Universal Milk Bottle Service v. United States

• Decision Date: 04 April 1951
• Docket Number: No. 11180.,11180.
• Citation: 188 F.2d 959
• Parties: UNIVERSAL MILK BOTTLE SERVICE, Inc. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

188 F.2d 959 (1951)

UNIVERSAL MILK BOTTLE SERVICE, Inc. et al. v. UNITED STATES.

No. 11180.

United States Court of Appeals Sixth Circuit.

April 4, 1951.

Robert N. Gorman, Cincinnati, Ohio, for Universal Milk Bottle Service and others.

Robert S. Marx and John J. Luhrman, Cincinnati, Ohio, for Mathews-Frechtling Dairy Co.

Orville A. Troy, Harry Kasfir, and Kenneth D. Troy, all of Cincinnati, Ohio, for Co-Operative Pure Milk Asso.

Robert G. McIntosh, Cincinnati, Ohio, for Cedar Hill Farms, Inc.

Michael Lacinak, Cincinnati, Ohio, for J. H. Berling's Dairy Products Co.

H. G. Morison, J. Roger Wollenberg, and Robert H. Winn, Washington, D. C. and Ray J. O'Donnell, Frank Richter, Cincinnati, Ohio, on the brief, for appellee.

Before MARTIN, McALLISTER, and MILLER, Circuit Judges.

PER CURIAM.

On September 24, 1948, an indictment was returned against appellants, charging them with a conspiracy to raise, fix, and maintain prices for the sale of milk, in violation of Section 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C.A. § 1 et seq. The facts alleged in the indictment set forth that the Cincinnati Area, here in question, has a population in excess of 650,000 persons, who annually consume more than 175,000,000 pounds of milk, for which they pay more than $16,000,000; that more than 40% of the milk sold by distributors in the Cincinnati Area is produced in Kentucky and Indiana, and is transported from those states, in interstate commerce, to the Cincinnati Area; that appellants sell approximately 67% of the total amount of milk from all sources sold in the Cincinnati Area, and that the remaining 33% is sold by 31 other distributors; that 48% of the milk sold by appellants in the Cincinnati Area is produced in Kentucky and Indiana, and shipped from those states into the Cincinnati Area. It was further set forth that milk, by its nature, is perishable; that it can not be stored, but must reach the consumer within a short time after production; that, in anticipation of, and in response to demands of consumers and other purchasers, the distributors for the Cincinnati Area regularly purchase milk produced in Kentucky, Indiana, and Ohio, and that milk so purchased in Kentucky and Indiana is intermingled with milk purchased in Ohio, and is almost immediately distributed and sold to consumers and other purchasers in the Cincinnati Area; that there is, from day to day, a continuous flow of milk in interstate commerce from producers in Kentucky and Indiana to consumers and other purchasers in Ohio. The indictment then sets forth that beginning on or about July 1, 1946, and continuously thereafter up to and including June 1, 1948, the appellants engaged in a combination and conspiracy to raise, fix, and maintain prices for the sale, in the Cincinnati Area, of milk produced in Kentucky, Indiana, and Ohio, in violation of Section 1 of the Sherman Act; that the conspiracy involved agreement upon prices at which appellants sold milk in the Cincinnati Area and the use of various devices to assure uniformity in the milk prices charged by distributors selling in this Area; that increases in prices charged by distributors in the Cincinnati Area for milk sold to consumers and other purchasers have had the effect of reducing the volume of milk purchased by them, thus reducing the quantity of milk purchased by the distributors from producers in Kentucky, Indiana, and Ohio; and that the acts of appellants in furtherance of the conspiracy were intended to and did raise, fix, and maintain the prices of milk shipped into the Cincinnati Area from outside the State of Ohio and sold in that Area, and thereby restrained interstate commerce in milk.

Appellants moved to dismiss the indictment on the ground that it failed to state an offense under the Sherman Act, and, in support of their motions, appended thereto a milk marketing order and amendments issued pursuant to the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C.A. § 671 et seq., the official bulletin of the Milk Market Administrator for January-February, 1949, showing official statistics, and affidavits containing the regulations of the Board of Health of the City of Cincinnati and operations thereunder, all of which appellants claim "nullified" the allegations of the indictment stating the offense under the Sherman Act.

Thereafter, the district court overruled the motions to dismiss the indictment, stating, in its decision, that "Under the familiar rule the facts as alleged are admitted, on the pending motions, to be true, for the purposes of this decision." 85 F.Supp. 625. Subsequently, appellants withdrew their pleas of not guilty theretofore entered, and pleaded nolo contendere; and following entry of judgments of conviction by the district court, they appealed on the ground that the district court erred in not granting their motions to dismiss the indictment. It is agreed that when a demurrer or motion to quash has been filed and overruled, followed by a plea of nolo contendere, the same questions raised on the demurrer or motion to quash could be presented on appeal. See Hocking Valley R. R. Co. v. United States, 6 Cir., 210 F. 735. Under the Federal Rules of Criminal Procedure, defenses and objections which theretofore could have been raised by demurrers and motions to quash are now raised by motions to dismiss. Rule 12(a).

Appellants contend that the documents which they filed in support of their motions to dismiss the indictment should have been accepted by the district court as disproving the allegations of the indictment and as proof that the indictment failed to state an offense under the Sherman Act. In support of their contention, they rely upon Rule 12 of the Federal Rules of Criminal Procedure, claiming that the district court was bound to consider the above mentioned documents and affidavits as proof of the fact that appellants did not violate the Sherman Act, and consequently erred in failing to hold that the milk marketing order, in effect during the entire indictment period, nullified the allegations of the indictment.

The objection that the indictment fails to charge an offense may be raised before trial by motion to dismiss. Rule 12(b)(2). See Notes to Subdivisions (b) (1) and (2), of Advisory Committee on Rules, 18 U.S.C.A. Federal Rules of Criminal Procedure, pages 205, 206. Appellants contend that the district court should have dismissed the indictment on their motions on the ground that it did not charge an offense because the milk marketing order, copy of which was included in, and made a part of the motions, showed that all prices paid for milk by appellants were established by the Secretary of Agriculture and that all milk produced by producers in Ohio, Indiana, and Kentucky for the Cincinnati Area must be purchased under such order, "so that the statement made in paragraph 24," of the indictment, charging the offense, "is false and untrue." This is not an attack on the indictment based on the objection that it failed to state an offense. It is, rather, an answer to the allegations of the indictment claiming that those allegations are false and untrue. These are issues of fact. In a criminal case, such issues are to be tried by a jury, unless waived. See United States v. Greater Kansas City Retail Coal Merchants' Ass'n, D.C.Mo., 85 F.Supp. 503, 511; United States v. Mertine, D.C.N.J., 64 F.Supp. 792, 794.

Rule 12(b)(1) permits the raising by motion of defenses or objections only where they are "capable of determination without the trial of the general issue," the general issue being the issue presented by the allegations of the indictment and the plea. Allegations of the indictment essential to prove the offense charged and the pleas in answer to such allegations require a trial of the general issue. Here, the issue...