Criminal Antitrust

Abstract

In the crucible of defending a criminal antitrust case working with outstanding criminal defense lawyers soon after the Supreme Court revolutionized sentencing law by holding the Constitution requires the jury, not the judge, to decide key sentencing fact issues in Booker and related cases led to areas of criminal constitutional law outside the usual purview of antitrust. This unusual mix of law and people combined to create the discovery of five new constitutional defenses contrary to long-accepted practice in criminal antitrust that can be asserted to the Antitrust Division early in an antitrust criminal investigation, in motions to dismiss an indictment, before or at a charging conference and otherwise: (1) The standard antitrust practice of the judge, not the jury, deciding the “naked agreement” element of a per se crime is unconstitutional. (2) The standard per se antitrust jury instruction that conclusively presumes the statutory restraint of trade element of the crime is unconstitutional. (3) The standard antitrust practice where the antitrust division, not the grand jury, decides the “naked agreement” element is unconstitutional. (4) “Naked agreement” facts are “essential facts” that must be included in the indictment or the indictment is defective and unconstitutional. (5) All per se crimes are common law court created crimes, and thus unconstitutional because only Congress can create crimes.