McHugh v. United States

• Decision Date: 27 March 1956
• Docket Number: No. 5009.,5009.
• Citation: 230 F.2d 252
• Parties: Patrick McHUGH, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

230 F.2d 252 (1956)

Patrick McHUGH, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 5009.

United States Court of Appeals First Circuit.

March 8, 1956.

Rehearing Denied March 27, 1956.

Henry Wise, Boston, Mass., with whom Robert L. Wise and Wise & Wise, Boston, Mass., were on brief, for appellant.

William J. Lamont, Atty., Dept. of Justice, Washington, D. C., with whom Stanley N. Barnes, Asst. Atty. Gen., Daniel M. Friedman, Atty., Dept. of Justice, Washington, D. C., and Anthony Julian, U. S. Atty., Boston, Mass., were on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal by the defendant, Patrick McHugh, from a judgment entered in the United States District Court for the District of Massachusetts following his plea of nolo contendere to a two-count indictment charging that the defendant, among others, had combined and conspired to restrain trade and commerce in fish landed at the port of New Bedford and had monopolized that trade and commerce, in violation of Secs. 1 and 2 of the Sherman Anti-Trust Act. 26 Stat. 209, 15 U.S.C.A. § 1 et seq.

On May 9, 1955, the defendant was sentenced to "* * * pay a fine of three hundred (300) dollars said fine to be paid within three months, and is placed upon probation for two (2) years, a condition of said probation being that said defendant shall not become active, either directly or indirectly, in the operation, management, or control of the Atlantic Fishermen's Union, Seafarers' International Union of North America, A. F. of L., and Atlantic Fishermen's Union, Seafarers' International Union of North America, A. F. of L., New Bedford."

The defendants named in the indictment were the Atlantic Fishermen's Union and its New Bedford, Massachusetts branch, unincorporated associations, five union officials, including the appellant, and the Seafood Producers Association of New Bedford, Mass. Inc.

The indictment alleged in substance: New Bedford is one of the largest fishing ports in the United States, and more than $16,000,000 worth of fish is brought into that port each year, including approximately 80% of all sea scallops landed in the United States. Many of the fishing boats are owned by members of the defendant Seafood Producers Association of New Bedford, Mass. Inc. and are operated by the fishermen pursuant to a contract between the Union and that Association. Boats manned by the Union members account for and catch in excess of 90% of all fish landed in New Bedford.

Under the terms of that contract the boat owner furnishes and maintains only the boat and gear; the captain and crew pay all the other expenses of a fishing trip, including fuel, food and ice. The fishermen control the catching and sale of fish. The boat owner has no control over the areas in which fishing will be done, the length of the voyage, or the amount of fish that will be caught on a particular trip. The contract further provides that the crew members, the boat captain, and the boat owner "each receive a stipulated share of the proceeds received upon sale of the catch" and "Each fisherman who is a member of the crew risks making a profit or loss, according to the success or failure of each fishing trip." When the vessel returns, each boatload of fish is sold separately by the boat captain at a fish auction controlled by the Union although the Union members "do not act collectively" through the Union in producing and marketing their catch. A "substantial quantity" of the fish which the dealers in New Bedford purchase is "immediately" resold by them and shipped in interstate commerce to wholesalers and retailers in states other than Massachusetts.

Since 1943 the defendants have been engaged in a combination and conspiracy to restrain unreasonably the production and sale of fish in New Bedford. The combination and conspiracy have consisted of a continuing agreement among the defendants to limit the amount and type of fish caught; to fix and maintain prices, terms, and conditions of sales of fish to dealers in New Bedford; to compel and coerce dealers to purchase fish under terms and conditions which the defendants dictated; to require that all sales of fish in New Bedford be made through the fish auction controlled by the Union; and to boycott dealers who purchase fish from fishermen outside the auction. The defendants, in order to effectuate the conspiracy and combination, have done those things which they combined, conspired and agreed to do.

The combination and conspiracy effectively limited the quantity and species of fish landed in New Bedford, excluded non-union fishermen from the New Bedford market, prevented small dealers from purchasing fish in that port except on the terms and conditions prescribed by the defendants. Had it not been for defendants' illegal restraints, a "much greater" volume of scallops and other fish would have been brought into and sold in the port of New Bedford.

The indictment further alleges that since 1943 the defendants have monopolized trade and commerce in the production and sale of fish in New Bedford and have entered into and performed the foregoing restrictive agreements.

The appellant asserts that a plea of nolo contendere leaves open for review the sufficiency of the indictment and cites in support thereof United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973. However, it is only in an exceptional situation that there can be a defense to factual allegations of the indictment following a plea of nolo contendere. United Brotherhood of Carpenters and Joiners of America v. United States, supra. We find no such exceptional situation here. As a general proposition all facts alleged in...