STATE of Utah, Plaintiff and Respondent, v. L. Brent FLETCHER, Defendant and Appellant.
No. 860358-CA
Court of Appeals of Utah.
March 9, 1988
751 P.2d 822
While it can perhaps be inferred that the defendants intended to eliminate other security companies from competition for the UP & L contract, it simply cannot be inferred that they intended to eliminate these companies from competition in any meaningful marketplace, which is what the antitrust laws are designed to prevent. “The Sherman Act was enacted to protect competition in the marketplace. It was not designed, and has never been interpreted, to reach all business practices, unfair or otherwise, damaging to individual companies.” Cascade Cabinet Co. v. Western Cabinet & Millwork, 710 F.2d 1366, 1374 (9th Cir. 1983). Other security companies were not hindered by defendants in competing for security guard contracts. They were merely deprived of the UP & L contract. While this conduct is certainly not commendable,7 “the use of unfair means resulting in the substitution of one competitor for another without more does not violate the antitrust laws.” Manufacturing Research Corp. v. Greenlee Tool Co., 693 F.2d 1037, 1043 (11th Cir. 1982).
CONCLUSION
Commercial bribery does not criminally violate the Utah antitrust laws. Defendants’ conduct does not constitute a group boycott. Even if defendants’ conduct can somehow be shoehorned into the “group boycott” pigeonhole, there was no evidence to prove a specific intent to eliminate competition, and the fair inferences point the other way. I would reverse the antitrust convictions and remand for resentencing on the other crimes for which defendants were properly convicted.
Sumner J. Hatch, Salt Lake City, for defendant and appellant.
David L. Wilkinson, State Atty. Gen., Stephen J. Sorenson, Chief, Litigation Div., Stanley H. Olsen, David J. Schwendiman, Robert N. Parrish, Asst. Attys. Gen., for plaintiff and respondent.
Before BENCH, DAVIDSON and ORME, JJ.
OPINION
BENCH, Judge:
Defendant L. Brent Fletcher appeals from his convictions on seven counts of bribery, one count of antitrust violation, and two counts of racketeering. This appeal was initially filed with the Utah Supreme Court and was transferred to this Court pursuant to R. Utah S.Ct. 4A. We affirm defendant‘s convictions.
In the companion case, State v. Thompson, 751 P.2d 805 (Utah App. 1988), this Court disposed of defendant‘s first two issues on appeal, namely 1) the admissibility of evidence obtained pursuant to
When this case was tried,
It shall be unlawful for any person who has received any proceeds derived, whether directly or indirectly, from a pattern of racketeering activity in which such person has participated, as a principal, to use or invest, directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any interest in, or the establishment or operation of, any enterprise.
A “pattern of racketeering activity” was defined in section
engaging in at least two episodes of racketeering conduct which have the same or similar objectives, results, participants, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated events, provided at least one of such episodes occurred after the effective date of this part and the last of which occurred within five years after the commission of a prior episode of racketeering conduct.
Bribery was an act of racketeering under section
The United States Supreme Court has defined an ex post facto law as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action....” Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (emphasis in original). Defendant‘s 1979 conduct was not innocent when done nor is he being punished for said conduct. The Utah Supreme Court recently held “[a]cts constituting racketeering ... do not need to be charged or indicted....” State v. McGrath, 749 P.2d 631, 635 (Utah 1988). The statute of limitations is not at issue since defendant was not charged, prosecuted, or convicted for the 1979 alleged bribes.
An argument similar to defendant‘s has been made before the federal courts in connection with the federal Racketeer Influenced and Corrupt Organizations Act,
In United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494 (1978), the court held:
It was obviously in an effort to avoid the ex post facto problem that Congress, in defining “pattern of racketeering activity,” required that at least one illegal act occur after the effective date of the Act. This feature has quite properly been held to save the statute from running afoul of the ex post facto clause.
Id. at 417 (footnote omitted). In United States v. Field, 432 F.Supp. 55 (S.D.N.Y. 1977), aff‘d, 578 F.2d 1371 (2d Cir. 1978), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978), the court held:
[The RICO Act] creates a separate and distinct crime, comprised of the commission of at least two previously defined illegal acts, which is not complete until the second act is done. Because by the terms of § 1961(5) the later act must occur after October 15, 1970, the offense itself is incapable of completion prior to that time. One who has committed acts of racketeering activity prior to that date is on notice that the commission of a further such act within the prohibition of the Statute will subject him to liability for a new offense. He thus has “the notice necessary to conform his actions to the new requirement of the law.” This is all that the ex post facto clause requires.
Id. at 59 (quoting United States v. DeStefano, 429 F.2d 344, 347 (2d Cir. 1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1656, 29 L.Ed.2d 136 (1971). See also United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976).
We adopt the reasoning of the federal courts and hold the RICE Act is not an unconstitutional ex post facto law.
Defendant‘s convictions on all counts are affirmed.
DAVIDSON, J., concurs.
ORME, Judge (concurring):
As I read defendant Fletcher‘s brief, he takes issue with the “Mini-Grand Jury Act,” the number of bribery counts properly submitted to the jury, and whether the RICE statute was constitutionally applied to him. I fully concur in the majority‘s resolution of those issues.
Although Fletcher requests that his antitrust conviction be reversed, he does not directly assail that conviction as defendants in the companion case have done, but appears to base that request exclusively on his hoped-for success on the “Mini-Grand Jury” argument. That argument was unsuccessful and I see in his brief no alternative basis for his request that his antitrust conviction be reversed. It is for this procedural reason, and not because I see the antitrust issues any differently in this case, that I find it appropriate to affirm Fletcher‘s convictions in toto even though I would reverse the antitrust convictions in the companion case.