Notice: Fifth Circuit Local Rule 47.5.3 States That Unpublished Opinions Should Normally Be Cited Only When They Establish The Law Of The Case v. Dunham Concrete Prod.S Inc
| Decision Date | 23 May 1973 |
| Docket Number | No. 71-2791.,71-2791. |
| Citation | 477 F.2d 596 |
| Parties | NOTICE: Fifth Circuit Local Rule 47.5.3 states that unpublished opinions should normally be cited only when they establish the law of the case, are relied upon as a basis for res judicata or collateral estoppel, or involve related facts. If an unpublished opinion is cited, a copy shall be attached to each copy of the brief.United Statesv.Dunham Concrete Products, Inc., Louisiana Ready-Mix Co.,Inc., Anderson-Dunham, Inc., and Ted F. Dunham, Jr. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before RIVES, WISDOM and RONEY, Circuit Judges.
This case involves a federal statute, now repealed, that is asserted to immunize a defendant from criminal prosecution under the antitrust laws for transactions about which he had testified in a private antitrust case, at a time when the statute was effective. We hold that a proper reading of the statute fails to immunize the defendant, that there is no merit to the claims of error in the grand jury proceedings that produced the indictment, and that the trial proceedings contain no reversible error. We affirm the convictions.
A jury convicted three corporate defendants and their part-owner and manager Ted F. Dunham, Jr. of (1) attempting to monopolize trade in concrete products, in violation of Section 2 of the Sherman Act, 15 U.S.C.A. Sec. 2, and (2) conspiring to affect commerce by attempting to obtain property through physical violence, in violation of the Hobbs Act, 18 U.S.C.A. Sec. 1951. On the Sherman Act count, Louisiana Ready-Mix Company and Dunham Concrete Products, Inc. were each fined $30,000, Anderson-Dunham, Inc. was fined $40,000, and Ted Dunham was fined $30,000 and was sentenced to six months in prison. On the Hobbs Act count, Louisiana Ready-Mix and Dunham Concrete were fined $5,000 each, Anderson-Dunham was fined $10,000, and Ted Dunham was fined $10,000 and was sentenced to three years in prison, with two and one-half years suspended. Dunham's prison sentences are to run consecutively.
Although all defendants filed a notice of appeal, only Anderson-Dunham, Inc. and Ted Dunham, Jr. have prosecuted their appeals. The appeals of the other two corporate defendants, Louisiana Ready-Mix Company and Dunham Concrete Products, are therefore dismissed. Rule 12(c), F.R.A.P.
In 1967 Dunham, certain Dunham corporations, and a labor representative were sued in a private antitrust action that sought treble damages for an alleged conspiracy to restrain trade in the Baton Rouge, Louisiana, concrete products market. Dunham was deposed three times by the private plaintiff during the preliminary stages of the civil litigation. The testimony elicited from him in the first two depositions covered matters that later constituted the substance of the Sherman Act violations, and the third deposition dealt with Dunham's knowledge of the alleged Hobbs Act violation. We assume that Dunham's deposition testimony would qualify him for immunity if the immunity statute is applicable. The corporate defendant Anderson-Dunham, Inc., does not claim immunity because the statute specifically applies only to natural persons and, moreover, a corporation has no Fifth Amendment privilege through which immunity may be asserted. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968).
The question is whether a person, who testifies in a private civil antitrust suit in which the Government has no involvement, is entitled to immunity from criminal prosecution under 15 U.S.C.A. Sec. 32. The Government contends that, because only the Government can grant immunity, the statute does not apply to nongovernment litigation.
Dunham contends that he is entitled to immunity (1) under the wording of the statute, (2) because permitting immunity here would further the legislative purpose of Section 32, and (3) because prior case law tends to support his view of the scope of the statute.
Act of February 25, 1903, c. 755, Sec. 1, 32 Stat. 904.
We note that this decision will be one of limited effect. Sections 32 and 33, which grant a broad transactional immunity, have now been repealed by Public Law 91-452, Title II, Secs. 209, 210, 84 Stat. 929 (October 15, 1970). The current immunity statute, 18 U.S.C.A. Sec. 6002, permits only a narrowed use immunity, and Section 6003(a) explicitly states that immunity is to be conferred by the District Court "upon the request of the United States Attorney." Under the current statute, then, only the Government can confer immunity. Hence, our decision here will affect only appellant Dunham and such other antitrust criminal prosecutions, if any, in which the defendants testified in private litigation prior to October 15, 1970, the effective date of repeal for Sections 32 and 33.
The District Court held that Dunham was not immune under Section 32 from prosecution. This holding was correct. To hold otherwise would be contrary to the wording of the statute, its legislative history, and its purpose.
1. Section 32 was enacted as part of the general appropriations act of February 25, 1903, that declared in part:
The language of the appropriation portion of the statute indicates that the purpose of the appropriation was to fund judicial enforcement activities by the United States. See United States v. Welden 377 U.S. 95 (1964); United States v. Monia, 317 U.S. 424 (1943). The money was "to be expended under the direction of the Attorney-General in the employment of special counsel and agents of the Department of Justice...." 32 Stat. 904. These Justice Department personnel were "to conduct proceedings, suits, and prosecutions" under the then-current antitrust laws. 32 Stat. 904. In addition, the immunity proviso in question here was appended.
Dunham argues that, if Congress had intended that only the Government be authorized to accord immunity under Section 32, the statute would read "Government proceeding, suit by the United States or prosecution." We disagree. We think that the "proceedings" to which the statute refers are the same "proceedings" with which the appropriation as a whole is concerned. Thus, since the "proceedings, suits, and prosecutions" referred to in the appropriation section of the bill were those brought by the Justice Department, so also must those terms, when used in the immunity proviso, refer to those "proceedings, suits, and prosecutions" conducted by "special counsel and agents of the Department of Justice."
This reading of the phrase in question has previously been approved by the Supreme Court in another context. In United States v. Welden, supra, the defendant in a criminal antitrust prosecution had previously testified under subpoena before a Congressional subcommittee under subpoena about the same matters. Welden moved to dismiss the indictment on the ground of immunity under Section 32, contending that the language in the proviso applying to "any proceeding" encompassed more than the nearly identical language in the previous clause in the statute authorizing court enforcement by the Department of Justice and was broad enough to cover Congressional investigations. The Supreme Court, however, rejected this contention and stated: "By any common-sense reading of this statute, the words 'any proceeding, suit, or prosecution under said Acts' in the proviso plainly refer to the phrase 'proceedings, suits, and prosecutions under said Acts in the courts of the United States' in the previous clause." 377 U.S. at 97 (Court's emphasis). Hence, to read Section 32 as Dunham seeks would require us to read the phrase one way in one clause, and to construe it another way in a subsequent clause. This we cannot do. The phrase must be given the same meaning in both clauses.
2. The legislative history of Section 32 indicates very little about its intended scope. The appropriation was viewed by its sponsors as legislation that would strengthen antitrust enforcement by the Attorney General. 36 Cong.Rec. 411-12 (1902). The immunity section itself was also intended to facilitate antitrust enforcement. Because it had proven "extremely difficult to establish the existence of combinations or conspiracies without the testimony of persons who [were] guilty parties thereto," an immunity provision would have "great utility in aiding in effectively enforcing the antitrust laws." H.R. No. 1506, 56th Cong., 1st Sess. 2; 33 Cong., Rec. 6478 (1900).
The legislative history of the 1906 amendment to the immunity statute, 34 Stat. 798, 15 U.S.C.A. Sec. 33, however, confirms our view that Congress intended for Section 32 immunity to be granted solely by Government officials. Section 33 specifically limited immunity under existing immunity statutes to...
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