The opinion of the court was delivered by: FRANKEL
The three defendant corporations, on December 29, 1967, after a trial lasting some nine weeks, were found guilty by a jury on the three counts of an indictment charging (1) conspiracy in restraint of trade, (2) conspiracy to monopolize, and (3) the substantive offense of monopolizing interstate trade and commerce in a broad-spectrum antibiotic market that consisted of four so-called "wonder drugs:" tetracycline, aureomycin, terramycin and chloromycetin. Defendants have moved for judgments of acquittal notwithstanding the verdict or, in the alternative, for a new trial. The motions for acquittal renew the contention that the evidence was insufficient to warrant conviction. The alternative motions, in addition to questioning the sufficiency of the evidence, assert a number of errors in the conduct and setting of the trial and in the charge to the jury.
In considering the motions for judgment of acquittal, the court has accepted defendants' statement of the pertinent test - namely, whether the judge is convinced, upon a review of the evidence, that reasonable jurors could not have found defendants' guilt established beyond a reasonable doubt. See United States v. Kahaner, 317 F.2d 459, 467-68 (2d Cir.), cert. denied, Keogh v. United States, 375 U.S. 836, 11 L. Ed. 2d 65, 84 S. Ct. 73 (1963); United States v. Lefkowitz, 284 F.2d 310, 315 (2d Cir. 1960); see also United States v. DeSisto, 329 F.2d 929, 932 (2d Cir.), cert. denied, 377 U.S. 979, 84 S. Ct. 1885, 12 L. Ed. 2d 747 (1964). It may be said that even if it made a difference, the court would apply this test rather than the measure of sufficiency applicable in civil cases, because it appears to be the correct one. See the recent review of the learning in United States v. Melillo, 275 F. Supp. 314, 316-20 (E.D.N.Y. 1967). But it makes no difference in this case. For however the court might have ruled had it sat as trier of the facts, there was clearly sufficient evidence to warrant the jury's verdict.
It would serve no useful purpose to write down at length the reasons for this conclusion. The subject was reviewed in extended argument when defendants moved for acquittals after the Government had rested. The record is not significantly different now from what it was at that time.
The court has reconsidered, and adheres to, the appraisal made then.
Assuming arguendo (while doubting) that a standard more favorable to defendants should apply in appraising the sufficiency of the evidence on their motion for a new trial under Fed. R. Crim. P. 33,
the court likewise concludes that this alternative prayer must be denied. The evidence was ample for conviction on any permissible standard.
Most of the asserted errors presented as grounds for the granting of a new trial have been canvassed on the record, both during the course of the trial and in the oral presentations of counsel on the present motions. The court has in each instance studied the opposed contentions with the care merited by the able submissions on both sides. It is concluded that defendants' arguments, viewed cumulatively as well as singly, afford no warrant for nullification of the jury's verdict. In the discussion below, many detailed claims of error have not been treated; there are limits of time and utility that are thought to warrant such omissions. What follows, then, is some comment on those defense contentions which appear to justify discussion supplementing what already appears in the trial record and transcripts of oral argument.
1. One of the oldest and most discussed subjects in this case has been defendants' belief that publicity about attacks upon drug prices and pricing policies might prejudice them before a jury. As defendants again present it, their concern has existed because damaging "news reports, many of which resulted from governmental activities, have appeared almost continuously throughout the whole period from 1961 through 1967."
Alerted to this problem well in advance of the trial, the court inquired whether defendants proposed to move for a change of venue, postponement of the trial, or some other arguably appropriate relief. Defendants chose no such course, but insisted stoutly upon their right to keep the subject open, both in its possibly direct impact upon the fairness of the trial and as support for their view that evidence claimed to show "unreasonably high" prices should be excluded as unduly prejudicial.
The case went to trial, and a jury was selected following a fairly long voir dire, during the course of which panel members with potential bias concerning drug prices were excused by the court. Many weeks later, after both sides had rested, defendants brought on a motion to dismiss the indictment on the asserted ground that prejudicial publicity "emanating from the government and attacking the prices and profits of the drug industry has created an atmosphere in which a fair trial of the issues in this case is not possible." It was made perfectly clear by the defendants that they sought nothing less or different at this eleventh hour than a final termination of the case in their favor. They pointedly and deliberately refrained from moving for a mistrial - a form of relief the court would probably have denied at that late stage, but one on which the court was never asked to focus with suitable adversary presentations.
On the morning of the charge to the jury, with three alternate jurors still available, defendants proposed that the court inquire briefly whether any juror had read or heard things that might have infected his impartiality. Over the government's strenuous objections, the proposal was followed. The jurors reported no problems relating to outside influences. Defendants, reserving their view that the indictment should be dismissed, expressed their satisfaction with the procedure.
Now defendants include among their voluminous papers the results of a public opinion poll by Roper Research Associates Incorporated conducted some time after the jury's verdict. The poll, based upon a sample of 516 persons from New York, Bronx, and Westchester Counties, reports that 75% of the respondents thought drug prices "unreasonably high" (as against 43% who thought the same of frozen foods, the second highest); 54% thought drug manufacturers had not "shown sufficient concern about holding down or reducing prices" (as against 24% in the case of frozen foods, again second in such unpopularity); 58% thought drug manufacturers made "unreasonably high or excessive profits" (as against 20% for frozen foods); 42% thought there was an understanding among drug manufacturers "to fix prices at a high level" (while 20% voted gasoline in second place and 32% said they did not know). Altogether, Roper reports, 83% singled out drugs for at least one adverse comment whereas frozen foods scored 53% and gasoline 43%.
The Roper interviewers asked how long such opinions had been held. Only 2% of the respondents answered "weeks" while the rest said "months" or "years" - evidently including large percentages of those who said "don't know" in response to prior questions. From this defendants draw the possibly ingenuous conclusion that the verdict in this very case - which was front-page news on the eve of the poll as compared with the older and more general stories, mostly in back pages, from which defendants claim prejudice - could have had no significant influence upon the answers Roper compiled.
But there is no need to joust with the expertise of the pollsters or the inferences defendants would derive from them. Taking at face value what the poll purports to show, it cannot avail defendants at this stage.
To begin with, defendants exceed the bounds of even Roper's claims when they assert that the poll demonstrates the prejudicial impact of publicity "upon the jury panel in this case * * *."
The members of that panel were also "respondents." They were not anonymous, like Roper's people, but present in the courtroom, under oath. They observed fellow citizens being excused, courteously and without comment, because they had possibly disabling views about drug prices or drug companies. They were subject to scrutiny by all ...