In a divided opinion, this court reversed the conviction of Ben M. Hogan Company on one count of conspiracy to restrain trade in violation of the Sherman Act, 15 U.S.C. § 1 (1982) and affirmed its conviction on three associated mail fraud counts. Unit*481ed States v. Ben M. Hogan Co., 769 F.2d 1293 (8th Cir.1985).
The court reversed Hogan’s conviction because, in its per se instruction on bid rigging, the district court failed to advise the jury that Hogan’s actions must have affected interstate commerce. We reversed notwithstanding the likelihood that the error in the instruction might well be deemed harmless. See id. at 1297-98.
Subsequently, on petition for writ of certiorari by the Government, the Supreme Court granted the Government’s petition, vacated the judgment, and remanded “for further consideration in light of Rose v. Clark, 478 U.S. [-], 106 S.Ct. 3101, 90 L.Ed.2d [460] (1986).” United States v. Ben M. Hogan Co., — U.S.-, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986).
In Rose v. Clark, the Court establishes that in a criminal trial, when evidentiary presumptions are given in a charge to the jury that may relieve the prosecution of its burden of proving every element of the crime beyond a reasonable doubt, those instructions, although amounting to constitutional error, do not require a new trial when the reviewing court can confidently say, on the record as a whole, that such error was harmless beyond a reasonable doubt. 106 S.Ct. at 3105.
Our review of the record shows that the court first instructed the jury that the Sherman Act did not apply without a restraint or attempt to restrain interstate commerce. The court then explained that the restraint had to be unreasonable and that certain types of restraints were per se unreasonable. Although the per se instruction created a conclusive presumption that interstate commerce was affected, the jury could not even consider the per se instruction unless it had first found that interstate commerce had been affected. Accordingly, read as a whole, the instructions do not constitute prejudicial error. Furthermore, because the evidence was so dispositive of the issue of effect on interstate commerce, we can say beyond a reasonable doubt that
the jury would have found it unnecessary to rely on the conclusive presumption. Id. at 3109 (citing Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J„ dissenting)).
Accordingly, we now affirm the conviction against Hogan on count one for violation of the Sherman Act and the fine imposed of $800,000 as well as reaffirm the convictions on mail fraud, counts two, three and four.