# Brief for the United States in Opposition — Weinstein v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0889%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1963 - **Citation:** 373 U.S. 904 ## Text aa Statute igalved ei a ae eae Statemeiit...- -..«-sa-----;-------- Pee ner ce Argument....--.---|--- 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 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. ) ‘ 6 US GOVERNMENT PRINTING OFFICE 1068 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0889%3A4. Public record. Not legal advice.