Patterson v. United States

• Decision Date: 13 March 1915
• Docket Number: 2571.
• Citation: 222 F. 599
• Parties: PATTERSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

222 F. 599

PATTERSON et al. v. UNITED STATES.

No. 2571.

United States Court of Appeals, Sixth Circuit.

March 13, 1915

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Lawrence Maxwell, of Cincinnati, Ohio, and J. F. Wilson, of Columbus, Ohio, for plaintiffs in error.

S. T. McPherson, U.S. Atty., and E. P. Moulinier, Asst. U.S. Atty., both of Cincinnati, Ohio.

Before DAY, Circuit Justice, and COCHRAN and SANFORD, District Judges.

COCHRAN District Judge (after stating the facts as above).

The first questions which come before us are those raised by the assignment complaining of the order overruling the demurrer to each count of the indictment. Only three of them need be noticed. They are that no offense against the United States was charged, and that it was void for uncertainty and bad for duplicity. The grounds of uncertainty and duplicity as to the first count are not seriously urged. Yet it will aid in bringing out its meaning, of which, in view of the other questions in the case, it is important to be sure, if we proceed upon the assumption that they are. Before indicating wherein these grounds are presented, the meaning of the count in two particulars should be determined. One is as to the duration of the existence of the competitors of the National Company named in the second item of the introductory statement. Is the meaning that each one of them was in existence during the entire 20 years preceding the indictment, and, if not, what is the meaning in regard thereto? A first blush view may lead to the conclusion that the meaning of the count is that each one of them was so in existence. But close observation will disclose that such is not its thought. The government so contends, and it is not urged otherwise by defendants. Perhaps it is in the interest of the claim of duplicity to have it that way. As a matter of fact no one of them was so in existence. It is only true to say that during the entire period one or more of them were in existence. Indicative that such is not its thought is the statement in the general charge of the conspiracy that the means by which its object was to be accomplished were such that they had 'unlawfully, wrongfully, and irresistibly excluded others,' and the further statement in the description thereof that the intent was to compel the competitors named either to go out of business or to sell and transfer their business to the National Company, so that in the latter case it could discontinue such business, 'as in most cases it in fact did. ' This implies that in some, if not in many, instances that company did acquire the business of some of those competitors, and affirms that in most of those cases it discontinued the business. In such cases, therefore, the competitors did not continue to exist until the finding of the indictment. If, then, it is not the thought of the count that all the competitors were in existence at that time, it is not its thought that all were in existence at the beginning of the 20 years. We think, then, that its thought must be taken to be, in accordance with the fact, that during the entire 20 years there was no time that one or more of them were not in existence with no disclosure whatever as to when any of them were in existence other than that it was during that period. Such is the presupposition of the second and third counts as to the allegation of the first on this subject, and, not only this, but also that it mentions which of them were in existence and carrying on business during the three years preceding the indictment and which during the time preceding the three years, to which extent it is incorrect.

The other particular is one as to which the parties differ. It is urged by defendants that the conspiracy charged is a conspiracy against the 32 competitors named, and not a general conspiracy against all competitors. This the government will not concede. But we think that there is no escaping the conclusion that the charge is of a conspiracy against the competitors who are named and that it is limited thereto. In charging the offense generally the allegation is that the conspiracy was in restraint of the interstate trade and commerce 'carried on by the several concerns in this count above named other than the National Cash Register Company,' and thereafter reference is made solely to them by the use of such phrases as 'said' or 'such other concerns than said the National Cash Register Company' or 'said competitors' or 'such competitors.'

It is, then, in the truth of the positions thus taken as to the meaning of the count in these two particulars that an opening is made for the claim of duplicity. If its allegation were that each of the competitors named was in existence during the entire 20 years there would be no such opening. A single conspiracy against them specifically would include them all. But as they were not all so in existence, how is it possible for a single conspiracy to cover them? It may be thought that there must have been a conspiracy against those in existence at the beginning of the 20 years, and then successive conspiracies against the others as they came into existence. If such were the case, undoubtedly the count would be duplicitous.

In 5 R.C.L.p. 1081, it is said:

'The court will never be keen to hold an indictment bad for duplicity.'

But it is not necessary to give way to bias against the defense of duplicity here to rid ourselves of it. Though, as we have seen, the charge of the count is of a conspiracy against competitors who are named and is limited thereto, its underlying thought is that there was a generic conspiracy against all competitors, and that this conspiracy took specific direction against the competitors named as they came into existence, and continued against them as long as they remained in existence. In the second item of the introductory statement, where those competitors are named, it is alleged that they are all the competitors known to the grand jurors, which was as much as to say that if others had been known they would have been named also, and the charge would have been made that the conspiracy included them also. This could only have been on the basis that there was a generic conspiracy against all competitors. The effect of this consideration is merely to relieve the count of any claim of duplicity. It is the tie that binds. It did not render the defendants subject to conviction for the generic conspiracy so presupposed. In spite of it they were only subject to conviction for a conspiracy against the competitors who were named. What we have, then, in the count is a single conspiracy. It began at least 20 years preceding the indictment. At the beginning it was directed against the competitors named then in existence, and continued against them until they ceased to exist. As the others came into existence, it was directed against them, and continued against them until they ceased to exist, or, in case they had not ceased to exist at the time of the finding of the indictment, until then. And all of the defendants were not parties thereto during its entire existence, but only such of them-- four in number-- as were then connected with the National Company at the beginning of the 20 years. As the others became connected with it, they became parties to the conspiracy, and remained so until the finding of the indictment, except as to the four who ceased their connection in 1910 and 1911, when they ceased to be parties thereto. Such we take to be the conspiracy charged in the first count.

Of course the defendants were subject to conviction under the first count only in so far as the conspiracy charged existed within the three years preceding the indictment and as to the competitors who were then in existence. Because of the bar of the statute of limitations, no conviction could have been sought in so far as it existed prior to the three years. The reference to its prior existence and to its being against competitors not in existence during the three years was merely in order to a description of the conspiracy. Apart from this the count is to be taken as charging only a conspiracy within the three years against those of the competitors named then in existence. That it did not allege which of them were in existence did not render the count void for uncertainty.

It remains to consider whether the count is defective in not charging an offense against the United States. There is but one particular in which it is claimed that it comes short of so charging, and that is in not alleging facts showing that the trade and commerce conspired against was interstate. In item 4 of the introductory statement the character of the trade and commerce in which the competitors named were engaged is set forth, and the charge is that it was that trade and commerce which was conspired against. Unless therefore, such trade and commerce was interstate, the point is well taken. It is urged that, in determining whether it was or not, no help can be obtained from the claim made in that item that it was. It must be determined solely from what it is alleged that the competitors named had done. So limiting the consideration, it is claimed that all that is alleged could have been done, and yet the competitors not have been so engaged. As to sales and shipments pursuant thereto the allegation is satisfied by sales calling for delivery to the...