State v. Thompson

BENCH, Before DAVIDSON and ORME, JJ. During spring

OPINION Information deposited $25,- Associates approximately BENCH, Judge: separate payments, in seven into the appeal on Augie Investments, their convictions account of also owned antitrust, bribery, several Meanwhile, counts Vanguard depos- Fletcher. racketeering. appeal initially This $163,000 ited about into the account of Supreme filed with Court was and Information Associates. pursuant to to transferred this Court Utah, alleging The State of these multi R.Utah 4A. We affirm convic- ple payments to Fletcher bribes as tions. part a competition scheme to eliminate

Facts security for the UP & L charged Thompson with seven counts of commercial early Between 1976 and L. Brent each B bribery, a class misdemeanor in employed security Fletcher was officer 76-6-508(b) violation Utah Ann. (UP Code Light Company Utah Power and & § (1978), L). one officer, group boy count of antitrust security As Fletcher’s duties cott, degree second security felony were to a in determine the needs of violation of Utah Code company, make recommendations to Ann. 76-10-914 and -920 §§ management, (1979), racketeering, be- act as coordinator two counts sec management degree tween security guard and the ond in felonies violation services. In UP L decided hire & Code Ann. Ziemski guard security services a company charged and Conklin were each with seven on a full-time basis. On Fletcher’s recom- one bribery, counts count antitrust mendation, UP & L executed a contract group boycott, one count of racketeer Thompson’s with compa- defendant Michael Fletcher, defendant, ing. also was ny, Thompson (MTA), Mike in Associates charged Thompson. with counts similar to February 1978. This contract was not com- separately Fletcher was tried and convicted petitively bid. prior appeal to defendants’ trial. His also decided this date. See State Fletch 1979, Wall, In Jack Fletcher’s brother-in- er, (Utah App.1988). 751 P.2d 822 law, was hired MTA. At Fletcher’s request, opened Wall a bank account in the Pretrial motions dismiss all counts Security name of Management Consultant sup- were denied. Defendants’ motion to January Services. Between and June press pursuant to a evidence obtained se-. deposited $23,000 Wall approximately in investigation County Emery cret was checks MTA In from into this account. jury also denied. The case was tried to a June Wall turned over the account through August on July request. and its at his records Fletcher Billings M. presiding. Honorable Judith UP & L and MTA their renewed contract jury guilty found each defendant March 1981. five counts of and of all racketeer- ing and antitrust Motions for mis- counts. Thompson left MTA in 1982 and formed Thompson trial were denied. was sen- Associates, security Information consult- less nor tenced serve not than one more ing firm, Conklin, with defendant Bruce years fifteen than Utah State Prison. employee former Mi- MTA. Defendant Conklin and Ziemski were each sentenced Ziemski, chael also employee, a former took year County one in the serve Salt Lake signed control of MTA and a new contract work Jail on release. Each was defendant L UP in& October 1982. Ziemski $25,000 fined for the antitrust violations. changed later of MTA name to Van- convictions, racketeering on Based guard Associates, International Inc. court also ordered of all business forfeiture Ziemski transferred control of Van- guard guard compa- assignment An interests defendants Conklin. of the UP & L contract nies involved in case. The sentences was executed March stayed pending appeal. were all challenge poenas to accumulate most of appeal, jur- defendants duces tecum

On trial, including of the trial court and the court’s tax and isdiction the evidence used at suppress their motion to certain denial of records from defendants’ accountants bank challenge spe- also Defendants evidence. Upon motion and banks. instructions, jury cific each of their convic- challenging constitutionality tions, and the trial court’s denial of their Judge the Act had been Bunnell concluded motion for a mistrial. abuse subject to continual abused provisions. its broad terms and due to Probable Ar- Jurisdiction and Cause for Judge Bunnell Act unconstitu declared the rest tional, investigation, and dismissed the first affidavit quashed outstanding subpoenas. The all upon their arrest warrants were ruling prosecution’s appeal of that is now probable failed to establish cause. based pending before the Utah Court. alleg therefore The arrest warrants were Investiga the Matter In a Criminal invalid, of the court edly trial was de tion, (Utah 25, 1984). No. 20268 filed Oct. The prived jurisdiction of over defendants. Supreme “reject[ed] Court has the Judge ruling, on defend- Based Bunnell’s probable require position that the cause suppress ants filed a motion to all evidence jurisdictional.” ment for arrest warrants is investigation. pursuant seized to thе After Schreuder, 264, P.2d 272 v. 712 State 27, 1984, hearing Judge on December (Utah 1985). Schreuder, In the defendant Billings Judge ruling held Bunnell’s to be challenged ground on her conviction the the law of the case. in a memo- presented support in that the statement 10, 1985, January randum decision dated the arrest warrant failed to establish the Judge Billings denied defendants’ motion to Court, requisite probable cause. The as suppress. subsequently The evidence was suming probable pur lack of cause for the prove admitted to the substance of the discussion, poses adopted majority charged. crimes “illegal rule that an arrest or detention The basis for the trial court’s denial of subsequent does not void a conviction.” suppress defendants’ motion to was as fol- (quoting Pugh, Id. at 271 420 Gerstein lows: 103, 119, 854, 865-66, U.S. 95 43 S.Ct. appropriate suppression standard for (1975)). explained: L.Ed.2d 54 The Court acquired of the evidence under the “Sub- probable requirement cause for an [The] poena requires Powers Act” this case arrest moot time warrant becomes show, as State a defendant has been convicted because contends, a violation” of de- “substantial stringent requirements the much more rights fendants’ constitutional and that proof employed pro at trial have been good violation was “not committed tect the defendant. faith,” 12(g), required by Rule Schreuder, light 712 In P.2d at 272. we (Section Procedure 77- Rules Criminal challenge hold defendants’ to the trial 12(g)). Defendants have neither ac- 35— knowledged jurisdiction court’s is moot. Rule, attempted this nor Admissibility Evidence required showing suppres- meet the sion evidence. argue Defendants next the trial court in denying suppress erred their motion to appeal, On defendants claim the evidence began certain evidence. The instant case instant case was obtained without investigation with a secret conducted legal process sup- and should therefore be Emery County authority of pressed. govern- Defendants contend the Judge Bunnell, Boyd District Seventh ment’s actions were violation of their Court, pursuant to Utah Code Annotat- rights expectations pri- individual to and (1982),commonly ed through -3 §§ vacy. Subpoena referred to as the Powers Act or During Jury subpoena the Utah Act. The enforcement Mini-Grand duc- investigation, prosecution subject used sub- es tecum to fourth amendment against Although 77-35-12(g) searches restrictions unreasonable is now in- valid, seizures, good although exception faith to the exclu- not to extent sionary rule under Leon is still valid. a search warrant. Oklahoma Press Pub. 186, 494, Walling, Co. v. U.S. S.Ct. good excep faith (1946). L.Ed. 614 claims Defendants’ applicable tion to search warrants does not expectation privacy rights pro apply to the execution subpoenas issued tected under the fourth amendment. Ra pursuant subsequently a statute de Illinois, 421, kas v. U.S. clared position unconstitutional. This (1978). Furthermore, — 58 L.Ed.2d 387 contrary Krull, U.S. -, to Illinois v. suppressed or excluded “[e]vidence 107 S.Ct. 94 L.Ed.2d 364 In if the same was obtained a violation of Krull, granted the Court certiorari to de Amendment, designed pro the Fourth good termine whether exception faith right person’s privacy proper tect a to the exclusionary recog rule should be ty.” Montayne, Utah 2d nized when officers act in objectively rea 414 P.2d upon sonable reliance authorizing a statute warrantless administrative searches where Leon, States v. United is ultimately statute found to be uncon (1984), 82 L.Ed.2d 677 stitutional. An permitted Illinois statute United States Court created the government officers to conduct warrant- good exception exclusionary ‍​​​​‌​​‌​‌​‌‌​‌​​​​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​​‌‌​​​​‌​‍faith to the less searches of the records of dealers in rule: objectively where an officer aсts in parts. automobiles and automobile Such a subsequently reasonable reliance on a in- possession search showed Krull to inbe warrant, validated exclusionary rule stolen Subsequent automobiles. to the apply. does not legislature The Utah state search, a federal court an unrelated mat good exception codified the Leon faith ter held the Illinois law be unconstitu (1982). 77-35-12(g) Utah Code Ann. As tionally Upon by defendant, broad. motion discussed, previously the trial court denied suppressed the trial court the evidence defendants’ suppress motion to for failure ruling. based on the federal court The requirements to meet the of section 77-35- affirmed, Supreme Illinois rejecting Court 12(g). good exception argument. the state’s faith Supreme the Utah Court re- Supreme The United States Court re- cently 77-35-12(g). invalidated section In explained good versed. The Court Mendoza, (Utah State v. 748 P.2d 181 exception faith was established because the 1987), the rejected prosecution’s Court purpose deterrent effect and remedial argument good exception faith exclusionary rule are not served where invalid, apply should stop to an warrantless an officer in objectively acts reasonable and search of a vehicle. The ex- Court on a reliance search warrant issued plained authority that because “no outside Likewise, magistrate. neutral the Court on which reasonably rely the officers could held, “if statute is subsequently de- [a] expressly ..., authorized the search unconstitutional, excluding clared evidence policy foundations of the exception Leon do pursuant prior obtained to it to such a appear in searches of Id. [this kind].” judicial declaration will not deter future Furthermore, 77-35-12(g) at 185. section Fourth Amendment violations an officer beyond scope good went faith simply responsibility who has fulfilled his exception requiring prove defendants to to enforce the statute as written.” Id. 107 a substantial violation of their fourth Mendoza, In S.Ct. at 1167. the Utah Su- rights. amendment Since section 77-35- noted, preme Court “Krull does not affect 12(g) purported good to create a faith ex- our characterization of Leon. both ception investigatory stop to an cases, and search conducting the officers the searches improperly it and because shifted the bur- in objectively so reasonable reliance оn proof, den of the Court found prior, the statute external authorization.” 748 P.2d at Likewise, violated the fourth amendment of case, the Unit- 185 n. 3. in the instant ed subpoenas States Constitution. duces tecum were executed in

objectively prior, reasonable reliance on ex- point Defendants out there are three ele- ternal authorization. charged ments to the offense in the instant (A) contract, combination, case: or con- may affirm This Court a trial spiracy in restraint of trade violation to admit court’s decision evidence on 76-10-914; (B) in the form of a proper ground, though even the trial court (C) group boycott; assigned ruling. another reason for its competition. to eliminate Barber, (Utah App. 747 P.2d 436 1987). Regardless of the decision of the (A) Court on the constitutionali Act, ty Jury of the Utah Mini-Grand we federal courts uni- pursuant hold the evidence obtained formly to the have refused to find commercial subpoenas duces tecum was admissible un bribery combination, abe or principle der the set forth in Krull. The conspiracy in violation of section 1 of the trial court’s denial of defendants’ motion to Sherman Act. Commercial is de- suppress is affirmed. 76-6-508(b) fined in Utah Code Ann. § (1978) as follows: “Group Boycott” Antitrust and person A ... without the consent of the improper- Defendants contend employer principal, contrary or to the ly charged with and convicted of conduct in employer principal interests of the or ... Act, confers, offers, violation of the Utah Antitrust agrees or upon to confer through Code Ann. employee, agent, -926 fiduciary §§ prosecu- employer This is the first criminal principal any benefit with tion under the Utah Antitrust purpose influencing Act and is the conduct of thus a impression. gener- case of first employee, agent, or fiduciary in relat- provisions al the Utah Antitrust Act are employer’s principal’s his af- in many respects similar to their federal fairs[.] counterparts in the Sherman 15 U.S.C. In United States v. Boston and Maine through Section 76-10-926 §§ Railroad, provides, legislature “The intends that the 871, (1965), 13 L.Ed.2d 728 the United courts, act, construing guid- this will be held, Supreme States Court is doubt “[I]t ed by interpretations given by the federal ful that this indictment alleges any ... comparable courts to federal antitrust stat- thing more in substance than a bribe. by

utes and compara- other state courts to Bribery might family well be in the ble state antitrust statutes.” offenses covered under a conflict of inter est statute. But it is more remotе from an 76-10-914(1)

Section of the Utah Anti- antitrust Act, frame of reference.” In Calnet trust like 1 of the Sherman Corp. America, Inc., ics Act, states, Volkswagen “Every combination 674, (9th Cir.1976), 532 F.2d 687 cert. de otherwise, the form of trust or or con- nied, 940, 355, 429 U.S. 97 S.Ct. 50 spiracy in L.Ed.2d restraint of or trade commerce is (1976), the Ninth Ap Circuit Court of illegal.” declared to be Section 76-10-920 held, peals “[Cjommercial bribery, standing provides: further alone, does not constitute a violation of the person Any who violates section 76-10- Sherman Act.” And in Municipality by price fixing, rigging, agreeing bid Cable, Anchorage Ltd., v. Hitachi among competitors to divide customers 633, (D.Alaska F.Supp. 1982), the court territories, by engaging or or in a held, bribery “Commercial does not in itself boycott intent of eliminat- constitute a violation of the Sherman Act.” ing competition punished, shall be if an individual, $50,- by a fine not to exceed While it is true that bribery commercial by imprisonment 000 or for an indeter- alone is not conduct in violation of federal year, law, minate time not to exceed one or antitrust bribery is cou- “[w]hen or, by if person pled both tending other than an with other acts to restrain individual, $100,000. trade, a fine not to exceed a claim under the may Sherman Act Hitachi, F.Supp. question be estаblished.” To determine that the court 645; ordinarily see also Associated Serv. pecu- Radio Co. must consider the facts (5th Inc., 624 Page Airways, F.2d 1342 liar to to which the the business restraint Cir.1980). In the cases cited defend applied; its condition before and after ants, there evidence affirma imposed; the restraint was nature acts, coupled bribery, with the re tive restraint, effect, its or actual case, however, trade. In the strain instant restraint, probable. history presented prosecution substantial evi exist, the evil believed to the reason dence other affirmative acts in restraint adopting particular remedy, pur- trade, e.g., accept Fletcher’s refusal to attained, pose sought or end be all are security proposals guard from other com relevant facts. This is not because panies. good intention will save otherwise ob- jectionable regulation, reverse; or the that, suggests

The dissent knowledge may but because of intent view, majority opinion’s every commer help interpret court facts and to payee performs cial which the predict consequences. bargain his end would be an anti trust violation. Such is not the case. Com words, Id. at 38 S.Ct. at 244. In other paid employee, agent, mercial bribes to an “the factfinder decide un- whether [must] fiduciary or of UP & L could other all der the circumstances of the case the including purposes, adjustments, rate waiv imposes restrictive practice an unreason- fees, er safety of service waiver of on competition.” able restraint Arizona v. requirements. purposes Such Maricopa Soc., County Med. anticompetitive. not in restraint of trade 2466, 2472, 73 L.Ed.2d Furthermore, had paid Fletcher bribes order to influence him to deal While federal courts have utilized the exclusively with them he after had in determining legality rule reason bids, arguably received other their actions alleged of most restraints violation conspiracy would not have been a entered also, of the Sherman have primarily into competition eliminate experience, categorize been able certain restrain trade. in the instant practices relationships business case, primary purpose of the bribes se unreasonable. In Northern was to by eliminating restrain trade all Pacific Railway States, Co. v. United competition L security for the UP & con (1958), 2 L.Ed.2d 545 tract. The first element the offense was held, the United Stаtes Court therefore established. agreements practic- are certain or “[T]here pernicious es of which because their effect (B) competition redeeming any on of lack alleged Defendants next their presumed conclusively are to un- virtue agreement with Fletcher did not constitute illegal reasonable and therefore without and, group boycott, therefore, prose- inquiry precise elaborate as harm cution failed to establish the second ele- they have caused or the business excuse of ment the offense. Federal courts have per their practices use.” These se in- long particular held that whether action markets, price fixing, of clude division agreement or the Sherman violates Act de- group tying arrangements. boycotts, pends on whether it is an unreasonable per Recognition of rule Id. se obviates restraint on City trade. Board Trade of of litigation costly complex a complete Chicago States, 231, 246 v. United U.S. Id.; 242, inquiry rule reason entails. (1918). 38 see also S.Ct. 62 L.Ed. 683 Chi- Stationers, Trade, Northwest cago Wholesale Inc. v. Board United States Supreme Stationery Printing Co., Court 472 established the “rule of Pacific 284, 2613, reason” standard to determine whether a U.S. 105 S.Ct. 86 202 L.Ed.2d (1985). restraint was unreasonable:

812 against aggressive competitors or the

Although there is a “marked lack company only practicable means a small uniformity”1 among the federal courts staying in breaking into or busi- has group boycott, a classic defining the term the “rule of reason.” ness and within boycott or group se exists where two per need to more than we do about We know competitors on the same level of the more impact arrangements of these the actual agree to eliminate a tar market structure competition decide whether on combining get competitor by horizontal “pernicious compe- effect on have such a target of needed in or deny the elements redeeming vir- any tition and lack ... Federal Maritime compete. der tue.” Aktiebolaget Ameri Svenska Comm’n Linien, 390 238, 250, 1005, ka 88 S.Ct. U.S. Co., 263, Motor at 83 White 372 U.S. S.Ct. (1968); United 1012, 19 L.Ed.2d 1071 Pacific, 356 U.S. Northern (quoting ‍​​​​‌​​‌​‌​‌‌​‌​​​​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​​‌‌​​​​‌​‍at 702 Corp., 384 Motors

States v. General U.S. 5, 518) (citations omitted). In at 78 S.Ct. at 127, 140, 1321, 1327-28, 16L.Ed.2d 86 S.Ct. T.V., ex- Continental the Court further Klor’s, Broadway-Hale Inc. v. (1966); re- plains that while restrictions “[v]ertical Stores, Inc., 212, 705, 79 S.Ct. U.S. competition by limiting duce intrabrand (1959). See also L. 3 L.Ed.2d 741 particular product of sellers of a number the Law Anti Sullivan, Handbook given competing for the business of a (1977). restraining agree trust ..., buyers [they promote also] “entirely ment need not exclude its victims allowing competition by interbrand market,” only “[prevent but from certain efficien- manufacturer achieve making between products.” from free choices cies in the distribution of his them] market alternatives....” Associated Gen. S.Ct. at 2560. 433 U.S. California, Inc. v. Contractors Califor Under the Sherman both classic Carpenters, 459 U.S. nia State Council group boycotts and vertical restraints de- 519, 528, 897, 903, L.Ed.2d 723 103 S.Ct. subject are to crimi- termined unreasonable (1983). It effect of a is the horizontal penalties. 1 of the nal Section Sherman of trade group boycott, a “naked [restraint] provides: Act purpose except stifling competi any con- Every person who shall make tion,” application typically warrants engage any combination or tract Motor Co. v. White per illegality. se hereby illegal conspiracy declared States, 253, 263, United and, guilty felony, shall be deemed of a L.Ed.2d thereof, punished shall be on conviction exceeding dollars by fine not one million restraints, i.e., nonprice Vertical combi or, person, corporation, if if other persons levels of the nations of at different dollars, by im- one hundred thousand structure, generally not treated market exceeding prisonment years, three per se doctrine but are examined punishments, in the discre- by both said under the rule of reason standard. Conti tion of the court. Inc., T.V., Sylvania Inc. v. nental GTE 53 L.Ed.2d 568 76-10-920 of the Utah Anti Section As the United States Act, however, only the trust criminalizes explained: Court has types four of conduct that have been clear enough the economic ly We do not know se violations of the Sher labeled analysis these and business stuff out of which man Act.2 The rule of reason has emerge provisions arrangements part to be certain. no in the criminal of the Therefore, may dangerous to sanction Antitrust Act. unless de They be too in the form of they may protections fendants’ conduct was a or be allowable community large Barry, the at a v. 438 tor and clear 1. St. Paul Fire & Marine Ins. Co. 531, 543, 2923, 2930, criminally L.Ed.2d pro 98 S.Ct. definition of what conduct is Jardine, scribed.” J. Dibble & J. The Utah Anti Getting trust Act 1979: Into The State Anti Anti- 2. In contrast to the Sherman the Utah Business, trust 1980 Utah L.Rev. "attempts provide prosecu- trust Act both the case, defendants, not group boycott, it was criminal under In the instant bribes, through Utah law. Fletcher enlisted to refuse any competitors, bids from their tar- the group The case not a instant classic gets boycott. group A boycott un- prosecution boycott. The claims this is an the Act requires der Utah Antitrust at arrangement group between a of horizontal conspirators, least two but neither the i.e., competitors, the three At defendants. boycotters number of nor their re- market time, however, did two of defend- lationship target with the is determinative Rather, competitors. ants co-exist as Rather, liability. of criminal the intent of were successive owners of the same securi- combination, conspiracy the ty guard company, company albeit the had deciding the element. different names under different owners. Therefore, alleged agreement the between The proposes dissent an alternative inter and Fletcher did not constitute 76-10-920, pretation of section suggesting group boycott a classic under the federal specific anticompetitive the intent element definition. scope is intended to the narrow federal group definition of classic boy boycott the group specified in suggests cott. The dissent also majori section 76-10-920 is group not the classic ty opinion anticompeti- fails to consider the boycott recognizеd by federal courts. Un tive effect of defendants’ actions (per se) der the group boycott classic defini marketplace. essence, relevant tion, dis proof of intent and/or effect is not suggests per sent we adopt classic se required, but it is conclusively presumed definition of boycott but that we use boycott is anticompetitive viola evaluating the rule of reason in the ele tion of antitrust laws. Pacific, Northern proof. ments of Federal courts have con 356 U.S. at 518. Under sistently group boycotts held that 76-10-920, classic prosecution is re include, definition, quired the elements of anti- prove engaged a defendant in a competitive intent and effect in rele group boycott “with specific intent [the] marketplace. Collegi vant See National eliminating competition.” When inter ate Athletic Ass’n v. statute, Regents Board preting a legisla we assume the Oklahoma, 85, 103-104, ture Univ. used term advisedly each in its (1984) 82 L.Ed.2d proper Horne, sense. Horne 737 P.2d (“Per se rules are invoked when (Utah surround App.1987); State v. Frank lin, circumstances make the likelihood of (Utah 1987). P.2d We con anticompetitive great conduct so as to ren strue the statute the assumption “on ... unjustified der further examination Legislature the intent of the is re conduct.”). challenged It makes no sense vealed in the use of term in the context adopt se the classic definition of placed.” structure which it is Ward group boycott require proof then to (Utah City, 716 P.2d Richfield anticompetitive 1984). intent and market effect. By requiring separate element accept We therefore “specific cannot the dissent’s of eliminating competition,” intent interpretation of section 76-10-920. legislature adopt group boycott classic definition formulated interpretation Our of the Utah Anti by the federal courts. Act trust line with current trend in term group boycott used federal law to form case focus not on the legislature closely state more re the conspiracy, but on the general T.V., sembles the boycott: conspirators. definition of In Continental “a pressuring Court, party method with United States after estab whom dispute by withholding, one has a lishing analysis the rule of reason as the enlisting withhold, others to patronage general restraints, standard for vertical target.” services from the St. Fire possibility Paul & stated “we do not foreclose the Barry, Marine Co. particular Ins. v. 438 applications that of vertical re might prohibition.” L.Ed.2d 932 justify per strictions se case, of the contracts not one 2562. Increas the instant 97 S.Ct. at com- recognizing per se L and defendants courts are between UP & ingly, federal of other single Representatives horizontal boycotts petitively a group between bid. vertically compa course a related the usual competitor large companies testified guard security Co. v. Western ny. selecting Cabinet See Cascade action when (9th Millwork, 710 F.2d 1366 repre- bidding. company open Cabinet Several Com-Tel, Corp., Cir.1983); Inc. v. DuKane compa- security guard of other sentatives Cir.1982); Look, (6th Corey v. 669 F.2d 404 attempts bid their to submit nies testified (1st Cir.1981). also Sulli F.2d 32 See refused Fletcher were either proposals to 1; Decker, van, Antitrust, at 231 n. evidence was ignored. Sufficient Group Numerosity Requirement For specific jury to infer a presented to Horizontal Toward a Boycotts: eliminating competition on the Benefit intent of (1984); 18 U.S.F.L.Rev. Analysis, element of part of defendants. The third Bauer, Re Illegality Concerted Per Se clearly offense was established. Ripe A Rule Reexami to Deal: fusals properly were We hold defendants nation, These 79 Colum.L.Rev. charged engaging in a criminal with urge commentators that when cases and 76-10-914 and -920. boycott under sections group boycott, per rule to a applying the se interpretation of the Utah Anti- Under our not the number key inquiries should Act, on notice trust an individual conspirators, but their or nature of (or she) engages in if he of the restraint on intent and/or the effect combination, conspiracy in restraint of logic ignoring competition. supports No trade, specific eliminat- with the intent of anticompetitive conduct defendants’ regardless of who his co- ing competition, solely they failed to instant case because are, criminally he lia- conspirators will be competitor into a second horizontal recruit ble. Decker, The Numer conspiracy. their See at 587 osity Requirement, 18 U.S.F.L.Rev. evidence, includ- Because there is some necessary influ (“[I]f single firm has the inferences, every support reasonable boycott exclusionary ence to effectuate verdict, not jury’s we will element customer, supplier or such conduct with a Garcia, appeal. v. disturb it on State escape simply rule should not se (Utah App.1987). Defendants’ P.2d firm combine because counts are af- convictions on the antitrust its at its own market level to exert others firmed. influence.”). Although pres the coercive Activity Racketeering and “Pattern” of stifling applied vertically, sure was argue they improperly Com-Tel, competition was horizontal. charged convicted of conduct with and Inc., in the conspiracy 669 F.2d at 409. A Racketeering Influ- of the Utah violation group boycott form of a was therefore Enterprise and Criminal ences established. through -1608 Ann. Code §§ Act). (the (1981) When this case was (C) RICE tried, 76-10-1603(1) provided: interpretation of sec Under our therefore, any person who -920, It shall be unlawful tions 76-10-914 derived, proceeds any has received group boycott involving defendants and indirectly, from a directly or upon proper whether Fletcher would be criminal racketeering activity in which pattern of showing specific intent to eliminate of a princi- participated, has as a person of a such competition. When invest, directly or indirect- pal, to use is an element of the criminal defendant proceeds, any part of such or the may ly, inferred charged, the intent offense from proceeds derived the investment or and sur from the defendant’s conduct thereof, Fowler, acquisition in the use rounding circumstances. State in, opera- (Utah or the establishment or App.1987); interest 745 P.2d of, (Utah 1980). any enterprise. tion P.2d Kennedy, 616

815 racketeering “pattern activity” vague. Vagueness question proce A is a 76-10-1602(4) namely process, defined as: dural due “whether the adequately proscribed statute notices engaging episodes least in at two Frampton, conduct.” State v. 737 P.2d racketeering conduct which have the results, 183, (Utah objectives, par- 1987). same or similar 192 Defendants claim victims, ticipants, requiring pro methods of commis- without the conduct that sion, dis- are otherwise interrelated scribed demonstrate characteristics tradi tinguishing characteristics and are tionally organized crime, associated with events, provided isolated least one Act specifically RICE does not define episodes such occurred effec- after the persons intelligence of ordinary the out part tive date of this and the last of acceptable conduct. State perimeter er years after occurred within five Owens, (Utah 1182, 1981). 638 P.2d 1183 prior episode the commission proscribes Act pro RICE the use of racketeering conduct.3 pattern ceeds derived from a of racketeer ing activity in enterprise. Under the Act Violation the RICE is a second de- statute, “enterprise,” punishable “racketeering gree felony by up years activi to 15 “pattern $10,000, ty,” racketeering imprisonment, activity” a fine and forfei- “Episode” property ture of all all defined. associated with de racketeering enterprise. fined Utah Code Ann. 76-1-401 We that “sufficiently hold the RICE Act is Act, Defendants first contend the RICE explicit ordinary inform reader what patterned after the federal In- Racketeer prohibited,” conduct is therefore not Act, Organizations and Corrupt fluenced 18 unconstitutionally vague. State v. Theo (the through (1984) U.S.C. 1968 §§ bald, 50, (Utah 1982). P.2d Act), prevent RICO was enacted to organized infiltration of crime into Utah. 76-10-1602(1)(h), Under section bribery Therefore, argue, Act RICE was included as racketeering, an act of involving should extend to cases of- predicate sometimes referred to as a act.4 by organized fenses committed crime. using commercial B bribery, punishable a class misdemeanor Although legislative histories by up jail up to six months in and a fine of suggest of both the RICE and RICO Acts $299, to satisfy Act require the RICE they were apply persons intended to predicate ment of offenses violates the con engaged in traditionally acts associated against disprоportion stitutional restraint crime, organized organized a nexus to punishment. reviewing ate In a claim of crime was not included as an element of disproportionate punishment, question the offense. The United States imposed pro “whether sentence Court concluded applies RICO Act portion offense committed is such as “any person” engages who in conduct to shock the moral of all sense reasonable Sedima, S.P.R.L. v. Im the Act forbids. men is right proper as to what Co., Inc., under 479, rex 3275, Hanson, the circumstances.” (1985). Similarly, 87 L.Ed.2d 346 we (Utah 1981) State v. (quoting P.2d Utah’s Act is hold RICE not limited Nance, 20 Utah 2d P.2d application persons ‍​​​​‌​​‌​‌​‌‌​‌​​​​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​​‌‌​​​​‌​‍orga affiliated with (1968)). nized crime. argument ignores Defendants contend that not limit Defendants’

ing application required of the RICE Act to serious additional elements aggravated i.e., offenses by organized pattern RICE of racketeering crime Act unconstitutionally renders the activity, enterprise, existence of an and use legislature substantially revision, the state re- 4. After the 1987 section 76-10-1602 vised the RICE Act and renamed it statutory the "Pattern types now lists the several bribery Activity of Unlawful sion, Act." After the revi- individually, including commercial un- episodes "at least activi- three unlawful der section 76-6-508. ty” required. are now the acts enu- prohibiting racketeering tions of statutes proceeds derived from

of 76-10-1602(1). Instead, establish, acquire, operate merated in section or activity to participation a punishes Act Defendants claim these ele the RICE enterprise. bearing activity racketeering illusory. disagree. pattern It is not of are We ments See enterprise. relationship being required to an commercial briberies that are 76-10-1603(1) case, through present in the but the broad subsections punished by er conduct which forbidden RICE Finally, argue defendants the evidence Field, United States Act. Cf. pattern of racke- trial failed to establish a (S.D.N.Y.1977), 578 F.2d F.Supp. 55 aff'd racketeering teering activity. “Pattern of dismissed, Cir.1978), cert. (2nd activity” defined in section 76-10- (1978) 58 L.Ed.2d 94 1602(4) episodes of racke- as “at least two (Congress pattern entitled to make of rack teering the same or conduct which have eteering independent criminal offense an results, participants, vic- objectives, similar severely simply more than twice punishable tims, commission, are or methods of or offense). constituent penalty for each distinguishing by interrelated otherwise for do not find defendants’ sentences We isolated сharacteristics ” unconstitutionally the RICE violations Defendants claim the several events.... “shocking.” counts of of which were con- were, law, part of of also the use of misde victed as a matter single racketeering con- predicate episode under the RICE a of meanors as acts pattern. duct and thus cannot establish a Act is inconsistent with Utah’s habitual statute, support argument, Code Ann. of their defendants criminal (1978), involving and the enhancement several federal cases civil cite § Controlled Sub provision of the Utah claims under the RICO Act. The federal Ann. pattern racketeering stances Code ac- definition of a of 37—8(1)(b)(iii)(1987). tivity significantly Under from the defini- differs § 58— 76-8-1001, upon proof person that a has tion of the same term section 76-10- sentenced, convicted, and com 1602(4).5 been twice Federal cases which elaborate on felony, one of which is at least mitted a “pattern the federal definition of of racke- degree, person may of the second be are, however, teering activity” helpful peri a criminal for a sentenced as habitual analysis. our years to life. Under section od five Sedima Federal case law after has at- 37—8(1)(b)(iii), upon second conviction a 58— tempted judicially to refine the definition of production or of a con distribution “pattern racketeering activity” of the misdemeanor, substance, A trolled a class emphasized Those cases RICO Act. have felony. person guilty degree third “continuity plus concepts related- Sedima. Against this is not inconsistent ness” discussed The RICE Act backdrop, federal courts have fash- provisions. The RICE some with these criminal requirements “multiple there simply punish multiple viola- ioned Act does not 1961(5) pat- "pattern enlightening: racke “criminal conduct forms a 5. 18 U.S.C. defines § racketeering teering activity” as “at least two acts tern if it embraces criminal acts that have the ity....” results, been This definition has purposes, partici- same or similar activ the subject judicial of considerable attention Supreme commission, victims, pants, or methods of following the landmark United States by distinguishing otherwise are interrelated Co., Sedima, S.P.R.L. v. Imrex Court decision in characteristics and are not isolated events." Inc., L.Ed.2d 346 3575(e). language may U.S.C. This In its now famous footnote interpreting other useful in sections of the specificity in federal Court noted the lack of Act. racketeering activity. pattеrn definition of pattern 105 S.Ct. at 3285. The definition noted suggestions in the After a brief discussion of legislative substantially Court is identical history "pattern" connotes "conti to the definition contained in the RICE Act. Thus, merely nuity plus relationship” rather than an pattern analysis under the RICE Act acts, enumeration of the Court observed: operate sparse language from same does not defining "pattern” Significantly, in a later of the RICO Act. bill, provision Congress the same was more “multiple episodes” attempt criminal ed in time and schemes” is incident to an accomplish accomplishment single than several acts to rather criminal ob- single objective in jective.” criminal order to estab- The trial court instructed the racketeering activity. pattern lish a jury as follows: you If should find one or more of the DBC, Dick, Inc. v. case Torwest (D.Colo.1986), guilty you F.Supp. bribery, must cited de fendants, then multiple of determine whether the seven identi- alleged acts mail/wire single fied payments separate constitute fraud in connection with a scheme to seven bribes, held or a series of payments defraud. The district court that no on a single you the pattern beyond existed where defendants’ con bribe. If find rea- a purpose, single result, a single duct had a sonable doubt payments that each victim, participants, single a one set of a separate was made with distinct and one method of commission. The district purpose, separate then there are bribes. “no hand, court thus concluded there was conti theOn other if the does evidence and, therefore, nuity pattern of racke you beyond convince a reasonable teering activity.” 166. The Tenth Id. payments doubt that the were made with affirmed, Appeals Circuit Court of but dif purposes, payments different then such case from ferentiated the one where “the constitute one bribe. is one RICO claim based on scheme involv argue payments the seven victim, plan contemplates but one single furtherance of a criminal open-ended activity fraudulent and does not objective single and therefore constituted a that, achieved, single goal have a when will episode. Determining the existence of a bring activity to an end.” Torwest single multiple offense or offenses a DBC, Dick, (10th Inc. v. 810 F.2d question of be determined Cir.1987). Other federal courts have noted particular facts and circumstances of each ongoing involving that an schеme the same Kimbel, case. 620 P.2d State victims, perpetrators, and method of com (Utah 1980). Although the overall scheme may mission in itself demonstrate a suffi towas maintain defendants’ con- exclusive pattern racketeering cient activity. See L, tract with UP & there was evidence Alaska, Inc., Thompson Wyoming finding separate pur- support jury’s a (D.Utah P.Supp. 1987); 1227-28 Tem bribe, i.e., pose hiring for each Fletcher’s

poraries, Maryland Inc. v. National company defendants’ before execution a Bank, (D.Md.1986) F.Supp. contract, his & L recommendations UP (“A approach more flexible and accurate management, and his refusal to consider identifying patterns may to require ei jury other bids. The fact the convicted 1) 2) more ther than one scheme or an on of the five seven brib- open-ended scheme con continuous ery counts considered the indicates acts.”). predicate multiplicity tains a payment facts and circumstances each We Act’s conclude RICE and made a individually determination as to pattern requires separate definition of but support each. As there is evidence to episodes findings, related criminal as the basis will on jury’s we not disturb them pattеrn. We facts Garcia, also conclude that the appeal. 744 P.2d at 1030. satisfy requirement the case before us Defendants’ convictions violations of separate episodes but related criminal the RICE Act are affirmed. suggested by implicit the federal cases and Miscellaneous Issues pattern racketeering in the definition of 76-10-1602(4). activity contained in section Defendants also their con- charged Defendants were each with seven victions should be reversed because paid instructing approximately jury different bribes two trial court erred in not illegal February May paid week intervals an must between that bribe episode 1983. An criminal is defined section 76- intent. trial court instructed 1-401 “all jury closely conduct which is relat- as follows: might there have been differ- any defendant absence you can convict

Before advantaged posi- beyond must a reason- result. Due to his bribery you find ent of the every responsibili- each one doubt tion and consistent with his able following charge elements: authority of the ties as trial, necessarily inquiry addressed (1) That the defendant or defendants Utah; sound of the trial court. County, to the discretion Lake Salt episode in the He should view such alleged (2) thе date or dates On or about light proceeding, and if he total Information; in the prejudice that there has been such thinks (3) or defendants That the defendant probability there reasonable conferred, confer agreed offered have a fair and defendant cannot benefit; L. Brent Fletcher a upon guilt impartial of his determination (4) this benefit was conferred That innocence, grant he of course should influencing purpose offered with mistrial. But inasmuch as this is his relating in of Mr. Fletcher the conduct giv- primary responsibility, when he has Light and of Utah Power the affairs upon en due consideration and ruled the Power contrary to the interests of Utah matter, this review court on should not consent; Light and without its and upset ruling appears his unless it of- (5) the defendant or defendants That that he has abused his discretion. agreed to confer fered or conferred or benefits, any, knowingly, if intention- the Hodges, 2d State v. 30 Utah P.2d willfully as terms are de- ally (1974) omitted). those (footnote in these instructions. fined failed to Defendants have show instruction suffi

We believe the any abuse trial court’s clear of the discre Both ciently jury advised the on the law. The trial and counsel tion. court both implicitly and the the statute instruction juror. questioned juror the The indicated requiring a criminal intent require a fact of conviction the Fletcher’s had contrary the inter showing of conduct impact on her not deliberations was of the and without consent ests of the jury with the other members. discussed principal. employer or State See Furthermore, adequately the trial court in O’Neill, P.2d 711 103 Wash.2d jury only structed the consider the evi bribery Defendants’ convictions introduced trial. The dence denial are affirmed. a mistrial defendants’ motion for is af firmed. court argue Defendants next the trial prejudicial errors in the admission

made jury all counts The verdict on is af- assuming Even the trial certain evidence. firmed. err, have failed to court did defendants challenged had a sub- the evidence show DAVIDSON, J., concurs. in the ver- bringing influence about stantial ORME, Judge (dissenting part): in Therefore, errors, any, if dict. 103; fully I concur in the v. While otherwise prejudicial. Utah R.Evid. not (Utah 1986). Velarde, majority opinion, disagree I with the 734 P.2d result portions analysis of the in reached Finally, the trial court ‘Group Boy- section entitled “Antitrust and granting after two erred a mistrial cott’.” mentioned the Fletcher trial and witnesses slates, told the she had read of juror majority one court As the there are three newsрaper dur- Fletcher’s conviction elements of the antitrust offense as regard (1) contract, the trial. With to motions charged in this case: combi- mistrial, has stat- Court trade; conspiracy nation or in restraint ed: (2) group boycott; (3) in the form of a with to eliminate inquiry competi- critical be whether

The should simply I is a that the tion. do not believe that there reasonable likelihood these prejudiced jury My disagreement so that in its elements have met. incident been colleagues my quite complete. I necessarily ment involves the exclusion of entity conduct defendants’ constituted on same operates believe mar- level). I simple bribery. commercial believe their ket At absent least evidence ‍​​​​‌​​‌​‌​‌‌​‌​​​​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​​‌‌​​​​‌​‍of way properly illegal conduct, conduct can in no pay- charac- other the defendants’ group boycott. terized as I believe ment of bribes not constitute a con- tract, combination, evidence shows conspiracy defendants’ intent was viola- not, strictly pockets their line own tion statute. antitrust Fletcher’s sense, competition. to eliminate engage refusal services defend- bargained competitors merely

ants’ question. object bribes Undеr BRIBERY COMMERCIAL majority’s notwithstanding view— I do not view Utah’s antitrust as statute typical claim that more than a commercial appropriate bringing vehicle for com- is required essentially every bribe com- — charges. addressing mercial bribe mercial would an antitrust viola- issue, properly recog- this the trial court performed payee tion if his or her nized the Act ve- Robinson-Patman as the bargain. end of the hicle under which federal commercial brib- ery charges brought.1 typically GROUP BOYCOTT Legislature’s interpreted court failure incorporate the Robinson-Patman Act observes, the majority As evidencing an intent to make Utah’s anti- of the Utah Antitrust appropriate trust the only specific violations, statute vehicle four antitrust charging bribery. “clearly commercial I the believe labeled as se violations of the interpretation Legislature Act,” fairer the that Sherman are criminal offenses in incorporate a Robin- in failed Utah. Defendants this case deliberately son-Patman-type having act charged into our antitrust stat- with only committed one recognized already violation, ute because it namely that Utah such group boycott. a As has a vehicle prosecuting majority states, Legislature com- the the intend bribery, mercial the namely interpretations commercial ed that federal be con bribery construing statute. Code Ann. in sidered the Utah statute appropriate. However, 76-6-508 where unlike § the Act, Sherman the Utah statute was de assuming Even bribery that commercial signed unambiguously define antitrust charged properly the under Utah anti give which violations will rise to criminal statute, majority trust the the concedes sanctions this state. See Dibble & Jar coupled with must other acts dine, The Utah Antitrust Act 1979: intended to restrain trade order to estab Getting Business, Into the State Antitrust recog lish a majority violation. While the 1980 Utah L.Rev. 83. majority The principle bribery, nizes the that commercial agreement concedes that the between de more, without does not violate antitrust fendants Fletcher not constitute a laws, it only offers Fletcher’s unilateral group boycott classic under the federal def accept proposals refusal to from se other inition that “unless defendants’ con curity companies as “more” which boycott, duct of group was the form a it necessary garden-vari to turn an otherwise criminal under Utah law.” ety bribe into antitrust violation. How ever, any agreement exclusively deal Notwithstanding specific language party necessarily dictating with one involves a refus statute use federal See, al to parties. e.g., interpretations deal with other objective Aggregate delineating proscribed conduct, Construction majori- Trans. v. Florida Inc., (11th ty suggests Rock Ind. rejects F.2d that the Utah statute Cir.1983) (every arrange- dealing exclusive the traditional federal definition 2(c) goods illegal Section Robinson-Patman work in connection with a sale of 13(c) (1973), expressly accept- § U.S.C.A. makes federal law. performing a "commission” without real excursion into Defendants’ “gen- sense. in favor of the boycott” “group

term concept, most, was, This form boycott.”2 definition realm of antitrust eral refers to “a majority, according An dealing arrangement. exclusive of an party with whom a pressuring method dealing arrangement is a contract exclusive withholding, or enlist- dispute one has a buyer to a commitment involves withhold, or servic- patronage ing others L. particular seller. Sulli deal under this target.”3 Even es from the the Law Antitrust van, Handbook of imagine how the definition, it is difficult arrange such an constitutes defendants of these behavior per se violation not constitute а ment does implica- boycott with antitrust any kind of Act, see, e.g., 1 of the Sherman of section from the accepted bribes Fletcher tions. O. City Sportservice, Inc. Charles Twin they would case so that in this Co., (9th Finley & F.2d 1304 n. 9 security L contracts. UP & receive the Tampa Electric Cir.1982) Co. (explaining pressure, no en- dispute, no no There was Co., services, Nashville Coal of others to withhold listment clear to me It is target for elimination. (1961)), nor does it con 5 L.Ed.2d 580 to have Legislature if meant even stitute a violation construed in a “group boycott” term Antitrust Act. might rigid way than characterize less accurately categorized the court The trial view, in- it nonetheless federal traditional Fletcher and the de- arrangement between something the term mean to have tended in this case as one “exclusive fendants Minimally, the behav- reasonably concrete. stating the same time dealing,” while at statute proscribed by the sought ior to be fairly analy- be described application which can of “rule of reason” is behavior boycott. group in an unconstitutional sis4 “would result rights to due deprivation of defendant’s view, did cannot my what defendants majority The likewise boycott process of law.”5 characterized as purposе competition. rejecting majority actual harm to on federal cases 2. The relies anticompetitive group boycott "ef- "numerosity" requirement the this test is to determine the contract, id., something now needed that less is rather than for the view fects” of the exclusive boycott. group required by While it is true anticompetitive to constitute a the "intent” as "numerosity" dropped these cases have that requirement, statute. Utah i.e., the number of concern about they relationship, conspirators in a horizontal reprinted is at memorandum decision 5. The require elements of a still the other nonetheless Note, State v. Antitrust Action in Utah: Criminal deal, group boycott: enlist- concerted refusal to Fletcher, 1 B.Y.U.J.Pub.L. 251-55 others, See, Com-Tel, target. e.g., and a ment of in the context of a The decision was written (6th Corp., 669 F.2d Inc. v. Oukane While the deci of a motion to dismiss. denial Cir.1982). proceed try simply permitted the state to sion jury, the trial court shared the its case before a boycott majority suggests that a 3. The controlling majority’s is the view that intent "general from the term definition” differs their boycott” charge. “group of a element per group boycott se as it evolved under Ironically, definition was taken their by parties doctrine. of the cases cited both The theme defining per landmark cases from one of the mere existence of an exclusive is that illegal group boycott. extract- The definition se "group boycott” pro- is not a vertical contract opinion was one Court’s ed from by the antitrust laws. hibited explain the term the Court offered which “boycott” alleged be allowed to has and should State parlance. St. Paul Fire & in common specific prove the defendants had anti- that 531, 545-46, Barry, Ins. Co. v. Marine competitive This can not be inferred intent. L.Ed.2d 932 of an exclusive verti- from the mere existence deal, by illegal anticompetitive, but behav- cal subject group boycotts are to a se Whereas legal business decision can ior an otherwise dealing arrange- illegality, exclusive rule boycott group under the become an unlawful by "rule of reason” standard. are tested ments Utah Antitrust Act. The State should have the Finley City Sportservice, Inc. v. Charles O. Twin opportunity establish that the defendants Co., The focus of this test F.2d at 1302. & specific to eliminate to the had a intent access and then assess a relevant market to first find security guard goal market as the of their competition foreclosed in a has been whether dealing legitimate and that no busi- exclusive Anti- of the relevant market. substantial share purpose imposed proof or result was intended. liability ness is not without trust rule of part standards,” that “the reason has no governing id., admits cotts and the by provisions in the criminal requiring Anti- readily that a group identifiable Act.” boycott accompanied trust an actual intent competition. to eliminate spe- See id. The however, majority, The largely avoids requirement cific intent was added to elimi- implications of this mini- conclusion potentially problematic nate “the situation mizing the nature of defendants’ behavior boycott a group where exists but an anti- emphasizing perceived and instead their competitive motive does not.” Id. The doing they of mind in did. state what Ac- requirement not added to allow for a cording majority, to the “the intent of the criminal conviction there whenever is an or conspiracy combination is the anticompetitive regardless motive deciding criminality. element” of Under really boycott. whether there is a group I reasoning, a purely this even vertical exclu- by adding specific require- believe intent dealing sive contract —which both the ma- Legislature narrow, ment the meant to acknowledge jority the trial court expand, scope boycott “group boycott” not a in the usual sense— crime in this state. miraculously can be into a group converted boycott, variety, by at least the Utah SPECIFIC INTENT anticompetitive proof is, of an intent. That Even if engaged the defendants in con- held, legal as trial court “an otherwise might duct which arguably constitute a can business decision become an unlawful group boycott sense, in some I broad do group boycott under the Utah Antitrust not believe specific so with the Act.” competition intent to required eliminate approach The effect of this is to render by the nor do agree statute I with the totally Legislature’s ineffectual effort majority that such intent can be inferred particularize familiar, per four but se from the evidence. antitrust violations as unlawful under According the majority, anticompeti- 76-10-920, prosecutor so “both the “may tive intent be inferred from the de- community large” and the will fendant’s conduct and circumstances.” know criminally pro “what conduct majority The points to the fact that Jardine, scribed.” & Dibble An contracts UP L between & and defendants titrust Act Getting Into of 1979: competitively were not is the bid as usual Business, Antitrust 1980 Utah L.Rev. selecting practice companies. security added). (emphasis colleagues my This leads to the conclusion else, why logic But goes, would the intent these defendants was Legislature inject require- “competition.” none other than to eliminate ment into an offense which historically has If one looks at what did thought been so bad that criminal intent they it,6 considers the simply market which presumed? can obvious It is had me that it obvious coupling spe- an intent eliminate anticompetitive competition. court, instructing cific The trial requirement group 76-10-920, jury, narrowly boycott aspect Legisla- defined the relevant ture did not market in as “among mean to obscure the issue of this case vendors of security guard what kinds of proscribed. behavior were services to Utah Power and Rather, Light,” Legislature notwithstanding avoid meant to the fact that other group “confusion illegality boy- security guard companies competing over the for applying Id. at 254-55. analy- when the rule of Such reason. unnecessary sis is indeed where antitrust policy "[A]n 6. antitrust divorced from market variety violation of se issue. is at How- any objective considеrations would lack bench- ever, cursory peek I think relevant Sylvannia, marks.” Continental T.V.Inc. v. GTE evaluating market instructive likeli- Inc., 21, 2549, n. n. hood that defendants had as their intent (1977). Contrary 53 L.Ed.2d competition. elimination of characterization, majority’s urged not I have analysis typical full-blown market of the sort not constitute does competing ants’ conduct L contract were also UP & conduct can state, if boycott. Even defendants’ or even throughout the contracts for “group into no evi- be shoehorned there was somehow worldwide. no evidence L there was boycott” pigeonhole, needs of UP & security dence eliminate com- guard ser- intent to unique prove somehow so were point inferences competing for UP & L’s busi- the fair petition, and vendors vice few- the antitrust necessarily way. different —and I would reverse were other ness generally, resentencing on guard service vendors for and remand er—than convictions provide security were of course are able for which defendants who the other crimes large utilities everything from properly services convicted. warehouses, stores, apartments, to retail churches, banks, Nor was there and so on. L such a & was to show that UP

evidence security ser- in the local

major purchaser that con- failure to secure market that

vice any of de- necessarily imperil

tract would competitors.

fendants’ that the perhaps be inferred it can

While other se- to eliminate

defendants intended competition for the curity companies from ‍​​​​‌​​‌​‌​‌‌​‌​​​​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​​‌‌​​​​‌​‍Utah, Plaintiff and STATE in- simply cannot be L it UP & Respondent, these they intended to eliminate ferred that mean- companies competition from FLETCHER, Defendant L. Brent marketplace, is what the anti- ingful Appellant. “The designed prevent. trust laws protect com- enacted to Act was Sherman No. 860358-CA. marketplace. It was not in the petition interpreted, designed, and has never been Appeals Utah. Court practices, unfair or all business to reach March otherwise, compa- damaging to individual v. Western nies.” Cascade Cabinet Co. Millwork, F.2d

Cabinet & Cir.1983). companies

(9th security Other compet- by defendants

were not hindered They security guard contracts. L con- merely deprived of the UP & certainly

tract. this conduct While

commendable,7 use of unfair means “the competi-

resulting in substitution of one more does not vio-

tor for another without Manufacturing

late the antitrust laws.” Co., 693 Corp. Tool v. Greenlee

Research Cir.1982). (11th

F.2d

CONCLUSION bribery criminally does

Commercial antitrust laws. Defend-

violate the Utah however, quences. punishment, should Their Fortunately, objectionable conduct is such committed, they readily punished under our commercial not those be for the crimes they might especially egre- conduct is Legislature Where the statute. had the have committed also, case, this be reached gious, as in it can approach to antitrust crimi- chosen a different racketeering statute. Defendants under the a bad nality. thing suffer the conse- should

Case Details

Case Name: State v. Thompson

Court Name: Court of Appeals of Utah

Date Published: Mar 9, 1988

Citation: 751 P.2d 805

Docket Number: 860357-CA

Court Abbreviation: Utah Ct. App.