584 F.2d 974 (2nd Cir. 1978), 78-1212, U.S. v. Andrew Carlson & Sons, Inc.

Docket Nº:78-1212.
Citation:584 F.2d 974
Party Name:United States v. Andrew Carlson & Sons, Inc.
Case Date:September 28, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 974

584 F.2d 974 (2nd Cir. 1978)

United States


Andrew Carlson & Sons, Inc.

No. 78-1212.

United States Court of Appeals, Second Circuit

September 28, 1978

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA2 s 0.23 regarding use of unpublished opinions)

1978-2 Trade Cases P 62,310

Present: Hon. Leonard P. MOORE, Hon. William H. TIMBERS, and Hon. Ellsworth A. VAN GRAAFEILAND.

MOORE, Cir. J.

On this appeal from a judgment, entered on a jury verdict, convicting Carlson of a conspiracy in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (1976), the essential issue is whether the jury reasonably could have found that the jurisdictional requirements of the "in commerce" or "flow" test were met, specifically:

(1) that there was no "appreciable change" in the character of the interstate components of defendant's products as the result of its manufacturing process;

(2) that there was a practical continuity of movement of these components, with no appreciable interruption during the manufacturing process; and

(3) that the defendant was chargeable with having manufactured products on purchasers' special orders based on evidence that a co-conspirator had done so.

We hold that, under the correct charge given by Judge Neaher, the jury reasonably could have so found.

Insofar as the evidence showed that one of the appellant's co-conspirators, Carbro, had engaged in steel and cement ordering based on the specific orders of its customers, the judge was justified in allowing the jury to charge these shipments against Carlson & Sons for the purpose of determining whether its dealings were "in commerce". United States v. Wilshire Oil Co. of Texas 427 F.2d 969 (10 Cir.), cert. denied, 400 U.S. 829 (1970). Although the cases do not explicitly require that such special shipments be "substantial", as Judge Neaher charged, the appellant appears correct in suggesting that in all the cases in the past the special ordering has in fact been substantial. Furthermore, Judge Neaher's charge makes sense in terms of the "practical" conception of commerce which underlies the concept employed in the Sherman Act, Swift & Co. v. United States, 196 U.S. 375, 398 (1905).

Nevertheless, viewing the evidence in the light most favorable to the...

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