Whether the operation of the per se rule in criminal antitrust cases violates the constitutional principle that every element of an offense must be submitted to a jury and proven beyond a reasonable doubt

QUESTION PRESENTED The Sherman Act, 15 U.S.C. § 1, prohibits any contract or combination “in restraint of trade or commerce.” This Court has long held that Congress intended that language to incorporate common-law principles, and thus to prohibit only those arrangements that have an “unreasonable” anticompetitive effect. An unreasonable anticompetitive effect is thus an element of a Sherman Act offense. Lower courts, however, have held that in criminal antitrust prosecutions, that element need not be submitted to a jury or proven beyond a reasonable doubt. They have held that the element of unreasonableness may be satisfied either by the application of a conclusive presumption or by a judicial finding that the defendant’s conduct falls within judicially-created categories of conduct deemed illegal per se. The question presented is whether the operation of the per se rule in criminal antitrust cases violates the constitutional principle that every element of an offense must be submitted to a jury and proven beyond a reasonable doubt. ii STATEMENT OF RELATED CASES ¢ United States v. Christopher D. Lischewshi, No. 18cr-00203-EMC, U.S. District Court for the Northern District of California. Judgment entered on June 30, 2020. ¢ United States v. Christopher D. Lischewshi, No. 2010211, U.S. Court of Appeals for the Ninth Circuit. Judgment entered on July 7, 2021.