hearsay declarations of alleged coconspirators; and, (3) the Court's charge to the jury was meaningless and confusing, failed to relate legal principles to the issues in this case and failed to adequately explain the complex legal issues involved. Continental, Chase and Rue also argue individually, Inter alia, that errors in the Court's charge to the jury entitle them to a new trial.
First, we find that the Court properly admitted testimony of events occurring during the 1950's through the early 1970's, properly admitted hearsay declarations of alleged coconspirators and properly instructed the jury with respect to this testimony. It is well settled that evidence of conduct occurring prior to the time period covered by the indictment is admissible for the purpose of demonstrating, Inter alia, the intent, purpose or aim of the parties to the offense. American Tobacco Co. v. United States, supra, 147 F.2d at 119; United States v. Cioffi, 493 F.2d 1111, 1115 (2d Cir.), Cert. denied, 419 U.S. 917, 95 S. Ct. 195, 42 L. Ed. 2d 155 (1974); United States v. Hickey, 360 F.2d 127, 139-140 (7th Cir.), Cert. denied, 385 U.S. 928, 87 S. Ct. 284, 17 L. Ed. 2d 210 (1966). This is particularly true in federal antitrust conspiracy cases, where evidence of events or conduct occurring prior to the statutory period of the offense or before the commencement of the conspiracy has been held to be admissible for the purpose of demonstrating the fact that a given conspiracy is a continuing one or to explain the acts and declarations of the conspirators once the conspiracy commences. United States v. Dunham Concrete Prod., Inc., 475 F.2d 1241, 1250 (5th Cir.), Reh. denied, 477 F.2d 596, Cert. denied, 414 U.S. 832, 94 S. Ct. 65, 38 L. Ed. 2d 66 (1973); United States v. Hickey, supra, 360 F.2d at 139-140; United States v. Johnson, 165 F.2d 42, 45 (3d Cir. 1947), Cert. denied, 332 U.S. 852, 68 S. Ct. 355, 92 L. Ed. 421 (1948); United States v. General Motors Corp., 121 F.2d 376, 408 (7th Cir.), Cert. denied, 314 U.S. 618, 62 S. Ct. 105, 86 L. Ed. 497 (1941). Nor is it error to admit evidence of conduct which occurred prior to the date that the applicable statute was amended to define that conduct as criminal, for the purpose of demonstrating, Inter alia, intent, motive or purpose, where that conduct continued subsequent to the amendment of the statute. United States v. Ferrara, 458 F.2d 868, 874-875 (2d Cir.), Cert. denied, 408 U.S. 931, 92 S. Ct. 2498, 33 L. Ed. 2d 343 (1972); United States v. Marchesani, 457 F.2d 1291, 1294-1295 (6th Cir. 1972). In the instant case, the indictment alleged that the continuing conspiracy in violation of § 1 of the Sherman Act, in which the defendants each joined and participated, began at least as early as 1950 and continued until the indictment was returned on October 29, 1976. The substantive offense with which the defendants were charged constituted a criminal offense during the entire period of the conspiracy as that conspiracy was defined in the indictment. While the penalty for a violation of § 1 of the Sherman Act was changed from a misdemeanor to a felony by the December 21, 1974, amendment of § 1 of the Sherman Act, the substantive elements of the offense remained unchanged throughout the period covered by the indictment. Because the defendants in this case were indicted after the penalty for the commission of this offense was changed to a felony, the jury was required to find beyond a reasonable doubt that each defendant knowingly participated in the conspiracy during the period from December 21, 1974, the date of the amendment, to October 29, 1976, the date the indictment was returned, before finding that particular defendant guilty as charged. However, the jury could properly consider acts, declarations or other conduct which occurred prior to the defined time period for the purpose of determining the intent, purpose, goal or conduct of each of the defendants during the defined felony period. The Court in this case correctly instructed the jury accordingly (N.T. 35-36 to 35-37).
Second, it is well settled that the order of proof at trial is within the discretion of the Court. Geders v. United States, 425 U.S. 80, 86, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). Specifically, in a conspiracy case, statements or other evidence not otherwise admissible but for the conspiracy may be conditionally admitted into evidence subject to a demonstration, as shown by subsequent independent proof, of their connection with the conspiracy. United States v. Graham, 548 F.2d 1302, 1308 (8th Cir. 1977). Thus, ". . . declarations of one coconspirator may be received at any time during the course of the trial subject to subsequent proof of the existence of the conspiracy and the connection of the defendant therewith." United States v. Vespe, 389 F. Supp. 1359, 1369 (D.Del.), Aff'd sub nom., United States v. Shaffer, 520 F.2d 1369 (3d Cir. 1975) (per curiam), Cert. denied, 423 U.S. 1051, 96 S. Ct. 779, 46 L. Ed. 2d 640 (1976) (citations omitted). United States v. Trowery, 542 F.2d 623 (3d Cir. 1976) (per curiam), Cert. denied, 429 U.S. 1104, 97 S. Ct. 1132, 51 L. Ed. 2d 555 (1977), and Krulewitch v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L. Ed. 790 (1949), cited insistently and frequently by the defendants throughout the course of the trial, as well as in support of their motions for a new trial, are not inapposite. In Trowery, the Third Circuit enunciated the well-settled rule, stated above, that to determine whether statements of an alleged coconspirator are competent against the non-declarant, the trial judge must determine whether it has been proved, by a clear preponderance of the evidence independent of the hearsay statement, that a joint undertaking existed at the time of the statement or action and that the declarant was a participant. United States v. Trowery, supra, 542 F.2d at 626-627. The enunciation of this rule, however, does not affect the corollary rule that the Order of admitting such proof is left to the discretion of the trial court. Thus, the Government, while required to meet this burden of proof, was permitted to introduce the hearsay evidence subject to later connection with the conspiracy, by clear, independent evidence and to the satisfaction of the trial court. United States v. Graham, supra; United States v. Vespe, supra. And Krulewitch is distinguishable from the case at bar because, in that case, the Supreme Court reversed the petitioner's conviction for the reason that hearsay declarations attributed to a coconspirator which were made subsequent to the conclusion of the conspiracy rather than pursuant to, or in furtherance of, the conspiracy were erroneously admitted into evidence. Krulewitch v. United States, supra, 336 U.S. at 442-445, 69 S. Ct. 716.
In the instant case, the Court did not abuse its discretion to permit the Government to introduce hearsay statements of alleged coconspirators subject to their later connection with the conspiracy by clear, independent evidence, because the evidence in this case clearly was sufficient for the jury to find beyond a reasonable doubt that a conspiracy existed and that each of the defendants knowingly joined and participated in that conspiracy during the felony period.
Finally, the defendants jointly, and Continental, Chase and Rue individually, argue that the Court's charge to the jury was improper. First, each defendant jointly argues that the Court's charge was improper because it consisted almost entirely of abstract statements of general legal principles unrelated to the evidence, the particular circumstances of each defendant or the individual contentions of the parties. Specifically, they argue that, "except as an afterthought," the Court failed to instruct the jury in a manner which would sufficiently illuminate the jury with respect to the individual defendants' theories of defense or with reference to the specific facts of the case. In addition, the defendants argue, Inter alia, that the Court erred by refusing or failing to adequately cover the defendants' joint requested points for charge and by giving, either verbatim or in substance, the Government's requests to charge. We find, after a thorough review of the record, the Court's charge to the jury in this case and the relevant authorities, that the Court properly, adequately, correctly and fairly instructed the jury in this case. We find, further, that all of the defendants' requested points for charge, to the extent that they were clear, correct and unbiased, were properly and fairly incorporated into, or "covered," by the Court's charge to the jury.
It is well settled that a Court ". . . must fairly and impartially state the issues and applicable law in logical sequence and in the common speech of men if the jury is to understand the issues and intelligently apply the law." Elbel v. United States, 364 F.2d 127, 134 (10th Cir. 1966), Cert. denied, 385 U.S. 1014, 87 S. Ct. 726, 17 L. Ed. 2d 550 (1967). It is also well settled that "a defendant in a criminal case is entitled to have the jury instructed on any theory of defense for which there is any foundation in the evidence, however tenuous." United States v. Mathis, 175 U.S.App.D.C. 341, 343, 535 F.2d 1303, 1305-1306 (1976); United States v. Bastone, 526 F.2d 971, 987 (7th Cir. 1975), Cert. denied, 425 U.S. 973, 96 S. Ct. 2172, 48 L. Ed. 2d 797 (1976); United States v. Smith, 410 F. Supp. 1256, 1259 (E.D.Pa.1976). And finally, it is well settled that a trial court commits reversible error if it fails to relate the law to the particular facts of the case. United States v. Holley, 502 F.2d 273, 276 (4th Cir. 1974). But it is also well settled that a trial court is not required to give a detailed summary of the evidence and that it is bound to avoid instructions to the jury which are confusing and which tend to direct the jury's attention away from the issues they are called upon to decide. United States v. Bastone, supra, 526 F.2d at 987, Citing United States v. American Rad. & Stan. San. Corp., supra, 433 F.2d at 189; United States v. Holley, supra, 502 F.2d at 276.
Furthermore, a trial judge has broad discretion in ruling on points for charge and it is not error to refuse to instruct as counsel wishes if the charge to the jury is correct. United States v. Blair, 456 F.2d 514, 520 (3d Cir. 1972) (citations omitted); United States v. American Rad. & Stan. San. Corp., supra, 433 F.2d at 199. This is particularly true where the requested points for charge were ". . . prolix, imprecise and often intertwined evidentiary assumptions with law in a highly partisan manner." United States v. American Rad. & Stan. San. Corp., supra, 433 F.2d at 199.
In the instant case, a thorough reading of the Court's charge to the jury demonstrates that the Court fairly, impartially, adequately and completely, and in language the jury could understand, instructed the jury as to the law and issues in this case. Such a reading will also demonstrate that the Court clearly, correctly, fairly and impartially instructed the jury with respect to the defendants' theories of defense (N.T. 35-32 to 35-34, 35-43 to 35-44, 35-59 to 35-62, 35-147 to 35-149).
Finally, many of the requested points for charge submitted by the defendant in the instant case were imprecise, misleading and partial and incorrectly stated the applicable law. The Court, in ruling upon the defendants' requested points for charge, clearly advised counsel of its intentions with respect to its instructions to the jury. Id. And, to the extent that the defendants' requested points for charge were proper and correct, they were clearly, fairly and correctly incorporated into the Court's charge to the jury, in substance if not verbatim.
Finally, while Continental's individual objections to the Court's instructions have been discussed fully in other parts of this Opinion, those of Chase and of Rue, as an employee of Chase, require discussion, if only because of the strenuous persistence with which they are urged. In essence, Chase's objections and those of Rue as a representative of Chase are, Inter alia, that because of the "special position" of Rue and Chase they were prejudiced when the Court failed to explain their contentions and theories of defense to the jury and that the Court erred when it only presented the jury with abstract legal principles. In particular, Chase argues that the Court erred when it failed to instruct the jury as Chase had requested, when it failed to single out for the jury Chase's "special position" and when it failed to instruct the jury adequately on Chase's theory of defense. First, as stated Supra, a trial court is not required to adopt a defendant's requested points for charge verbatim, particularly when those requested points are "prolix, imprecise or intertwine evidentiary assumptions with law in a highly partisan manner." United States v. Mathis, supra, 175 U.S.App.D.C. at 343, 535 F.2d at 1305; United States v. American Rad. & Stan. San. Corp., supra, 433 F.2d at 199. Nor is a trial court required to, and indeed it would be error to, single out a particular defendant in a multidefendant case in a manner which would in any way prejudice that defendant. Id. A careful reading of Chase's requested points for charge in this case reveals that they were, to a great extent, highly misleading, erroneous and colored by Chase's determined belief that specific intent and conduct which unreasonably restrained trade were essential elements of a § 1 felony violation. Further, Chase's request that the Court instruct the jury as to Chase's "special position" amounted to, in essence, a request that the Court instruct the jury to acquit both Chase and Rue, an instruction unwarranted by the evidence. Moreover, to have singled out Chase or, by definition, Rue in the manner requested by counsel would have unfairly and severely prejudiced both Chase and Rue by specifically calling attention to the conduct of two defendants in a multidefendant conspiracy case where that conduct, despite Chase's assertions to the contrary, did not differ significantly from that of their codefendants.
Finally, despite Chase's vigorous assertions to the contrary, its theory of defense was not as clear to the Court as Chase urges that it was. Presented with Chase's plethora of "jury aids," documents, outlines and charts, as demonstrated particularly by Chase's six-page outline of its opening statement to the jury, its economic evidence and its requested and supplemental requested points for charge, it was never clear to the Court whether Chase's theory of defense was either that: (1) the prices charged by the defendants for consumer bags, although fixed by the conspirators and not by free market forces, were reasonable prices and, therefore, Chase's conduct in conspiring to fix those prices did not violate § 1 of the Sherman Act; or, (2) the prices charged by the defendants for consumer bags were determined by free market forces and Chase's conduct in the market place was determined solely by those market forces, such as price followership and competition; or, (3) both of the above. To the extent that Chase's defense theory was the second alternative listed above, that theory was clearly, fairly and adequately explained to the jury. To the extent that Chase's defense theory was the first alternative listed above, as based upon Chase's belief that specific intent and conduct in unreasonable restraint of trade were essential elements of a § 1 felony charge, that theory was clearly erroneous and it was clearly not error for the Court to decline to instruct the jury in accordance with Chase's first alternative theory.
One final issue requires discussion. Subsequent to the completion of this Memorandum Opinion, but prior to its filing, the defendants filed a joint motion for leave to file a supplemental memorandum in support of their previously filed post-trial motions, in light of the Supreme Court's recent opinion in Gypsum, supra. In their supplemental memorandum, the defendants argue that the Court's charge to the jury on the issue of intent in the instant case constituted reversible error because it instructed the jury to find that wrongful intent could be presumed from conduct as a matter of law and, thus, was indistinguishable from the charge found by the Supreme Court in Gypsum to have constituted reversible error. We disagree.
In Gypsum, the trial court instructed the jury that:
(t)he law presumes that a person intends the necessary and natural consequences of his acts. Therefore, if the effect of the exchanges of pricing information was to raise, fix, maintain and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result.
United States v. United States Gypsum Co., supra, -- - U.S. at -- , 98 S. Ct. at 2869. In ruling that the second sentence of the instructions noted above constituted reversible error, the Supreme Court said:
We agree . . . that an effect on prices, Without more, will not support a criminal conviction under the Sherman Act . . . (we) hold that a defendant's state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. . . . we are unwilling to construe the Sherman Act as mandating a regime of strict liability criminal offenses.