United States v. United States Gypsum Co.

600 F.2d 414
CourtCourt of Appeals for the Third Circuit
DecidedMay 29, 1979
DocketNos. 78-2263 to 78-2266
StatusPublished
Cited by32 cases

This text of 600 F.2d 414 (United States v. United States Gypsum Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. United States Gypsum Co., 600 F.2d 414 (3d Cir. 1979).

Opinion

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

The appellants, United States Gypsum Co. (USG), National Gypsum Co. (National), Georgia-Pacific Corp. (G-P), and The Celo-tex Corp. (Celotex), appeal from the denial of their consolidated motion for judgments of acquittal on the ground of insufficiency of the evidence to support the convictions. They contend that the district court should have granted their motion and, on the authority of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), should have held that retrial was barred by the double jeopardy clause. Finding sufficient evidence, we affirm.

On December 27, 1973 appellants were indicted, along with two other companies and ten individuals not before us, for violating section 1 of the Sherman Act, 15 U.S.C. § 1 (1976). They are alleged to have engaged in a nationwide conspiracy to fix the prices, the terms and conditions of sale, and the methods of handling gypsum board products. The Government charged that the conspiracy began some time prior to 1960 and continued until the indictment was returned. The indictment listed thirteen means by which the conspiracy was allegedly effected, the most pervasive of which was price verification. Appellants were convicted after a nineteen week trial, and appealed to this court. We reversed the appellants’ convictions, though without ruling on the sufficiency of the evidence. 550 F.2d 115 (3d Cir. 1977). The Government appealed to the United States Supreme Court, which affirmed this court’s judgment. 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d. 854 (1978). The case was remanded to the district court for a new trial.

On remand appellants moved for judgments of acquittal, contending that the evidence introduced at the first trial was insufficient to support the convictions. Their motion was denied on September 7, 1978. Because appellants’ original conviction on the charges involved here was reversed on appeal, if the defendants are correct that the evidence tendered at the first trial was insufficient to support a conviction, retrial would subject them to double jeopardy. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Consequently, they may appeal the denial of their motion at this juncture, under the “collateral order” exception to the final judgment rule. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

In reviewing the denial of a motion for judgment of acquittal on the ground of insufficiency of the evidence to support a conviction, we must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the [417]*417Government, to uphold the jury’s decision.1 Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, we are aware that “the character and effect of a conspiracy [is] not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544, 33 S.Ct. 141, 145, 57 L.Ed. 333 (1913).

I.

The appellants primarily contend that there was presented insufficient evidence of conspiracy in the statutory period to support the conviction, particularly given what they describe as intense price competition beginning immediately prior to the statutory period.2 We focus our attention on that argument.

The gist of the crime of conspiracy to violate the Sherman Act is the agreement itself. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). No overt acts need be alleged or proved: “[I]t does not make the doing of any act other than the act of conspiring a condition of liability.” Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 57 L.Ed. 1232 (1913). To determine whether the conspiracy is a continuing one, we must look to the scope of the agreement allegedly entered into by the parties. Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 91 L.Ed. 196 (1946). See Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). The Supreme Court in United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 54 L.Ed. 1168 (1910), defined a continuous conspiracy as one that “contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to keep it up.” The conspiracy charged here, to maintain high and stable prices, certainly fits that test.

The appellants would have us hold that the Government is limited in the proof of its case solely to those events which occurred during the statutory period. In the context of a continuing conspiracy, we do not believe that the Government is so limited. When the conspiracy is alleged to have been formed prior to the statutory period, the issue becomes one of continuation. We agree with the Second Circuit that “the Government must present evidence justifying the jury in finding beyond a reasonable doubt that the particular agreement into which a defendant entered continued into the period not barred by limitation.” United States v. Borelli, 336 [418]*418F.2d 376, 385 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). There is no requirement that the Government prove a new agreement in the statutory period. United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910). Moreover, the “overt act of one partner may be the act of all without any new agreement specifically directed to that act.” Id. at 608, 31 S.Ct. at 126. See United States v. Nowak, 448 F.2d 134, 139 (7th Cir. 1971). This court discussed the utility of pre-statutory period evidence to prove a conspiracy in United States v. Johnson, 165 F.2d 42 (3d Cir. 1947), cert. denied, 332 U.S. 852, 68 S.Ct. 355, 92 L.Ed.2d 421 (1948). There, the defendants were charged under 18 U.S.C. § 371 (1976) with conspiracy to obstruct the administration of justice.

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Bluebook (online)
600 F.2d 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-united-states-gypsum-co-ca3-1979.