gypsum argued march decided june several major gypsum board manufacturers various officials indicted violations sherman act allegedly engaging conspiracy one types actions allegedly taken formulating effectuating conspiracy interseller price verification practice telephoning competing manufacturer determine price currently offered gypsum board specific customer defendants pleaded nolo contendere sentenced remaining defendants convicted trial weeks government case focused interseller charge defendants defended ground exchanges enable take advantage defense contained clayton act amended act permits seller rebut prima facie charge showing lower price purchaser made good faith meet equally low price competitor verification issue trial judge charged jury exchanges found undertaken good faith comply act verification alone suffice establish illegal agreement jury found effect verification fix prices parties presumed matter law intended result judge charged since single conspiracy alleged liability predicated knowing involvement defendant considered individually conspiracy alleged judge refused defendants requested charge directing jury determine kind agreement existed defendant found member conspiracy respect defendants evidence withdrawal conspiracy judge instructed jury withdrawal established either affirmative notice every member conspiracy disclosure illegal enterprise law enforcement officials judge refused defendants requested instruction vigorous price competition period question also considered evidence abandonment conspiracy testimony presented jurors sequestered deliberation apparently disagreement among arose approximately seven days deliberations foreman jury informed judge wanted discuss jury condition resulted parties consent ex parte meeting judge foreman discussion meeting involved jurors deteriorating health foreman also referred jury deadlock followed exchange strongly suggesting foreman may carried away meeting impression judge wanted verdict one way jury rendered guilty verdict following morning appeals reversed convictions various grounds holding inter alia verification price concessions competitors sole purpose taking advantage defense constitutes controlling circumstance precluding liability sherman act thus instruction allowing jury ignore defendants purpose engaging alleged misconduct sustained held defendant state mind intent element criminal antitrust offense must established evidence inferences drawn therefrom taken trier fact reliance legal presumption wrongful intent proof effect prices since trial judge instruction verification issue prohibited effect improper pp sherman act construed mandating regime crimes rather criminal offenses defined therein construed including intent element pp action undertaken knowledge probable consequences requisite anticompetitive effects sufficient predicate finding criminal liability antitrust laws carefully planned calculated conduct scrutinized context criminal prosecution perpetrator knowledge anticipated consequences sufficient predicate finding criminal intent pp belief rather absolute certainty price concession offered meet equally low price offered competitor suffices invoke defense exchanges price information even putatively purpose act compliance must remain subject close scrutiny sherman act therefore appeals erred treating interseller price verification even limited controlling circumstance exception precluding sherman act liability pp ex parte meeting trial judge jury foreman improper appeals justified reversing convictions solely risk foreman believed judge insisting dispositive verdict meeting pregnant possibilities error since difficult contain much less anticipate direction conversation take meeting occasion leads communication whole jury panel one juror inevitably risks innocent misstatements law misinterpretations despite undisputed good faith participants absence counsel meeting aggravates problems one juror serve conduit communication whole panel meeting allowed drift supplemental instruction relating jury obligation reach verdict counsel denied chance correct whatever mistaken impression foreman might taken meeting pp trial judge charge concerning participation conspiracy although perhaps completely clear sufficient charge withdrawal conspiracy erroneous since limited jury consideration two circumscribed arguably impractical methods demonstrating withdrawal rather permitting consideration affirmative acts inconsistent object conspiracy communicated manner reasonably calculated reach pp burger delivered opinion brennan marshall white joined part iv stewart joined parts ii portion part iii powell joined part portion part rehnquist joined part ii stevens joined powell filed opinion concurring part post rehnquist post stevens post filed opinions concurring part dissenting part blackmun took part consideration decision case deputy solicitor general friedman argued cause briefs solicitor general mccree assistant attorney general shenefield frank easterbrook robert nicholson rodney thorson robert wiggers francis delone donald mcsweeney fred bartlit argued cause respondents briefs stephen stack mari gursky william montgomery joseph lundy thomas gottschalk robert keck james hiering cloyd mellott william mallin gary kosinski richard funk clark clifford carson glass thomas richard spradlin brief amici curiae urging reversal filed respective evelle younger attorney general california sanford gruskin chief assistant attorney general warren abbott assistant attorney general michael spiegel charles kagay deputy attorneys general william baxley attorney general alabama thomas troy zieman jerry weidler susan beth farmer assistant attorneys general bruce babbitt attorney general arizona alison swan assistant attorney general mcfarlane attorney general colorado robert hill first assistant attorney general carl ajello attorney general connecticut theodore sendak attorney general indiana curt schneider attorney general kansas thomas regan assistant attorney general william guste attorney general louisiana francis burch attorney general maryland john ashcroft attorney general missouri william hyland attorney general new jersey toney anaya attorney general new mexico louis lefkowitz attorney general new york john desiderio assistant attorney general rufus edmisten attorney general north carolina david crump special deputy attorney general james redden attorney general oregon stephen dunne john hill attorney general texas robert hansen attorney general utah jerome diamond attorney general vermont anthony troy attorney general virginia slade gorton attorney general washington thomas boeder assistant attorney general bronson lafollette attorney general wisconsin michael zaleski assistant attorney general stanley kaleczyc lawrence kraus stephen bokat filed brief chamber commerce amicus curiae chief justice burger delivered opinion case presents following questions whether intent element criminal antitrust offense whether exchange price information purposes compliance act exempt sherman act scrutiny adequacy jury instructions membership withdrawal alleged conspiracy propriety ex parte meeting trial judge foreman jury gypsum board laminated type wallboard composed paper vinyl specially treated coverings gypsum core last years substantially replaced wet plaster primary component interior walls ceilings residential commercial construction product essentially fungible differences price credit terms delivery services largely dictate purchasers choice competing suppliers overall demand however governed level construction activity marginally affected price fluctuations gypsum board industry highly concentrated number producers ranging period eight largest companies accounted national sales seven producers accounting remaining major producers large number producers members gypsum association since served trade association gypsum board manufacturers beginning justice department well federal trade commission became involved investigations possible antitrust violations gypsum board industry grand jury empaneled investigation continued additional months late indictment filed district western district pennsylvania charging six major manufacturers various corporate officials violations sherman act ch stat amended indictment charged defendants engaged combination conspiracy eginning sometime prior continuing thereafter least sometime app restraint interstate trade commerce manufacture sale gypsum board alleged combination conspiracy consisted continuing agreement understanding concert action among defendants raise fix maintain stabilize prices gypsum board fix maintain stabilize terms conditions sale thereof adopt maintain uniform methods packaging handling gypsum board ibid telephoned otherwise contacted one another exchange discuss current future published market prices published standard terms conditions sale ascertain alleged deviations therefrom first skirmish protracted litigation case motion dismissal filed defendants alleging due process rights denied unreasonable preindictment delay district holding evidentiary hearing motion concluded evidence unreasonable delay part government supp wd defendants prejudiced extraordinary degree whatsoever chain events leading indictment ibid district denied motion dismiss indictment thereafter nine defendants entered pleas nolo contendere sentenced trial remaining seven defendants commenced march lasted weeks focus government case trial interseller price verification practice allegedly followed gypsum board manufacturers telephoning competing producer determine price currently offered gypsum board specific customer government contended price exchanges part agreement among defendants effect stabilizing prices policing price increases undertaken frequent basis sometime defendants disputed scope duration verification activities maintained exchanges price information occur purposes complying act preventing customer fraud purposes defendants view brought disputed communications among competitors within controlling circumstance exception sherman act liability extreme precluding matter law consideration verification jury determining defendants guilt charge minimum making defendants purposes engaging communications threshold factual question instructions verification issue given trial judge provided exchanges price information deemed jury undertaken good faith effort comply act verification standing alone sufficient establish illegal agreement paragraphs immediately following however provided purpose essentially irrelevant jury found effect verification raise fix maintain stabilize prices instructions verification closed observation law presumes person intends necessary natural consequences acts therefore effect exchanges pricing information raise fix maintain stabilize prices parties presumed matter law intended result matter withdrawal conspiracy defendants sought instruction stating explicitly evidence vigorous price competition period covered indictment considered jury indicating abandonment charged conspiracy one defendants substantial evidence subject presented defendants course trial judge unwilling accept defendants construction applicable law substituted instruction specifying withdrawal established either affirmative notice member conspiracy disclosure illegal enterprise law enforcement officials trial judge allowed defendants argue theory withdrawal jury despite unwillingness refer explicitly charge jury retired deliberate early evening tuesday july supplemental instructions given response questions jury wednesday thursday hours deliberation shortened friday informed jurors exhausted feeling well saturday responding requests jury judge sua sponte open used supplemental instruction approved appeals remind jurors obligation continue deliberations essentially instruction given jury sunday judge received note detailing jury inability reach unanimous verdict monday received yet another note jury time stating foreman wished discuss condition jury seek guidance judge judge suggested counsel confer privately foreman transcript meeting kept impounded judge indicated suggestion rejected simply deny foreman request meeting response questions counsel judge stated purpose meeting determine jury serious physical condition indicated instructions law given foreman without calling jury instructing open counsel present discussion counsel agreed albeit somewhat reluctantly proposed meeting discussion jury foreman judge concerned deteriorating state health jurors almost five months case followed five days intensive deliberations existence personality conflicts among members panel foreman also stressed least twice conversation judge belief jury unable reach verdict discussion eliminate disagreements existed judge indicated take consideration foreman said wanted jury continue deliberations near close meeting following colloquy took place like ask jurors continue deliberations take consideration told say russell appreciate situation know help get oh anything russell verdict one way way goes make difference appeals third circuit reversed convictions panel unanimous rejection claim preindictment delay divided proper disposition remaining issues two judges agreed trial judge erred instructing jury effect prices resulting agreement exchange price information made sherman act violation regardless whether respondents sole purpose engaging exchanges establish defense charges instead regarded purpose certain conditions met constituting controlling circumstance container excuse might otherwise constitute antitrust violation one judge considered instructions regarding purpose scope conspiracy kinds conduct necessary demonstrate withdrawal therefrom infirm another concluded convictions reversed trial judge improperly induced jury reaching verdict camera conversation foreman one judge dissent sustained convictions regarded charge verification consistent container rejected notion act required exchange price information even limited circumstances identified majority neither alleged infirmities general conspiracy instructions view afforded basis reversal disagreed characterization trial judge conduct coercing verdict granted certiorari affirm ii turn first consider jury instructions regarding elements offense charged indictment although trial judge instructions issue without ambiguity seems reasonably clear regarded effect prices crucial element charged offense jury instructed found interseller verification effect raising fixing maintaining stabilizing price gypsum board verification considered evidence agreement affect prices charged point gives rise present concern effect exchanges pricing information raise fix maintain stabilize prices parties presumed matter law intended result app emphasis added government characterizes charge entirely consistent rule agreement among sellers exchange information current offering prices violates section sherman act either purpose effect stabilizing prices reply brief relies primarily decision container supra civil case support position see also american column lumber american linseed oil maple flooring mfg assn cement mfrs protective assn view trial instructions erroneous even interpreted appeals direct jury convict found verification effect prices regardless purpose respondents appeals rejected government effects alone test holding instead certain limited circumstances purpose complying act constitute controlling circumstance excusing sherman act liability hence instruction allowing jury ignore purpose sustained agree appeals effect prices without support criminal conviction sherman act base conclusion existence conflict requirements sherman acts rather hold defendant state mind intent element criminal antitrust offense must established evidence inferences drawn therefrom taken trier fact reliance legal presumption wrongful intent proof effect prices cf morissette since challenged instruction read prohibited effect disapproved unwilling construe sherman act mandating regime criminal offenses start familiar proposition existence mens rea rule rather exception principles criminal jurisprudence dennis see also freed brennan concurring judgment balint passage morissette supra justice jackson speaking observed contention injury amount crime inflicted intention provincial transient notion universal persistent mature systems law belief freedom human consequent ability duty normal individual choose good evil relation mental element punishment harmful act almost instinctive child familiar exculpatory mean afforded rational basis tardy unfinished substitution deterrence reformation place retaliation vengeance motivation public prosecution unqualified acceptance doctrine english common law eighteenth century indicated blackstone sweeping statement constitute crime must first vicious footnotes omitted keeping tradition general injunction ambiguity concerning ambit criminal statutes resolved favor lenity rewis number occasions read component offense even statutory definition terms provide see morissette supra cf lambert california indeed holding morissette fairly read establishing least regard crimes origin common law interpretative presumption mens rea required ere omission intent statute construed eliminating element crimes denounced instead congress presumed legislated background traditional legal concepts render intent critical factor absence contrary direction taken satisfaction widely accepted definitions departure offenses unknown criminal law invariably offend constitutional requirements see minnesota limited circumstances congress created recognized offenses see balint supra behrman dotterweich freed supra attest generally disfavored status see generally ali model penal code comment tent draft lafave scott criminal law certainly far simple omission appropriate phrase statutory definition necessary justify dispensing intent requirement context sherman act generally inhospitable attitude rea offenses reinforced array considerations arguing treating antitrust violations crimes sherman act unlike traditional criminal statutes clear categorical terms precisely identify conduct proscribes civil remedies criminal sanctions authorized regard generalized definitions conduct proscribed restraints trade commerce illegal monopolization without reference mention intent state mind judicial elaboration act always yielded clear definitive rules conduct statute omits instead standards like rule reason applied broad classes conduct falling within purview act general provisions see standard oil topco associates continental gte sylvania simply put act interpreted primarily criminal statute construed generality adaptability comparable found desirable constitutional provisions appalachian coals see generally areeda turner antitrust law although nash held indeterminacy sherman act standards constitute fatal constitutional objection criminal enforcement nevertheless factor deemed particularly relevant charged enforcing act accommodating criminal remedial sanctions report attorney general national committee study antitrust laws concluded criminal provisions act reserved circumstances law relatively clear conduct egregious sherman act inevitably perhaps couched language broad general modern business patterns moreover complex market effects proposed conduct imprecisely predictable thus may difficult today businessman tell advance whether projected actions run afoul sherman act criminal strictures hazard mind believe criminal process used law clear facts reveal flagrant offense plain intent unreasonably restrain trade report attorney general national committee study antitrust laws general following types offenses prosecuted criminally price fixing violations sherman act proof specific intent restrain trade monopolize less easily defined category cases might generally described involving proof use predatory practices boycotts example accomplish objective combination conspiracy fact defendant previously convicted adjudged violating antitrust laws may warrant indictment second offense division feels free seek indictment case prospective defendant knowledge practices similar engaging held violation sherman act prior civil suit persons close attention type conduct regulated sherman act buttresses conclusion certain exceptions conduct regarded per se illegal unquestionably anticompetitive effects see oil behavior proscribed act often difficult distinguish gray zone socially acceptable economically justifiable business conduct indeed type conduct charged indictment case exchange price information among competitors illustrative regard imposition criminal liability corporate official matter corporation directly engaging conduct fact determined violate statute anticompetitive effects without inquiring intent undertaken holds distinct possibility overdeterrence salutary procompetitive conduct lying close borderline impermissible conduct might shunned businessmen chose excessively cautious face uncertainty regarding possible exposure criminal punishment even error judgment see areeda turner antitrust law bork antitrust paradox kadish observations use criminal sanctions enforcing economic regulations chi rev use criminal sanctions circumstances difficult square generally accepted functions criminal law see hart aims criminal law law contemp prob ali model penal code comment tent draft criminal sanctions used punish conscious calculated wrongdoing odds statutory proscriptions instead simply regulate business practices regardless intent undertaken certain cases imputed regulatory purpose congress choosing employ criminal sanctions see balint availability range nonpenal alternatives criminal sanctions sherman act negates imputation purpose congress instant context see generally baker indict indict prosecutorial discretion sherman act enforcement cornell rev reasons conclude criminal offenses defined sherman act construed including intent element concluded intent necessary element criminal antitrust violation task remaining treat practical aspects requirement noted language act provides minimal assistance determining standard intent appropriate sparse legislative history criminal provisions similarly unhelpful must therefore turn general sources traditional understandings nature element intent criminal law must try avoid variety disparity confusion judicial definitions requisite elusive mental element criminal offenses morissette ali model penal code one source guidance upon relied illuminate questions type cf leary turner recognizing mens rea unitary concept freed brennan concurring judgment code enumerates four possible levels intent purpose knowledge recklessness negligence dealing kinds business decisions upon antitrust laws focus concepts recklessness negligence place question instead whether criminal violation antitrust laws requires addition proof anticompetitive effects demonstration disputed conduct undertaken conscious object producing effects whether sufficient conduct shown undertaken knowledge proscribed effects likely follow difference formulations narrow one see ali model penal code comment tent draft conclude action undertaken knowledge probable consequences requisite anticompetitive effects sufficient predicate finding criminal liability antitrust laws several considerations fortify conclusion element intent criminal law traditionally viewed bifurcated concept embracing either specific requirement purpose general one knowledge awareness generally accepted person acts omits act intends result act omission two quite different circumstances consciously desires result whatever likelihood result happening conduct knows result practically certain follow conduct whatever desire may result lafave scott criminal law nothing analysis sherman act persuades us general understanding intent applied criminal antitrust violations charged business behavior likely give rise criminal antitrust charges conscious behavior normally undertaken full consideration desired results weighing costs benefits risks requirement proof knowledge likely effects also conscious desire bring fruition violate law seem particularly context unnecessarily cumulative unduly burdensome carefully planned calculated conduct scrutinized context criminal prosecution perpetrator knowledge anticipated consequences sufficient predicate finding criminal intent viewed terms standard jury instructions charge sustained conclusive presumption intent testimony overthrow effectively eliminate intent ingredient offense morissette supra challenged jury instruction read precisely effect jury told requisite intent followed matter law finding exchange price information impact prices although effect prices may well support inference defendant knowledge probability consequence time acted jury must remain free consider additional evidence accepting rejecting inference therefore although correct instruct jury may infer intent effect prices ultimately decision issue intent must left trier fact alone instruction given invaded factfinding function iii construction sherman act require proof intent element criminal antitrust violation leaves unresolved question upon appeals focused whether verification price concessions competitors sole purpose taking advantage defense treated controlling circumstance precluding liability sherman act turn question cement mfrs protective assn held exempt sherman act liability exchange price information among competitors exchange information necessary protect cement manufacturers fraudulent behavior contractors years later container justice douglas characterized cement holding following terms present cement mfrs protective assn exchange prices specific customers absent controlling circumstance cement manufacturers protect delivering contractors cement needed specific job thus receiving lower price exchanged price information means protecting legal rights fraudulent inducements deliver cement needed specific job since container several courts read exception encompassing exchanges price information undertaken purpose compliance clayton act amended act see belliston texaco wall products national gypsum supp nd cal appeals instant case essentially adopted tack albeit additional limitations finding step necessary eliminate perceived conflict sherman act proscriptions regarding exchange price information among competitors claimed necessity exchanges perfect defense government challenges resolution two grounds first general exception sherman act second event conflict two antitrust statutes require prohibitions sherman act tempered even degree mandated appeals carefully circumscribed holding case agree generally government proper accommodation sherman acts therefore find unnecessary address general question going existence proper scope exception section clayton act amended act ed embodies general prohibition price discrimination buyers injury competition consequence primary exception bar defense incorporated proviso requirements set provided however nothing herein contained shall prevent seller rebutting prima facie case thus made showing lower price furnishing services facilities purchaser purchasers made good faith meet equally low price competitor services facilities furnished competitor need reconcile entirety economic theory underlies act sherman clayton acts enough say congress seek act either abolish competition radically curtail seller substantial right price raid competitor example large customer requests seller meet temptingly lower price offered one seller competitors seller may well find essential matter business survival meet price rather lose customer plain language established practice permits seller retain customer realistically meeting good faith price offered customer without necessarily changing seller price customers section require seller justify price discriminations showing fact met competitor price place seller burden showing price made good faith meet competitor agree commission statute least requires seller knowingly discriminated price show existence facts lead reasonable prudent person believe granting lower price fact meet equally low price competitor staley investigate verify language coupled corn products focus personal knowledge transactions apparently suggested number courts least certain circumstances direct verification discounts competitors may necessary meet requirements defense see gray shell oil belliston texaco webster sinclair refining supp sd wall products national gypsum fibreboard trade cases nd cal none cases courts called upon address directly question whether interseller verification actually required satisfy standard instead issue presented obliquely form defense alleged sherman act violation belliston webster cases accepted defense despite absence evidence alternative means corroborating claimed price reduction exhausted gray wall products courts found communication sellers permissible alternatives exhausted appeals critically perceptively analyzed cases concluded narrow exception sherman act liability recognized exception cover relatively situations veracity buyer seeking matching discount legitimately doubt reasonable means corroboration unavailable seller interseller communication sole purpose complying act despite efforts circumscribe scope exception constrained recognize find analysis unacceptable belief rather absolute certainty price concession offered meet equally low price offered competitor sufficient satisfy defense casual reliance uncorroborated reports buyers sales representatives without investigation may noted earlier sufficient make requisite showing good faith nothing language gloss language staley corn products indicates direct discussions price competitors required far aware ever imposed requirement see rowe pricing act antitrust aba section antitrust law antitrust law developments contrary defense successfully invoked absence interseller verification numerous occasions see international air industries american excelsior cadigan texaco jones borden national dairy products ftc kroger ftc beatrice foods defense recognized despite fact price concession ultimately found undercut competition thus technically fallen outside meet beat strictures defense cases indicate federal trade commission observed concept good faith lies core defense good faith flexible pragmatic technical doctrinaire concept rigid rules inflexible absolutes especially inappropriate dealing defense facts circumstances particular case abstract theories remote conjectures govern interpretation application continental banking remains possibility limited number situations seller may substantial reasons doubt accuracy reports competing offer may unable corroborate reports generally accepted ways thus defense may rendered unavailable since unanswered questions reliability buyer representations may well inconsistent belief competing offer fact made abstract proposition resort interseller verification means checking buyer reliability seems possible solution seller plight careful examination reveals serious problems practice economic theory common human experience suggest interseller verification undertaken isolated infrequent basis provision reciprocity serve putative function corroborating representations unreliable buyers regarding existence competing offers price concessions oligopolists generally yield competitive advantages secrecy maintained terms concession made publicly known competitors likely follow advantage initiator lost process see generally scherer industrial market structure economic performance areeda antitrust analysis ed note meeting competition act harv rev see also container thus one seller offers price concession purpose winning one competitor customers unlikely seller freely inform competitor details concession promptly matched diffused instead seller appear least great incentive misrepresent existence size discount buyer received thus verification undertaken basis sole purpose complying defense hold much promise means shoring buyers representations variety interseller verification like conduct charged instant case undertaken pursuant agreement either tacit express providing reciprocity among competitors exchange price information agreement make little economic sense view sole purpose guarantee participants opportunity match secret price concessions participants circumstances seller know price concession kept competitors seller participating arrangement therefore incentive deviating prevailing price level industry see container supra regardless putative purpose likely consequence agreement exchange price information stabilization industry prices see scherer supra note antitrust liability exchange price information happened container rev instead facilitating use defense agreement effect eliminating price concessions provide main element competition oligopolistic industries primary occasion resort defense especially oligopolistic industries gypsum board industry exchange price information among competitors carries added potential development concerted arrangements lie core sherman act prohibitions department justice report act focused growing use act cover price fixing former antitrust division assistant attorney general kauper discussed mechanics process thus find industries relatively extensive exchanges price information purpose least stated purpose complying act mere exchange price information may tend stabilize prices think also relatively common exchange process begins certain understandings go along exchange prices understood example undercut prices rather easy step fullfledged agreement think seen time time suspect continue see long continues need justify particular price discriminations terms act department justice report act iv one judge appeals view reversal required infirmities antitrust instruction also trial judge encroach ed jury authority foreclosed possible verdict outcome adams concurring review record circumstances surrounding deliberations jury particular ex parte communications judge jury foreman leads us conclusion hearing mass testimony nearly five months jurors sequestered deliberations commenced second third days deliberations supplemental instructions given response jury questions fourth day hours deliberations shortened reported nervous tension among jurors fifth day judge sua sponte delivered amounted modified allen charge course providing answers questions jury sixth day modified allen charge repeated time response note jury unable reach verdict background internal pressures apparent disagreements confusion among jurors jury foreman morning seventh day deliberations requested meeting judge discuss condition jury guidance district judge suggested meet alone jury foreman counsel acquiesced transcript meeting initially impounded released purposes appeal contained several references foreman jury deadlock well exchange suggesting strong likelihood foreman carried away meeting impression judge wanted verdict one way judge report counsel summarizing discussion made reference either matters find sequence events disturbing number reasons ex parte meeting communication judge foreman deliberating jury pregnant possibilities error record amply demonstrates even experienced trial judge certain avoid pitfalls inherent enterprise first difficult contain much less anticipate direction conversation take meeting unexpected questions comments generate unintended misleading impressions judge subjective personal views place instruction jury counsel present challenge statements second occasion leads communication whole jury panel one juror inevitably risks innocent misstatements law misinterpretations despite undisputed good faith participants developed set circumstances fairly assumed foreman undertook restate fellow jurors understood judge implied regarding resolution case definite verdict one way course way determine precisely foreman said returned jury room finally absence counsel meeting unavailability transcript full report meeting aggravate problems one juror serve conduit communicating instructions whole panel counsel acquiesced judge ex parte conference jury foreman express understanding judge merely intended doubt time receive foreman report state affairs jury room prospects verdict certainly none parties waived right full accurate report transpired meeting agree judge repeat instructions understandable reluctance accept jury inability reach verdict neither counsel received full report judge aware scope conversation foreman judge judge statement jury continue deliberate order reach verdict real risk foreman impression verdict one way required counsel thus denied opportunity clear confusion regarding judge direction foreman readily accomplished requesting whole jury called courtroom clarifying instruction see rogers fillippon albion vein slate thus simply action judge private meeting jury foreman standing alone undesirable procedure constitutes error rather fact ex parte discussion inadvertently allowed drift amounted supplemental instruction foreman relating jury obligation return verdict coupled fact counsel denied chance correct whatever mistaken impression foreman might taken conversation find troubling course impossible gauge part disputed meeting played jury action returning verdict following morning swift resolution issues face positive prior indications hopeless deadlock least gives rise serious questions regard cf rogers supra jenkins held instruction directing jury reach verdict reversible error logic jenkins said inapposite given peculiar circumstances discussions judge foreman took place persuaded appeals justified reversing convictions solely risk foreman believed insisting dispositive verdict belief must assume promptly conveyed jurors unintended direction colloquy judge jury foreman illustrates hazards ex parte communications deliberating jury members respondents also challenged appeals jury instructions regarding participation conspiracy withdrawal therefrom one judge panel concluded instructions infirm agree government charge concerning participation conspiracy perhaps clear might sufficient jury informed repeatedly single conspiracy alleged liability predicated knowing involvement defendant considered individually conspiracy charged given instruction substantially accord generally given similar antitrust cases see aba antitrust section jury instructions criminal antitrust cases chs devitt blackmar federal jury practice instructions event disputed instruction differed minor immaterial respects instruction requested respondents difficulty instruction withdrawal conspiracy jury charged following terms order find defendant abandoned withdrew conspiracy prior december must find evidence took affirmative action disavow defeat purpose mere inaction enough demonstrate abandonment withdraw defendant either must affirmatively notified member conspiracy longer participate undertaking understand longer expect participation acquiescence must make disclosures illegal scheme law enforcement officials thus defendant shown joined conspiracy order find abandoned conspiracy evidence must show defendant took definite decisive step indicating complete disassociation unlawful enterprise emphasis added agree charge fairly read limited jury consideration two circumscribed arguably impractical methods demonstrating withdrawal conspiracy nothing able find case law suggests much less commands confining blinders placed jury freedom consider evidence regarding continuing participation alleged conspirators charged conspiracy affirmative acts inconsistent object conspiracy communicated manner reasonably calculated reach generally regarded sufficient establish withdrawal abandonment see hyde borelli see also note developments law criminal conspiracy harv rev conclude unnecessarily confining nature instruction standing alone constituted reversible error new trial takes place instruction correcting error giving jury broader compass question withdrawal must given accordingly judgment appeals affirmed justice blackmun took part consideration decision case appendix opinion problem sir russell two problems first refer juror sexual gender like struck like say juror words says make neutral russell two problems health status count ca tell russell going tell status way fact ca tell ca remember right russell first like thank think jury left doctor people getting distraught go depression stay go depression coming high say least eight jurors taking kind pill pills even issued doctor downstairs doctor ca judge things seen one jurors one time thought going jump window sake without telling take responsibility happen know part keene job like say go high low sometimes time get keene get perfectly normal fact one instances saw one girl may ask discharged excuse one juror health reasons juror excuse help situation point russell think judge doctor ca say even sure true sicknesses seem mean high low seem induced person thinks sick generally sick bad think russell say doctor like judge think sake feelings responsibility foreman tell things want responsible anybody health either recall though two alternate jurors asked jurors anybody physically able go ahead everybody wanted russell realize think every juror wants duty see tried case four months russell part grant whole part personality conflicts jury led certain situations think overcome continue deliberate lunch hour longer russell want tell next opinion tell wrong look different way taken enough ballots enough discussions way divided going settled document remembrance testimony based belief even even sign document today ask get jury box swear think true verdict say believe twelve multiple system jury decide beyond reasonable doubt get twelve whatever number decide russell proves beyond shadow doubt beyond shadow doubt russell know individual proves man convicted guilty company beyond reasonable doubt twelve know beyond shadow doubt conscience far juror anything else way feel judge suggesting russell asking point like jury deliberate longer say say tried considerable period time russell everybody realizes individual people concerned jury deliberated deliberated three full days wednesday thursday friday deliberated half day saturday half day sunday deliberating full day jurors usually deliberate eleven ten night russell know want thank deliberated long yet russell know way like trying tell think deliberation going change matter time anymore telling jury hopelessly deadlocked never reach verdict russell opinion rely experience kind thing know people go jury first time ever served one new experience never forget terrible responsibility said matter finding document finding part testimony convince somebody say sure good right time continue deliberations take consideration told russell said health problem something think looked know going judge whether call keene ask marshal opinion think something done right take consideration talk counsel russell appreciate expect decision like kind guidance like ask jurors continue deliberations take consideration told say russell appreciate situation know help get oh anything russell verdict one way way goes make difference russell keep saying tell situation might accept said want know told want know decision want know proper know russell may imply something said imply something watching want tell breach duty russell told best thank tell keep deliberating see come verdict jury foreman returned deliberation room certified true correct transcript marion wike marion wike official reporter footnotes corporate defendants named indictment gypsum national gypsum georgia pacific celotex flintkote co individual defendants included chairman board executive gypsum chairman board sales national gypsum president georgia pacific president general manager president celotex chairman board president flintkote gypsum association named unindicted two gypsum board producers fibreboard remaining corporate defendants gypsum national gypsum georgia pacific celotex remaining individual defendants chairman board sales national gypsum executive gypsum defendants contended exchange price information verification necessary enable take advantage defense contained clayton act stat amended act stat ed see part iii infra relevant portions charge dealing issue excerpted opinion appeals weis dissenting see fioravanti cert denied sub nom panaccione judge observed instruction might give foreman go back continue deliberations app complete colloquy foreman judge reproduced appendix opinion significantly judge tell counsel foreman opinion jury hopelessly deadlocked indicate foreman impression wanted definite verdict either prosecution defendants mention directive jury see come verdict adams concurring conclusion trial appeals ordered transcript meeting judge foreman released counsel aid preparation appeal therefore appellants entitled instruction verification practice violate sherman act jury found appellants engaged practice solely comply strictures first resorted reasonable means corroboration without success good independent reason doubt buyers truthfulness communication competitors strictly limited one price one buyer issue see part iii infra analysis focuses solely elements criminal offense antitrust laws leaves unchanged general rule civil violation established proof either unlawful purpose anticompetitive effect see container marshall dissenting course consideration intent may play important role divining actual nature effect alleged anticompetitive conduct see chicago board trade senator sherman adverted open texture statutory language accurately forecast consequence central role courts giving shape content act proscriptions admit difficult define legal language precise line lawful unlawful combinations must left courts determine particular case lawmakers declare general principles assured courts apply carry meaning law cong rec antitrust division refined guidelines emphasize criminal prosecutions brought willful violations law see president commission law enforcement administration justice task force report crime impact assessment exchange price data information among competitors invariably anticompetitive effects indeed practices certain circumstances increase economic efficiency render markets rather less competitive reason held exchanges information constitute per se violation sherman act see citizens southern nat bank container fortas concurring number factors including prominently structure industry involved nature information exchanged generally considered divining procompetitive anticompetitive effects type interseller communication see container supra see generally sullivan law antitrust exchanges current price information course greatest potential generating anticompetitive effects although per se unlawful consistently held violate sherman act see american column lumber american linseed oil container supra possibility subjected strict liability take extraordinary care dealings frequently regarded one advantage rule strict liability see hall general principles criminal law ed lafave scott criminal law however conduct proscribed difficult distinguish conduct permitted indeed encouraged antitrust context excessive caution spawned regime strict liability necessarily redound public benefit antitrust laws differ regard example laws designed insure adulterated food sold consumers latter situation excessive caution part producers entirely consistent legislative purpose see park congress recently increased criminal penalties violation sherman act individual violations treated felonies punishable fine exceed imprisonment three years corporate violators subject million fine severity sanctions provides support conclusion sherman act construed creating crimes cf morissette sayre public welfare offenses colum rev strict liability generally inappropriate offense punishable imprisonment respondents prosecuted new penalty provisions since indicted prior december effective date increased sanctions accommodation civil criminal provisions act similar approve suggested senator sherman response senator george argument floor debate act primarily penal statute construed narrowly accord traditional maxims first section remedial statute construed liberally view promote object defines civil remedy courts construe liberally providing remedy intention combination immaterial third section criminal statute construed strictly difficult enforced present state law impossible describe precise language nature limits offense terms specific enough indictment cong rec conspiracy two different types intent generally required basic intent agree necessary establish existence conspiracy traditional intent effectuate object conspiracy see lafave scott criminal law discussion focuses second type intent holding mean suggest conduct undertaken purpose producing anticompetitive effects also support criminal liability even effects come pass cf griffith hold elevated standard intent need established cases anticompetitive effects demonstrated instead proof defendant conduct undertaken knowledge probable consequences satisfy government burden respondents contend prior trial case ever held mere exchange information stabilizing effect prices violated sherman act regardless purpose exchange joint brief respondents retroactive application judicially expanded definition crime argument continues contravene principles fair notice embodied due process clause ibid rejected grounds effects test context criminal proceedings agree respondents prior case law dealing exchange price information required proof purpose restrain competition order make sherman act violation certainly decision container fairly read indicating proof anticompetitive effect sufficient predicate liability case liability followed proof exchange price information anticompetitive effect industry suggestion made proof purpose restrain trade competition also required thus least period comprises almost entire time period issue respondents claimed lack notice credited prior cases treating exchanges information among competitors favorable respondents position see american column lumber ny concerted action cause fact cause restraint competition unlawful american linseed oil necessary tendency suppress competition unlawful maple flooring mfrs assn purpose restrain trade conduct resulted necessarily result tending arbitrarily lessen production increase prices sufficient liability cement mfrs protective assn exception sherman act liability recognized conduct intended prevent fraud read case repudiating rule set prior cases instead cement highlighted narrow limitation application general rule either purpose effect support liability understand respondents making related claim relied several lower cases exempting interseller verification purposes complying act scrutiny sherman act see infra thus penalized decisions turn incorrect whatever merits argument respondents appear unable invoke since initiation verification practices antedated lower decisions question resolved prior discussion purpose complying act exchanging price information inconsistent knowledge exchanges information probable effect fixing stabilizing prices since hold knowledge probable consequences conduct requisite mental state criminal prosecution like instant one effect prices also alleged defendant purpose engaging proscribed conduct insulate liability unless deemed sufficient merit justify general exception sherman act proscriptions cf cement mfrs protective assn supra respondents maintain verification practices purpose complying act also served protect fraud part customers thus fall squarely within cement exception appeals rejected claim find reason upset determination although belliston specifically refer cement controlling circumstance exception adopted rationale wall products case exception explicitly relied upon immunize verification proscriptions sherman act see supra decision ambiguous question whether alternatives short verification exhausted prior exchange price information trade cases viviano macaroni ftc defense recognized seller relied solely report customer regarding competitive offers without undertaking investigation corroborate offer reliability customer appeals instant case read viviano least suggesting requiring interseller verification veracity buyer doubt read case however simply reaffirms teaching staley compel conclusion interseller verification satisfy requirement even particular circumstances identified appeals see weis dissenting although seller may take advantage meeting competition defense commercially reasonable belief price concession necessary meet equally low price competitor seller may acquire belief hence perfect defense everything reasonably feasible short violating statute sherman act determine veracity customer statement offered lower price making reasonable lawful inquiries seller ascertain buyer lying seller entitled make sale need seller discuss price competitors take advantage meeting competition defense citations omitted brief see also app pet cert may also turn sustained enforcement clayton act amended act imposes liability buyers inducing illegal price discounts serve bolster credibility buyers representations render reliance thereon sellers reasonable secure predicate finding good faith see generally note meeting competition act harv rev great atlantic pacific tea ftc kroger ftc buyers held liable despite fact sellers either found violated act kroger charged violation certiorari granted great atlantic pacific tea consider permissibility enforcing act manner need decide circumstances defense unavailable interpretation elaboration defense properly left federal courts ftc context concrete fact situations note also conclusions regarding proper interpretation see supra may well affect subsequent application defense defense may available every situation competing offer fact made view meaningful objection holding requirement defense implicitly suggests somewhat imperfect matching competing offers actually made allowed met unless requirement abandoned seems clear inadequate information limited number cases deny defense facts known entitled invoke reasons already discussed interseller verification provide satisfactory solution seemingly inevitable problem inadequate information moreover affords defense liability affirmative right act sellers course entitled take advantage defense satisfy requirements efforts increase availability expense broader affirmative antitrust policies must rejected allen injunction jury deliberate view toward reaching agreement without violence individual judgment also included judge original instruction prior commencement deliberations see supra see supra requested charge follows gist offense charged continuing agreement raise fix maintain stabilize prices gypsum products essential determine kind agreement understanding existed defendant defendant chargeable acts fellow defendants alleged acts done furtherance joint venture understood defendant held responsible alleged conspirators unknown rest beyond reasonable intendment common agreement understanding may find party emphasis omitted case obligation notify member charged conspiracy manageable task situations members might readily identifiable instruction withdrawal proper evidence thereof may particular importance respondents vigorously argued throughout trial competition within industry resumed december critical date purposes applicable statute limitations justice powell concurring part join judgment parts ii opinion also join much part iii holds seller intention establish defense clayton act amended act charge price discrimination controlling circumstance excusing liability sherman act otherwise unlawful direct practices join portions part iii however might read suggesting cases defense unavailable even though seller made every reasonable lawful effort corroborate buyer report competitor offered lower price reducing price buyer see ante view proper accommodation policies act sherman act result recognition defense cases otherwise sellers sometimes face unenviable choice reducing prices one buyer risking act liability refusing losing sale reducing prices buyers prudent businessman faced choice often forgo price reduction altogether reaction disserve procompetitive policy sherman act without advancing materially antidiscrimination policy act already made clear act require seller justify price discriminations showing fact met competitive price ftc staley mfg today confirms concept good faith lies core defense good faith flexible pragmatic technical doctrinaire concept ante quoting continental baking seller attempted verify buyer report every reasonable lawful means reducing price meet competitor price view met test good faith case buyer report proves untruthful buyer alone seller acted bad faith issue discussed part iv opinion unlikely arise retrial find unnecessary express view understand take firm position issue see ante justice rehnquist concurring part dissenting part concur part first portion part opinion approving jury instruction participation conspiracy dissent remaining portions opinion set forth briefly possible reasons part ii opinion uses point departure jury instructions price fixing correctly characterizes without ambiguity ante however jury instructions starting point discourse part ii opinion dealing element intent criminal case discourse believe goes beyond reasoning necessary dispose contentions respect point case find necessary decide intent congress required prerequisite criminal liability sherman act believe instructions given district considered whole connection objections made sufficiently close respondents tendered instructions afford respondents basis upon challenge verdict jury instructions case take pages record detailed complex judge instructed jury respondents contention exchanged price information solely comply act government contention defendants purpose merely establish good faith act exchanged competitive information purpose raising fixing maintaining stabilizing prices members jury resolve issues first must determine whether agreement either implied express engage practice price checking verification secondly must determine whether purpose exchange competitive information defendants alleged insure good faith meeting competition defense act decide decide merely done good faith effort comply act consider verification standing alone establishing agreement fix raise maintain stabilize prices charged however decide effect exchanges raise fix maintain stabilize price gypsum wallboard may consider changes sic evidence mutual agreement understanding alleged indictment raise fix maintain stabilize list prices app emphasis added portions part ii find troubling expressly address congressionally prescribed requirement intent criminal liability sherman act discourse length upon role intent imposition criminal liability general particularly might taken import special constitutional difficulty criminal liability imposed without fault emphasizes result constitutionally required ante broad policy statements may misread lower courts also feel bound say willing respectfully defer views distinguished authors american law institute model penal code authors law review articles treatises sprinkled throughout text part ii opinion serious reservations undiscriminating emphasis weight appears give case similar reasons believe necessary case address interrelationship act defense sherman act cheerfully refrain task jury clearly instructed price information exchanged good faith effort comply act exchange make violation sherman act believe communications judge jury foreman described part iv opinion consented parties case justify reversal verdict jury agree portion part opinion approves charges given jury concerning participation conspiracy disagree portion part seems approve expansive instruction respect withdrawal conspiracy opinion neither instructions district sufficient either separately together warrant reversal jury verdict guilty therefore conclude judgment appeals reversed judgment district based upon jury verdict reinstated evidence case defendant contacting competitor verify existence nonexistence reported lower price competitive condition market place practice referred evidence verification engaged defendants purpose compliance act one federal antitrust laws charge matter law finding guilt may made case based verification engaged purpose compliance act consider verification evidence whatsoever alleged conspiracy must first determine beyond reasonable doubt purpose verification compliance act app justice stevens concurring part dissenting part three reasons unable subscribe bifurcated construction sherman act adopts part ii opinion subscribed view criminal enforcement sherman act inappropriate unless defendants deliberately violated law adhere view today since sherman act enacted statute substantive reach criminal civil cases matter wise new rule adopts today may believe amendment congress may enact fashioning new test criminal liability require proof specific purpose violate law rather mere knowledge defendants agreement adverse effect market lesser standard adopted believe justice rehnquist quite right viewing error trial judge instructions harmless ante course theoretical possibility defendants engage practice exchanging current price information sufficiently prevalent marketwide impact know practical matter possibility surely remote finally afraid new dichotomy may work mischief civil enforcement prohibition tampering prices free market conclusive presumptions play central role enforcement civil criminal sherman act thus agreement charge price adopt common purchasing policy determines market price unreasonable therefore unlawful without proof purpose actual effect agreement law presumes entered agreement knew forbidden effects follow also presumes conclusively effects follow criminal prosecution price fixing violation sherman act therefore irrelevant whether prices fixed reasonable whether defendant intentions good see trenton potteries justice stone explained case sherman law prohibition infliction particular type public injury limitation rights may pushed evil consequences therefore restrained citation omitted sure cases trenton potteries involved conduct determined illegal face case trial appraised respondents agreement rule reason analysis properly understood analysis distinct per se analysis contrary agreements illegal per se merely species within broad category agreements unreasonably restrain trade less proof required establish illegality nonetheless violate basic rule reason applied agreement among major producers exchange current price information rule reason requires element addition proof agreement either actual market effect express purpose affect market price element shown additional showing intent unnecessary see container rule premised assumption practice exchanging current price information sufficiently prevalent affect market price extremely high probability sales representatives companies actual knowledge fact given language premise valid context criminal prosecution context civil action accordingly although agree much abstract discussion part ii opinion concur parts iii iv judgment report attorney general national committee study antitrust laws distinction two standards explained ante report attorney general committee recommended criminal process used law clear facts reveal flagrant offense plain intent unreasonably restrain trade report supra trenton potteries oil fact early development criminal enforcement sherman act stated conspirators must held intended necessary direct consequences acts heard say contrary words purposely engaging conspiracy necessarily directly produces result statute designed prevent legal contemplation chargeable intending result patten argument made agreement among major producers market exchange current price information considered illegal face points xchanges current price information greatest potential generating anticompetitive effects consistently held violate sherman act ante rahl price competition price fixing rule preface perspective nw rev