Montrose Lumber Co. v. United States
| Decision Date | 31 December 1941 |
| Docket Number | No. 2356-2361,2368,2369.,2356-2361 |
| Citation | 124 F.2d 573 |
| Parties | MONTROSE LUMBER CO. v. UNITED STATES and seven other cases. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas K. Younge, of Grand Junction, Colo. (J. P. Helman, of Grand Junction, Colo., on the briefs), for Montrose Lumber Co., Independent Lumber Co., Arthur H. Biggs, W. C. Kurtz, Grand Mesa Lumber Co., and Frank A. Rice, appellants.
Clyde C. Dawson, Jr., of Denver, Colo. (Pershing, Bosworth, Dick & Dawson, of Denver, Colo., on the brief), for Diamond Lumber & Hardware Co. and Bill Aldrich, appellants.
James C. Wilson, Sp. Asst. to Atty. Gen. , for the United States.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
Numbers 2356, 2357, 2358, 2359, 2360, and 2361.
An indictment containing two counts was returned against the appellants in causes Nos. 2356 to 2361, inclusive. The first count charged a conspiracy to restrain trade and commerce in violation of § 1 of the Sherman Act, 15 U.S.C.A. § 1. The second count charged a conspiracy to monopolize trade and commerce in violation of § 2 of the Sherman Act, 15 U.S.C.A. § 2. The appellants entered pleas of nolo contendere. The trial court imposed a sentence on each count. The appellants urged that the offense charged in the first count is the identical offense charged in the second count, and there being but one offense charged, they were, therefore, subject to but one punishment.
Section 1 of the Sherman Act declares that every contract, combination, or conspiracy in restraint of trade or commerce among the several states is illegal, and that every person who shall make any contract or engage in any combination or conspiracy declared by such section to be illegal shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $5,000 or by imprisonment not exceeding one year, or by both such punishments.
Section 2 of the Sherman Act provides that every person who shall combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states shall be guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both such punishments.
The crime defined by § 1 is legally distinct from the crime defined by § 2.1
Congress may provide that separate steps in a single transaction shall constitute separate offenses. If offenses are distinct in law they are not identical, regardless of how closely they are connected in point of fact. A single act may be an offense against two statutes. The test laid down by the adjudicated cases as to the identity of offenses under separate statutory provisions is, does each statutory provision require proof of a fact which the other does not.2
We shall assume, without deciding, that the indictment charged but one agreement. Even if the defendants, as a part of a single transaction or agreement, agreed that they would act together to accomplish the object of restraining trade, and further agreed that they would act together to accomplish the object of monopolizing trade, we are of the opinion that they would be guilty of separate and distinct offenses. Proof of that portion of the agreement to act together to restrain trade would sustain a conviction under § 1 of the Act. Proof of that portion of the agreement to act together to monopolize trade would sustain a conviction under § 2 of the Act. Each would require proof of a fact or a portion of the unlawful agreement which the other would not. Here, the indictment charged an unlawful agreement to accomplish the object of restraining trade and an unlawful agreement to accomplish the object of monopolizing trade. We conclude it charged separate and distinct offenses. This conclusion is supported, we think, by United States v. Buchalter, 2 Cir., 88 F.2d 625, and United States v. Shapiro, 2 Cir., 103 F.2d 775.
Numbers 2368 and 2369.
What we have said with respect to causes Nos. 2356 to 2361, inclusive, applies equally to causes Nos. 2368 and 2369.
Count one of the indictment consists of 38 numbered paragraphs.
Paragraph 17 defines "defendant retail lumber dealers" as the corporations and individuals named defendants in paragraphs 14 and 15 of the indictment, and alleges that such retail lumber dealers throughout the period covered by the indictment were members of Mountain States Lumber Dealers Association.3
Diamond Lumber & Hardware Company4 is not named in paragraphs 14 and 15 of the indictment and it is not otherwise charged that it is a retail lumber dealer or that it is a member of the Association.
Aldrich is named in paragraph 15, and it is therein alleged that his residence is Billings, Montana, and that he is officially connected with Aldrich & Company, which is named as defendant in paragraph 9. It is urged here for the first time that Diamond and Aldrich are not sufficiently connected with the conspiracy by the allegations of the indictment. We fail to see the force of this argument. Diamond is specifically named as a corporate defendant in paragraph 9. Aldrich is specifically named as a defendant in his individual capacity in paragraph 15. In paragraph 26 of the indictment it is alleged that "the defendants hereinbefore named * * * have been and are now engaged in a wrongful and unlawful combination and conspiracy to establish, maintain, and enforce an agreed upon, arbitrary, artificial, and unreasonable policy and program of distribution thereby restricting the channels of distribution through which said lumber, lumber products, cement, and other building materials5 used and consumed within the states of Colorado, Wyoming, and New Mexico, move and are transported in interstate commerce * * * for the purpose and with the intent of unlawfully and unreasonably eliminating, restricting, and preventing competition in" such trade and commerce.
In paragraph 27 it is alleged that it has been and now is a part of such combination and conspiracy that the defendants would do certain things to eliminate competition, to force ultimate consumers to buy such products from certain retail lumber dealers entitled to membership in the Association, to set up and establish the retail lumber dealers named, and other retail lumber dealers, as a class of recognized retail lumber dealers, to confine and restrict the sale of such products by manufacturers and wholesalers to or through such recognized retail dealers, to prevent ultimate consumers and purchasers in Colorado, Wyoming, and New Mexico from buying, shipping, and receiving such products from any manufacturer or wholesaler thereof, to prevent manufacturers and wholesalers from quoting prices for such products to any ultimate consumer or purchaser in such states, to suppress and eliminate competition between retail lumber dealers by rigidly and arbitrarily controlling the act, procedure, and process of recognition of retail lumber dealers on the part of the Association, to induce, require or compel manufacturers and wholesalers of such products to refrain and desist from soliciting trade, quoting prices, and selling such products to nonrecognized retail lumber dealers, to prevent nonrecognized retail lumber dealer competitors from buying, securing, or receiving such products directly from manufacturers and wholesalers, in order to compel nonrecognized retail lumber dealers to purchase their requirements through recognized retail lumber dealers, to interfere with the business and trade in such products of nonrecognized retail lumber dealers for the purpose of enabling and assisting recognized retail lumber dealers to appropriate and acquire the patronage, trade, and business of such nonrecognized retail lumber dealers, and to compel the ultimate consumers and purchasers of such products to buy them from a recognized retail lumber dealer operating a retail establishment nearest to the point where such products are to be used; all of which is alleged with particularity.
In paragraph 28 it is alleged that the conspiracy has been accomplished, carried out, and effectuated during the time covered by the indictment "by the defendants" by divers means, methods, and acts. These acts are set forth in paragraphs 29, 30, 31, 32, 33, 34, and 35, wherein it is alleged that the National Retail Lumber Dealers Association,6 a federation of regional, state, and metropolitan retail lumber dealers' associations, formulated, adopted, and promulgated so-called distribution statements applicable to such products, which set forth an agreed upon plan and program of controlling the distribution of such products by arbitrarily classifying consumers and purchasers thereof, and allocating and dividing the resultant classifications among manufacturers, wholesalers, and retailers; that the defendants named in the indictment from time to time sought, exacted, and procured written pledges and other promises and agreements from the manufacturers and wholesalers to the effect that such manufacturers and wholesalers would support, adhere to, and enforce such plan and program of distribution control; that the defendants have used and continue to use coercive and concerted action, boycott, and threats of boycott against such manufacturers and wholesalers to induce, require, and compel them to agree to, adhere to, and support such plan and program; and that certain of the defendants have engaged in continuous activity to enforce and effectuate such...
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