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Page 1 .       

                UNITED STATES DISTRICT COURT

               SOUTHERN DISTRICT OF TEXAS

                     HOUSTON DIVISION




UNITED STATES OF AMERICA ) Criminal No.: H-97-93
)  
v. ) Violations:
)  
MARK ALBERT MALOOF, ) 15 U.S.C. 1
) 18 U.S.C. 371
Defendant. ) FILED 6/30/97

        UNITED STATES' PROPOSED JURY INSTRUCTIONS

   Attached are the Government's proposed instructions to the jury. Additionally,
the government requests that Fifth Circuit Pattern Jury Instruction No. 1.02 be given to
the jury as a preliminary instruction.

                            Respectfully submitted,


                                       /s/
                            MARK R. ROSMAN
                            Attorney-in-Charge
                            Florida State Bar No. 0964387
                            U.S. Department of Justice
                            Antitrust Division
                            1601 Elm Street, Suite 4950
                            Dallas, Texas 75201-4717
                            (214) 880-9401









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                    TABLE OF CONTENTS

INSTRUC.
 NO. TITLE                               PAGE


  1.    INTRODUCTION..................................................................................................... 1

  2.    DUTY TO FOLLOW INSTRUCTIONS................................................................. 2

  3.    PRESUMPTION OF INNOCENCE, BURDEN OF PROOF,............................ 3
        REASONABLE DOUBT

  4.    EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL................................ 4
        AND COMMENT OF COURT

  5.    EVIDENCE -- INFERENCES -- DIRECT AND................................................... 5
        CIRCUMSTANTIAL

  6. ALL AVAILABLE EVIDENCE NEED NOT BE PRODUCED............................ 6

  7.    CHARTS AND SUMMARY EXHIBITS................................................................. 7

  8.    CAUTIONARY INSTRUCTION DURING TRIAL --............................................ 8
        TRANSCRIPT OF TAPE RECORDED CONVERSATION

  9.    CREDIBILITY OF WITNESSES...................................................................... 9- 10

 10.   CO-CONSPIRATOR -- PLEA AGREEMENT................................................... 11

 11.   UNINDICTED CO-CONSPIRATORS................................................................ 12

 12.   CAUTION -- PUNISHMENT................................................................................ 13

 13.   SINGLE DEFENDANT -- MULTIPLE COUNTS............................................... 14

 14.   CONSPIRACY................................................................................................. 15- 16

 15.   COUNT ONE - OFFENSE CHARGED -- STATUTE....................................... 17
        DEFINING OFFENSE


 16.   PURPOSE OF SHERMAN ANTITRUST ACT................................................. 18


Page 3 .       

 17.   ELEMENTS OF SHERMAN ACT OFFENSE................................................... 19

 18.   SPECIFIC INTENT NEED NOT BE PROVED................................................. 20

 19.   SUCCESS OF CONSPIRACY IMMATERIAL.................................................. 21

 20.   MOTIVES PROMPTING CONSPIRACY IMMATERIAL................................. 22

 21.   INTERSTATE COMMERCE.......................................................................... 23- 24

 22.   IGNORANCE OF ANTITRUST LAWS NO DEFENSE................................... 25

 23.   PRICE-FIXING PER SE UNREASONABLE............................................... 26- 27

 24.   PROOF OF OVERT ACT UNNECESSARY FOR.......................................... 28
        SHERMAN ACT VIOLATION

 25.   COUNT TWO - CONSPIRACY TO COMMIT WIRE FRAUD - ..................... 29
        OFFENSE CHARGED --STATUTE DEFINING OFFENSE

 26.   COUNT TWO - ELEMENTS OF THE OFFENSE...................................... 30- 31

 27.   COUNT TWO - CONSPIRACY; SUBSTANTIVE....................................... 32- 34
        OFFENSE; ELEMENTS

 28.   INTENT TO DEFRAUD........................................................................................ 35

 29.   PROOF OF INTENT............................................................................................. 36

 30.   PERIOD OF THE CONSPIRACY....................................................................... 37

 31.   JURISDICTION AND VENUE............................................................................. 38

 32.   KNOWINGLY AND WILLFULLY........................................................................ 39

 33.   DUTY TO DELIBERATE - VERDICT FORM.............................................. 40- 41









Page 1      




                              INTRODUCTION
  Members of the Jury:
  In any jury trial there are, in effect, two judges. I am one of the judges; the other is
the jury. It is my duty to preside over the trial and to decide what evidence is proper for
your consideration. It is also my duty at the end of the trial to explain to you the rules of
law that you must follow and apply in arriving at your verdict.
  First, I will give you some general instructions which apply in every case, for
example, instructions about burden of proof and how to judge the believability of
witnesses. Then I will give you some specific rules of law about this particular case,
and finally I will explain to you the procedures you should follow in your deliberations.









  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.


Page 2      

No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.04 (1990).

                        DUTY TO FOLLOW INSTRUCTIONS
  You, as jurors, are the judges of the facts. But in determining what actually
happened -- that is, in reaching your decision as to the facts -- it is your sworn duty to
follow all of the rules of law as I explain them to you.
  You have no right to disregard or give special attention to any one instruction, or
to question the wisdom or correctness of any rule I may state to you. You must not
substitute or follow your own notion or opinion as to what the law is or ought to be. It is
your duty to apply the law as I explain it to you, regardless of the consequences.
  It is also your duty to base your verdict solely upon the evidence, without prejudice
or sympathy. That was the promise you made and the oath you took before being
accepted by the parties as jurors, and they have the right to expect nothing less.






  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.05 (1990).


Page 3      



Page 4 .       


        GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 3
 PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT
  The Indictment or formal charge against a defendant is not evidence of guilt.
Indeed, the defendant is presumed by the law to be innocent. The law does not require
a defendant to prove his innocence or produce any evidence at all, [and no inference
whatever may be drawn from the election of a defendant not to testify.] The
government has the burden of proving the defendant guilty beyond a reasonable doubt,
and if it fails to do so, you must acquit the defendant.
  While the government's burden of proof is a strict or heavy burden, it is not
necessary that the defendant's guilt be proved beyond all possible doubt. It is only
required that the government's proof exclude any "reasonable doubt" concerning the
defendant's guilt.
  A "reasonable doubt" is a doubt based upon reason and common sense after
careful and impartial consideration of all the evidence in the case. Proof beyond a
reasonable doubt, therefore, is proof of such a convincing character that you would be
willing to rely and act upon it without hesitation in the most important of your own
affairs. If you are convinced that the accused has been proved guilty beyond
reasonable doubt, say so. If you are not convinced, say so.


  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.06 (1990).
.


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        EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL AND COMMENT OF COURT
  As I told you earlier, it is your duty to determine the facts. In doing so, you must
consider only the evidence presented during the trial, including the sworn testimony of
the witnesses and the exhibits. Remember that any statements, objections, or
arguments made by the lawyers are not evidence. The function of the lawyers is to
point out those things that are most significant or most helpful to their side of the case,
and in so doing to call your attention to certain facts or inferences that might otherwise
escape your notice. In the final analysis, however, it is your own recollection and
interpretation of the evidence that controls in the case. What the lawyers say is not
binding upon you.
  Also, do not assume from anything I may have done or said during the trial that I
have any opinion concerning any of the issues in this case. Except for the instructions
to you on the law, you should disregard anything I may have said during the trial in
arriving at your own findings as to the facts.




  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.07 (1990).
.


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               EVIDENCE -- INFERENCES -- DIRECT AND CIRCUMSTANTIAL
  While you should consider only the evidence, you are permitted to draw such
reasonable inferences from the testimony and exhibits as you feel are justified in the
light of common experience. In other words, you may make deductions and reach
conclusions that reason and common sense lead you to draw from the facts which have
been established by the evidence.
  In considering the evidence you may make deductions and reach conclusions
which reason and common sense lead you to make; and you should not be concerned
about whether the evidence is direct or circumstantial. "Direct evidence" is the
testimony of one who asserts actual knowledge of a fact, such as an eye witness.
"Circumstantial evidence" is proof of a chain of facts and circumstances indicating that
the defendant is either guilty or not guilty. The law makes no distinction between the
weight you may give to either direct or circumstantial evidence.





  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.08 (Alternative B) (1990).
.


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                 ALL AVAILABLE EVIDENCE NEED NOT BE PRODUCED
    The law does not require the prosecution to call as witnesses all persons who
may have been present at any time or place involved in the case, or who may appear to
have some knowledge of the matters in issue at this trial. Nor does the law require the
prosecution to produce as exhibits all papers and things mentioned in the evidence.
















    Source: 1 Devitt & Blackmar, Federal Jury Practice and Instructions, 17.18
(3d ed. 1977) (partial).
.


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        GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 7
                CHARTS AND SUMMARY EXHIBITS
    Certain charts and summaries have been admitted into evidence in order to
summarize facts shown by documents and records which themselves are too
voluminous to be conveniently examined in court. You should consider the evidence
presented concerning the preparation and accuracy of those charts and summaries,
and give each of them such weight as you believe it deserves. If your recollection of
the evidence differs from the exhibit, rely on your own recollection.









    Sources: Judge Hittner's instructions in United States v. Johnson, Crim. No.
H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir. 1995) (antitrust
case involving bid-rigging). See also Sec. of Antitrust Law, American Bar Ass'n,
Sample Jury Instructions in Criminal Antitrust Cases, No. 10 (1984); 1 Devitt, Blackmar,
Wolff & O'Malley, Federal Jury Practice and Instructions, 14.02 (4th ed. 1990).

    Authorities: Moore v. Johns-Manville Sales Corp., 781 F.2d 1061, 1066 (5th
Cir. 1986); United States v. Stephens, 779 F.2d 232, 239 (5th Cir. 1985).

.


Page 9 .       

        GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 8
                  TRANSCRIPTS OF TAPE RECORDED CONVERSATIONS
    Exhibits have been identified as typewritten transcripts of the oral
conversations which can be heard on the tape recordings received in evidence as
Exhibits . The transcripts also purport to identify the speakers engaged in such
conversations.
    I have admitted the transcripts for the limited and secondary purpose of aiding
you in following the content of the conversations as you listen to the tape recordings,
and also to aid you in identifying the speakers.
    However, you are specifically instructed that whether the transcripts correctly or
incorrectly reflect the content of the conversations or the identity of the speakers is
entirely for you to determine based upon your own evaluation of the testimony you have
heard concerning the preparation of the transcripts, and from your own examination of
the transcripts in relation to your hearing of the tape recordings themselves as the
primary evidence of their contents. If you should determine that the transcripts are in
any respect incorrect or unreliable, you should disregard them to that extent.


  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.40 (1990) (modified).

  Authorities: United States v. Chase, 838 F.2d 743, 748 (5th Cir. 1988), cert.
denied
, 486 U.S. 1035 (1989); United States v. Larson, 722 F.2d 139, 144-45 (5th Cir.
1983), cert. denied, 466 U.S. 987 (1984).


Page 10 .       

                        CREDIBILITY OF WITNESSES
    I remind you that it is your job to decide whether the government has proved
the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider
all of the evidence. This does not mean, however, that you must accept all of the
evidence as true or accurate.
    You are the sole judges of the credibility or "believability" of each witness and
the weight to be given the witness's testimony. An important part of your job will be
making judgments about the testimony of the witnesses [including the defendant] who
testified in this case. You should decide whether you believe what each person had to
say, and how important that testimony was. In making that decision I suggest that you
ask yourself a few questions: Did the person impress you as honest? Did the witness
have any particular reason not to tell the truth? Did the witness have a personal
interest in the outcome of the case? Did the witness have any relationship with either
the government or the defense? Did the witness seem to have a good memory? Did
the witness have the opportunity and ability to understand the questions clearly and
answer them directly? Did the witness's testimony differ from the testimony of other
witnesses? These are a few of the considerations that will help you determine the
accuracy of what each witness said.
    In making up your mind and reaching a verdict, do not make any decisions
simply because there were more witnesses on one side than on the other. Do not
reach a conclusion on a particular point just because there were more witnesses


Page 11 .       

testifying for one side on that point. Your job is to think about the testimony of each
witness you have heard and decide how much you believe of what each witness had to
say.
















    Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.09 (1990).



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                      CO-CONSPIRATOR -- PLEA AGREEMENT
    You have heard evidence that [witness names] have
entered into plea agreements with the government. Their testimony was received in
evidence and may be considered by you. You may give their testimony such weight as
you think it deserves. Whether or not their testimony may have been influenced by
their plea agreements is for you to determine.
    Their guilty pleas cannot, however, be considered by you as evidence of this
defendant's guilt. The guilty pleas can be considered by you only for the purpose of
determining how much, if at all, to rely upon the testimony of these witnesses.










    Source: Judge Hittner's instructions in United States v. Johnson, Crim. No.
H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir. 1995) (antitrust
case involving bid-rigging).


Page 13 .       


                      UNINDICTED CO-CONSPIRATORS
    The Indictment refers to alleged co-conspirators and corporate co-conspirators
who were not included in the Indictment. You should not be concerned with or
speculate about why alleged co-conspirators have not been included.














    Sources: Judge Lake's instructions in United States v. Moore Supply Co.,
Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Judge Hittner's instructions in United States v. Johnson, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir. 1995) (antitrust case involving bid-
rigging). See also Sec. of Antitrust Law, American Bar Ass'n, Sample Jury Instructions
In Criminal Antitrust Cases
, No. 18 (1984) (modified).


Page 14 .       


                         CAUTION -- PUNISHMENT
    If the defendant is found guilty, it will be my duty to decide what the punishment
will be. You should not be concerned with punishment in any way. It should not enter
your consideration or discussion.















  Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.21 (1990) (modified).


Page 15 .       

        GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 13
             SINGLE DEFENDANT - MULTIPLE COUNTS
  A separate crime is charged in each count of the Indictment. Each count and the
evidence pertaining to it should be considered separately. The fact that you may find
the defendant guilty or not guilty as to one of the crimes charged should not control
your verdict as to any other.















  Source: Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 1.22 (1990).


Page 16 .       


                             CONSPIRACY
    The existence of a conspiracy is an essential element of the offenses charged
in Counts One and Two of the Indictment and must be proved by the government
beyond a reasonable doubt. A "conspiracy" is an agreement between two or more
persons to join together to accomplish some unlawful purpose. It is a kind of
"partnership in crime" in which each member becomes the agent of every other
member.
    One may become a member of a conspiracy without knowing all the details of
the unlawful scheme or the names and identities of all the other alleged conspirators. If
the defendant understands the unlawful nature of a plan or scheme and knowingly and
intentionally joins in that plan or scheme on one occasion, that is sufficient to convict
him for conspiracy even though the defendant had not participated before and even
though the defendant played only a minor part.
    The government need not prove that the alleged conspirators entered into any
formal agreement, nor that they directly stated between themselves all the details of the
scheme. Similarly, the government need not prove that all of the details of the scheme
alleged in the Indictment were actually agreed upon or carried out. Nor must it prove
that all of the persons alleged to have been members of the conspiracy were such, or
that alleged conspirators actually succeeded in accomplishing their unlawful objectives.
    Mere presence at the scene of an event, or the mere fact that certain persons
may have associated with each other, and may have assembled together and


Page 17 .       

discussed common aims and interests, does not necessarily establish proof of the
existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but
who happens to act in a way which advances some object or purpose of a conspiracy,
does not thereby become a conspirator.














    Sources: Judge Lake's instructions in United States v. Moore Supply Co., Crim.
No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case involving price-fixing).
Judge Hittner's instructions in United States v. Johnson, Crim. No. H-92-152 (S.D. Tex.
filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir. 1995) (antitrust case involving bid-
rigging). Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 2.21 (1990)
(modified). See also Court's instructions in United States v. All Star, et al., Crim. No.
H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case)
(modified).


Page 18 .       

                                       OFFENSE CHARGED -- STATUTE DEFINING OFFENSE
    Count One charges that beginning as early as January 1994 and continuing at
least until June 1995, the defendant entered into and engaged in a combination and
conspiracy to suppress and restrain competition by raising, fixing and maintaining
prices of metal building insulation sold from facilities in Texas, in unreasonable restraint
of interstate trade and commerce in violation of Section One of the Sherman Antitrust
Act (15 U.S.C. 1).
    Section One of the Sherman Antitrust Act provides, in part, that:
         Every contract, combination . . . or conspiracy, in
    restraint of trade . . . among the several States . . . is
    declared to be illegal. . . . Every person who shall make
    any contract or engage in any . . . conspiracy declared
    by sections 1-7 of this title to be illegal shall be . . . guilty
    of an offense against the laws of the United States.








    Sources: 15 U.S.C. 1. Judge Lake's instructions in United States v.
Moore Supply Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994)
(antitrust case involving price-fixing). Judge Hittner's instructions in United
States v. Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd,
68 F.3d 899 (5th Cir. 1995) (antitrust case involving bid-rigging) (modified).
See also Court's instructions in United States v. All Star, et al., Crim. No.
H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing
case) (modified). Devitt, Blackmar, & O'Malley, Federal Jury Practice and
Instructions
, 51A.01 and 51A.02 (1992 Supp.).


Page 19 .       

             PURPOSE OF SHERMAN ANTITRUST ACT
    The purpose of the Sherman Antitrust Act is to preserve or advance
our system of free, competitive enterprise, and to encourage to the fullest
extent practicable, free and open competition in the market place; all to the
end that the consuming public may receive better goods and services at the
lowest obtainable cost.
    So, any unreasonable interference, by contract or combination or
conspiracy, with the ordinary, usual and freely-competitive pricing or
distribution system of the open market in interstate trade and commerce,
constitutes an unreasonable restraint of interstate trade, and is in itself
unlawful, and, if knowingly done, is a federal offense under the Sherman
Antitrust Act.





    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing). Judge Hittner's instructions in United States v.
Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving bid-rigging). Devitt, Blackmar &
O'Malley, Federal Jury Practice and Instructions, 51A.03 (1992 Supp.)
(modified).


Page 20 .       


             ELEMENTS OF SHERMAN ACT OFFENSE
    For you to find the defendant guilty of the crime charged in Count One
of the Indictment, you must be convinced that the government has proved
each of the following beyond a reasonable doubt:
    First: That the conspiracy described was knowingly formed, and was
existing at or about the time alleged;
    Second: That the defendant knowingly became a member of the
conspiracy; and
    Third: That the conspiracy either affected interstate commerce or
occurred within the flow of interstate commerce.
    "Interstate commerce" means commerce or travel between one state,
territory or possession of the United States and another state, territory or
possession of the United States.



    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing). Judge Hittner's instructions in United States v.
Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving bid-rigging). See also Court's
instructions in United States v. All Star, et al., Crim. No. H-88-29 (S.D. Tex.
1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case) (modified).
Devitt, Blackmar, & O'Malley, Federal Jury Practice and Instruction, 51A.15
(1992 Supp.) (modified).


Page 21 .       


             SPECIFIC INTENT NEED NOT BE PROVED
    To establish the required intent for Count One of the Indictment the
government must prove beyond a reasonable doubt that the defendant
knowingly did something which the law forbids. In this case, that means that
the government must prove beyond a reasonable doubt that the defendant
knowingly formed, joined or participated in a combination or conspiracy to fix
prices. Since a combination or conspiracy to fix prices is unreasonable and
illegal as a matter of law, the government does not have to prove that the
defendant specifically intended to unreasonably restrain trade or that such
conduct is an unreasonable restraint of trade. If you find beyond a reasonable
doubt that the defendant agreed to fix prices with one or more co-
conspirators, then you must find the defendant guilty on Count One.




    Source: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing) (modified). Judge Hittner's instructions in United States
v. Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving bid-rigging) (modified). See also
Court's instructions in United States v. All Star, et al., Crim. No. H-88-29 (S.D.
Tex. 1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case) (modified). 2
Devitt and Blackmar, Federal Jury Practice and Instructions, pp. 757-60
(Supp. 1988).
.


Page 22 .       


             SUCCESS OF CONSPIRACY IMMATERIAL
    The government is not required to prove that the members of the
conspiracy were successful in achieving any or all of the objects or goals of
the conspiracy. The mere forming of the agreement itself is sufficient to
violate the Sherman Act.












    Source: 2 Devitt, Blackmar, & O'Malley, Federal Jury Practice and
Instruction
, 28.08 (4th ed. 1990) (modified).

    Authorities: United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
224-25 n.59 (1940); United States v. Trenton Potteries Co., 273 U.S. 392,
402 (1927).
.


Page 23 .       

           MOTIVES PROMPTING CONSPIRACY IMMATERIAL
    A conspiracy to fix prices in or affecting interstate trade and
commerce is unlawful, even though the conspiracy may be formed or
engaged in for what appear to the conspirators to be laudable motives.
    A price-fixing conspiracy, such as the one charged in the Indictment,
cannot therefore be justified under the law, even though the conspiracy may
have been formed, or engaged in, to prevent or halt ruinous competition, or to
eliminate the effects of price cutting, or to give each competitor what the
conspirators think is his fair share of the market.









    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing) (modified). Devitt, Blackmar & O'Malley, Federal Jury
Practice and Instructions
, 51A.18 (1992 supp.) (modified). Court's
instructions in United States v. All Star et al., Crim. No. H-88-29 (S.D. Tex.
1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case) (modified).


Page 24 .       

                    INTERSTATE COMMERCE
    An essential element of the offense charged in Count One and
prohibited by the Sherman Act is that the unreasonable restraint must involve
interstate commerce. The term "interstate commerce" includes the movement
of products or services across state lines, or in the flow of interstate
commerce, as well as entirely intrastate transactions that substantially affect
interstate commerce.
    To establish this element, it is sufficient for the government to
demonstrate a substantial effect on interstate commerce generated by the
conspirators' general business activities. The government need not show that
the conspiracy itself actually had an effect on interstate commerce, although
such proof would also be sufficient to establish this element.
    The amount, quantity, or value of interstate commerce involved or
affected is unimportant, so long as you find that the restraint charged in the
Indictment or the general business activities of the defendant related to the
conspiracy had some effect upon interstate commerce.


    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing) (modified). Judge Hittner's instructions in United States
v. Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving bid-rigging). See also Court's
instructions in United States v. All Star, et al., Crim. No. H-88-29 (S.D. Tex.
1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case) (modified).


Page 25 .       


    Authorities: McLain v. Real Estate Board of New Orleans,
Inc., 444 U.S. 232 (1980); United States v. Young Brothers, Inc., 728 F.2d
682 (5th Cir. 1984), cert. denied, 469 U.S. 881 (1985); United States v. Cargo
Service Stations, Inc.
, 657 F.2d 676, 679-80 (5th Cir. 1981), cert. denied, 455
U.S. 1017 (1982).
.


Page 26 .       

            IGNORANCE OF ANTITRUST LAWS NO DEFENSE
    It is not necessary for the prosecution to prove that the defendant
knows that a particular act or failure to act is a violation of law.
    Thus, if the jury should find beyond a reasonable doubt from the
evidence in the case that the conspiracy charged in Count One of the
Indictment was knowingly formed, and that the defendant knowingly became a
member of the conspiracy as charged, then even if the defendant may have
believed in good faith that what was being done was not unlawful, it would not
be a defense.









    Sources: Devitt, Blackmar & O'Malley, Federal Jury Practice and
Instructions
, 51A.17 (1992 Supp.) (modified). Court's instructions in United
States v. All Star, et al.
, Crim. No. H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d
465 (5th Cir. 1992) (price-fixing case) (modified).
                   PRICE FIXING PER SE UNREASONABLE
    Price fixing is an agreement, arrangement or understanding between
two or more competitors to sell at a uniform price, or to raise, or lower, or
stabilize prices. A conspiracy to fix prices in or affecting interstate trade and
commerce is, without more, an unreasonable restraint of trade which violates
the Sherman Antitrust Act.
    Every conspiracy to fix prices is unlawful, regardless of the motives of
the parties or any economic justification. This is because the aim and result of
every price-fixing agreement, if successful, is the elimination of one form of
competition.
    If there was a conspiracy as charged in Count One, it does not matter
whether the prices charged by the defendant and co-conspirators were
reasonable or unreasonable, high or low, fair or unfair. The Sherman Act
makes illegal every conspiracy formed for the purpose of fixing prices. In this
case, if you find beyond a reasonable doubt that the defendant was a member
of a conspiracy to fix prices as alleged in Count One of the Indictment, then
you need not decide whether such conspiracy was reasonable or
unreasonable because, as I have just explained, an agreement among
competitors to raise, fix or maintain prices is per se unreasonable and a
violation of the Sherman Act.


Page 28 .       

    Mere similarity of prices charged does not, without more, establish the
existence of a conspiracy. In addition, a mere exchange of pricing information
is not, without more, illegal. However, these facts and circumstances, if
shown by the evidence in this case, may be considered by you in determining
whether the similarity of pricing resulted from independent acts of business
concerns freely competing in the open market or whether it resulted from a
mutual agreement, or arrangement, or understanding between two or more of
them.








    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing) (modified). Judge Hittner's instructions in United States
v. Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving bid-rigging) (modified). See also
Court's instructions in United States v. All Star, et al., Crim. No. H-88-29 (S.D.
Tex. 1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case). 2 Devitt &
Blackmar, Federal Jury Practice and Instructions, 55.15 (3d ed. 1977). Sec.
on Antitrust Law, American Bar Ass'n, Sample Jury Instructions in Criminal
Antitrust Cases
, No. 7 (1984);

    Authority: Catalano Inc. v. Target Sales, Inc., 446 U.S. 643, 647
(1980) (no excuse that fixed prices are reasonable).                                 FOR SHERMAN ACT VIOLATION
    In order to find that the defendant was a party to the conspiracy
charged in Count One of the Indictment, it is not necessary that the evidence
show that the defendant actually took any action to further or accomplish any
object or purpose of the alleged conspiracy, or that the defendant actually
charged customers in accordance with the prices that may have been agreed
upon or arranged.
    What the law condemns is the agreement or understanding itself. In
other words, the mere agreement or understanding, whether formal, informal,
or tacit, to do one or more of the things charged in the Indictment constitutes
the offense. It is wholly immaterial in order to prove a violation of the
Sherman Act whether the alleged conspiracy was ever actually carried out or
whether its purpose was ever accomplished.



    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing) (modified). 2 Devitt and Blackmar, Federal Jury
Practice and Instructions
, 55.23 (3d ed. 1977) (adapted).

    Authorities: Proof of overt act not necessary for Sherman Act
violation: United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59
(1940); United States v. Trenton Potteries Co., 273 U.S. 392, 402 (1927).


Page 30 .       



                                       OFFENSE CHARGED - STATUTE DEFINING OFFENSE
    Count Two of the Indictment charges that beginning as early as
January 1994 and continuing at least until June 1995, in the Southern District
of Texas, the defendant and co-conspirators did knowingly and willfully
conspire, combine and agree with each other to commit an offense against
the United States, that is, to knowingly transmit and cause to be transmitted
certain writings, signals or sounds by means of wire communication in
interstate commerce, for the purpose of executing and carrying out a scheme
and artifice to defraud customers of money by means of false and fraudulent
pretenses, in violation of 18 U.S.C. 1343.
    Title 18 United States Code Section 371 provides, in part, that:
         If two or more persons conspire . . . to commit
         any offense against the United States, . . . and
         one or more of such persons do any act to effect
         the object of the conspiracy, . . .

an offense against the United States has been committed.




    Sources: 18 U.S.C. 371; Judge Hittner's instructions in United
States v. Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd,
68 F.3d 899 (5th Cir. 1995) (antitrust case involving conspiracy to commit mail
fraud) (modified). See also 2 Devitt, Blackmar & O'Malley, Federal Jury
Practice and Instructions
, 28.01-28.02 (4th ed. 1990) (modified).


Page 31 .       


              COUNT TWO - ELEMENTS OF THE OFFENSE
    The conspiracy charged in Count Two of this Indictment is a separate
and different offense from the conspiracy charged in Count One.
Furthermore, the elements of a conspiracy to commit wire fraud are different
from those of a conspiracy to violate the Sherman Act.
    For you to find the defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
    First: That two or more persons made an agreement to commit the
crime of wire fraud as charged in Count Two of the Indictment;
    Second: That the defendant knew the unlawful purpose of the
agreement and joined in it willfully, that is, with the intent to further the
unlawful purpose; and
    Third: That one of the conspirators during the existence of the
conspiracy knowingly committed at least one of the overt acts described in the
Indictment, in order to accomplish some object or purpose of the conspiracy.
    This last element is not an element of the conspiracy charged in
Count One. In other words, the government must show an overt act in
furtherance of the conspiracy only to prove the conspiracy to commit wire
fraud, not to prove the Sherman Act conspiracy.


Page 32 .       

    The term "overt act" means some type of outward, objective action
performed by one of the parties to or one of the members of the agreement or
conspiracy which evidences that agreement.
    Although you must unanimously agree that the same overt act was
committed, the government is not required to prove more than one of the overt
acts charged.
    The overt acts may, but for the alleged illegal agreement, appear
totally innocent and legal.









    Sources: Judge Hittner's instructions in United States v. Johnson,
Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir.
1995) (antitrust case involving conspiracy to commit mail fraud) (modified);
Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No. 2.21 (1990)
(modified); 2 Devitt, Blackmar & O'Malley, Federal Jury Practice And
Instructions
, 28.07 (4th ed. 1990) (modified).





Page 33      



    GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 27
                    COUNT TWO
       CONSPIRACY; SUBSTANTIVE OFFENSE; ELEMENTS
    To assist you in determining whether there was an agreement or
understanding to commit wire fraud you are advised that the elements of wire
fraud are:
    First:     That the defendant knowingly participated with his
co-conspirators in a scheme to defraud customers of money by means of
false and fraudulent pretenses, as charged in Count Two of the Indictment;
    Second: That the defendant did so with the intent to defraud; and
    Third: In carrying out this scheme to defraud, the defendant
transmitted or caused to be transmitted any writing, signal, or sound of some
kind by means of a wire communication in interstate commerce.
    A "scheme to defraud" includes any scheme to deprive another
person of money or property by means of false or fraudulent pretenses,
representations, or promises.
    The term "false and fraudulent pretenses" includes the knowing
concealment of facts that are material or important to the matter in question,
provided it is done with the intent to defraud. A "material fact" is one that
would be of importance to a reasonable person in making a decision about a
particular matter or transaction.


Page 34 .       

    It is not necessary that the government prove that the defendant
actually succeeded in defrauding anyone. It is not necessary for the
government to prove that anyone lost any money or property as a result of the
scheme to defraud. An unsuccessful scheme to defraud is as illegal as a
scheme or plan that is ultimately successful.
    The phrase "transmitted . . . by means of a wire communication in
interstate commerce" means to send from one state to another by means of
telephone or telegraph lines, including a telephone conversation by a person
in one state with a person in another state. To "cause" the wires to be used is
to do an act with knowledge that the use of the wires will follow in the ordinary
course of business or where such use can reasonably be foreseen.
    Keep in mind that Count Two of the Indictment charges a conspiracy
to commit wire fraud and not that wire fraud was committed. In a conspiracy
to commit wire fraud the government does not need to prove an actual wiring,
or that the defendant was actually involved in the wirings directly. Rather, the
government must prove that the scheme to defraud reasonably contemplated
the use of the wires or that the use of the wires was reasonably foreseeable or
that the conspirators intended that the wires be used in furtherance of the
scheme.


    Sources: Pattern Jury Instructions (Criminal Cases), Fifth Circuit, No.
2.55 (1990) (modified). 2 Devitt, Blackmar, & O'Malley, Federal Jury Practice
and Instructions
, 40.07, 40.08, 40.13 (4th ed. 1990).


Page 35 .       

    Authorities: United States v. Keller, 14 F.3d 1051, 1056 (5th Cir.
1994); United States v. Herron, 816 F.2d 1036, 1039 (5th Cir. 1987).


.


Page 36 .       

    GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 28
                INTENT TO DEFRAUD
    Count Two requires the government to prove beyond a reasonable
doubt that the defendant acted with a specific intent to commit fraud. To act
with an "intent to defraud" means to act knowingly and with the intention or the
purpose to deceive or to cheat.
    An intent to defraud is accompanied, ordinarily, by a desire or a
purpose to bring about some gain or benefit to oneself or some other person
or by a desire or a purpose to cause some loss to some person. Proof of
such intent can be inferred from all of the facts and circumstances
surrounding the transactions.







    Sources: Judge Hittner's instructions in United States v. Johnson,
Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir.
1995) (antitrust case involving conspiracy to commit mail fraud). 2 Devitt,
Blackmar & O'Malley, Federal Jury Practice and Instructions, 40.14 (4th ed.
1990).

    Authorities: United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.
1996); United States v. Keller, 14 F.3d 1051, 1056 (5th Cir. 1994).


Page 37 .       



                     PROOF OF INTENT
    Intent ordinarily may not be proved directly, because there is no way
of fathoming or scrutinizing the operations of the human mind. But you may
infer the defendant's intent from the surrounding circumstances. You may
consider any statement made and done or omitted by the defendant, and all
other facts and circumstances in evidence which indicate his state of mind.
    You may consider it reasonable to draw the inference and find that a
person intends the natural and probable consequences of acts knowingly and
willfully done. As I have said, it is entirely up to you to decide what facts to
find from the evidence.
    But note, the standard of intent is different for Count One than it is for
Count Two.






    Sources: Judge Hittner's instructions in United States v. Johnson,
Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir.
1995) (antitrust case involving conspiracy to commit mail fraud) (modified). 1
Devitt and Blackmar, Federal Jury Practice and Instructions, 14.13 (3d ed.
1977) (modified).


Page 38 .       


                  PERIOD OF THE CONSPIRACY
    The evidence in the case need not establish the exact time during
which the alleged conspiracies existed. It is sufficient if the evidence in the
case shows beyond a reasonable doubt that the offenses charged in Counts
One and Two existed on dates, or during times, reasonably near the dates, or
times, alleged in the Indictment.











    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing). Judge Hittner's instructions in United States v.
Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving bid-rigging). 2 Devitt and
Blackmar, Federal Jury Practice and Instructions, 55.02 (3d ed. 1977)
(partial).


Page 39 .       

                   JURISDICTION AND VENUE
    Before you can find the defendant guilty of committing the crimes
charged in either Count One or Count Two of the Indictment, you must find
beyond a reasonable doubt that within the five-year period immediately
preceding May 15, 1997, some means, methods or practices were employed
by or under the authority of the members of each of the alleged conspiracies
within the Southern District of Texas.
    This district includes Austin, Brazos, Colorado, Fayette, Fort Bend,
Grimes, Harris, Madison, Montgomery, San Jacinto, Walker, Waller, and
Wharton Counties.









    Sources: Judge Hittner's instructions in United States v. Johnson,
Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d 899 (5th Cir.
1995) (antitrust case involving bid-rigging) (modified). 2 Devitt and Blackmar,
Federal Jury Practice and Instructions, 55.25 (3d ed. 1977) (modified).


Page 40 .       


                  KNOWINGLY AND WILLFULLY
    The word "knowingly," as that term has been used from time to time in
these instructions, means that the act was done voluntarily and intentionally
and not because of mistake or accident.
    The word "willfully" as that term has been used from time to time in
these instructions, means that the act was done deliberately and intentionally,
that is, on purpose, as opposed to accidentally, carelessly or unintentionally.









    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing) (modified). Judge Hittner's instructions in United States
v. Johnson
, Crim. No. H-92-152 (S.D. Tex. filed Mar. 10, 1994), aff'd, 68 F.3d
899 (5th Cir. 1995) (antitrust case involving big-rigging and conspiracy to
commit mail fraud) (modified). Pattern Jury Instructions (Criminal Cases),
Fifth Circuit, No. 1.35 (1990) (modified). 2 Devitt, Blackmar, & O'Malley,
Federal Jury Practice and Instructions, 17.05 (4th ed. 1990). See also
Court's instructions in United States v. All Star, et al., Crim. No. H-88-29 (S.D.
Tex. 1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (price-fixing case).


Page 41 .       



             DUTY TO DELIBERATE - VERDICT FORM
    To reach a verdict, all of you must agree. Your verdict must be
unanimous on each count of the Indictment. Your deliberations will be secret.
You will never have to explain your verdict to anyone.
    It is your duty to consult with one another and to deliberate in an effort
to reach agreement if you can do so. Each of you must decide the case for
yourself, but only after an impartial consideration of the evidence in the case
with your fellow jurors. During your deliberations, do not hesitate to
re-examine your own opinions and change your mind if convinced that you
were wrong. But do not give up your honest beliefs as to the weight or effect
of the evidence solely because of the opinion of your fellow jurors, or for the
mere purpose of returning a verdict.
    Remember at all times, you are judges -- judges of the facts. Your
sole interest is to seek the truth from the evidence in the case, to decide
whether the government has proved the defendant guilty beyond a
reasonable doubt.
    When you go to the jury room, the first thing that you should do is
select one of your number as your foreperson, who will help to guide your
deliberations and will speak for you here in the courtroom.
    A form of verdict has been prepared for your convenience.
                [Explain verdict form.]


Page 42      

    The foreperson will write the unanimous answer of the jury in the
space provided for in each count of the Indictment, either guilty or not guilty.
At the conclusion of your deliberations, the foreperson should date and sign
the verdict.
    If you need to communicate with me during your deliberations, the
foreperson should write the message and give it to the marshal. I will either
reply in writing or bring you back into the court to answer your message.
    Bear in mind that you are never to reveal to any person, not even to
the court, how the jury stands, numerically or otherwise, on any count of the
Indictment, until after you have reached a unanimous verdict.










    Sources: Judge Lake's instructions in United States v. Moore Supply
Co.
, Crim. No. H-94-017 (S.D. Tex. filed Aug. 15, 1994) (antitrust case
involving price-fixing). Pattern Jury Instructions (Criminal Cases), Fifth Circuit,
No. 1.25 (1990).


Page 43      


    The foregoing jury instructions were given to the jury on

this day of 1997.








                             United States District Judge

.


Page 44      

                CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the United States'
Proposed Jury Instructions was hand delivered this 30th day of June, 1997,
to:


               J. Mark White, Esq.
               White, Dunn & Booker
               1200 First Alabama Bank Building
               Birmingham, AL 32503

               Albert C. Bowen, Esq.
               Beddow, Erben & Bowen, P.A.
               Second Floor - 2019 Building
               2019 3rd Avenue, North
               Birmingham, AL 35203

               Marjorie A. Meyers, Esq.
               George McCall Secrest, Jr.
               Bennett, Secrest & Meyers, L.L.P.
               333 Clay Street, Suite 3830
               Houston, TX 77002




                              /s/
                       MARK R. ROSMAN
                       Attorney-in-Charge
                       Florida State Bar No. 0964387
                       U.S. Department of Justice
                       Antitrust Division
                       1601 Elm Street, Suite 4950
                       Dallas, Texas 75201-4717
                       (214) 880-9401

.


Page 45      



.