because there is a paradox in antitrust law that the supreme court has never addressed much less resolve and that is the fact that it has clearly stated in in the corella case in one thousand nine hundred nine and this court has followed it and its own decisions that you can never use a conclusive presumption to establish an element of a crime and of course as we know the trial court in this case told the jury that there was a conclusive presumption that the element of unreasonable restraint had been proven which is an element of every section one in the court just say that it rigging is a crime really i mean it isn't the problem here that the supreme court has defined bid rigging as a person a violation and at that point that's the crime we have to talk about the element that the problem with that is that it has done that as a per se offense in the civil context it has never said that you can well since corella has never said that you can tell the jury that because it's a per se crime it doesn't have to there's a conclusive presumption that the element of unreasonable restraint has been proven as many others say while it is over cases including criminal cases i'm sorry i apologize for my voice stretton potteries and i think some kone were both criminal cases and then so the supreme court spoken to it now they have not spoken to it this line with regard to presumptions and criminal cases has developed but it's not that the supreme court has been silent on the question it's just it's been a while oh no your honor i believe the county was in one nine hundred forty there and there hasn't been a statement since certainly since corella but let me point out something let me a brace the government's position for a minute which is that oh under manufacturers there's actually two offenses embracing say this if that's true and then i'll get to why there's problems with manufacturers if that's true they charge the offense that has an reasonable restraint in it in the grand jury indictment now they may say no no we get to tell the court that it's a per se violation so it doesn't have to instruct on unreasonable restraint but the only entity that can determine what offense a defendant is facing is the grand jury that's the fifth amendment guarantee and so it's clear in the indictment  that unreasonable restraint was charged if they are right then they this was a constructive amendment because the court gave instructions that eliminated unreasonable restraint and instructed on the second of these they have it here well i'll come to it i'll come back to yes it was argued in the pretrial motions that this was a constructive amendment and of course we've made the argument here we have said both in our brief opening brief and reply brief that court the grand jury charged an offense with unreasonable restraint and the court failed to instruct on that element and the government didn't prove it but let me point out this in twenty eighteen in the civil context the united states supreme court in the american express case said section one violations contain the element of unreasonable restraint either an reasonability under the per se test or an reasonability under the rule of reason now the government you don't get to go on and argue as a defense absolute so that the practical effect i don't think there's any real difference here well here's the difference your honor a judge in a civil case isn't title to say i've looked at the per se precedence i find this is a per se case so i'm taking the element of one reasonability from you that's perfectly ok in a civil case but that doesn't in any way address the the contradiction that in criminal cases a judge can never take is is taking american express says and reasonable he is an element if it's an element in a criminal case a judge can't do that a judge can't do that that's that's what this court said in the mclean t the government's position is there's two different offenses and the government's position is you're right your honor bid rigging is a is in itself a violation of section one and that antitrust act it incorporated into the german antitrust act the jurisprudence of per se and a rule reason offenses that wasn't even developed until decades after the act was the courts even the united states supreme court and not create a criminal offense and an offense which by saying that an reasonability which the supreme court says is an element of personal i'm trying to figure out where you're getting that  in american express the court that a small group of restraints are on reasonable per se because they always are almost always tend to restrict competition that the senator using it would know what i'm relying on is the sentence that says  sherman act prohibits unreasonable restraints of trade whether they are on reasonable under the per se standard or the rule of reason standard but it's ok and the sentence i read says per se violations are always that we just assume there are reasonable so at that point how a offenses they're saying that satisfied by certain kinds of offenses like good rigging and price fixing but but once they've established as an element and it's charged here it's makes all the difference in the world that it's a criminal case because  has also said if it's a criminal case you cannot instruct the jury on a conclusive presumption which is what was done here so we're really resting this on the difference between civil offenses where  essence make up common law rules that apply to them and criminal offenses where courts cannot make up offenses they can't drop elements the standard oil case one hundred years ago said that all section one fences haven't reasonability as an element so what we're really saying your honor is that this is the difference the contradiction doesn't exist in the civil context and judge kozinski in his alston opinion said koroma no one has come to this court and says i said how do you reconcile the fact that an reasonability is an element of every sermon offense which this court apparently absolutely agrees with with the fact that this is a criminal case and you can never use a conclusive presumption joyce doesn't address that and alston doesn't address that in the supreme court has never addressed that and i'm getting close to i want to reserve let's say two offense with that has unreasonable restraint as an element it does say that as a say as an element though i mean i think it just quotes the act doesn't it isn't that what the indictment does it's just the sherman act yes which contains and the  act oh well no no that's not true your honor it doesn't quote the sherman act now because the sherman act doesn't have the element of unreasonable restraint in it the supreme court read that into it in one thousand and eleven in the  wo quick points so one the constructive amendment argument is not affected by any of these cases it relies on store own and other cases we've cited in our brief but secondly let me point out that we do have an argument instructional and that that the instructions on been working were defective so you know put aside the unreasonable restraint argument they had written because the court instructed that any arrangement that affects competition affects it in a arrangement can promote it is in fact bid rigging which we've challenge and secondly we argue that one thing that is not been ringing everybody agrees on this is joint ventures and why wasn't the your honors i'm a please the court i'm adam chandler here for the united states this is an ordinary bid rigging case the law that applies is clear and long settled and defendants do not even dispute that they agreed with others to with the indictment said was the defendants entered into and engaged in a combination and conspiracy to suppress and restrain competition by reading bits that's on page five eighty nine of the excerpts of record that's how we charge bittering cases and we've done so in many cases that have been upheld by the circuit in fact in just the last six months you mention the joyce case two separate panels of this court have affirmed the convictions of six other members of the same bid rigging conspiracies at issue here defendants can't no your honor as you mentioned in the earlier argument this is mostly just quoting the sherman expresso although i am misspoke when i asked that because it's not actually quoting the chairman actually is correct about that right it's quoting standard oil well yes this is  section one law for over a century so to the defense's argument that an reasonableness is an element of the offense we agree that it is part of the offense but not in the way that they conceive of it as american express said there are basically two ways restraints can be unreasonable the first is the per se rule and the way that conduct is and respond to say a rule is just by being in one of these defined categories like price fixing or bid rigging or market division the other way is via the rule of reason under the rule of reason there is a fact specific assessment of the competitive effects of the restraint and that is a separate substantive rule of law that's what this court s manufacturers so those are two separate rules of law and we charge and reasonableness by saying this was a big conspiracy a century of supreme court law has said if you have proven a bid rigging conspiracy then it is an unreasonable restraint of trade i also want to address the corella point about presumptions i'm a little confused by this because corella was a very short supreme court opinion that didn't profess to be making any new law it relied on a case called sandstone which in turn relied on a case called moore set from the fifty's that predated this court's decision in manufacturers so the way i see it there really hasn't been any you know ground shifting on that last sense morissette and this court was well aware of it and manufacturers in addition even if corella did change something about the law the eleventh circuit in the giordano case followed this court's decision in manufacturers after corella so at least another circuit didn't see that anything had changed in that decision and i'm to stress again this court really gets very precisely in clearly to this question  manufacturers on the bittering instruction that defendants mentioned we submit that that is only reviewable for plain error that was not preserved at trial and there complain about the single entity defense construction instruction that is the one that they submitted was incorrect as a matter of law the judge is under no obligation to correct for them and give a joint venture instruction based on no evidence whatsoever that this was a legitimate joint venture let me pose to you the the practical concern i have had about this case and again i apologize for my voice it seems we were bound by manufacturers and manufacturers makes an effort to explain or offer an explanation for the tension that lies between the application of the per se rule and the supreme court's holding in panel of this court or more likely the supreme court itself which is said in general it's not for the lower courts like us to deal with the fact that they might have two lines of cases that someday result in a collision the problem for me has been that these defendants are sitting in prison right now and their terms because i haven't looked them up but their terms are such that their release dates are probably coming up in the pretty near future before any of these harder questions can be resolved either by this court on bonk or by the supreme court is there anything we can do about that well your honor i of course this court has the option of going on bonk at least mr maher is incarcerated till august twenty twenty but i would submit that every circuit to have considered this question six of them and all have come to the same conclusion so there really aren't two lines of thinking on this and even the federals of appellate procedure anticipate and on bond to resolve the circuits but it would be highly unusual to go on to create one the fact is there just really hasn't been controversy about this question in many decades so it doesn't seem to me a good candidate for on bank or supreme court review and i again this panel is bound by manufacturers which  fairly debatable case the defendants were entitled to release pending appeal of course the courts that denied that didn't have the briefing in this case and we submit that if this panel  believes and there is law to support it that this merits on bank review that at that point it's found a substantial question there's no flight risk no danger here and so we will this afternoon submit a motion for released pending appeal but two other things i'd like to submit some supplemental authorities with just a couple of decisions of this case such as mclean versus moran which just follows corella but here's an important point that to meet the government's argument in gallatin in which we rely heavily the first the second the third the fourth the fifth the six the seventh the eight they tend the eleventh the d c circuit and the united states supreme court had held previously that materiality was an element that could be taken from the jury and i believe was a nine nothing decision that said that that was not the case so if this is an important question and the fact that a couple of out of  it now conceded to you i believe that that an reasonability is an element of a criminal offense in under section one that's at odds with manufacturers that's saying that manufacturers was was wrong and  it's because manufacturers said it is not an element as sensually of the second of these two offenses supposedly and i acted by congress and eight hundred ninety and the final point is that if a court deletes an oklahoma police pension and retirement system versus life lock seventeen dash one six eight nine five each side will have fifteen minutes