771 F.2d 1219 (9th Cir. 1985), 84-3051, United States v. Miller

Docket Nº:84-3051 to 84-3053.
Citation:771 F.2d 1219
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. H. David MILLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. CONTINENTAL FUEL CO., INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Don A. BLIESNER, Defendant-Appellant.
Case Date:September 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1219

771 F.2d 1219 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

H. David MILLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

CONTINENTAL FUEL CO., INC., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Don A. BLIESNER, Defendant-Appellant.

Nos. 84-3051 to 84-3053.

United States Court of Appeals, Ninth Circuit

September 16, 1985

Argued and Submitted July 8, 1985.

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Margaret G. Halpern, Atty., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

B. Lynn Winmill, Manning, Holmes & Winmill, Ohio, Pocatello, Idaho, Irwin H. Schwartz, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the District of Idaho.

Before BROWNING and ALARCON, Circuit Judges, and THOMPSON, [*] District Judge.

ALARCON, Circuit Judge:

Appellants Continental Fuel Company (Continental), Don A. Bliesner (Bleisner) and H. David Miller (Miller) were convicted after a jury trial of conspiring to fix the retail price of gasoline in Bannock County, Idaho, in violation of Section 1 of the Sherman Act (15 U.S.C. Sec. 1 (1982)). Continental was fined $75,000; Bliesner and Miller were fined $25,000 and $35,000, respectively.

Appellants seek reversal on the following grounds:

One. The district court erred in denying Miller's motion to dismiss the indictment on the ground that section one of the Sherman Act is unconstitutionally vague as applied to price-fixing.

Two. The district court erred in denying appellants' motion to dismiss the indictment for insufficiency on the ground that it fails to allege an overt act and is factually insufficient.

Three. The district court erred in refusing to hold a hearing on appellants' challenge to the indictment on the ground that the grand jury was improperly constituted.

Four. The district court erred in refusing to conduct an in camera inspection of materials withheld by government counsel to determine whether they came within the Jencks Act.

Five. The district court erred in admitting the hearsay testimony of six witnesses in violation of the rules governing the admission of co-conspirators' statements.

Six. The district court erred in admitting computerized telephone records and excerpted subscriber information under the business records exception to the hearsay rule.

Seven. The district court erred in refusing to give appellants' proposed jury instructions regarding the intent element of a Sherman Act violation, the relationship of an independent pricing decision to a Sherman Act violation, and the import of proof of membership in overlapping multiple conspiracies where a single overarching conspiracy is charged in the indictment.

I

BACKGROUND

The indictment charged that between January 1978 and October 1982, four corporations and eight individuals 1 conspired and acted in concert with twelve other persons and business entities to fix gasoline prices in Bannock County (near Pocatello, Idaho). The principal organizers of the conspiracy were appellants Miller and Bleisner. David Miller worked for his father, Howard O. Miller, at the Howard O. Miller Co. (hereinafter HOMCO). HOMCO controlled four retail gasoline stations in

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Pocatello. Bleisner and George Frost were co-owners of appellant Continental Fuel Co. Continental owned and operated three retail gasoline stations in Pocatello. Miller and Bliesner met daily at various bars and restaurants, where they would agree to implement area-wide price increases or to end price wars. Appellants admit that they regularly discussed prices and tried to persuade their competitors to raise prices, but contend that they never agreed to fix prices.

At trial, the government introduced two types of evidence to establish the existence of a conspiracy: evidence of appellants' intent, and evidence of the effects of their agreement. First, current and former employees of the defendant companies and their competitors testified either that they had been parties to the conspiracy or that they refused to cooperate in price-fixing when approached by the conspirators. Second, the government introduced evidence showing the fluctuation of prices during the specific periods covered by the indictment, and telephone records which reflected that telephone conversations between the co-conspirators occurred immediately prior to fluctuations in the price of retail gasoline.

We address the particular facts pertinent to each issue raised on this appeal under separate headings.

II

CONSTITUTIONALITY OF THE SHERMAN ACT

Miller contends that the trial court erred in denying his motion to dismiss the indictment on the ground that section one of the Sherman Act (15 U.S.C. Sec. 1) is unconstitutionally vague. The constitutionality of a statute is a question of law subject to de novo review. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Miller argues that section one is unconstitutionally vague because it fails to provide fair notice of the conduct which it proscribes. Although Miller concedes that the constitutionality of section one was sustained against vagueness challenges shortly after its enactment (Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913)), he urges us to revisit the issue under contemporary due process standards in light of a 1974 amendment making violation of the statute a felony rather than a misdemeanor.

Miller's contention is frivolous. The sufficiency of fair notice of the acts proscribed by a statute must be examined in the context of the conduct with which a defendant is charged. United States v. National Dairy Products Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963). A defendant cannot challenge a statute on the ground that it may not give fair notice that conduct other than that with which he is charged is forbidden. Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974).

The indictment charges Miller with price-fixing. Because price-fixing has repeatedly been held to be per se illegal under the Sherman Act (see, e.g., Arizona v. Maricopa County Medical Society, 457 U.S. 332, 345, 102 S.Ct. 2466, 2473, 73 L.Ed.2d 48 (1982); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 842, 84 L.Ed. 1129 (1940)), Miller could not have had any reasonable doubt that his conduct violated section one. The district court did not err in denying Miller's motion to dismiss the indictment on the ground that section one of the Sherman Act is unconstitutionally vague.

III

SUFFICIENCY OF THE INDICTMENT

Appellants next contend that the trial court erred in denying their motion to dismiss the indictment for insufficiency. Appellants argue that the indictment is insufficient in two respects: (1) it does not allege any overt act, and (2) it contains insufficient factual allegations. The sufficiency

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of an indictment is a question of law which we review de novo. United States v. Christopher, 700 F.2d 1253, 1257 (9th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983).

An indictment charging a violation of section one of the Sherman Act is not required to allege any overt act. Nash v. United States, 229 U.S. at 378, 33 S.Ct. at 782; Socony-Vacuum, 310 U.S. at 224-25 n. 59, 60 S.Ct. at 844-46 n. 59; accord, United States v. Walker, 653 F.2d 1343, 1351 (9th Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982). Because the Sherman Act punishes the mere act of conspiring, overt acts in furtherance of the conspiracy need not be alleged. Nash, 229 U.S. at 378, 33 S.Ct. at 782.

United States v. Inryco, Inc., 642 F.2d 290 (9th Cir.1981), cert. dismissed, 454 U.S. 1167, 102 S.Ct. 1045, 71 L.Ed.2d 324 (1982), does not support appellants' position that an overt act is an essential element of a section one violation. The narrow issue before us in Inryco was when the statute of limitations began to run on a continuing Sherman Act violation. We observed that while a Sherman Act conspiracy is technically ripe when the agreement to restrain competition is formed, it remains actionable until its purpose has been achieved or abandoned, and the statute of limitations does not begin to run so long as the co-conspirators continue to engage in overt acts designed to accomplish the objectives of the conspiracy. Id. at 293. In this context, we stated that "[t]he essential elements of a continuing Sherman Act violation are the agreement to restrain trade, anti-competitive effect and an overt act committed in furtherance of the conspiracy." Id. at 294. We discussed the use of evidence of the commission of overt acts in Inryco as a means of proving that the conspiracy had not expired, rather than as a necessary element of the corpus delicti of a conspiracy to violate the Sherman Act. 2

We are persuaded that the indictment contains sufficient factual specificty to withstand appellants' second challenge. An indictment must furnish the defendant with a description of the charges against him in sufficient detail to permit him to prepare his defense, to ensure that the defendant is prosecuted on the basis of facts presented to the grand jury, to enable him to plead double jeopardy against a later prosecution, and to inform the court of the facts alleged so that it can determine the sufficiency of the indictment. United States v. Lane, 765 F.2d 1376, 1380 (9th Cir.1985).

Appellants argue that the indictment in the instant case is deficient because it contains few facts other than the situs of the...

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