American Tobacco Co v. United States Liggett Myers Tobacco Co v. Same Reynolds Tobacco Co v. Same 20

• Decision Date: 10 June 1946
• Docket Number: Nos. 18,s. 18
• Citation: 66 S.Ct. 1125,90 L.Ed. 1575,328 U.S. 781
• Parties: AMERICAN TOBACCO CO. et al. v. UNITED STATES. LIGGETT & MYERS TOBACCO CO. et al. v. SAME. R. J. REYNOLDS TOBACCO CO. et al. v. SAME. to 20
• Court: U.S. Supreme Court

328 U.S. 781

66 S.Ct. 1125

90 L.Ed. 1575

AMERICAN TOBACCO CO. et al.

v UNITED STATES.

LIGGETT & MYERS TOBACCO CO. et al.

v. SAME.

R. J. REYNOLDS TOBACCO CO. et al.

v. SAME.

Nos. 18 to 20.

Argued Nov. 7, 8, 1945.

Decided June 10, 1946.

Messrs. George W. Whiteside and Milton Handler, both of New York City, for petitionerAmerican Tobacco Co.

Mr. Bethuel M. Webster, of New York City, for petitionerLiggett & Myers Tobacco Co.

[Argument of Counsel from page 782 intentionally omitted]Mr. Harold F. McGuire, of New York City, for petitionerR. J. Reynolds Tobacco Co.

Mr. Wendell Berge, Asst. Atty. Gen., for respondent.

Mr. Justice BURTONdelivered the opinion of the Court.

The petitioners are The American Tobacco Company, Liggett & Myers Tobacco Company, R. J. Reynolds Tobacco Company,¹American Suppliers, Inc., a subsidiary of American, and certain officials of the respective companies who were convicted by a jury, in the District Court of the United States for the Eastern District of Kentucky, of violating §§ 1and2 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1,2, pursuant to an information filed July 24, 1940, and modified October 31, 1940.

Each petitioner was convicted on four counts: (1) Conspiracy in restraint of trade, (2) monopolization, (3) attempt to monopolize, and (4) conspiracy to monopolize.Each count related to interstate and foreign trade and commerce in tobacco.No sentence was imposed under the third count as the Court held that that count was merged in the second.Each petitioner was fined $5,000 on each of the other counts, making $15,000 for each petitioner and a total of $255,000.Seven other defendants were found not guilty and a number of the original defendants were severed from the proceedings pursuant to stipulation.

The Circuit Court of Appeals for the Sixth Circuit, on December 8, 1944, affirmed each conviction.147 F.2d 93.All the grounds urged for review of those judgments were considered here on petitions for certiorari.On March 26, 1945, this Court granted the petitios but each was 'limited to the question whether actual exclusion of competitors is necessary to the crime of monopolization under Section 2 of the Sherman Act.'324 U.S. 836, 65 S.Ct. 864, 89 L.Ed. 1400.On April 23, 1945, Reynolds, et al., filed a petition for rehearing and enlargement of the scope of review in their case but it was denied.324 U.S. 891, 65 S.Ct. 1021, 89 L.Ed. 1438.This opinion is limited to the convictions under § 2 of the Sherman Act² and deals especially with those for monopolization under the second count of the information.

The issue thus emphasized in the order allowing certiorari and primarily argued by the parties has not been previously decided by this Court.It is raised by the following instructions which were especially applicable to the second count³ but were related also to the other counts under § 2 of the Sherman Act:

'Now, the term 'monopolize' as used in Section 2 of the Sherman Act, as well as in the last three counts of the Information, means the joint acquisition or maintenance by the members of a conspiracy formed for that purpose, of the power to control and dominate interstate trade and commerce in a commodity to such an extent that they are able, as a group, to exclude actual or potential competitors from the field, accompanied with the intention and purpose to exercise such power.

'The phrase 'attempt to monopolize' means the employment of methods, means and practices which would, if successful, accomplish monopolization, and which, though falling short, nevertheless approach so close as to create a dangerous probability of it, which methods, means and practices are so employed by the members of and pursuant to a combination or conspiracy formed for the purpose of such accomplishment.

'It is in no respect a violation of the law that a number of individuals or corporations, each acting for himself or itself, may own or control a large part, or even all of a particular commodity, or all the business of a particular commodity.

'An essential element of the illegal monopoly or monopolization charged in this case is the existence of a combination or conspiracy to acquire and maintain the power to exclude competitors to a substantial extent.

'Thus you will see that an indispensable ingredient of each of the offenses charged in the Information is a combination or conspiracy.'(Italics supplied.)

While the question before us, as briefly stated in the Court's order, makes no express reference to the inclusion, in the crime of 'monopolization,' of the element of 'a combination or conspiracy to acquire and maintain the power to exclude competitors to a substantial extent,' yet the trial court, in its above quoted instructions to the jury, described such a combination or conspiracy as an 'essential element' and an 'indispensable ingredient' of that crime in the present cases.We therefore include that element in determining whether the foregoing instructions correctly stated the law as applied to these cases.In discussing the legal issue we shall assume that such a combination or conspiracy to monopolize has been established.Because of the presence of that element, we do not have here the hypothetical case of parties who themselves have not 'achieved' monopoly but have had monopoly 'thrust upon' them.SeeUnited States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 429.

The present cases are not comparable to cases where the parties, for example, merely have made a new discovery or an original entry into a new field and unexpectedly or unavoidably have found themselves enjoying a monopoly coupled with power and intent to maintain it.In the Aluminum Co. case, discussed later, there was a use of various unlawful means to establish or maintain the monopoly.Here we have the additional element of a combination or conspiracy to acquire or maintain the power to exclude competitors that is charged in the fourth count.

The present opinion is not a finding by this Court one way or the other on the many closely contested issues of fact.The present opinion is an application of the law to the facts as they were found by the jury and which the Circuit Court of Appeals held should not be set aside.⁴The trial court's instruction did not call for proof of an 'actual exclusion' of competitors on the part of the petitioners.For the purposes of this opinion, we shall assume, therefore, that an actual exclusion of competitors by the petitioners was not claimed or established by the prosecution.Simply stated the issue is: Do the facts called for by the trial court's definition of monopolization amount to a violation of § 2 of the Sherman Act?

Before reaching that issue we shall touch upon another contention which the petitioners have made and which the Government has undertaken to answer.This is the contention that the separate convictions returned under the conspiracy count in restraint of trade and under the conspiracy count to monopolize trade amount to double jeopardy, or to a multiplicity of punishment in a single proceeding, and therefore violate the Fifth Amendment to the Federal Constitution.⁵The petitioners argue that § 2 of the Sherman Act should be interpreted to require proof of actual exclusion of competitors in order to show 'monopolization,' and they claim that only thus can a 'conspiracy to monopolize' trade be sufficiently differentiated from a 'conspiracy in restraint of' trade as to avoid subjecting the parties accused under those counts to double jeopardy.

Petitioners seek support for these contentions as to the two conspiracy counts from the principles stated in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23, and in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.On the authority of the Braverman case, petitioners claim that there is but one conspiracy, namely, a conspiracy to fix prices.In contrast to the single conspiracy described in that case in separate counts, all charged under the general conspiracy statute, § 37, Criminal Code,35 Stat. 1096,18 U.S.C. § 88,18 U.S.C.A. § 88, we have here separate statutory offenses, one a conspiracy in restraint of trade that may stop short of monopoly, and the other a conspiracy to monopolize that may not be content with restraint short of monopoly.One is made criminal by § 1 and the other by § 2 of the Sherman Act.

We believe also that in accordance with the Blockburger case, §§ 1and2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each other although the objects of the conspiracies may partially overlap.Cf.United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226, 60 S.Ct. 811, 846, 84 L.Ed. 1129.In the present cases, the court below has found that there was more than sufficient evidence to establish a conspiracy in restraint of trade by price fixing and other means, and also a conspiracy to monopolize trade with the power and intent to exclude actual and potential competitors from at least a part of the tobacco industry.

Petitioners further suggest that the second count [to monopolize], and the fourth count (to conspire to monopolize), may lead to multiple punishment, contrary to the principle of the Blockburger case.Petitioners argue that the Government's theory of monopolization calls for proof of a joint enterprise with power and intent to exclude competitors and, therefore, that the conspiracy to monop- olize must be a part of that proof.It long has been settled, however, that a 'conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy.'United States v. Rabinowich, 238 U.S. 78, 85, 35 S.Ct. 682, 683, 59 L.Ed. 1211;Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 1182.Petitioners, for example, might have been convicted here of a conspiracy to monopolize without ever having acquired the power to carry out the object of...