Kansas City Star Company v. United States, No. 15456

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, , and WOODROUGH and VOGEL, Circuit
• Citation: 240 F.2d 643
• Parties: The KANSAS CITY STAR COMPANY, Appellant, v. UNITED STATES of America, Appellee. Emil A. SEES, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: 15457.,No. 15456
• Decision Date: 13 March 1957

240 F.2d 643 (1957)

The KANSAS CITY STAR COMPANY, Appellant,
v.
UNITED STATES of America, Appellee.
Emil A. SEES, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 15456, 15457.

United States Court of Appeals Eighth Circuit.

January 23, 1957.

Rehearing Denied March 13, 1957.

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Elton L. Marshall, Kansas City, Mo. (Henry N. Ess, Carl E. Enggas, Colvin A. Peterson, Jr., and Watson, Ess, Marshall & Enggas, Kansas City, Mo., on the brief), for appellant The Kansas City Star Co

Carl E. Enggas, Kansas City, Mo. (Henry N. Ess, Elton L. Marshall, Melvin J. Spencer, and Watson, Ess, Marshall & Enggas, Kansas City, Mo., on the brief), for appellant Emil A. Sees.

Earl A. Jinkinson, Atty., Dept. of Justice, Chicago, Ill., and Joseph E. McDowell, Atty., Dept. of Justice, Washington, D. C. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., Victor H. Kramer and Daniel M. Friedman, Attys., Dept. of Justice, Washington, D. C., Victor R. Hansen, Asst. Atty. Gen., and Raymond P. Hernacki and Willis L. Hotchkiss, Attys., Dept. of Justice, Chicago, Ill., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

The Kansas City Star Company, Roy A. Roberts, its president and chairman of the Board of Directors, and Emil A. Sees, its director of advertising, treasurer and a member of the Board of Directors, were all charged in an indictment with a violation of Section 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. § 2. The indictment was in two counts. The first count charged that the appellants had been and were up to the time of the return of the indictment engaged in an attempt to monopolize interstate trade and commerce in the dissemination of news and advertising. In Count No. 2 the appellants were charged with a monopolization of interstate trade and commerce in the dissemination of news and advertising. Prior to trial, and on motion of the government, the indictment was dismissed as to Roy A. Roberts. After

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a trial, lasting from January 17, 1955 to February 22, 1955, the jury returned a verdict of guilty as to The Kansas City Star Company on both counts of the indictment and a verdict of guilty as to Emil A. Sees on Count 1 and not guilty on Count 2. The court, concluding that the offense of attempting to monopolize as charged in Count 1 of the indictment merged into the greater offense of monopolization as charged in Count 2, imposed a single penalty of a $5,000 fine as to the appellant The Kansas City Star Company, hereinafter referred to as The Star. Appellant Sees, having been convicted on Count 1 only, was punished by a fine of $2,500. Both parties separately prosecuted an appeal to this court. They were, however, indicted together, tried and convicted together, and will be considered together in this opinion, separate reference being made to each where that becomes necessary or expedient

That portion of the statute under which the indictment was found, 15 U.S. C.A. § 2, is as follows:

"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." (Emphasis supplied.)

The Sherman Act aims at the evils of monopoly and monopolistic practices in interstate trade and commerce. That it can apply to the dissemination of news and advertising there can be no doubt. In a case quite similar to this one, the Supreme Court commented, Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 152, 72 S.Ct. 181, 185, 96 L.Ed. 162:

"The distribution within Lorain of the news and advertisements transmitted to Lorain in interstate commerce for the sole purpose of immediate and profitable reproduction and distribution to the reading public is an inseparable part of the flow of the interstate commerce involved. See Binderup v. Pathe Exchange, 263 U.S. 291, 309, 44 S.Ct. 96, 99, 68 L.Ed. 308; Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 66 L.Ed. 735; Illinois Central R. Co. v. De Fuentes Louisiana R. Comm., 236 U.S. 157, 163, 35 S.Ct. 275, 276, 59 L.Ed. 517; Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 280, 49 L.Ed. 518. Unless protected by law, the consuming public is at the mercy of restraints and monopolizations of interstate commerce at whatever points they occur. Without the protection of competition at the outlets of the flow of interstate commerce, the protection of its earlier stages is of little worth."

See also Associated Press v. United States, 1945, 326 U.S. 1, 14, 65 S.Ct. 1416, 89 L.Ed. 2013, holding trade in news among the several states to be interstate commerce.

In this appeal, both appellants allege many errors in rulings on various motions, the receipt of certain evidence, the exclusion of other evidence, and the court's charge to the jury.

Pre-Trial Orders.

At the outset, appellants moved to dismiss the indictment and each count thereof on the grounds that each count failed to state the particular act or acts charged to constitute the offense with reasonable definiteness and that each count was so vague and indefinite that it did not inform the appellants of the nature and cause of the accusation against them, thereby denying rights guaranteed by the Fifth and Sixth Amendments to the Constitution of the United States and Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U. S.C.A.

The indictment identifies and describes The Kansas City Star Company

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as being a corporation and the publisher of a morning daily newspaper known as The Kansas City Times, an evening daily newspaper known as The Kansas City Star and a Sunday newspaper known as The Sunday Star. It alleges that The Star also owns and operates radio station WDAF and television station WDAF-TV at Kansas City, Missouri. Sees is described as the director of advertising, treasurer and a director of The Kansas City Star Company. The indictment makes it clear that the geographical area in which the appellants are charged with monopolization and attempt to monopolize news and advertising in metropolitan Kansas City, Missouri, covered the Counties of Jackson and Clay in the State of Missouri and the Counties of Wyandotte and Johnson in the State of Kansas. In addition, it sets forth its definitions of the terms "classified advertising", "display advertising", "local display advertising" and "general advertising". It describes the nature of the trade and commerce of an interstate nature to which the indictment was applicable; that The Times and Star are delivered to 96% of all the homes in metropolitan Kansas City each day; that The Times' total net paid circulation exceeds 353,000 copies daily, The Star's total net paid circulation exceeds 361,000 copies daily; that The Sunday Star exceeds 378,000 copies each Sunday. It sets forth the formation and growth of The Kansas City Star, and the acts and practices upon which it is charged that there was an attempt to monopolize, as well as the acts and practices on the part of the appellants which it is charged resulted in monopolization

From an examination of the indictment and the particularizations set forth therein, we are convinced that Rule 7(c) of the Federal Rules of Criminal Procedure was satisfied in that the indictment does contain "* * * a plain, concise and definite written statement of the essential facts constituting the offense charged". We are of the opinion that it charges offenses with sufficient clarity to enable the appellants to properly prepare their defense and with sufficient certainty and definiteness that trial thereon would be an effective bar to future prosecution for the same acts. United States v. Cruikshank, 1875, 92 U.S. 542, 566, 568, 23 L.Ed. 588; Bennett v. United States, 1913, 227 U.S. 333, 338, 33 S.Ct. 288, 57 L.Ed. 531; Berger v. United States, 1935, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314; Hewitt v. United States, 8 Cir., 1940, 110 F.2d 1, 6, certiorari denied 310 U.S. 641, 60 S. Ct. 1089, 84 L.Ed. 1409; Claiborne v. United States, 8 Cir., 1935, 77 F.2d 682, 689. In prosecutions under the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note, it would seem particularly true that there has been no marked reliance upon rigorous common law standards. E. g., Nash v. United States, 1913, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; Knauer v. United States, 8 Cir., 1916, 237 F. 8; United States v. American Medical Association, 1940, 72 App.D.C. 12, 110 F.2d 703, 715, 716, affirmed 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434; United States v. Armour & Co., 10 Cir., 1943, 137 F.2d 269, 270.

We are satisfied that the indictment complies with the provisions of Rule 7(c) and does not violate or deny the rights guaranteed by the Fifth and Sixth Amendments to the Constitution. There was no error in overruling appellants' motion.

All of the pre-trial motions hereafter discussed are addressed to the discretion of the trial judge. It is a fundamental rule of our appellate procedure that the trial judge will not be reversed after using his considered judgment on discretionary orders provided there has been no abuse of such discretion. With this rule in mind, we proceed to examine separately the pre-trial motions and the alleged erroneous orders issued as a result of those motions.

Subsequent to the court's denial of the motion to dismiss the indictment, appellants made a motion for a bill of particulars, the denial of which is cited as error. An examination of the motion for a bill of particulars convinces

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us that it was aimed at obtaining in particular the...