, 1975. Document 359 mailed as Fifth supplement to ct

of appeals.

Sept. 8, 1975. Receipt for 3rd supplement reed from ct of

Sept. 8, 1975. Receipt for 4th supple reed from ct of appeals.

Sept. 15, 1975. Receipt for 5th supplementa! reed from ct of

appeals (#359 document).

Sept. 18, 1975. Certif copy order from ct of appeals denying

appellant Celotex Corp’s motion for post trial interview

or an in camera interrogation of jurors; and order that

appellants’ joint motion to have subpoenaed documents

involved in evidentiary hearing made available to appel-

lants is referred to merits panel for disposition and grant-

ing appellants’ motion for disclosure of impounded tran-

script of conversation between Dist Court and forman of

jury on 7/14/75 (judge Garth would deny motion for

disclosure of impounded transcript) (Circuit No’s 75

1839/42 and 75-1839).

Oct. 10, 1975. Notice of objections by all defts to transcript

of Marion Wike filed.

United States v. United States Gypsum Company et al.

(United States Gypsum Company, Appellant)

July 31, 1975. Copy of Notice of Appeal, rec d. July 25, 1975,

filed

Aug. 5, 1975. Record filed. (Covers 75-1836/42). (over 74 vols.

of transcripts filed—for list see sheet attached to record

list). EXHIBITS TO BE RETAINED BY CLERK OF

DC—UNTIL REQUESTED BY THIS COURT. See

Clerk’s letter of July 29, 1975.

Aug. 7, 1975. Joint motion by appellants to have the sub-

poenaed documents involved in the evidentiary hearing

made available to appellants, filed. (4 ce.) . Certificate of

service attached. (Covers 75-1836 42).

Aug. 7, 1975. Joint motion by appellants for disclosure of im-

pounded transcript of the conversation between the Dis-

trict Court and the foreman of the jury, which took place

on July 14, 1975, filed. (4 cc.) . Certificate of service at-

tached. (Covers 75-1836/42).

Aug. 18, 1975. Response by appellee to appellants’ joint motion

to have the subpoenaed documents involved in the eviden-

tiary hearing made available to appellants, filed. (4 cc.).

Certificate of service attached. (Covers 75-1836/42).

Aug. 18, 1975. First Supplemental Record ( Nos. 349/353), filed.

(Cover 75—1836/42).

Aug. 19, 1975. Second Supplemental Record (No. 354-Tran-

script of In Camera conference held 7/14/75 filed in D.C.

8/18/75 [sealed document]) filed. IN U.S. CA. SAFE.

(Covers 75-1836/42).

Aug. 22, 1975. Exhibits Q1-Q44 rec’d for information of Court

at its request from counsel. (Orig. set and 2 copies set).

(Covers 75-1836/42).

Aug. 25, 1975. Third Supplemental Record (No. 355), filed.

(Covers 75—1836/42).

Sept. 4, 1975. Fourth Supplemental Record (Nos. 356/358),

filed. (Covers 75-1836/42).

Sept. 5, 1975. Fifth Supplemental Record (No. 359), filed.

(Covers 75-1836/42).

(30)

30a

Sept. 16, 1975. Order (Seitz, Ch.J., Gibbons and Garth, C.J.) re-

referring appellants’ joint motion to have the subpoenaed

documents involved in the evidentiary hearing made a-ail-

able to appellants to the merits panel for disposition. since

such panel will have the benefit not only of inspection but

of briefing on those merits and can order supplemental

briefing if it grants the motion; and granting appellants’

joint motion for disclosure of impounded transcript of

the conversation between the District Court and the fore-

man of the jury, which took place on July 14, 1975. filed

(Judge Garth would deny the motion for disclosure of the

impounded transcrpit, ete.) (Covers 75-1886 42.)

Nov. 25, 1975. Sixth Supplemental Record (Nos. 360/362), filed.

(Covers 75—-1836/42)

Jan. 16, 1976. Supplemental Brief of Appellant, U.S. Gypsum

Company in No. 75-1836, filed. (25 ces).

Jan. 16, 1976. Joint brief for appellants, filed. (1 ce.-25 corrected

oe. reed January 20, 1976). (Covers 75-1836/42). (25 COR-

RECTED CC REC D. 4/21/76). Service attached.

Mar. 4, 1976. Seventh Supplemental Record (No. 363), filed.

(Covers 75-1836/42)

Apr 26, 1976. Brief for appellee, filed. Service by hand and

mail on 4/26/76 attached. (Covers 75-1836/42)

May 10, 1976. Eighth Supplemental Record (Nos. 364/367),

filed. (Covers 75-1836/42)

May 28, 1976. Joint reply brief by appellants, filed. (Covers 75

1836/42) (25 corrected ec rec d 6/16/76).

May 28, 1976. Supplemental Reply brief by appellant, United

States Gypsum Co., filed. Service by mail on 5/28/76

attached. (Covers 75-1836)

June 21, 1976. Argued. Coram: Adams, Hunter and Weis, C.J.

(Covers 75—1836/42)

July 7, 1976. Transcript of oral argument on 6/21/76 before

this Court, received at the direction of the Court, filed.

(Zec) (Covers 75-1836/42)

Aug. 23, 1976. Letter dated August 20, 1976, together with cor-

rections for the transcript of the tape recorded oral argu-

ment held on June 21, 1976, and advising that counsel for

the government and counsel for all defendants agree to

corrections, received from Alfred W. Cortese, Ir, counsel

for appellant in 75-1837. (Covers 75-1836/42)

306

Jan. 6. 1977. Opinion of the Court (Adams. Hunter and Weis,

C.J. together with separate concurring opinion by Judge

Adams and separate dissenting opinion by Judge Weis,

filed. (Covers 75-1836/42) we:

Jan. 6, 1977. Judgment reversing the judgments of the District

Court filed July 15, 1975 and remanding the cause in ac-

cordance with the opinion of this Court, filed. (Covers

75-1836, 42)

Jan. 19, 1977. Motion by appellee for leave to extend time to

file petition for rehearing to February __

Jan. 20, 1977. Order (Adams, Hunter and Weis. C.J.) amend-

ing the opinion filed January 6, 1977, filed. (Covers 75-

1836 42) !

Jan. 24, 1977. Order (Hunter,C.J.) granting motion by appellee

for leave to exiend time to file petition for rehearing to

February 22. 1977. filed. (Covers 75-1836 42)

Jan. 31, 1977. Copy of letter dated January 28, 1977 to Honor-

able Daniel M. Friedman advising that the S.C. extended

the time for filing petition for writ of certiorari to and in-

eluding March 7, 1977, received from Clerk of S. C. (Covers

75-1836/42)

Jan. 31, 1977. Copy of letter dated January 28, 1977 to Paul C.

Warnke. Esq., counsel for appellant in Nos. 75-1840/ i, ad-

vising that the S.C. exiended the time for filing petition for

writ of certiorari to and including March 7, 62

from Clerk of S. C. (Covers 75-1836/42)

Feb. 22. 1977. Petition for rehearing and suggestion for re-

hearing en banc by appellee. filed. Service attached. (Cov-

ers 75-1836/42)

Mar. 10, 1977. Order (Seitz. Ch. J. Aldisert. Adams. Gibbons,

Rosenn. Hunter, Weis and Garth. C.J.) denying appellee's

petition for rehearing, filed. (Covers 75-1836/ 42)

Mar. 18, 1977. Certified — ym in lieu of formal mandate is-

sued. (Covers 75

Mar. 31, 1977. Copy of letter dated March 29, 1977 to Honor-

able Wade McCree advising that the S. C. extended the time

for filing the petition for writ of certiorari to and including

May 9, 1977, received from Clerk of S. C. (Covers

75-1836/42)

—

300

May 13. 1977. Notice of filing on May 9, 1977 of petition for

writ of certiorari, received from Clerk of S. C., filed. (S.C.

No. 76-1560) (Covers 75-136 42)

(National Gypsum Company, Appellant)

July 1, 1975. Copy of Notice of Appeal, rec’d. July 28, 1975,

filed.

(Georgia-Pacific Corporation, Appellant)

July 31, 1975. Copy of Notice of Appeal, rec d. July 25, 1975,

filed.

Nov. 19, 1975. Letter dated November 17, 1975, received from

William B. Mallin, Esquire, counsel for appellant, Georgia-

Pacifie Corporation, notifying the Court that appellant,

Georgia-Pacific Corporation joins in the “Renewed Motion

of the Celotex Corporation, Appellant [No. 75-1839], for

Leave to Conduct Post Trial Interviews of Jurors, received.

(Sec) (No. 75-1838 ONLY)

(The Celotex Corporation, Appellant)

July 31, 1975. Copy of Notice of Appeal, rec'd. July 28, 1975,

filed.

Sept. 4, 1975. Motion by appellant, pursuant to Rule 27,

F.R.A.P., for post trial interview or an in camera interro-

gation of jurors: A. to interview George Russell, jury fore-

man in the trial below, and other jurors; or, in the alterna-

tive; B. for an in camera hearing, to be held in the District

Court before a different District Judge, for interrogation

by counsel for appellant of Mr. Russell and the other

jurors, separately and individually, such hearing to be

limited as follows: (1) interrogation of Mr. Russell as to

what was said in the conversation between District J udge

Hubert I. Teitelbaum and Mr. Russell, which took place

on July 14, 1975, and as to what was said thereafter in the

jury room about that conversation, (2) interrogation of

the other jurors as to what was said in the jury room about

that conversation, (3) such other subjects as the presiding

District Judge may deem proper; C. to interrogate Marion

C. Wike, the court reporter, by deposition or at a hearing

before a different District Judge. as to what was said in that

250-346 —77———vol. I

30d

conversation, and to require her to produce her steno-

graphic notes for inspection and copying and for use in

connection with such interrogation, filed. (4 cc... Certificate

of service attached.

Sept. 12. 1975. Response by appellee in opposition to appel-

lant's motion for post trial interview or an in camera

interrogation of jurors, filed. (4 ce. Certificate of service

attached.

Sept. 16. 1975. Order (Seitz, Ch.J., Gibbons and Garth, CJ.)

denying. without prejudice. appellant's motion (The Celo-

tex Corporation) for post trial interview or an in camera

interrogation of jurors. in light of the order entered this day

granting disclosure of the conversation between the Dis-

trict Court and the foreman of the jury: directing that if

such a motion is renewed it will be referred to the merits’

panel at the appropriate time provided that the filing of

such a motior. will not interfere with the present briefing

schedule, filed.

Sept. 16, 1975. Certified copy of above order to C. of D.C.

Oct. 23, 1975. Motion by appellant for reconsideration of this

Court's order of September 16, 1975, denying appellant's

motion for post trial interview of jurors, in which appellant

requests “that the motion panel of this Court consider and

decide this Motion for Reconsideration based on Celotex’

‘Motion for Leave to Conduct Post Trial Interviews of

Jurors.’ filed October 13, 1978,” filed. (5 ee.). Certificate of

service attached.

Oct. 16, 1975. Motion by appellant for leave to conduct post

trial interviews of jurors, forwarded under date of October

13, 1975, and filed October 16. 1975, sent to the Court at

the request of appellant, and Memorandum in support of

motion, filed. (4 ce.) Certificate of service attached.

Oct. 23, 1975. Response of appellee, United States of America

to appellant's motion for leave to conduct post trial inter-

views of jurors, filed. (4 ce.). Certificate of service attached.

Oct. 24, 1975. Letier-Joinder dated October 22. 1975 from

Georgia-Pacifie Corporation, appellant in No. 75-1838, in

Motions filed by Celotex Corporation, appellant in No.

75-1839. (1) for leave to conduct post trial interviews of

jurors and (2) for reconsideration of this Court's order of

30e

September 16. 1975, filed. (4 ce). Proof of service im letter.

Covers 75-1838 9).

Oct. 30. 1975. Letter dated October 28, 1975 from counsel! for ap-

pellee, United States of America, stating does not propose

to file a formal opposition to appellant's motion for re-

consideration of this Court's order of September 16. 1975;

however, if the motion for reconsideration is granted, re-

quest leave to file response on the merits to appellant's

request for permission to interview the jurors within 14

days from date of granting motion for reconsideration.

(5 ce, Proof of service in letter.

Oct. 31. 1975. Order (Seitz, Ch.J., Gibbons and Garth, C.J.)

denying appellant's motion for reconsideration of this

Court's order of September 16, 1975, denying appellant's

motion for post trial interview of jurors; and denying ap-

pellant's motion for leave to conduct post trial interviews

of jurors, with r the

consideration of the merits panel, provided that if such

motions are to be filed, they should be filed sufficient!y in

advance of the date appellants’ opening brief is due. vis.

December 3. 1975. to allow for the government's response

and the inclusion of this issue in such brief. filed.

Nov. 17, 1975. Renewed motion of the Celotex Corporation. ap-

pellant, for leave to conduct post trial interviews of jurors.

filed. (7 ec.)

Jan. 13. 1976. Supplemental Brief of Appellant, Celotex Corp.

in No. 75-1839, filed. (25 ces.)

May 26, 1976. Supplemental Reply Brief for appellant, Celo-

tex Corp. received May 28, 1976, filed. Service by mail on

5 27 76 attached. (Covers 75-1839)

(Colon Brown, Appellant )

July 31, 1975. Copy of Notice of Appeal, ree’d. July 28, 1975,

filed

Jan. 16, 1976. Brief for appellant, Colon Brown, received Jan-

wary 19. 1976, filed. (25ec)

May 28, 1976. Supplemental reply brief for appellant, Colon

Brown, received June 2, 1976, filed. Service by mail on

5/28 76 attached. (Covers 75-1840)

(Jay P. Nicely, Appellant)

July 31, 1975. Copy of Notice of Appeal, rec d. July 28, 1975,

filed.

Jan. 16, 1976. Brief for appellant, J. P. Nicely, received Janu-

ary 19, 1976, filed. (25.

May 28, 1976. Supplemental reply brief for appellant, J. P.

Nicely, received June 2, 1976, filed. Service by mail on

5 28 76 attached. (Covers 75-1841)

(Andrew J. Watt, Appellant)

July 31, 1975. Copy of Notice of Appeal, rec d. July 23, 1975,

filed.

Jan. 16, 1976. Supplemental Brief for Appellant Andrew J.

Watt in No. 75-1842, filed. (25 ces).

May 28, 1976. Supplemental Reply Brief for appellant, Andrew

J. Watt, filed. Service by mail on 5/28/76 attached.

Covers 75-1842)

— . —

INDICTMENT

The Grand Jury charges:

. used herein the term “gypsum board means the

gypsum board machine products manufactured and sold by

defendant corporations, including. but not limited to wall-

ized and exists under the laws of the state, anu has its

principal place of business in the city, indicated below:

State of Principal Place

Corporation Incorporation of Business

United States Gypsum essere Chicago, Illinois.

Company.

National Gypeum ——ůůů— Buffalo, New York

Company.

eorgia-Pacifie OO Portiand, Oregon.

Corporation.

Kaiser-Gypeum Washington Oakland, California

Company, Inc.

The Celotex — . —ů—ů — Tampa, Florida

Corporation.

Massachusetts White Plains, New York.

3. -

made defendants herein. During al! or part of the period of time

(31)

covered by this indictment, and within five years preceding the

return hereof. each was associated with one of the defendant

corporations in the capacity indicated below:

Individua: Capacity Corporation

Eruham J. Morgan Chairman of the United States

Beard and Chief Gypsum

Executive Company

Officer.

Andrew J. Watt___.___..._. Executive Vice United States

President. Gypsum

Company.

— Chairman of the National Gs peum

Board and Chief Company.

Executive

Officer

11...— Vice President. Na tial Gypsum

Sales. Company.

William M Hat — Georgia-Pacific

Corporation

(laude E. Harper — — Kaiser-Gypsum

Company, Ine

Rebert A. Costa............ Vice President Kaiser-Gypseum

and General Company, Inc

Manager.

William ID. Herter — The Celotex

Corporation

George Nero Chairman of the The Flintkote

Board. Company.

James D. Moran_..._.._____. President and The Flintkote

Chief Executive Company

Officer

III

Co-CoONSPIRATORS

acts and made statements in furtherance thereof. During all or

part of the period of time covered by this indictment, all of the

defendant corporations were members of the Gypsum Associa-

on and representatives of said defendant corporations at-

tended Gypsum Association meetings.

5. Various other firms and individuals, not made defendants

in this indictment. have participated as co-conspirators with

ee eee -

— — Be eee ee

the defendants in the offense charged herein and have per-

formed acts and made statements in furtherance thereof. In-

cluded among these co-conspirators are Johns-Manville Cor-

poration and Fibreboard Corporation.

Trape AND CoMMERCE

6. Gypsum board is a common building material which is

most often used in the construction of walls and ceilings. It is

manufactured in standard thicknesses, lengths and widths, and

while the various kinds of gypsum board are sold under different

trade names by different manufacturers, the composition and

quality of different brands are essentially the same, and custom-

ers switch brands because of slight price differentials or other

inducements, such as more favorable terms and eonditions of

sale, methods of packaging and handling and job price pro-

tection.

7. The manufacture of gypsum board involves mixing water,

accelerators and fillers with calcined gypsum ore to form a

gypsum plaster “slurry” which is sandwiched between surface

layers of paper or other materials by machinery which also cuts

the board to size. When the gypsum slurry dries, the gypsum

in the core reverts to rock form, resulting in a rigid sheet of

building material. There are different kinds of gypsum board,

such as regular and fire-rated wallboard, lath, sheathing, form-

board and backing board. The different kinds of board are

produced by the addition of certain ingredients to the gypsum

core, by the use of different surface materials or by altering the

basic form of the board by means such as lamination or per-

foration.

8. There is a substantial and continuous movement of gypsum

board in interstate commerce from plants where it is manu-

factured to customers in states other than those where the

plants are located. In addition, substantial quantities of the

ingredients used in the manufacture of gypsum board regularly

move in interstate commerce from their source to states where

gypsum board manufacturing plants are located. During all

or part of the period of time covered by this indictment, the de-

fendant corporations, along with Fibreboard Corporation and

Johns-Manville Corporation have participated in this inter-

state movement of gypsum board and its ingredients. Within

this period, these firms have sold and shipped substantial quan-

tities of gypsum board to customers in states other than the

states in which their plants are located and have obtained sub-

stantial quantities of ingredients for use in manufacturing

gypsum board from states other than those where their plants

were located.

9. During the period of time covered by this indictment, the

defendant corporations, along with Fibreboard Corporation and

Johns-Manville Corporation had total sales of more than $4

billion and accounted for more than 90 percent of the total

sales of gypsum board in the United States.

Orrense CHARGED

10. Beginning sometime prior to 1960 and continuing there-

after at least until sometime in 1973, the exact dates to the

grand jurors being unknown. the defendants and co-conspira-

tors have engaged in a combination and conspiracy in unrea-

sonable restraint of the aforesaid interstate trade and com-

merce in the manufacture and sale of gypsum board, in viola-

tion of Section 1 of the Act of Congress of July 2, 1890, as

amended (15 U. S. C. $1), commonly known as the Sherman

Act.

11. The aforesaid combination and conspiracy has consisted

of a continuing agreement. understanding and concert of ac-

tion among the defendants and co-conspirators to (a) raise fix.

maintain and stabilize the prices of gypsum board: (b) fix.

maintain and stabilize the terms and conditions of sale there-

of: and (e) adopt and maintain uniform methods of packaging

and handling such gypsum board.

12. In formulating and effectuating the aforesaid combination

and conspiracy, the defendants and co-conspirators did those

things which they combined and conspired to do, including

among other things, the following:

(a) agreed to increase the prices of gypsum board:

(b) agreed to the terms and conditions of sale of gypsum

board:

(e published price lists and terms and conditions of sale in

accordance with agreements reached ;

d) agreed to maintain published prices and terms and con-

ditions of sale of gypsum board;

(e) agreed to maintain job price protection lists and to dis-

cuss and exchange data set forth therein in order to insure the

maintenance of published prices of gypsum board;

(f) agreed at meetings of the Gypsum Association, over the

telephone and by mail to adopt uniform methods of packaging

and handling gypsum board;

() agreed to adopt uniform methods of delivery of gypsum

board;

(h) telephoned or otherwise contacted one another to ex-

change and discuss current and future published or market

prices and published or standard terms and conditions of sale

and to ascertain alleged deviations therefrom ;

(i) telephoned or otherwise contacted one another to ascer-

tain alleged deviations from other uniform practices and policies

concerning the sale of gypsum board, including, but not limited

to, job price protection, boundaries of price zones, methods of

delivery. point of delivery, and packaging and handling:

(j) agreed not to undercut gypsum board prices which were

ascertained from ene another as the actual selling or offering

prices to purchasers of gypsum board;

(k) agreed not to give a greater cash discount or more gen-

erous terms of sale than those ascertained from one another

as the discount or terms being granted to offered to purchasers

of gypsum board;

(1) agreed not to deviate from standard, uniform practices

and policies in the sale of gypsum board except to the extent

deviations from such practices and policies were ascertained

from one another; and

(m) engaged in predatory practices designed to eliminate or

otherwise contain the competition generated from time to time

by certain single-plant producers of gypsum board.

Errects

13. The aforesaid combination and conspiracy has had the

following effects, among others:

(a) prices of gypsum board sold by the defendant corpora-

tions and co-conspirators were raised, fixed, maintained and

stabilized at non-competitive levels;

(b) terms and conditions of sale of gypsum board offered by

the defendants and co-conspirators were fixed, maintained and

stabilized at non-competitive levels.

(e) competition was eliminated in the packaging, handling

and delivery methods of gypsum board sold by the defendants

and co-conspirators; and

(d) customers of the defendant corporations and co-conspir-

ators have been deprived of free and open competition in the

sale of gypsum board. -_

JURISDICTION AND VENUE

14. The aforesaid combination and conspiracy was carried

out in part within the Western District of Pennsylvania and

within the jurisdiction of this Court, within five years next

preceding the return of this indictment.

Dated:

A TRUB BILL,

Foreman

(s) Tuomas E. Kuren

Thomas E. Kauper

Assistant Attorney General.

(s) BDI J. Rum

Baddia J. Rashid

(s) Rrewmarp J, Fw rr

Richard J. Favretto

(s) Joux C. Fuicaxo

John C. Fricano

(s) Ropwey O. THorson

Rodney O. Thorson

(s) L. Joux Sc MOLL

L. John Schmoll

Attorneys, Department

of Justice.

Ricnanp L. THoRNBURGH

United States Attorney.

ee — —

BILL OF PARTICULARS

p. 30, 1.24~p, 31, 1.4)

In furtherance of their scheme to raise, fix, maintain and

stabilize the price of wallboard, the defendants instituted iden-

tical increases in the published price of wallboard on or about

May 1, 1966; February 20, 1967; October 1, 1967; Septem-

ber 16, 1968; May 1, 1969; September 1, 1969; January 4,

1971; April 1, 1971; and June 14, 1971. Price changes after

June 14, 1971 were also conspiratorially achieved and main-

tained. These price increases were instituted and maintained

by the defendants through their continuing illegal agreement

to exchange and discuss reported deviations from uniform pub-

lished prices, terms and conditions of sale.

[p. 197—p, 198]

ParticuLanrs Re Paracrarn 12(h)-12(1)

Throughout the conspiratorial period charged in the indict-

ment, the defendants were engaged in an illegal course of con-

duet which involved on a continuing basis the exchange and

(discussion among themselves of prices, terms and other com-

petitive information. This mutually agreed upon illegal course

of conduct of exchanging and discussing competitive informa-

tion was for the purpose of raising, fixing, maintaining and sta-

bilizing prices of gypsum board and increasing profits. This

scheme assisted defendants in making uniform pricing decisions,

which enabled them to maintain existing price levels and to

avoid precipitating price declines on gypsum board products.

It was also a means to achieve and maintain price increases and

to increase profits. In addition, it served as a policing activity to

ascertain whether the conspirators were adhering to the uni-

(87)

form prices and terms and conditions of sale established pur-

suant to the illegal agreements set forth in paragraph 12(a)-

12(g) of the indictment and particularized herein.

Each communication between the conspirators relating to

their agreement to exchange and discuss prices, terms and other

competitive information was an overt act in furtherance of the

conspiracy charged in the indictment, and each action taken

as a result of such communication was also an overt act in

furtherance of said conspiracy. Additionally, each act of con-

cealment of the conspiracy was an overt act in furtherance of

said conspiracy.

The genesis of the agreement to exchange and discuss prices,

terms and other competitive information for the purpose of

market stabilization may extend as far back as the 1940's.

Illegal conspiratorial communications oceurred with varying

intensity depending upon the competitive state of the market.

The frequency of exchanges and discussions was the greatest

during periods of heightened competitive activity. An investi-

gation in 1966 by Crowell, G-P's house counsel, uncovered the

fact that G—P’s pricing officials were in telephonic contact with

their co-conspirators daily on pricing and other competitive

matters.

The conspirators also exchanged and discussed competitive

information such as prices and terms at meetings. (See Ap-

— 5 —— and at the time of

meetings concerning buy/sell arrangements between the de-

tendants. (See Appendix A)

In furtherance of the conspiratorial scheme, the defendants

exchanged price lists and exchanged and discussed announce-

ment and effective dates of price changes, terms and conditions

of sale and other competitive information in order to achieve

and maintain agreements concerning such changes as more

fully particularized under paragraph 12(a)—(e) supra.

Additionally, as part of their continuing agreement to ex-

change and discuss competitive information, the defendants

provided one another with advance notice of all published price

changes prior to the time of their public announcement. Thus,

in a meeting on or about February 19, 1965, Gimlin and Lane

of USG gave Seitz of Flintkote advance notice of a price

change by USG effective on or about March 1, 1965, prior to its

public announcement, See also particularization of paragraph

12(a)-(e) supra.

p. 200 lines 1-4]

At the first Gypsum Association meeting he attended in

October 1964, Simpson of Republic was approached by John

Brown of National and invited to participate in the conspiracy.

District Court Order (1/16/75)

MEMORANDUM ORDER OF JANUARY 16, 1975

There is presently before the Court a motion to take the

preferred nolo contendere pleas in this case in camera and to

impound until the conclusion of the jury trial the results of the

proceedings on such pleas. For the reasons contained in this

Opinion, I will deny defendants’ motion.

To my mind, the American system of conducting all court

proceedings in public is the greatest protection of the benefits

of democracy that we have had to work with since the founding

of this Republic. It is my belief that to proceed otherwise would

he to open our judicial and governmental system to the poten-

tial of the most terrible abuses. To conduct this or any other

proceeding in secret would be to step, however hesitantly, down

the path toward corruption and to step inevitably backwards

compelling reasons.

Defendants’ cite to the Court the case of United States v.

Toner, 173 F. 2d 140 (ard Cir. 1949), for the proposition that

the very possibility of transmittal to the jury through the media

of the knowledge that one or more co-conspirators in a crim-

inal conspiracy case have pleaded other than not

inevitably and inescapably prejudicial to those defendan

choose to stand trial. The Toner case simply

such @ proposition. Toner held that the guilty plea

conspirator cannot be entered into evidence against

conspirators. This is inarguably true, just as i

acquittal of a co-conspirator could not be so en

dence; nevertheless, it does not follow that one of the

mental liberties of a free democracy should be in an

jeopardized in order to exorcise the spector of possible

in a case such as this. By the same token, the other cases

by defendants, United States, ex rel. Doggett v. Yeager,

(40)

8827

1225

42887

121471115

— —

F. 2d 220 (3rd Cir. 1973) and Marshall v. United States, 360

U. S. 310 (1959), also fail to raise any consideration which rises

to the level of the protection of a free press and the funda-

mental liberties of American democracy.

The very fact that from the beginning of this Republic the

press has been able to observe and print its reports of all judicial

and other governmental proceedings has been a primary factor

in maintaining the operation of our Federal Courts at the high

level we have traditionally enjoyed. This fact, is, in addition,

the very cornerstone of the confidence in the jury system which

is, in turn, the cornerstone of American trial practice.

It is my feeling that, especially in a case such as this where

serious allegations of price fixing by major corporations and

corporate officers are involved, the public has a right to know

everything that goes on in such a trial. Whatever potential

prejudice exists as a result of the publicity attendant to these

proceedings can and will be remedied by the individual voir

dire which we will follow in this case. It is not a matter of

attempting to wipe from the jurors’ minds information which

it is impossible to eradicate; it is my expectation rather that

the information which is disseminated as a result of these pro-

ceedings will have little or no effect on those members of the

array who come before us as potential jurors. For these reasons

the motion will be denied.

Ir Is So Onpenep.

(s) Huperr I, Terreraavo,

Hubert I. Teitelbaum,

United States District Judge.

January 16, 1975.

Distriet Court Order (4/15/75)

MEMORANDUM ORDER OF APRIL 15, 1075

There are presently before the court, three motions for

disposition, The first of these is a motion on behalf of defen-

dant Andrew Watt to strike from the record testimony of

witness Rhyme Simpson, Jr, that defendant Watt told him,

in October 1964 at the first Gypsum Association meeting he

(Simpson) attended, that he would be asked questions and

should answer truthfully. Defendant Watt's objection is on

the basis that no reference was made to this in the Bill of

Particulars and that, instead, it was indicated that any such

conversation occurred between Mr, Simpson and a Mr. John

Brown. Defendant Watt contends that this variance amounts

to prejudicia! surprise.

The prosecution referred to a Watt-Simpson conversation

in its offer of proof. There was no objection by defense. Again,

there was no objection to the testimony concerning the con-

versation and defense counsel for Mr. Watt cross examined

Mr. Simpson on the matter, Obviously, the defense wanted

the tactical advantages of having Mr. Simpson change his

testimony. Only after this was unsuccessful did counsel move

to strike. Having chosen to “roll the dice,” so to speak, defense

cannot later complain as to the result. Defense was not sur-

prised, considering the offer of proof, the Grand Jury testimony

he had and the nature of his argument for not objecting

sooner—that he hoped to correct Mr. Simpson's testimony

on eross- examination.

In considering this question I have paid particular heed

to the ease of United States v. Neff, 212 F. 2d 207 (3d Cir.

1954). The Appeals Court's reference in that case to the possi-

bility of curing the disparity between the Bill of Particulars and

the evidence presented by means of a continuance in which

defense counsel might study the new evidence seems to me to

belie the implication urged by counsel that the Court in the

same opinion means absolutely limited, without the possibility

of exception, when it stated that “the bill of particulars strictly

(42)

limits the prosecution to proof within the area of the bill.”

Id. at 309.

I do not believe that a bill of particulars must be given the

inflexible effect contended for by the defense. X variance, as

can reasonably be implied here. must then be examined to

determine whether the defendant was so adversely affected

as to require the surgical remedy requested. Instead. 1 believe

that the important safeguard against surprise should be

applied so as to be fair to both sides, while not overlooking

that a trial is a search for the truth, not a game of chess

with arbitrary rules applied mechanically.

Under the circumstances here involved, I do not believe

that defendant Watt was so prejudiced by surprise testimony

as to require that it be stricken. The prejudice contended is

that Mr. Watt's counsel could have interviewed Simpson

prior to trial if he had been alerted to the alleged conversation

by the Bill of Particulars and. possibly obtained a statement

useful for impeachment. It is noted, however, that Mr. Simp-

son's counsel had informed other defense counsel that he would

not talk to them. Also, Simpsons Grand Jury testimony wa:

available and used for this purpose.

Upon consideration of all the circumstances here involve!

defendant Watt's motion to strike is denied.

The second motion before the Court is defendants’ joint

motion for mistrial for alleged prosecutorial misconduct. This

motion was initially occasioned by defense counsel Mellott's

contention that the prosecutor, Mr. Fricano, had unfairly prej-

udiced the situation against the defendants by stating that

a witness’ lawyer “didn't know what he was talking about.”

(Transcript of April 3. 1975, p. 3883). This specific contention

is shown by the record to be unfounded. Mr. Fricano actually

stated that the lawyer “didn't know what was going on.”

(Transcript p. 3882).

— — teendened in csape to allow do-

fense counsel to argue as to all instances of alleged prosecutorial

conduct they contended had occurred. Defendants submitted

a twenty-five (25) page brief in support of their motion and the

motion itself was argued by counsel for both sides on Saturday.

April 12, 1975.

I have thoroughly considered each and every instance of

supposed misconduct raised . the brief and in argument by

counsel and find no instances individually or cumulatively

250 Nr e

sufficient to warrant the granting of defendants’ motion. As all

counsel are well aware, trial practice is not an antiseptic, intel-

lectual exercise conducted with the rigid formality of a minuet.

Occasionally, even the most restrained of trial lawyers will

venture near the boundaries of propriety in pursuing his advo-

cate's function. I have considered the alleged instances of mis-

conduct contended to exist here and arrive at the conclusion.

the prosecution has not ventured beyond those outposts of dis-

cretionary latitude which every trial judge must allow.

Beyond noting that inevitable semantic dispute cannot be

labelled prosecutorial misconduct, it seems to me that the most

important consideration in this regard is the fact that defend-

ants’ motion centers on the governments examination of wit-

nesses (particularly Mr. Bear. Mr. Gimlin and Mr. McCaskill )

who cannot be said to be neutral. in the classic legal sense of

are. I can find no reason to grant defendants’ motion for mis-

trial. It is denied.

The third motion before the Court is defendants’ motion to

this 15th day of April, 1975.

(s) Herr |. Terreceac™,

Hubert I. Teitelbaum.

United States District Judge.

‘ Defendants group their contended instances of prosecutorial! misconduct

inte Sve categories (1) suggesting evidence not in the record (2) miastat.

ing the record. (3) arguing with the witness. (4) expressing rsona! belief

and (5) making prejudicial remarks

Motion for Post Trial Interview

DEFENDANTS’ MOTION FOR POST TRIAL INTER-

VIEW OR AN IN CAMERA INTERROGATION OF

JURORS AND ALTERNATE JURORS AND FOR DISs-

CLOSURE OF IMPOUNDED TRANSCRIPT

| The undersigned defendants (moving separately but on a

individually with full participation of all parties, such hearing

probability came to the attention of the jury and which litiga-

tion was referred to and made the subject of inquiries during

the trial by the prosecution ;

4. The Court has enjoined defendants from talking to the

jurors and alternate jurors.

Defendants further move the Court for disclosure of the im-

pounded transcript of the conversation between the Court and

George Russell, foreman of the jury, which took place on

July 14, 1975. In addition, defendants move that all notes made

by the court reporter of that conversation be filed of record in

this case. In support of this motion, defendants set forth the

following grounds:

1. On July 14, 1975, the jury foreman requested to meet

with the Court to discuss the condition of the jury and further

guidance. The Court met with the foreman in the presence of

the court reporter but outside the presence of defense counse! ;

2. The Court impounded the transcript of that meeting and

refused to make it available to defense counsel despite repeated

requests;

3. Since the trial has been completed, and the jury has sub-

mitted its verdict, no valid reason exists for impoundment of

said transcript.

If the Court refuses to permit defendants or their representa-

tives to interview the jury foreman in such manner as defend-

ants deem proper, then defendants move the Court to hold an

in camera hearing after the impounded transcript is made

available to defense counsel for interrogation of the jury

man with full participation of all parties with respect to

proper subjects.

These motions are made in aid of defendants’ appeals

possible motions for new trial based on the ground of newly

Respectfully submitted,

(Roar C. Keck,

Robert C. Keck.

James G. Hrerrne,

Vatentine A. Werner, Ja.

Doverass F. Romrman,

Price. Cushman, Keck, Mahin & Cate,

8300 Sears Tower, 233 South Wacker Drive,

Chicago, Illinois 60606,

Counsel for United States Gypsum Co.

(s) Frep H. Barr, In.

Fred H. Bartlit, Ir.

Tuomas A. Gorrsc nx.

Kirkland & Ellis,

200 E. Randolph Drive,

Chicago, Illinois 60601,

Counsel for Andrew J. Watt.

(s) H. Francis DeLonge,

(s)

H. Francis DeLone,

Aurrep W. Correse, Jr.,

Joun F. Wiuson, III.

Philadelphia, Pennsylvania 19102,

Counsel for National Gypsum Company.

Pau. C. WaRNF 2,

Paul C. Warnke,

Tuomas RIcHARD SPRADLIN,

Clifford, Warnke, Glass,

Mellwain 4 Finney,

815 Connecticut Avenue, N. W.

Washington, D.C. 20006,

Counsel for Messrs. Colon

Brown and J. P. Nicely.

(Loro R. Me.vorr,

Cloyd R. Mellott,

WriuraM B. Maun,

William B. Mallin,

Barton Z. Cowan

J. Gary Kosinsx1,

Eckert, Seamans, Cherin & Mellott,

Forty-Second Floor, 600 Grant Street,

7200 Sears Tower, 233 South Wacker Drive,

Chicago, Illinois 60606,

Counsel for The Celoter Corporation.

Dated: July 22, 1975.

AFFIDAVIT OF ANDREW J. WATT

CoMMONWEALTH OF PENNSYLVANIA I

County of Allegheny Jos.

Andrew J. Watt on oath deposes and says

1. That he is a defendant in the case entitled United States v.

Pennsylvania.

2. That on July 2, 1975, during a recess of the trial of the

above-entitled cause, he and his wife entered an elevator at the

Federal Courthouse in Pittsburgh, Pennsylvania.

3. That after he and his wife entered the aforesaid elevator,

Mrs. Rohm, an alternate juror in the above-entitled cause, was

already on the elevator, whereupon the following conversation

took place:

a. He and his wife said “hello.”

b. Mrs. Rohm put her finger to her lips and said:

“Get me on that jury — It's one against eleven” —

“Get me on that jury.”

c. Mrs. Watt said: “I guess it would be nice to be on

the jury.”

(s) Anprew J. Wart,

Andrew J. Watt.

Sworn and subscribed before me, a Notary Public, this 18th

day of July, 1975.

(s) Mary Evetyn Buecnet,

Notary Public.

Mary Evelyn Buechel, Notary Public, Pittsburgh, Allegheny

County. My Commission Expires Dec. 30, 1976. Member, Penn-

sylvania Association of Notaries.

(48)

AFFIDAVIT OF THELMA WATT

CoMMONWEALTH OF PENNSYLVANIA .

County of Allegheny 2

Thelma Watt on oath deposes and says

1. That she is the wife of Andrew J. M Watt, a defendant in the

case entitled United States v. United States Gypsum Company,

Criminal No. 73-347, tried in the Western District of Penn-

sylvania.

2. That on July 2, 1975, during a recess of the trial of the

above-entitled cause, she and her husband entered an elevator

at the Federal Courthouse in Pittsburgh, Pennsylvania.

3. That after she and her husband entered the aforesaid ele-

vator, Mrs. Rohm, an alternate juror in the above-entitled

cause, was already on the elevator, whereupon the following

conversation took place:

a. She and her husband said hello“.

b. Mrs. Rohm put her finger to her lips and said:

“Get me on that jury It's one against eleven“

“Get me on that jury”.

o. Affiant said: “I guess it would be nice to be on the

jury.”

At this point the elevator door opened and Mrs. Rohm left the

elevator and hurried down the corridor.

(s) Turina Warr,

Thelma Watt,

Sworn and subscribed before me, a Notary Public, this 18th

day of July, 1975.

(s) Mary Evetyn Buecnet,

Notary Public.

Mary Evelyn Buechel, Notary Public, Pittsburgh Allegheny

County. My Commission Expires Dec. 30, 1976. Member, Penn-

sylvania Association of Notaries.

(49)

ORDER OF COURT

This matter having come before the Court upon the Motion

of the above defendants, and it appearing to the Court that

said Motion should be granted, it is, this day of July, 1975,

ORDERED:

1. that the defendants and, or their representatives are per-

mitted to interview the jurors and alternate jurors in such

manner as defendants deem proper ; *

2. that the transcript of the meeting between the Court

and George Russell on July 14, 1975, is no longer impounded

and copies of said transcript shall be provided to counsel for

defendants; and

3. that all notes made by the court reporter of said con-

servation between the court and George Russell be filed of

record in this case and that copies of said notes shall be

provided to counsel for defendants.

CERTIFICATE OF SERVICE

I hereby certify that service of the foregoing Defendants’

Motion for Post Trial Interview or an /n Camera In

tion of Jurors and Alternate Jurors and for Disclosure of Im-

pounded Transcripts and proposed Order of Court by mailing,

postage prepaid, a true and correct copy of Defendants’ Motion

for Post Trial Interview or an In Camera Interrogation of

Jurors and Alternate Jurors and for disclosure of Im

Transcripts and proposed Order of Court to John C. Fricano,

Esquire, Antitrust Division, U. 8. Department of Justice, 10th

and Constitution Avenues, N. W., Washington, D.C. 20530, and

also by hand delivering a true and correct copy to Blair Grif-

fith, U. S. Attorney, Pittsburgh liaison counsel, U. S. Post

Office and Courthouse, Pittsburgh, Pennsylvania 15219, on

Tuesday, July 22, 1975.

(8) Perer C. Br MAN.

Distriet Court Opinion (8/14/75)

MEMORANDUM OPINION OF AUGUST 14, 1975

mmediately following the return of the verdict of guilty as

oan — in onan on July 15, 1975, written motions

for judgment of acquittal or new trial were filed by counsel

for defendants Colon Brown and J. P. Nicely. Similar oral

motions were made at that time on behalf of all defendants

(Tr. 15,193-95). In conference with all counsel subsequently,

I indicated that I was not inclined to grant such motions but

that I would give due consideration to them (Tr. 15,228). I

ordered that briefs in support thereof be due in two weeks.

On July 22, counsel for Brown and Nicely withdrew their

written motions and the first of the notices of appeal was filed.

Eventually, all defendants filed such notices. On that same day,

defense counsel filed the motion for post-trial interview or in

camera interrogation of jurors - disclosure of impounded

ipt which is the subject of this opinion. .

it is the — yw that the filing of a timely

notice of appeal has the effect of immediately transferring

jurisdiction to the Court of Appeals, a specific exception exists

as to matters in aid of appeal. J Moore, FEDERAL PRACTICE,

$ 208.11 (2d ed. 1973) as stated in dictum in Philadelphia Ma-

‘It migh considered that it was unwise to indicate my feelings as to

post ‘telat motions, I had Bo intention and did not orally deny the motions

made as ia clearly indicated by my stating that if the parties persisted in the

— 1 that @ preper undesetending of the venpesiive of

when the trial court performs its task openly, even at the risk of exposing

error, U. „ Derrick, C. A. 6, 6/18/75, 17 Cr. I. 2308.

(52)

rine Trade Ass'n. v. Int l. Longshoremen’'s Ass'n., 365 F. 2d 205

(3d Cir. 1966), rev'd. on other grounds, 389 CU. S. 64, it is im-

practical to base restrictions on the power of the district Court

on the technical consideration that judgment passes with the

filing of the notice of appeal. Therefore, in the hope that the

recounting of the events which preceded the filing of the instant

motion will be of assistance to the Court of Appeals, | set forth

the following background and rulings:

The jury and all parties had been informed previous to the

morning of July 3, 1975 of my intention to continue with clos-

ings until that afternoon and then recess until Monday, July 7,

1975. On that Thursday morning, Fred Bartlit, attorney for

defendant Andrew J. Watt, met with me in chambers at his

request, in the presence of the government prosecutor, John

Fricano. Attorney Bartlit informed me that his client had told

him the previous evening, after court was adjourned, that the

first alternate juror, a Mrs. Jean Rohin, had attempted to speak

with him and his wife after the close of business that Wednes-

day. Mr. Watt's account of the incident as reported by Mr.

Bartlit, was as follows: Mrs. Rohm joined defendant Watt and

his wife on an otherwise unoccupied elevator. She gestured to

the couple and said in a low voice: “Get me on this jury.” Mr.

Watt said nothing, apparently stunned at the obvious breach

of the Couri’s instructions that there was to be no communica-

tion whatsoever between jurors and the parties or their law-

yers. Mrs. Watt, apparently no less astonished, replied in a

hesitant, but clearly noncommital way, that she understood

that Mrs. Rohm had been listening to testimony a long time.

Mrs. Rohm came closer and repeated: “Get me on this jury.”

She added: It's eleven to one.”

Attorney Fred Bartlit, as was his professional duty, informed

me of his client’s account of the incident as soon as he was able,

the morning of July 3, 1975. He stated that he had not advised

other defense counsel prior to informing the Court on instrue-

tion from his client. Mrs. Rohm was summoned from the jury

room and the following colloquy took place :

The Court: Mrs. Rohm, it has been brought to my

attention—Mr. Bartlit thought it his duty to bring to

my attention—as an officer of this court, he has got a duty

to the court, and he told me of the occurrence between

you and Mr. Watt on an elevator. I am told that you said

ing the law. I know you have friends on the jury. I don’t

want you to call one of them.

Mrs. Roum: I don’t even have their numbers.

All counsel were then advised by the Court as to what had

occurred. No counsel objected then or at any subsequent time

to either the dismissal or the procedure followed until this post-

trial motion was filed with, strangely, Mr. Bartlit's associate

as the first movant.”

Upon returning into open court, the jury was told that Mrs.

Rohm had been dismissed, without, of course, being informed

of the reason (Tr. 14,389). The day’s proceedings continued

without incident. At the close of the day, in view of the up-

coming three-day weekend, I once again cautioned the jury

to discuss the case with no one, not even among themselves,

and to keep their minds open until they had heard the final

closings and my charge (Tr. 14,495-498). '

A number of observations should be made about this

incident:

(1) There is no indication that any communication of any

type took place thereafter between Mrs. Rohm and any juror

or any other person ;

(2) Mrs. Rhom implicitly denied that she had said “It’s

eleven to one” by stating that she had only said: “I would

sure like to get on this jury.”

(3) Even if it is assumed that Mrs. Rohm did say It's

eleven to one,” there is no indication that such a statement

? Certainly no one was harmed by the excuse of Mrs. Rohm since she was

an alternate juror and would not have taken part in the jury deliberations

as all of the original twelve turors were able to serve to verdict.

evidenced anything more than her impression of the jury's

inclinations. There is nothing to indicate that actual delibera-

tions had begun prematurely or that a formal or informal vote

of any sort had been taken.

(4) Again assuming Mrs. Rohm did say “It’s eleven to one,”

there is nothing to indicate in whose favor such a hypothetical

tally stood. The logical inference to be drawn from the fact that

she told a defendant, as opposed to a representative of the prose-

cution, is that the jury leaned toward conviction, but beyond

this otherwise unsupported inference there is nothing to support

such a contention.

On Monday, July 7, defense counsel requested that they be

permitted to interrogate the alternate jurors including Mrs.

Rohm, after the jury proper was sent out to begin deliberations

(Tr. 14,503-523). I refused this request as improper for two

reasons. The first was my concern for the rights of Mrs. Rohm.

It was my feeling that because in disobeying my clear and oft-

repeated instructions she had committed what was at a mini-

mum a potential contempt, she should speak to no one without

being informed of her constitutional rights and without the ad-

vice of counsel. The second and more important reason is that,

in my opinion, permitting counsel to interview alternate jurors

after discharge and during the deliberations of the jury is a bad

practice. It intrudes upon the secrecy of jury deliberations and

can only have the effect of inhibiting jurors from freely discuss-

ing matters and expressing views. The motion that was renewed

post trial with the alternative proposal that the court make

the inquiry as to the deliberations with “full partiepaton by

counsel.’ This would be even worse. It would subject jurors to

examination by six defense attorneys, the prosecutor and the

Court and would be unwarranted intrusion upon the secrecy

of their deliberations.’

“The important thing is not that jurors keep silent with

each other about the case but that each juror keep an open mind

until the case has been submitted to the jury.” United States v.

Klee, 404 F. 2d 394, 396 (9th Cir. 1974) certiorari denied, 419

Inquiry of jurors after a verdict seeks to impugh the validity of judicial

action on the ground of misconduct of a member of the tribunal. The court

has a vital (nterest in seeing that jurors are not harassed or placed in doubt

about what their duty ts and that false issues are not created.” Miller .

United States, 408 F. TT, #2 (2d Cir, 1068).

U. S. 835 (1974). In view of the lack of any indication that

premature deliberations or decisions had taken place, such an

extraordinary procedure as defendants’ request was clearly

contraindicated. Nevertheless, after denying defense counsels’

improper request, I had the jury sworn and asked them col-

lectively in open court whether any of them had discussed the

case with anyone or among themselves. No member of the jury

responded to my inquiry (Tr. 14,533). I had previously offered

to inquire of each juror individually and privately as to whether

they had deliberated or reached premature decisions, but coun-

se) objected to this (Tr. 14,518-521), Defendants made a con-

scious choice to have the case submitted to the jury without

judicial inquiry as to premature deliberation in the hope that

it would return verdicts favorable to them, They will not be

heard to complain now that their hopes have been disappointed.

The Supreme Court's language in Johnson v. United States,

318 U. S. 189, 201 (1943), is particularly apt:

We cannot permit an accused to elect to pursue one

course at the trial and then, when that has proved to be

unprofitable, to insist on appeal that the course which

he rejected at the trial be reopened to him. However

unwise the first choice may have been, the range of

waiver is wide, Since the protection which could have

been obtained was plainly waived, the accused cannot

now be heard to charge the court with depriving him

of a fair trial,

On Tuesday, July 8 at approximately 4:00 P.M., after hear-

ing the final closing and my charge, the alternates were dis-

missed with the thanks of the court and the jury sent out to

deliberate.

On Wednesday, July 9, 1975, the jury twice requested in

writing that certain exhibits be sent to them. Insofar as possible,

these requests were complied with. On Thursday, July 10, they

requested further exhibits and asked that “Meeting competition

in good faith” be redefined. Those requested exhibits whieh had

heen admitted into evidence were sent out and I repeated the

relevant portion of my charge, On Saturday, July 12 they asked

a lengthy and confused question on the weight to be given

documentary evidence. They were charged, in sum, that their

recollection of all the evidence in the case was controlling. The

length and fervor of their deliberations is of course inconsistent

with the contention that they had reached a premature decision.

On Sunday, July 13, 1975, the jury sent out a note which

read: “We cannot reach a unanimous verdict. If any juror

changes his mind now. it would only change due to compassion

for his fellow jurors.” The jury was again read the Third

Circuit's modification of the Allen Charge (Fiorovanti v. L'. 8.

412 F. 2d 407 (3d Cir. 1969)) which reads as follows:

It is your duty, as jurors, to consult with one another.

and to deliberate with a yiew to reaching an agreement

if you ean do so without violence to individual judgment.

Each of you must decide the case for yourself, but do so

only after an impartial consideration of the evidence in

the case with your fellow jurors. In the course of your

deliberations, do not hesitate to re-examine your own

views, and change your opinion, if convinced it is erro-

neous. But do not surrender your honest conviction as

to the weight or effect of evidence solely because of the

opinion of your fellow jurors, or for the mere purpose

of returning a verdict. (Emphasis furnished. )

The jurv was told to resume deliberations.

On Monday. July 14, the foreman of the jurv. George Russell

sent out the following note:

“May I as foreman of the jury meet with you to dis-

cuss the condition of the jury and further guidance.”

After meeting with counsel and their consent (Tr. 15.164-172)

I met with the foreman alone in the presence of only the court

reporter. Defendants’ motion as to their reservation of rights

on this issue is perplexing in view of the specific consent of each

counsel and the individual defendants to the meeting of the

court with the foreman and my stated willingness to refuse such

a discussion if any objected. This contention seems to empha-

size tactical considerations over candor. The transcript of our

conversation was impounded but has been ordered transmitted

to the Court of Appeals. The jury returned to its deliberations

following that meeting and the next day, Tuesday, July 15 at

approximately 10:45 A. M. the jury returned a unanimous

verdict of guilty against all defendants.

My concern at the time of Foreman Russell's note was that

as a layman he might inadvertently Ic: slip information which

it would not be in the best interests of justice to make public.

I have not released the transcripts to counsel since, althourh

not apparent to any except those who were present at trial it

seems to me that some of the language used by the foreman

would identify a particular juror s views to counsel and I con-

sider this improper. As it happened. Foreman Russell's concern

with with the physical condition of certain of the jurors who

were bearing up less than well under the strain of prolonged

deliberation. I told him that I would see that every measure

possible was taken to insure the jury's health and instructed

him to inform the jury that they should continue deliberating.

Russell also indicated that there were personality difficulties

among some jurors, a not unusual occurrence. No additional

instructions were given.

It must be clearly understood that while this was a lengthy

and complex case, and while the jury's deliberations were ex-

tended over some eight consecutive calendar days. nothing out

of the ordinary occurred as to their deliberations. It is not the

law that the jury must reach a unanimous verdict on its first

vote. A certain amount of travail and discussion and hard. hard

soul-searching is to be expected in the course of any jury's

deliberations. Given a trial which had consumed over 4,

months of trial time and which had seen thousands of exhibits

introduced into evidence, a proportionate degree of detailed

and extensive deliberation must also be assumed. The jury was

engaged in actual deliberation for 61 hours. During that

period the physical and emotional well being of at least some

of the jury s 12 members might well be expected to waver and

vary. To my mind, everything possible was done to insure that

their deliberations were as comfortable as possible, given their

arduous task, and to insure that nothing was done to interfere

with their independent and conclusive fact-finding function.

My action in impounding the transcript of the conference

with the jury foreman for in camera review by the Court of

Appeals is in accordance with Rule 606(b) of the Federal Rules

of Evidence. That rule states that “a juror may not testify as

to any matter or statement occurring during the course of the

jury's deliberations or to the effect of anything upon his or

any other juror’s mind or emotions as influencing him to assent

As the legislative ' history makes clear. this rule was designed

to prevent revelation of the internal deliberations of the jury:

to the attainment of just verdicts. Jurors will not be able

to function effectively if their deliberations are to be

: —

hibit 1) has been made to appear voluminous by the inclusion

of identical Associated Press and United Press International

juror might have seen. Moreover, the jurors were repeatedly

warned not to pay attention to outside publicity and never gave

any indication that they ever had been exposed to extra-judicial

information. Finally, at no point did the publicity of the trial

Sheppard v. Marwell, 384 U. S. 333 (1966); C. S. ex rel. Dog-

gett v. Yeager, 472 F. 2d 229 (3d Cir. 1973).

For all of the reasons stated above, defendants’ motion is

denied. Ir Is So Onperep this 14th day of August, 1975.

(s) Huserr I. Terri.

Hubert I. Teitelbaum,

United States District Judge.

Copies to: All Counsel.

250 546-77 — 3 Voi I

EXCERPTS FROM EVIDENTIARY HEARING

TRANSCRIPT

[304] Hewry Lirsxy.

DIRECT EXAMINATION

partment of Justice of an intention to proceed with the grand

jury investigation which subsequently led to a return of clear-

ance to the Department of Justice from the Federal Trade

Commission ?

A. Yes, sir.

All right. So was it some time prior to October, 1970, that

you received clearance at the Federal Trade Commission from

the Department of Justice to proceed with the Section 2A

investigation?

A. The Federal Trade Commission's 2A investigation.

Q. It would have been prior to October?

[305] A. Yes, sir, it would.

Q. Do you recall how long before October, 1970?

A. No, sir, I don’t.

[307] * „ „„

Q. All right. Now with respect to C-11—I'm sorry—A-2

Exhibit, from October 30, 1970, is it not also a fact, Mr.

that you were informed by the Department [308] of Justice

that the subject matter of the grand jury investigation that had

been decided upon was to be alleged violations of the 1951 de-

cree in the gypsum industry ?

A. 1 so reported in the memorandum, yes, sir.

Q. All right. Now do you recall between the period 1965 and

1970 any other contacts with the Antitrust Division concerning

Q. Mr. Paige, do you recall receiving instructions from

Mr. Sarbaugh sometime after February of 1965 to begin this

—

. Yes.

[350] Q. Are you able to date it after February. 1965?

A. Yes, it vas approximately the early part of August, 1965.

eo oe oe e *

Q. Is it a fact that the Ch cago office on August 3, 1965, was

investigating the matter referred to by the Commission?

1351 .

A. r

A. I requested and was granted authority to go to El Paso

end ta Gl Pano § coctened in the Ghettn clien Oe he Gan

court the various exhibits which were a part of the Texas

Gypsum case.

In addition to that, I reviewed various depositions which

were also in the Clerk's office. I accepted certain of the memo-

randa and others I had sent back to Chicago.

Q. Do you recall approximately the volume of the documents

that you looked at or saw in E] Paso

A. Yes.

Q. ——on this occasion?

A. Yes, there were four or five filing cabinets full of docu-

ments and exhibits. Possibly four or three. It seemed like a

significant number at the time.

Q. I show you what has been marked for identification Ex-

hibit C-16, and admitted as such this afternoon, and ask if

that is your signature appearing on that motion?

[352] A. Yes, I prepared this motion and the Court signed it.

Q. How did you decide what to put in the schedule attached

to this motion, C-16?

A. I conducted a cursory review of the documents and I

thought it might contain a lead in the event we had a Grand

Jury investigation. I thought there might be something in there

that would give us a lead to bring in additional witnesses and

documentation. The same is true of the depositions listed here.

Q. How long were you in El Paso on that occasion ?

A. About ten days.

Q. Did you talk to any witnesses or interview any witnesses

on that trip?

A. I talked to counsel of record for the Texas Gypsum Com-

pany. I tried to locate Claude Huckleberry, but he had removed

from Texas. His attorney advised me he lived in Alabama or

Arkansas. I had the FBI find him finally in Alabama.

Q. Did you talk to any other people in

A. At that time, no.

Q. Were you working alone in this investigation, or did you

have the assistance of others?

A. No, I worked alone.

Q. After you returned from El Paso, did you bring back

353] the documents that were ordered turned over to you by

Exhibit C-17?

A. No. they were sent back by mail or express.

Q. What happened to those documents after they got back to

Chicago?

A. Lexamined them.

Q. Over what period of time?

A. Two or three months. I am not exactly certain. After the

rr El

Q. By you?

A. No, I directed they be sent back. Some clerical type ap-

parently did it.

Q. When did you conceive the idea of requesting the assis-

tance of the FBI in interviewing Mr. Huckleberry?

ait It was perhaps a couple of months after I returned from

aso. ä

The Courr: Is Mr. Huckleberry still alive and available as a

witness?

Mr. Keck: Yes, sir, he is under subpoena, Your Honor.

The Wrrness: It was perhaps a couple of months after I

returned.

By Mr. Keck:

Q. Did you seek the assistance of the FBI in interviewing

354] anyone else besides Mr. Huckleberry?

A. I don’t think so at that time, but I think my request was

sufficiently broad in scope if they developed something, they

should follow a lead. If they get another name, they could pur-

sue that. That is my best recollection.

Q. During that period it was brought out in testimony yes-

terday several interviews taken by the Philadelphia office, field

office of the Anti-Trust Division were sent to Chicago. I show

you Exhibit D-23 which is a letter from Donald Balthis, Chief

Middle Atlantie Office to John E. Sarbaugh, Chief Midwest

Office, dated May 9, 1965, dealing with several interviews. Have

you seen that letter before?

Mr. DeLone: 1965?

Mr. Keck: Excuse me. May 9, 1966.

The Witness: I have no recollection of having seen this

memo. .

By Mr. Keck: F

Q. Do you have any revollection of seeing interviews by a

Mr. Morton Fine of a Mr. Alan G. Pullen?

A. No.

Q. Or an interview by Mr. Raymond D. Cauley of a Mr.

James Geppert?

A. No.

Q. Or any interviews referred to?

A. The answer is the same, no.

[355] Q. When did you determine to make a recommendation

to your superior that authority be granted to impanel a Grand

Jury to investigate this matter more fully?

Mr. THorson. Objection, Your Honor. It is delving into the

internal work processes of the Department of Justice.

The Wrrness. On two separate occasons. One, a few months

after I had examined the documentation which I had brought

back from Texas and the second recommendation, I think after

I had received the Claude Huckleberry FBI report and learned

of the Pensinger case pending down in Phoenix. That buttressed

my recommendation, or so I thought.

Q. How, if you recall, did you learn about the Pensinger

case?

A. Probably from BNA or the Wall Street Journal. I really

don't know.

Q. Did you ever contact anyone concerning the Pensinger

case?

A. Yes, I called their counsel in Phoenix,

Q. A Mr. Blumling.

A. Not Blumling, Blumley.

Q. Blumley, the gentleman Mr. Furth mentioned earlier?

[356] A. Furth’s associate.

Q. What information did you learn from him?

A. We simply exchanged our various views and theories, Ac-

cording to the article I had seen, wherever I had seen it, that

case closely paralleled my recommendations and fortified my

recommendations. That was basically the conversation we had

and I requested a copy of the pleadings either from him or

from the clerk of the court in Phoenix, one of the two, or both.

Q. Was your recommendation in respect to Section 1 of the

Sherman Act? Did it deal with that subject?

A. I think it dealt with Section 1, possibly 2, possibly the

consent decree or decrees, as the case may be. It was rather

broad.

Q. Did it involve price fixing?

A. Ves.

2 Fixing of terms and condition of sale?

es.

Q. Material handling?

A. Yes.

Q. Predatory practices?

A. Yes.

Q. Were you aware at that time that you were formulating

this concept, of a price change that had taken place in the

industry effective December 15, 1965, which became the sub-

ject [357] of litigation on the west coast, known as the wall

board litigation ?

. A. No, but I will explain that, if I may. I was following the

industry very carefully and I would note various price changes

in the industry. Specifically that price change, I don't know.

I don’t think so, but there are numerous price changes that

occurred at that time.

[359] Q Can you give us the approximate date when you

filed your recommendations with Mr. Sarbaugh?

A. I think there were two recommendations, one in early

1966 and one somewhat later, when I received the Huckleberry

FBI report. I think there were two separate recommendations.

That is my best recollection.

* 0

[362] Q. Mr. Paige, with whom did you consult in the Chi-

cago office with respect to these recommendations?

A. Bert Long, who was then assistant chief, was aware of

the matter. He was the person with whom I counseled

principally.

Q. And did you consult on more than one occasion with re-

spect to these recommendations?

A. Oh, yes. Yes, sir.

Q. Periodically?

A. Several times.

Q. Was Mr. Long familiar with the work that you [363]

were doing in the investigation ?

A. Yes.

Q. Was Mr. Sarbaugh familiar with that work?

A. Yes. Copies of memos went to him. If he read them, I am

certain he was aware of it.

Q. From August, 1965, when you said you began, and when

would you say you finished with the last recommendation?

July, 1966? |

A. Yes. The record so shows. The record so shows, I think,

does it not?

Q. Well, not the record disclosed to us.

Mr. DeLone. Well, those were the dates.

Q. (Continuing): The dates that the judge read off. .

A. I will accept those. I have no independent recollection of

the dates. I would accept those, yes. ö

Q. During that period Messrs. Sarbaugh and Long were famil-

iar with the work you were doing?

A. Yes. .

Q. Did you ever learn what happened to either or both of

these recommendations?

A. No.

Q. Did you ever ask what hapepned to these recommenda-

tions?

A. Yes. Yes, I asked Long and received a rather eryptie reply

to the effect that they had either been [364] transferred to an-

other field office or to Washington and that was the end of it.

* * * * *

(3761 Q. During this investigation, you were looking for any-

thing relating to gypsum?

A. Yes.

> „ * * *

Donato F. Mrtcnhion.

DIRECT EXAMINATION

452 by Mr. Drtoxx:

Q. What was the memorandum which he displayed to you?

A. Shall I answer that question?

Q. It's not been objected to.

Mr. Txorson. We have no objection, Your Honor.

‘ourt. Sure.

A. The memorandum, as I recall, was a relatively short

memorandum and it was addressed to Mr. Doby and it was

asked that he have conducted an investigation into the gypsum

industry under the shared monopoly—under a shared monop-

oly and I cannot recall the exact phraseology that followed

that term but it was something in the nature of: and not by

agreement or not by conspiracy.

Q. Mr. Melchior, I realize that many of the documents which

I have you haven't seen them for a long time and I endeavored

to provide you as soon as I had received them from the Gov-

ernment with certain interview reports but I haven't had an

opportunity to provide you with a number of documents which

were here produced this morning so you have had no oppor-

tunity to review them, but I show you a memorandum from

Mr. Rashid, Deputy Director of Operations, to Mr. Doby dated

October 25, 1966 and ask if that is the memorandum to which

you have just made reference.

A. This is not the memorandum to which I have just made

reference.

[453] Q. This memorandum refers te the authorization to

conduct a full investigation of the gypsum industry.

A. I see that in those terms, yes, sir.

Q. And alludes to the fact that different phases of the

industry are already or at present under investigation in

Washington and Philadelphia—I'm sorry in Chicago and

Philadelphia.

A. I see that on this memorandum,

The record is clear, isn't it, that my answer was this is not

the memorandum to which I referred?

That s correct.

Do you have any way of further identifying the memo-

randum to which you referred because I have not been provided

with any such memorandum to the best of my knowledge. I

tried to review every one that was in this time frame this

morning.

A. No, other than that it was about the same date of the

memorandum you showed me and my recollection was it was a

shorter memorandum.

Q. Even shorter than the one-page one I showed you?

A. Yes.

Q. And did you proceed with an investigation in any event

under a reporting to Mr. Doby as the chief of your section?

A. I proceeded to conduct an investigation into the [454]

gypsum industry with the purpose of seeing whether it would

be feasible to develop a case of shared monopoly in that field.

Q Now in order to prepare yourself for that mission, did you

review existing files in the Anti-trust Division?

A. I did. :

Q. Did those files include a memorandum from Mr. Toronti?

Mr. DeLone. I guess the Court exhibits are here, are they

not?

Mr. Tuonsox. If Your Honor please, I believe counsel is re-

ferring to a lawyer in the Division whose name was Nora

Toronto.

‘Mr. DeLone. All right. Your Honor described the document

yesterday and I haven't seen it and I didn't get the spelling

right. Thank you.

By Mr. DeLone: : ow

Did examine a memorandum from Ms. oron

na Bitanes thot had boon enttten beck im February of 65?

A. I have no independent recollection of examining any

specific memo but since I reviewed the Departmental files in

connection with the investigation if there was such a memoran-

there, I feel I read it.

= And Den the Department's file go, the file

which you reviewed as best you recall?

[455] A. As best I recall, they went back to the year 1948,

the year I began my service with the Anti-trust Division and

aps earlier. f

Q. And did you also review the files of the Philadelphia field

office which are referred to in the memorandum I chowed to you

from Mr. Rashid to Mr. Doby?

A. To the extent that memoranda prepared by that office

were in the Washington files, I probably reviewed them.

Q. Mr. Balthis testified earlier that all the Philadelphia files

were sent to Washington in November of 66 and Mr. Sarbaugh

has just finished testifying that the transmittal of their mate-

rials as I believe he said at or about the same time so you believe

did review them as well.

9 I recall having read memoranda prepared by members of

the Division in the Philadelphia office and the Chicago office.

Q. Did you also review material which had been transmitted

to the Anti-trust Division by the Federal Trade Commission,

and I have specific—particular reference to a memorandum

from a J. B. Benton of the FTC to the Federal Trade Commis-

sion dated September 21, 1964 with its attachments which is

C-7 in this record? I don't expect you to know the designation,

but so we know what I'm talking about and C-8A, confidential

memorandum from Mr. Shea of the FTC to [456] FTC bureaus

concerning alleged conspiracy and price fixing by gypsum in-

dustry members dated October 21, '64. That's C-8 in this record

and another letter from Mr. Shea to Mr. Arrect, then head of

the Anti-trust Division dated October 27, 1964 with attach-

ments including the 1921 and 1951 decrees with reference to

the gypsum industry which is C and memorandum from Mr.

Lipsky to the Federal Trade Commission dated August 17, 1965

which is C-11 in this record and a memorandum from Mr

Lipsky to Mr. Hall dated August 21, '65 which is C-12 and a

copy of a letter from Mr. Shea to a T. S. Snell dated October 14,

1965 which is C-13 in this record.

A. I have no recollection of any of those specific documents.

I do have the recollection with respect to the Federal Trade

Commission and any materials they may have forwarded us

that our files did not appear to be complete.

. You mean the FTC hadn't sent you the full files that

they had or I don't quite understand when you say your files

weren't complete.

A. I had the impression that the Departmental files did not

contain all of the documentary material that ordinarily would

be expected to be found therein based on other documents that

I found therein.

Q. I'm just not clear about the—Bureaucratically are you

referring to what the FTC had sent to the Anti-trust [457]

— or are you referring to the Anti-trust Divisions’ own

es”

A. I'm referring to the Anti-trust Division's own files.

Q. My question is aimed at certain documents of the FTC.

Did you not examine when you began this investigation certain

materials provided to the Anti-trust Division by the Federal

Trade Commission?

A. I recall seeing certain materials from the Federal Trade

Commission.

1 you able to identify what it was that you saw at this

A. I am not.

Q. Do you think it would be of any help to you to show you

the documents I made reference to, Mr. Melchior?

A. I'd be glad to take a look, but from my knowledge of the

Federal Trade Commission documents, I'm not at all too sure

they would refresh my recollection.

. * © ° 1

461 By Mr. De Lone:

Q. Mr. Fricano’s letter of June 28, 1972, which is A-2 in this

record, states that Mr. Melchior—that Mr. Melchior —or re-

fers to your investigation; this investigation was authorized in

November, 1966 and was closed in May of 1969, Is that con-

sistent with your recollection?

A. May of 60 doesn't seem to coincide with my reccliection.

Q. We may

A. At least insofar as my part in the investigation was con-

cerned.

Q. I think there may be some documents which we will come

to later. 1 don't want to tax your recollection unduly. I will

try to give you those, Mr. Melchior, as we come to them,

Now, you recall——

A. As a matter of fact, counselor, I might suggest you say

it was closed in May, 1969.

Q. I don't say that. That is what Mr. Fricano said in that

letter, which was offered to us, which is in evidence here.

A. The investigation was not closed while I was assigned to

it. It was transferred to another office.

Q. Transferred to San Francisco, was it not?

A. I believe it was.

[469] 8 „ „

Q. Now, your pursuit of this study of the industry to see

whether it would fit into the shared monopoly mould con-

tinued and involved, also, did it not, extensive interviews with

geologists and engineers concerning gypsum mines, gypsum

reserves, again, ease of entry, gypsum producers, locations of

gypsum plants. Is that not correct?

A. Yes, I conceived that as requiring assimilation of facts

dealing with all those and perhaps others.

Q. So that you travelled to various parts of the country to

interview persons in these categories?

A. I attempted to interview persons from every category.

activity in the gypsum field, from the mine to fabricated

products.

Q. Now, there came a time, did there not, Mr. Melchoir.

when you concluded that this shared monopoly idea wouldn't

[470] fly, if I may use the vernacular, and you needed to go

a somewhat different route”

* There came a time when I concluded that the gypsum

industry, in my own view, would not be suitable as a testing

ground for the shared monopoly theory.

Q. And isn't that when you and Mr. Cook then embarked on

a series of investigations concerning, or with gypsum distrib-

utors, gypsum manufacturers throughout various parts of the

country—and I have in mind the period of January through

May of 1968. Mr. Cook made a trip, swinging through the

West, saw people at the Texas Gypsum. Republic Gypsum and

a number of gypsum supply houses and you saw a Mr. Doolen,

of Doolen Bauxite, and you saw the attorneys for the plaintiff

in the American Gypsum versus Texas Gypsum case, and you

saw the attorneys for Texas Gypsum and you interviewed them.

Both you and he engaged in this extensive inter, iewing

program.

| A. Yes, you are correct, we did engage in an extensive inter-

viewing program, but it was all part and parcel of the same

study. It wasn't a new study or investigation, as your question

suggested.

Q Didn't you, at the time you were going into this phase.

didn't you conclude shared monopoly was not the route to

2 you needed to follow a more conventional

Mr. Tuonsox. Objection.

[471] Mr. DeLone. May! nish?

Mr. Tuonsox. I thought you were.

Mr. DeLone. May I have the question that I started read”

[ Pariion question read.]

By Mr. DeLone:

— a more conventional theory of price fixing by agree-

ment?

A. That is not correct.

„ * * * *

[483] Q. Now, at this time in April of 1968 when vou are writ-

mg Q-13, you had begun, had you not, contact with attorneys

for plaintiffs in various private trouble damage actions insti-

tuted around the country in which the gypsum companies were

charged with price fixing?

A. Oh, yes. I think I had done that almost contemporaneous

with the beginning of my investigation without instructions

to do it.

Q And do you recall whether you examined, for instance.

the record in the Pensinger case which was started in Arizona?

A. I recall the name the Pensinger case. I have no independent

recollection of what was in the record in that case, or whether

Jever saw the record.

Q. And do you recall that you had the papers in the Texas

Gypsum case, Texas Gypsum versus United States Gypsum,

National, et al. shipped to you in Washington on March 7, on

or about March 7, 1968, and kept them until March of 1969,

when according to the Court's papers you were permitted to

transmi: them to Mr. Marcus Smith of the San Francisco office’

A. I recall getting a file from such a case, yes.

And you or those working under you reviewed the papers

in the Texas Gypsum case, did you not?

[484] A. Well, I have no independent recollection of who re-

viewed the file. I am sure if I sent for it, I must have reviewed

it. [have the feeling I perhaps asked someone on the staff to re-

view it in more detail. As I recall, it was a fairly cumbersome

file. and as I recall it was the case which had elicited the interest

of the Chicago office, and I was aware of what had happened to

the Chicago office's inquiry into the facts involved in that case.

wen we have identified a series of exhibits in this ease Mr.

Melchior. which includes complaints, depositions, answers to

interrogatories which were filed in that Texas Gypsum case.

B-12 through B-24, and I am just describing them generally.

and do we correctly understand that those papers of that type

were reviewed by your office, either you or others under your

shown B-12 through B-24. I don’t believe the witness is fa-

miliar with those documents by that designation.

The Covrt. Are you?

Mr. DeLone. I am sure he isn't familiar with them by that

designation. I tried to deseribe the general nature of the papers.

The Wrrwess. I have no independent recollection of what

was in that file.

[485] By Mr. DeLoxs.

Q. Would it be of any help to you if I showed you what was

na You mich ,

A. You might. I am not at all optimistic, but I

83 will be glad to.

Mr. DeLone. I ask that the witness be shown exhibits B-12

2. documents aro handed to che

witness.

The Wrrwess. I now have five of those documents before

me, and I can see from the tenor of the documents that my

recollection is not at all being refreshed by it. It was usually

my practice, my own individual practice, if I made an inter-

view, or reviewed a file to summarize the contents of the inter-

view or the file. And I recall making no memorandum of this

file which indicates to me that I probably did not review it in

any detail.

By Mr. DeLone:

Q. But probably assigned it to others for review?

A. That is my feeling, but I have no certainty of that. The

fact that I secured it as of the date you mentioned, and I don’t

recall what it was——

Q. March 7. 1968 is an application filed by the United States

. in Texas which asked to have them “Remove

ashington for copying, analysis

Mr. Melchior.” a a wn

A. Based on the date you have given me, I have the feeling

T may have assigned it to someone else to read because at that

time I was becoming involved in the preparation of another

ease for trial. And as I say, I was not at all optimistic that

what I would get from that file. other than general industry

information, would have any great bearing as to whether or

not we would file a case in the gypsum field in view of the

action of the Chicago office.

And what did you think you would get from the informa-

tion you obtained from Mr. Blecher in San Francisco“

Mr. THorson. Objection, Your Honor. That is calling for

something purely sneculative. what he thought he might get

at some time in the future. As I understand the question, it

relates to what he thought prior te the time he made the

Mr. DeLong. He just volunteered what he thought he would

get from the Texas Gypsum record. I asked him the saine thing

as far as Mr. Blecher.

The Covrr. You may answer. ak =?

The Wrrwess. Generally it was my practice in making in-

terviews to discuss with the person interviewed current indus-

try conditions. I naturally did not disclose to the person

interviewed the type of investigation I was conducting. but T

was hopeful in each case that by interviewing [487] them and

asking them to discuss current conditions in the industry I

would be in a position of securing information as to what was

going on. and leads to other possible interviews, and ultimately

Q. Now, you did visit with Mr. Blecher in San Francisco,

did you not?

A. Yes, I did.

2 And you recall that Mr. Blecher provided you with de posi-

tions as they were being taken in the Wall Products cases"

A. I recall Mr. Blecher supplying me with certain informa-

tion, depositions.

If you want to see the exhibits that deal with that

A. No, I will accept the fact. I am sure they were depositions.

Q. And that was in 1968?

A. Thave no recollection as to what the date was.

Q. I show you F-19, which is your letter of March 21, 1968,

to Mr. Blecher. Does that help you fix the time when you were

setting it up so that you would receive copies of a deposition

taken in the gypsum wall products cases?

A. Yes. I can identfiy F-19 as the letter I wrote to Mr.

Blecher.

14021 **

By Mr. DeLone:

Q. Mr. Melchior. we had averted. I think, just before the re-

— — — Ses Sa

inst the companies. I'd like to

— — — of April 23rd, 1968 which is Q-

13 :hat you have seen before and particularly to page 3 of that

memorandum. You are talking about the interview you had

conducted. You comment that they point in direction of con-

spiracy whether or not a conspiracy on a national basis exists is

still not apparent at this time and then you go on after that

paragraph and say, “The best sources of ——

Mr. Tux. Objection, your Honor, to reading

By Mr. DeLone:

Q. | Reading] “The best sources of information as to what has

transpired over the last several years i

Mr. THorson. If your Honor please, if I wait [493] until

the question is completed, then there's no remaining point to

my objection. I would like

The Covrrt. You don't want him to ask about that though.

Mr. THorson. No. To read into the transcript of this ree-

ord —

The Cover. I'm going to let him do it and we will take it by

protective order too.

By Mr. DeLone:

Q. Reading] “The best sources of information as to what

has transpired over the last several years is that which is being

uncovered by treble damaged plaintiffs in suits against some of

the major gypsum companies. These cases have been filed and

in some cases settled in Texas, Arizona, New Mexico. Califor-

nia and Pennsylvania. A major share of the time I spent in my

last series of interviews involved conversations with attorneys

for plaintiffs in some of those cases and in securing copies of

material from the files of those cases particularly inter-

rogatory answers and depositions much of which we must

You refer there to a series of interviews which you partici-

pated in and also refer to cases in Texas, Arizona, New Mexico.

California and Pennsylvania. The Texas case refers to Texas

Gypsum case, Texas Gypsum vs. United States?”

(494) A.US. Gypsum

A. Yes, I'm sure that must have been the one.

Q. Was the Arizona companies the Pensinger case?

A. Is that the only one in Arizona?

Q. That I know of.

A. Then that was the case.

2 346-——77-—_4— Vu! I

Q I don’t know about New Mexico myself. Do you? Do you

know what the New Mexico case was?

case?

have been the DiMarco case.

@ And you hed had discussions with Mr. Lashner who is

counsel in the DiMarco case.

A. The name is very familiar to me and as I recall, I spoke

a and I showed you an exhibit where he sent you s

deposition. I showed you that earlier today.

A. That’s correct.

When was that?

2 The memorandum io dated March 11, 1969, and I imagine

the transfer was almost contemporaneous with the memo.

Q Because you say you are sending him something under

Barbara SVEDBERG.

DIRECT EXAMINATION

[614] eee

A. No, this is not really a recommendation.

Q. How would you characterize that document?

The Court. I want to amend something I said. I don’t know

if I will have to pass on that continuing violation or not

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