LOCAL 36 OF INTERNAT'L FISHERMEN, ETC. v. United States

• Decision Date: 29 November 1949
• Docket Number: No. 11638.,11638.
• Citation: 177 F.2d 320
• Parties: LOCAL 36 OF INTERNATIONAL FISHERMEN & ALLIED WORKERS OF AMERICA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F.2d 320 (1949)

LOCAL 36 OF INTERNATIONAL FISHERMEN & ALLIED WORKERS OF AMERICA et al. v. UNITED STATES.

No. 11638.

United States Court of Appeals Ninth Circuit.

September 28, 1949.

Rehearing Denied November 29, 1949.

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Gladstein, Andersen, Resner & Sawyer, San Francisco, Cal., Gallagher, Margolis, McTernan & Tyre, Kenny & Cohn, Ben Margolis, Robert W. Kenny, Los Angeles, Cal., and George R. Andersen, San Francisco, Cal., for appellants.

William C. Dixon, Sp. Asst. to Atty. Gen., Walter M. Lehman, Sp. Atty., Washington, D. C., Ernest A. Tolin, Chief Asst. U. S. Atty., Los Angeles, Cal., Herbert A. Bergson, Asst. Atty. Gen., Holmes Baldridge, Sp. Asst. to Atty. Gen., for appellee.

Before STEPHENS and BONE, Circuit Judges, and FEE, District Judge.

JAMES ALGER FEE, District Judge.

The United States initiated this criminal action against the defendants by indictment charging the violation of the Anti-Trust Act, 15 U.S.C.A. §§ 1-7. The cause was tried before a jury. A verdict of guilty was found. This appeal has been taken upon the main grounds that (1) the indictment does not state a crime, (2) that evidence vital to defense was rejected, (3) that the verdict was against the evidence, (4) that the Court did not properly instruct the jury, and (5) that the method of drawing the juries in this district was improper and that a conviction in this case cannot stand, irrespective of the fairness of the trial. These general classifications of exceptions will be dealt with in this order. At the argument before this Court, counsel for appellants took the position that the sufficiency of the indictment was the vital point of the appeal.

The indictment charges a conspiracy to restrain and an actual restraint of trade, over a large territory in the southwestern United States,¹ in one of the most highly important and highly perishable articles of food given to mankind, namely, fresh fish and crustaceans, coming into "fishing ports"² for sale to dealers. The fishing area, according to the indictment, includes the waters, both territorial and foreign, off Southern California south of Morro Bay and the territorial waters of the west coast of Mexico.³ It is then alleged: "Approximately 75% of all fishermen in the fishing area defined herein are members of defendant Local 36, IFAWA."⁴

These fishermen are alleged to be the: "* * * individual or group of individuals who own, lease or operate a particular boat for the purpose of engaging on their own account in the business of catching fresh fish and crustaceans in the fishing area, and bringing them to fishing ports for the purpose of sale to dealers."

The charge as to the nature of the association is that: "The fishermen who are members of Local 36, IFAWA are not employees, workers, or laborers who receive a salary or wage for their work or labor, but are independent businessmen engaged in business on their own account, and who operate fishing boats for their own account and profit. No employer-employee relationship exists between these fishermen and the dealers to whom their catch is sold. The fishermen members of Local 36, IFAWA, sell their catch directly to dealers, and do not act collectively through Local 36, IFAWA, in catching, producing, preparing for marketing, processing and handling their catch."

The gist of the charge is that defendants have: "* * * knowingly and continuously engaged in a wrongful and unlawful combination and conspiracy * * * to fix, determine, establish, and maintain arbitrary, artificial and non-competitive prices for the sale to dealers of fresh fish and crustaceans caught in the fishing area, and to prevent dealers who do not agree to pay said prices from obtaining, selling or shipping any fresh fish or crustaceans, which combination and conspiracy has been in restraint of the aforesaid trade and commerce, in violation of * * * the Sherman Act."

Elaboration in detail of this charge is presented in the indictment.

In summary, the means and methods of carrying out the conspiracy as charged consisted of a continuing agreement and concert of action, the substantial terms of which were that appellants (1) agree to fix minimum prices to be charged for the sale of fresh fish and crustaceans caught by the fishermen in the fishing area and sold to dealers, (2) agree that these prices so charged by fishermen members of the local shall be stabilized and non-competitive, (3) agree to draw up a written contract form, "and to impose said contract upon fish dealers who refuse to sign the same by picketing and boycotting methods, and to prefer fish dealers who sign said written contract, and to refuse to sell or deliver any fish caught by fishermen members of Local 36, IFAWA to fish dealers who do not enter into said contract;" (4) agree to prevent non-cooperating dealers from obtaining fresh fish from any other source by similar methods, (5) agree to prevent such dealers from shipping or transporting any fish, (6) agree to boycott any concern or individual accepting from such dealers fish for shipment in or outside California, (7) agree to picket and boycott any concern delivering fish shipped from brokers or others in or outside California to such dealers, (8) agree to prevent non-member fishermen from fishing or delivering fish to any than a cooperating dealer, and only to such dealer: "after said non-member fishermen had picketed non-signing dealers, or in lieu thereof, had paid to Local 36, IFAWA a stipulated picket fee."

It is specifically alleged that "defendants, by agreement and concerted action have done the things which, as hereinbefore alleged, they conspired to do," for the purpose of forming and effectuating the conspiracy and combination set up for the purpose of forcing and coercing fish dealers into signing the aforesaid form of contract, threatened to withhold and have withheld from said dealers, supplies of fresh fish and crustaceans, and by boycott and picketing methods have attempted to prevent and have prevented said dealers who refused to sign said form of contract from securing fresh fish or crustaceans from any other source.

The result of the combined action then, according to the allegations of the indictment, was that: "Except for the illegal restraints described hereinafter, a much greater volume of fresh fish and crustaceans would have been brought to the fishing ports named herein and sold, processed and distributed from these ports in interstate commerce." And also the effect was that: "The aforesaid agreement and concerted action of the defendants, pursuant to and in furtherance of the conspiracy herein alleged, has had the effect, as intended by the defendants * * *"

(1) of preventing fishermen from carrying on normal fishing operations in the area, (2) of preventing fish from being sold to the non-cooperating fish dealer and "has further resulted in the fixing of arbitrary and non-competitive prices" for the fish sold by the members of the local to cooperating dealers, and has prevented the public in the territorial area from receiving a normal and usual supply of fresh fish, and "has unreasonably restrained the interstate and foreign trade and commerce described * * *."

The contract specifying the prices proposed between the fishermen and the dealers is attached to the indictment. We have no occasion to consider whether, standing alone, a charge of the execution of this contract by dealers and fishermen belonging to the organization would have stated a violation⁵ of the statute or not. But the indictment must be considered as a whole.⁶ A charge which indicates that 75% of the fishermen, as independent businessmen belonging to the organization, agreed not to let any fishermen fish in the high seas and in the territorial waters of Southern California and Mexico or to deliver fish to any other than a cooperating dealer except on the specified conditions, whether by their consent or not, is a charge of a conspiracy in direct and illegal restraint of interstate and foreign commerce. Fishing in such waters falls into the rubric of such commerce. Transportation of the fish to the market at the specified cities from the high seas and territorial waters is commerce. All the fishermen were engaged in interstate and foreign commerce. This was developed by allegation as an integral part of the scheme. The charge that appellants, with such control, intended to and effected such a restraint over production in interstate and foreign commerce, was alone sufficient. This is the selection of only one feature from the indictment. There is also charged a conspiracy to control all of the fishermen of the fishing area and all the fish dealers of the territory involved, with the intent of obtaining a monopoly of the catching and selling all fish by restraining all fishermen, dealers, carriers and outside suppliers of fish. The purpose to grant preferential and equal rights to the signing dealers and to exclude non-signing dealers from the market is likewise set up. But the gist of the accusation is the allegation of a conspiracy to fix arbitrary, artificial and non-competitive prices⁷ for all fish so caught and sold by any fisherman to any dealer.

It is true the application of pressure is charged only in the interstate fishing ports, but that is sufficient.

The main focus of the attack upon the indictment is that, taken in connection with other facts not alleged therein, the allegations do not state a crime. The thesis is that appellants were "working original producers, combined for the purpose of fixing the price of the products of their own labor" and therefore were protected by the Clayton and Norris La Guardia Acts, 15 U.S.C.A. §§ 12 et seq., 29 U.S.C.A. §§ 101 et seq., as a labor union, and were protected by the Fishermen's Marketing Act, 15 U.S.C.A. §§ 521 et seq., "as members of a cooperative." The confusion of thought of counsel for appella...