## Facts

- Federal prosecutors charged Edmund Nash and other officers of two corporations involved in storing, shipping, and exporting spirits of turpentine and naval stores in interstate and foreign commerce.
- The indictment alleged that defendants combined and conspired (beginning May 1, 1907) to restrain trade and to monopolize the turpentine and naval stores trade, in violation of Sherman Act §§ 1 and 2.
- The alleged methods included depressing prices through purchasing tactics and port selection, coercing brokers and factors into contractual arrangements, circulating false market information, issuing fraudulent warehouse receipts, manipulating grading and gauging, attempting to bribe competitors’ employees, and influencing buyers to delay deliveries to affect prices.
- A separate substantive monopolization count was dismissed on demurrer; defendants’ demurrers to the remaining conspiracy counts were overruled.
- Defendants were convicted after trial; the court of appeals affirmed.

## Issues

1. Whether the Sherman Act’s criminal conspiracy provisions are unconstitutionally indefinite because liability depends on whether a restraint is “unreasonable.”
2. Whether an indictment charging a Sherman Act conspiracy must allege overt acts in furtherance of the conspiracy.
3. Whether liability requires that all conspirators be “traders,” and whether the jury may convict based on proof of any one alleged method, including methods insufficient by themselves to establish the charged conspiracy.

## Decision

- The Supreme Court reversed and remanded.
- The Court held the Sherman Act is not void for vagueness in criminal cases merely because the line between lawful and unlawful restraints can involve matters of degree assessed by a jury.
- The Court held a Sherman Act conspiracy need not allege overt acts; the offense is complete upon the unlawful agreement.
- The Court held it is not necessary that all conspirators be traders.
- The Court found reversible error in the jury instruction permitting conviction if the jury found defendants used “any one” of several alleged means, where some alleged means, standing alone, would not warrant finding the charged conspiracy.

## Legal Principles

- A criminal statute is not unconstitutional for indefiniteness solely because application may turn on jury evaluation of a matter of degree (including reasonableness standards).
- Sherman Act conspiracy liability follows the common-law model: the agreement to restrain or monopolize trade is punishable without pleading or proving an overt act.
- Sherman Act conspirators need not all be market participants engaged in trading; non-traders may be liable if they join a combination restraining trade.
- When an indictment alleges multiple means to achieve an unlawful conspiracy, the government need not prove every alleged means, but the jury may not be instructed that any single alleged means suffices if some alleged means are legally inadequate to establish the conspiracy charged.

## Conclusion

The Court upheld the criminal enforceability of the Sherman Act against vagueness and overt-act challenges, but reversed the convictions because the jury was allowed to convict on a theory that could rest on conduct insufficient, by itself, to prove the unlawful antitrust conspiracy.


Nash v. United States, 229 U.S. 373 (1913)