Brief for the United States in Opposition — Weinstein v. New York

aa

Statute igalved ei a ae eae

Statemeiit...- -..«-sa-----;-------- Pee ner ce

Argument....--.---|---<-----------------------

A. Pre-conspiracy ‘period concn Sy eee

B. Conspiracy period -- - - - --------+-------

C. Post-conspiracy EE cunas ss chkau tee

NR. cancun ends eens

CITATIONS

Cases:

_ American Tobacco Co.°v. United States, 328

oo Rh Ree eee gee ere eee

Anderson v. United States, 262 F. 2d 764,

certiorari denied, 360 U.S. 929----------

Brilliant v. United States, 297 F. 2d 385, cer-

tiorari denied, 369 U.S. 871------------

Delli Paolé v. United States, 352 U.S. 232- - - -

Glasser v. United States, 315 U.S. 60_------->

Goins v. United States, 99 F. 2d 147, certiorari

dismissed, 306 U@. 622--- -- -------------

aoe Circuit, Inc. v. United States, 306

US ; wen

Pip Vv. > Inited States, 328 U. S. 730. ey

Northcraft v. United States, 271 F. 2d 184-_--

Pittsburgh Plate Glass Co. v. United States, 260

F. 2d 397, affirmed, 360 U.S. 395... -----

(1)

682222—63-——1

ved

CON Q eww

—

Cases—Continued

Stirone v. United States, 361 U.S. iar 7

United States v. Borden Co., 347 U.S. 514- ---

United States v. Johnson, 319 U.S. 503--- - -- -

United States v. Masonite Corp., 316 U.S. 265-

United States v. Paramount Pictures, . nc., 334

os saan ere

——Umited States v. Procter & Gamble Co, 356

Statutes and Rules:

Sherman Act, Sec. 1, 15 US.C. pee Rate fare he

98 U.S.C, 2111. .--2----------------------

F.R. Crim. P.:

eRule 6(e) ----------------------------

Faile 52(a).------------------------"-

9

on the Supreme Court of the Gnited i Sate

OcrToBER TERM, 1962

No. 832

Beatrice Foors CoMPANY, PETITIONER

v. r

Unirep States OF AMERICA

%

ON PETITION FOR A WRIT OF CERTIORARI FO_THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. 27-59) is

reported at 312 F. 2d 29. e

° JURISDICTION

The judgment of the court of appeals was entered

January 2, 1963. By order of Mr. Justice Brennan

dated February 4, 1963, the time for filing a petition

for a writ of certiorari was extended to February 27,

1963. The petition was filed on February 15, 1963.

The jurisdiction of this Court,is invoked under 28

‘U.S.C. 1254(1).

(1) x

2

QUESTIONS PRESENTED

1. Whether the record contains substantial evidence

to support a jury verdict that petitioner violated See

tion 1 of the Sherman Act by combining and conspir-

ing with others to fix non-competitive prices and

discounts on sales of milk to two government installa-

—

Whether the district court’s instructions ade-

Pats apprised the jury that it could convict peti- —

tioner only if it found, beyond a reasonable doubt,

that the United States had proved the particular crime

charged 1 in the indictment.

°3 Whether the district court abused its discretion

in denying petitioner’s motion foé inspection ef the

grand jury minutes and dismi of the indictment,

when, after examining the minutes in camera, the court

concluded that the allegations in the affidavit support-

ing the motion were ‘‘not supported by the record and

therefore [were] without foundation.”’

~ STATUTE INVOLVED

Section 1 of the Sherman Act, 15 U.S.C. 1, rs

printed in ee D to the petition (pp. ed

STATEMENT

Petitioner Beatrice Foods Company (“Beatrice”)

and co-conspirators Roberts Dairy Company (° *Rob-

\ erts”) and Alamitos Dairy Company (‘‘Alamito’’)

were engaged in the business of purchasifig, process-

ing, bottling and distributing milk and eream in the

Omaha, » Nebraska-Council Bluffs, Iowa area. On

August 28, 1958, a one-count indictment was returned

against Beatrice, Roberts, and Alamito charging them

of .

a © 3

with violation of Section_1 of the Sherman Act (P.F.

1-5)’ by combining and conspiring to “fix and establish

non-competitive prices and discounts for milk and

cream sold and distributed”’ to the Offutt Air Force .

Base and the Veterans Hospital, located in the Omaha

area; and to “allocate to the defendant Roberts, the bid

contract business of supplying milk and cream to the

Veterans Hospital’’, while “alternately allocat[ing] to

the defendants Alamito and Beatrice the bid contract

business’* for milk and cream sold to Offutt Air Force

-Base (Pet. 28, fn. 1; P.F. 5). a ie ae

After a motion ‘hat been denied (Pet. 28; P.F.

23-26) defendants Roberts and Alamito pleaded nolo

contendere, and each was fined $5,000 (Pet. 28; P.F.7

02, 53). Beatrice pleaded not guilty and on May

8, 1961, moved on the’ basis of an. affidavit <a

of one ofits counsel which asserted misconduct

by government attorneys befote the grand jury

that the grand jury minutes be produced for its

inspection and that the indictment be dismissed (Pet. °

28-29, 38; P.F. 134-139). The case then went to

trial. At the close of the government's evidence,

Beatrice moved for a judgment of acquittal. Upon

denial’ of that motion, Beatrice rested, and the Jury

brought in a verdict of guilty (Pet. 29). <A fine of

$15,000 was imposed (Pet. 27; P.F. 161). After con-

viction Beatrice renewed its motions for dismissal of

the indictment and for judgment of acquittal, and, in

the alternative, asked for a new trial. These motions

were denied (Pet. 29; P.F. 177). &

'“P.F.” refers to the pleailing file certified to this Court?

4

The Court® of Appeals for the Eighth Circuit

affirmed. .

cw / Ms

ARGUMENT ey

eat

The petition presents no — ial question war-

ranting review by this Court. Rather, it is devoted to

a reargument of the evidence before the jury, the ade-

quacy of the district court’s instructions, and the cor-

reetness of several of the court’s discretionary rulings

permitting the introduction of certain evidence and

denying petitioner’s motion for disclosure of, the grand

jury minutes.’ All of these contentions were correctly

resolved against petitioner by the Eighth Circuit.

1. Petitioner contends that ihe government’s evi-

dence was insufficient to sustain the jury verdict (Pet.

16-19). It is settled that “[t]he verdict of a jury

must be sustained if there is substantial evidence, tak- -~

ing the view most favorable to the Government, to sup-

port it.” E.g., Glasser v. United States, 315 U.S. 60,

80 (conspiracy to defraud the United States) ; Amert-

can Tobacco Co. v. United States, 328 U.S. 781, 809-

810 (action under the Sherman Act). On the basis of

a detailed review of the evidence in light of the above

standard’ (Pet. 44), the court of appeals correctly

concluded that the evidence was sufficient to support

the jury’s verdict. The evidéhee before the jury is

summarized in the court’s opinionat Pet. 43-44, 49-50.

? Petitioner is not raising before this Court its claim that the

jury panel had been illegally selected (see Pet. 2-3).

_) * Petitioner's contention that the court of appeals should have

reviewed the evidence in light of “[t]he Government's burden

of proving a defendant guilty beyond a reasonable doubt . . .”

(Pet. 14) confuses the proper standard for review purposes

with the standard applicable at trial. Moreover, petitioner's

_—

ee Ls : |

'

|

indictment charged that the conspirators had.

~~ fixed and established non-competitive prices and dis-

cdtints for sales of milk to two large customers, the _.” ead

Offutt Air Force Base and-the Veterans Hospital, both

located in the Omaha area (Pet. 28, fn. 1). However, ‘

since general milk prices in the area “‘were the kase |

points from which bid discounts were measured’’ |

(Pet. 44), it was incumbent upon the government to

establish the area prices. For that purpose evidence

of prices in the general Omaha area was introduced;

and, as petitioner admits (Pet. 9, 19), it was shown

that these prices “were uniform’. In this connec-

tion the government introduced the testimony of Beat-

rice’s Omaha Manager, Mr. Klesath, as to conversa-

tions he had had with Roberts’ sales manager in which.

claim that the court of appeals applied * ‘an affirmatively ad-_

verse” (ibid. ) test, which would require the defendant to excul-

pate itself, ignores. the fact that the court expressly applied the

proper standard (see Pet. 44). The phrase relied upon by peti-

tioner is extracted from the court’s statement, “[w]e cannot say

that that evidence * * * was not sufficient to sustain the jury's

verdict or that it was so affirmatively adverse as to necessitate

an acquittal” (Pet. 49). The latter phrase appears to have

been used to indicate the court’s judgment that the testimony

of one of Roberts’ and one of Alamito’s officials to the effect *

that independent judgment was used in bidding for government

business (Tr. ‘99-103, 176-177) was insufficient, in light of all the: 4

ev idence, to require a judgment of acquittal.

*It is stated by petitioner that, such uniformity was necessary

because of a federal milk marketing order which required the

conspirators to pay “identical” prices for raw milk (Pet. 9). In

fact, the milk order in question only set minimum prices (see Tr.

133-134) ; and, of course, even identical acquisition costs*would 4

not require “identical sales prices or disprove ‘an, agreement to -

maintain noncompetitive prices.

6

they squeal upon uniform prices for the general area

(Tr. 74-85; see Pet. 9).’

Proceedings from_this foundation, the government

then adduced proof of collu etion to fix non-com-

petitive prices and discounts on sales to-thetwo gov-

"ernment installations whieh rested largely on ‘documen=—

er ree a ae

~~

oO w wee,

ean

after that period:

A. Pue- ConsPIRACY PERIOD °

“~

The government introduced evidence showing that

from early in 1951, when the Veterans Hospital in the

Omaha area was figst opened, to about April of: 1954,

- Beatrice, Roberts, and-Alamito had been vigorous

competitors for the fluid milk business atthe Air

Base and the Hospital. The winning, bids were

awarded on‘discounts that ranged from zeré to 10 per-

cent, and each dairy shared ° in the business at both

institutions. &

Veterans Hospital. For sink of the ten contract

periods extending from April 1, 1951 to March 31,

1954, each defendant submitted a bid for the Hospi-

tal’s business (Pet. 43). Beatrice was the successful

’ Petitioner has repeatedly referred, to the introduction into

‘evidence of these conversations as gross error since, in its view,

they did not relate/to the charged conspiracy (Pet. 9-10, et:

But, as the court lof appeals stated (Pet. 50): “Although

Klesath conversations had to do with matters affecting the area

generally and were not directed specifically to, business at the

Base and the Hospital, the pricing at the latter was dependent

on the former.”

7

bidder on four occasions with discount offers of 1 per-:

cent, 414 percent and 5 percent twice (ibid.)." Ala-—

mito also received the contract four timgs : twice at no

discount, once at 3 percent, and once at 1014 percent

(tbtd.). Roberts received the award twice on offers

of 1 percent and 2‘ percent discounts (tbid.).

y

Air Base. Bidding at the Air Base was similarly @¢

competitive-for the eight contract periods from 1952

to 1954. Beatrice won four contracts by offering dis-

counts of 2 percent twice, 344 percent, and 5 percent

(Pet. 43). Roberts was ‘successful twice, hidding zero

and 3.96 percent (ibid.). Although Alamito, in con-

trast to, the’ others, offered no discounts during the

pre-conspitacy period, it twice obtained the contract

by offering lower net prices than either Beatrice or

Roberts (Pet. 43; GX 6, 45).

B. CONSPIRACY PERIOD

_ * From about March 1954 to about April 1957\bids to

. the government institutions reflected a design to divide

the business and a rigidly uniform pattern in which all

winning bids except one were at a 2 percent discount.

Veterans Hospital... For a three and one-quarter

year period, from April 1, 1954 to June 30 » 1957—or

eight consecutive contract periods—Roberts, ‘alone, ‘ob-

tained the hospital business; and, with but ohe minor

exception, the hid was a 2 pereent discount off whole-

sale price ( Pet. 43; GX 46).” Beatrice offered no dis-

On. one occasion Beatrice offered a discount of ras percent

but was outbid by Alamito (Pet. 43: see GX 5).

"On one occasion a 114 percent discount for six months was

accepted as an alternative to a 2 percent discount for twelve

months (Pet. 43).

* @82222—63-——2

‘

— ~~

J

8

counts during the ‘period, except for a single unsue-

cessful offer of 1 percent in January 1955 (Pet. 7),-

although it had won the contract for the’ period im-

mediately preceding the conspiracy with a bid of a

5 percent discount (ibid.). Alamito, which could have

won every contract at the hospital by merely matching

~ Roberts’ 2 percent bids," offered no discounts through-

out the entire period, although previously it had bid as

high as 10% percent (Pet. 45). :

Atr Base. With Roberts secure in its exclusive en-

joyment of the hospital business, Beatrice and Ala-

mito divided the Air “Base business." This division

was accomplished by a virtually perfect rotation of

the contract between Beatrice and Alamito, the win-

ner always bidding 2 percent, andthe loser usually

offering either no discount or a 1 percent discount

(Pet. 6). The possibility of coincidence is virtually.

riled out by the fact that, ds noted above, Alamito

could have won any of the bids merely by matching |

Beatrice’s bid. Further, in the contract period pre

ceding the conspiracy, Beatrice had won the contract

with a discount of 5 percent, and Alamite had offered

“no discounts at all until the conspiracy began.

Roberts offered no discounts throughout the period of

*Alamito qualified as a “small business” under government

regulations which would have, permitted it-to have obtained

any contract at the government installations by matching the

bids of its competitors (see Tr..111-113).

* Since the dollar volume of fluid milk purchased at the Air

Base at the beginning of the corispiracy period was almost

exactly twice that at the Veterans Hospital (GX 44; see Tr.

_ 260), the conspirators’ arrangement resulted, at least at that

_ time, in each obtaining one-third of the total fluid milk busi-

ness at the two government institutions.

s aes 9

the conspiracy (et. 6), although it had earlier bid.

as high as 3.96 percent and had twice obtained the

Air Base contract (Pet. 43).

The parties’. uniform and reciprocal pattern of

bidding at the Air Base and the Hospital during the.

conspiracy * period contrasted with their pattern of

bidding for similar business at other institutions in

Omaha. For example, in bidding fér contracts at -

the University of Nebraska Hospital during the con-

spiracy (Pet. 8), Beatrice offered three discounts of

10 percent, one of 64% and one of 5 pereent.

Roberts and Alamito both offered discounts varying

from zero to 15 percent. . See fn. 13, infra.

C. POST-CONSPIRACY PERIOD

After the beginning of the investigation whieh cul-

minated in the return of the indietment, the bidding

pattern once again shifted. a

Veterans Hospital, On duly t, 1957, Alamito, for

the first time in more than three, and one-half years,

offered a 2%, percent discount Pp et. 43) and took the

business which Roberts had enjoyed for eight. sueces-

~ sive contracts. Beatrice also broke the pattern by -

obtaining the award on a 5 percent discount for the

contract period beginning July 1, 1958 (ibid.).

Roberts then retrieved the business for the following

period with an offer of a 10 percent diseotint (ibid.).

Atr Base. Shortly after the commencement of the

government investigation, Roberts submitted a bid to

the Air Base for the bid period beginning June_1, 1957,

that amounted to a‘discount of 8 percent for a portion

of the contract (Pet. 43), even though in the preceed-

10 © ‘

ing three and one- halt vears Roberts had offered the

Air Base no discount whatever. Beatrice abandoned ,

its usual 2 percent hid and offered approximately 4 per-

cent off wholesale for the contract period from Decem- -

her, 1, 1957 to May 31, 1958 (Pet. 43-44) ¢,and in the

next period the net prices offered by both Beatrice and

Alamito for gallons of milk were approximately 5

percent, below list price (ibid.). .

The court of appeals’ ruling accords with the, deci-

* sion’of this Court in Interstate Circuit, Inc. v. United

States, 306 U.S. 208. In that case, the Court, noting

that, the gov -ernrfent had presented no direct evidence

of collusive attion, held that an illegal agreement

was nevertheless established by “inferences drawn

from the course of conduct of the alleged con-

-spirators’’, to wit, the “substantial unanimity of

. action’’ taken by . defendants. 306 U.S.:at 221.

In the instant «case, the parties’ bidding patterns

and practices before, during, and after the conspiracy

raise a compelling inference that the bids-were col-

~ lusive. Moreover, in the presence of such evidence,

the ‘‘burden rested on [petitioner] of going Forward

with the evidgnee to explain away or contradict it”’,

306 U.S. at 226, and petitioner failed to proffer-« con-

tradictor vy ore xplanatory evidence.”

-

See also United States v. Paramount Pictures, Inc., 334°

U.S. 131, 142; United Statex v.. Masonite Corp., 316 U.S. 265,

274-276. Petitioner's reliance on United States v. Borden Co,.

347 U.S. 514, is misplaced. In that case the Court _merely held

that on “the fecord * * * before us” the government has “not:

established a case urder the Sherman Act”: 347 U.S. at 516.

Here, as we have shown above and the court of appeals Pointed *

out (Pet. 54), the government's case “rises above [thatt pre-

sented in Borden.”

il

2. Petitioner argues that the district court 's charge’

to the jury, considered in light of government coun-..

sel’s summation, amounted to an instruction that the .”

jury could find it‘ guilty of a crime not charged in the ‘

indictment (fixing prices in the general Omaha mar-

ket) (Pet. 2, 19-21). We recognize, of course, that

a conviction ‘ton a charge the grand jury never made’”’

cannot stand. Stirone v. United States, 361 U.S. 212,

219. But, as the court of appeals concluded, n® such

-eontention-can-be supported on the facts of. this ease.

In the charge to the jury (Tr. 372-394, reprinted-at

Pet. 40-78), the district court (Judge Robinson) be-

gan its discussion of the applicable law by stating that

the government had to establish ‘“‘the crime charged

in the indictment’’, and to prove it was committed

“within the Judicial District of the State of Ne-

braska” (Pet. 61). J udge Robinson then quoted the

indictment, which charged a conspiracy to fix non-

competitive prices and discountsefor the sale of milk

to the Air Base and Veterans Hospital. in Omaha

(Pét..63). After discussing the Sherman’ Act and the

law of conspiracy (Pet. 63-67), the court framed the

issues before the jury (Pet. 67): “The question with

you is whether or not Beatrice Foods Company has

entered*into an agreement to fix and establish prices

- and discounts on milk or to divide or allocate the bid

business of supplying milk to Offutt Air Force Base

- and the Veterans Hospital’. Judge Robinson next

instructed the jury that a conspiracy to fix prices vio-

lated the antitrust laws (Pet. 67-69) and that, if the

government had proved a price-fixing conspiracy “in

interstate commerce within the Omaha area, you must

+.

‘. Be

"find them guilty notwithstanding the motives or pur-

poses of the defendant” (Pet. 70). He then reiter-

ated that the charged violation consisted of defend-

ant’s fixing non-competitive prices for “milk sold to

Offutt Air Force Base or the Veterans Hospital” and

pointed out that ‘“‘[t]he mere fact that the Govern-

ment was the customer or prospective customer in

the transactions under examination is immaterial”

‘ (Pet.’70, 71). Judge Robinson éoncluded his charge

with a discussion of the type and quantum of proof

essential to a finding of guilt (Pet. 72-77).

Petitioner argues (Pet..19-20) that the court’s in-

structions to the jury went beyond the crime charged

ini the indictment because the court made two refer-

ences to price-fixing in ‘‘the Omaha area” (Pet. 70)."

** The paragraphs in which mention was made of “the Omaha

area” were, in their entirety as follaws (Pet. 69-70) :

“So ladies and gentlemen, whatever justification or motive,

whether economic, benevolent, or otherwise, that price-fixing

agreements nay be said to have, the law does nét-permit inquiry

into their reasonableness. Therefore, if you determine that the

defendants agreed or conspired to fix, stabilize, or control

prices, or agreed to maintain uniform and non-competitive

prices of dairy products in interstate commerce. within the

~ Omaha area, you must find them guilty notw ithstanding the

motives or purposes of the defendant in so agreeing or acting»

“The Court’ has stated to you the purposes of the Sherman

Antitrust’ Act and the restrictions under it, but has not in-

tended to leave the impression that it is unlawful for dairy

operators to sell dairy products at the same or uniform prices,

nor is it unlawful for one dairy to meet the price of another

dairy, whether the price is lower or higher. The mere fact

that one or more of the. dairies involved here may have prompt-

ly met the price of another, or ‘that there was a simultanéous

price chttige, if such is the evidence in your opinion, is not suffi-

cient to warrant you in returfing a verdict of guilty. Before

' you can convict the defendant on trial in this case you must find

Bg 5 Se

.

But at this point in the charge the court was explain-

ing-that a conspiracy to fix prices is illegal per se and

«annot be justified and that a verdict of guilty could

he rendered only upon a finding that the non-competi-

tive pricing policies of Beatrice had resulted from a

conspiracy. The district judge had already made the

point clear—in the introduction, in the reading of the

“indie ‘tment, and in the paragraph in which he framed

thes issue—that the prices in question were those to

the Air Base and the Veterans Hospital. In the pas-

sages relied upon by petitioner, the court was in-no

way concerned with prec ‘ixely delimiting the scope of

the charged violation. When read as a whole, as they

must be (¢.g., Northcraft v. United States, 271 F. 2d

184, 188 (C.A. 8); Andersow v. United States, 262 F.

2d 764, 773 (C.A. 8), certiorari denied, 360 U.S. 929),

the instructions ‘adequately prese nt[ed] “the issues 1n

< form rennin to the > Jury ** (Pet. 58), and

the Air Base and Veterans Hospital. As the court of

appeals held (Pet. 58) : ~

It seems clear to us * *-* that the jury did not

assume or understand that Beatrice was charged

with-anything other than a conspiracy directed

solely to the Base-and the Hospital or, to ex-

press it reversely, that it understood Beatricé

was not charged with a conspiracy to fix uni-

form prices generally in the Omaha market.

« Weare persuaded as to this by the court’s and.

from thb evidence, beyond a reasonable doubt, that any equality _

or uniformity of prices at a given time resulted, as the Court has

stated, from a combination or conspiracy to fix, control or main-

tain prices of dairy products in the Omaha area.”

» a

* - RR

™. 14

counsels’ repeated emphasis upon the, Base and

the Hospital as the objects of the conspiracy.

Also, the indictment was read to the jury and

was specific in its confinitig aspects.” * * *

In holding that the district court’s instructions to

the jury could not fairly be read to permit the con-

viction of Beatrice for a crime not charged in the

indictment, the court of appeals observed that “as to

this, we have considered the government’s closing

arguments” (Pet. 58). Thus, the court of appeals re-

jected petitioner’s suggestion, renewed here, that gov-

ernment counsel in “his summation ‘‘departed: entirely

from the indictmént”™ (Pet. 9-10, 19-20). °

> Actually, government counsel repeatedly described

the nature of the charged violation with careful ac-

curacy. At the outset of his argument to the jury,

counsel pointed out that “the charge is that the Bea-

trice Foods Company, Alamito and Roberts were con-

spiring to fix prices at two Government installations,

and two, only; the Offutt Atr Force Base and the Vet-

' erans Hospital” (Tr. 328, emphasis added). He fur-

ther stated that the defendant must be found guilty

only if the jury concluded, beyond a reasonable dovfbt,

that Beatrice was “engaged in price fixing in the sale

of milk to these two, Government institutions” (Tr.

329): Finally, in detailing the government’s proof

\ ‘that Beatrice and the co-conspirators had fixed milk .

-' * The district court's refusal to charge the jury, as requested

__ by petitioner, that the sole issue is “whether the Government has

_ proved the defendant guilty of the particular conspiracy defined

in the indictment” (Pet.79}-is 6f no consequence. As shown

above, the substance of that request was adequately covered in

the charge as given,

‘ mY ld

prices and discounts to the above two institutions, he

gave the members of the jury n{iniature copies of sev-

eral charts introduced into evidence by, the govern-

meut (GX 42, 44, 45, 46, 52, 54, 55, 75, 76, 89)—all but

one of which (GX 55) related only te discounts and |

prices offered to the Offutt Air Force Base and Vet-

erans Hospital “—and analyzed them for the re-

mainder “of his argument( see Tr. 337-348). While he

also discussed evidence relating to the parties’ identi-

cal prices in the Omaha area in January 1957, and

noted that this indicated a general price fixing scheme

at that time as well as on an earlier oceasion (‘Tr. 330-

334), this discussion was merely background for the:

argument addressed to the specific charge in the in-

dictment. Thus his argument moved to the issue at

trial (Tr. 334): “But that isn’t the end of the story. °

Those prices which were fixed were carried over to the

~ bids made to the Veterans Hospital and Offutt. - Those

same prices that were fixed in the manner they were

fixed appeared on the hid sheets, as we shall see when

we discuss the charts.”’

Because it was necessary for the United States to.

_ prove the, uniform base prices from which the non-

competitive discounts to the Air Base and the Vet-

‘erans Hospital were computed (see Pet. 58), in order

to establish that the non-competitive discounts affected

9 @X_55 showed the discounts offered by Roberts, Alamito, and

Beatrice to the University of Nebraska Hospital from June

1954 through June 1957, but did not list or refer to milk prices

in the general Omaha market. It was introduced to show that

‘while the conspirators allocated among themselves the business

at’ Offutt and the Veterans Hospital, they were “actively

bidding” for sales to the University (see Tr. 342-343).

>

yd

© ahaa Y

the ultimate awards, it was proper for government

counsel to comment on the base prices in the summa-

tion. . His opinion on the legality of the methods used

to. establish the general: area prices could not have

confused the jury as to the nature of the alleged viola-

tion, for, as pointed out above, government counsel had

repeatedly made clear in his argument that the charged

‘crime involved only the “bids made to the Veterans

Hospital..and Offutt” (Tr. 334). Moreover, as the

court of appeals observed (Pet. 58), the government’s

“evidence itself was overwhelmingly directed to the

. two institutions”, and the district eourt’s instruction

adequately delineated the limited scope of the charged

violation.”* :

?

** Petitioner's contention that the court of appeals “fail[ed]

to consider the cumulative prejudice of multiple evidentiary

and instructional errors” (Pet. 2, 21-24) is misplaced. The

short answer is that there were no such multiple errors. We

have shown above, and the court of appeals held (Pet. 57-59),

that the trial judge’s instructions to the jury were proper. In

the section of its opinidn headed “Errors in the reception of

evidence”, the court held that only one item of hearsay testi-

mony was improperly admitted, and found that any prejudicial

effect, such .estimony might have had “Was cured by the fact

that the district court, “on its own motion, struck that testimony

and directed the jury to disregard it” (Pet. 56). As to one

other item of evidence, while the court of appeals had some

“doubt” about admissability, it held that “we are not convinced

that, if itd admission was error, there was resulting prejudice”

(Pet. 57). On the record in this case, therefore, the court of

appeals was clearly correct in refusing to reverse for procedural

errors. Errors “which do not affect the substantial rights of

the parties” are not grounds for reversal and must be “dis-

regarded”. 28 U.S.C. 2111; Rule 52(a), F.R. Crim. P.; Kotteakos

v. United States, 328 U.S. 750, 764-765; see Delli P. aoli v. United

States, 352 KS. 232, 242; Coins v.. United States, 99 F. 2d 147

(C.A. 4), certiorari dismissed, 306 U.S. 622.

a 17

3. More than two and one-half vears after return of .

the indictment, on the day trial began, petitioner

moved that the “grand jury minutes be produced for

inspection by the defense and the court” and that the

indictmen® be quashed because of misconduct of gov-

ernment attorneys before the grand jury (Pet. 38).

The motion was supported solely by an affidavit of one

of petitioner’s attorneys. . He asserted that 3 witnesses

before the grand jury had recorded on tape immedi-

ately after testifying that the government attorneys,

in front of the grand jury, had threatened them wath

prosecution for perjury and asserted that defendants

had committed the crime being considered (/bid.).

Neither the tapes nor affidavits of the witnesses were

proffered. The district judge, after examining the

grand jury transeript in camera and finding that the

allegations in the affidavit ‘are not supported by the

record and therefore are without foundation,” denied

the motion (Pet. 38; P.F. 177). ‘The court of appeals

‘affirmed, stating ( Pet. 42):°*Weé do not see in the alle-

gations of this affidavit anything which suggests that

the ends of justice reqitire thatgthe whole er any part

of this*[grand jury] trans¢ript be made available to

the defendant." The covirt of appeals noted that it

also had earefully read the transeript (Pet. 42).

Petitioners’ argument now seems to be that the in

camera reading of thé grand jury transeript by the

courts below was “Star Chamber procedure’? under

which evidence was ‘received and weighed” against

it in violation of its constitutional right to confronta-

tion of adverse witnesses (Pet. 25). This contention

_is ,without merit, even apart from the fact that the

ad

18:

conviction here was by a jury which did not even see

the transcript.

Grand jury proceedings are, and historically have

been, confidential. United States v. Johnson, 319 USS.

503; United States v. Proctor & Gamble: Co., 356 U.S.

677, 681-682 and fn. 6. Rule 6(e), F.R. Crim. P., sets

forth the only conditions under which federal courts

ean permit defendants to view grand jury,minutes.

Interpreting that rule, this Court has recently held, in

upholding a district court’s denial of an antitrust de-

fendant’s motion requesting disclosure, that ‘‘Rule

6(e) is but declaratory’’ of the established principle

that disclosuze is ‘committed to the discretion of the

trial judge.’ Pittsburgh Plate Glass Co, v. United

States, 360 U.S. 595, 399 (footnotes omitted). And

the burden is on the moving defendant to establish

that “a particularized need’* exists for the minutes.

Id. at 400. :

The court of appeals here held that the trial court’s

denial of petitioner’s motion ‘‘was not an abuse of dis-

cretion”? (Pet. 42) since Beatrice did not establish a

particularized need for the grand jury transcript .

(Pet. “41). In support of this conclusion the Eighth

Cireuit cited the following facts (Pet. 40-41): (1) al-

though the affidavit of petitioner's counsel alleged that

that witnesses’ statements were made ‘immediately”’

after testifying before the grand jury, the motion was

not made until more than two and one-half years after

the indictment was returned, (2) Xo supporting

affidavit from any of the three withesses was pre-

sented, (3) the complaining witnesses, all of whom

were agents or employees of Roberts, were only three

a 19

of many appearing before the grand jury, (4) re-

corded statements were taken from some of the other

witnesses, but the affidavit contained no similar

reference » any of those, and (5) one of the

three Witnesses testified at the trial.

The fact that the district court and the court of

appeals, out of an abundance of caution, undertook to

examine the grand jury tri anscript, although they need

not have done so," does not make petitioner’s case, any

stronger. It ean hardly complain that its motion

received closer scrutiny than it was entitled to.

CONCLUSION

It is respectfully submitted that, for the foregoing

reasons, the petition for a writ of certiorari should be

denied.

ARCHIBALD Cox,

Solicitor General.

LEE LOEVINGER, ;

. Assistant Attorney General.

Rosert B. HUMMEL,

Grorce R. Kucik,

TL. DANIEL Stewart, Jr.

Atto. neys.

Apri 1963.

18 Part of the district court's diseretion in passing on motions

under Rule 6(e) is the determination whether én camera inspec-

tion of the grand jury minutes is warranted, F.g.. Pit; shurgh

Plate Glass Co. v. United States, 260 F. 2d 397, 404 (CLA. 4),

affirmed, 360 U.S. 395 Brilliant v. Vnited States, 297 F. 2d 385,

391 (CLA. 8), certiorar: denied, 369 U.S, 871.

)

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US GOVERNMENT PRINTING OFFICE 1068