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UNITED STATES OF AMERICA
SOUTHERN DISTRICT OF FLORIDA

__________________________________________

UNITED STATES OF AMERICA,
         Plaintiff,

                  v.

ATLAS IRON PROCESSORS, INC.
et al.,
         Defendant.
__________________________________________

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Case No. 97-0853-CR-Nesbitt
Magistrate Judge Robert L. Dubé
(February 11, 1998 Order of Reference)

UNITED STATES' REPLY TO
DEFENDANTS' JOINT BRIEF
IN OPPOSITION TO UNITED STATES'
MOTION IN LIMINE TO EXCLUDE
EVIDENCE OF REASONABLENESS



Having read the defendants' "Joint Brief in Opposition to the United States' Motion In Limine to Exclude Evidence of Reasonableness," the United States believes there is little, if any, difference between the two sides' understandings of the relevant law. Both sides agree that the defendants may not argue that, even though they fixed prices, their price-fixing conspiracy was justified because they fixed prices at "reasonable" or "competitive" levels. As the Sixth Circuit held in a case previously cited by both the defendants and the United States:

A defendant cannot say, "I have entered into a price-fixing agreement, but the prices fixed are reasonable ones dictated by economic pressures." The fact that the prices were reasonable is no defense. Once the defendant admits the agreement he may say no more for it is illegal per se.

Continental Baking Co. v. United States, 281 F.2d 137 (6th Cir. 1960).

With respect to the United States' argument that the defendants should be precluded from introducing economic data because "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury," Fed. R. Evid. 403, the defendants have not offered a response. Although the United States believes that the introduction of economic evidence may create a substantial risk of confusing the jury with irrelevant issues, this issue need not be decided until closer to trial when the United States is made aware of the economic evidence the defendants will seek to admit and for what purposes. For this reason, the United States will ask the Court to reserve ruling on the United States' motion to preclude the defendants from introducing economic evidence until closer to trial when the Court has enough information to rule on the issue. The United States will renew its motion at that time.

Accordingly, the United States asks the Court to enter the enclosed order precluding the defendants from arguing they entered into a price-fixing agreement, but their agreement was justified because the fixed prices were "reasonable" or "competitive" and dictated by economic pressures or other events. Second, the United States asks the Court to reserve ruling on the United States' motion to preclude the defendants from introducing economic data pursuant to Fed. R. Evid. 403.




_______________/s/________________
WILLIAM J. OBERDICK
Acting Chief
Cleveland Field Office

                   


  


Respectfully submitted,

_______________/s/________________
By: RICHARD T. HAMILTON, JR.
Court I.D. No. A5500338

PAUL L. BINDER
Court I.D. No. A5500339

IAN D. HOFFMAN
Court I.D. No. A5500343

Trial Attorneys,
U.S. Department of Justice
Antitrust Division
Plaza 9 Building
55 Erieview Plaza, Suite 700
Cleveland, OH 44114-1816
Phone: (216) 522-4107
FAX: (216) 522-8332





CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the following:

  1. Motion For Leave To File Instanter Enlarged Reply Brief of United States To Memorandum of The Giordano Defendants In Opposition To Motion In Limine of the United States to Exclude From Admission At Trial All Evidence Related to Polygraph Tests and Results;

  2. Order Granting Permission To United States To File Its Instanter Enlarged Reply Brief;

  3. Reply Brief of United States to Memorandum of the Giordano Defendants in Opposition to Motion in Limine of the United States to Exclude from Admission at Trial All Evidence Related To Polygraph Tests and Results;

  4. United States' Reply To Defendants' Joint Brief in Opposition to United States' Motion in Limine to Exclude Evidence of Reasonableness; and

  5. Order Excluding Evidence The Defendants Charged "Reasonable" or "Competitive" Prices. were sent via Federal Express to the Office of the Clerk of Court on this 19th day of June, 1998. Copies of the above-captioned pleadings also were served upon the defendants via U.S. Mail on this 19th day of June, 1998.

Benedict P. Kuehne, Esq.
Sale & Kuehne, P.A
Nationsbank Tower, Suite 3550
100 Southeast 2nd Street
Miami, FL 33131-2154

Robert C. Josefsberg, Esq.
Podhurst, Orseck, Josefsberg,
Eaton, Meadow, Olin & Perwin, P.A.
City National Bank Building, Suite 800
25 West Flagler Street
Miami, FL 33130-1780

Roberto Martinez, Esq.
Colson, Hicks, Eidson, Colson
Matthews, Martinez & Mendoza, P.A.
First Union Financial Center, 47th Floor
200 South Biscayne Boulevard
Miami, FL 33131-2351

_______________/s/________________
WILLIAM J. OBERDICK
Acting Chief
Cleveland Field Office

                   

Ralph E. Cascarilla, Esq.
Walter & Haverfield
1300 Terminal Tower
Cleveland, OH 44113-2253

Patrick M. McLaughlin, Esq.
McLaughlin & McCaffrey, L.L.P.
Ohio Savings Plaza, Suite 740
1801 East Ninth Street
Cleveland, OH 44114-3103

Marc S. Nurik, Esq.
Ruden, McClosky, Smith, Schuster,
& Russell, P.A.
First Union Plaza, 15th Floor
200 East Broward Boulevard
Post Office Box 1900
Fort Lauderdale, FL 33301


_______________/s/________________
RICHARD T. HAMILTON, JR.
Court I.D. No. A5500338

Trial Attorney,
U.S. Department of Justice
Antitrust Division
Plaza 9 Building
55 Erieview Plaza, Suite 700
Cleveland, OH 44114-1816
Phone: (216) 522-4107
FAX: (216) 522-8332