U.S. v. Ashley Transfer & Storage Co., Inc.

• Decision Date: 16 November 1988
• Docket Number: No. 87-5153,87-5153
• Parties: 1988-2 Trade Cases 68,246 UNITED STATES of America, Plaintiff-Appellant, v. ASHLEY TRANSFER & STORAGE CO., INC.; Dale J. Cook Moving and Storage, Inc.; Thomas W. Bivens, Sr.; John D. Cook, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 221

858 F.2d 221

1988-2 Trade Cases 68,246

UNITED STATES of America, Plaintiff-Appellant, v. ASHLEY TRANSFER & STORAGE CO., INC.; Dale J. Cook Moving and Storage, Inc.; Thomas W. Bivens, Sr.; John D. Cook, Defendants-Appellees.

No. 87-5153.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1988.

Decided Oct. 3, 1988.

Rehearing and Rehearing In Banc Denied Nov. 16, 1988.

Robert J. Wiggers (Charles F. Rule, Asst. Atty. Gen., Kenneth G. Starling, Deputy Asst. Atty. Gen., John J. Powers, III, Constance K. Robinson, Nancy H. McMillen, Michael D. Billiel, Washington, D.C., Philip J. Thompson, Dept. of Justice, Vinton D. Lide, U.S. Atty., Columbia, S.C., on brief), for plaintiff-appellant.

Lionel Stukes Lofton (Michael P. O'Connell, Charleston, S.C., Parks N. Small, Columbia, S.C., on brief), for defendants-appellees.

Before HALL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

The government appeals from the district court's refusal to submit to the jury the second count of an indictment charging the defendants in count I with conspiring to fix prices in violation of the Sherman Act and in count II with conspiring to defraud the government in violation of 18 U.S.C. Sec. 371. The government asserts that the district court lacked discretion to refuse to submit count II and it seeks a new trial on this count. The defendants oppose the appeal, arguing that it violates the double jeopardy clause of the Constitution, as well as principles of collateral estoppel. Because count II should have been submitted to the jury, we vacate the judgment dismissing this count. We also hold that this appeal is not barred by either double jeopardy or collateral estoppel, and we remand the case for a new trial on count II.

I

The defendants are two moving and storage companies, Ashley Transfer & Storage Co. and Dale J. Cook Moving and Storage, Inc., and three individuals, Raymond C. Harshaw (vice president of Ashley Transfer), John D. Cook (president of Dale J. Cook Moving), and Thomas W. Bivens, Sr. (president of Bivens Moving and Storage). Thomas Bivens' company had operated a moving and storage company but by the time of trial, the corporation no longer existed. The defendants operated moving and storage companies in Charleston, South Carolina. They had at various times contracted with the United States military to provide moving and storage services for military personnel being transferred overseas.

Count I of the indictment alleged that the defendants had conspired to fix prices charged the United States for storage services at three military bases in South Carolina in violation of Section 1 of the Sherman Act. ¹ Count II alleged that the defendants had conspired to defraud the United States in violation of 18 U.S.C. Sec. 371. ²

Both counts relied on the same factual allegations concerning: (1) the time frame of the conspiracy; (2) the coconspirators; (3) the acts alleged; and (4) the methods by which the conspiracies were carried out. The government used substantially the same evidence at trial to prove both counts.

Before trial Bivens filed a motion, in which the other defendants later joined, requesting the court to require the government to elect between prosecuting count I or count II. The defendants argued that counts I and II were multiplicitous and that the government should not be allowed to prosecute both counts. The district court deferred ruling on the motion and the case proceeded to trial on both counts. At the end of the trial, the district court denied the defendants' motions for judgment of acquittal. The district court did not expressly rule on the defendants' motion to require the government to elect. Instead, after referring to the motion, it in effect made the election by declining to submit count II to the jury. The jury returned a verdict of not guilty as to all defendants on count I. The district court then entered judgments acquitting the defendants on count I and dismissing count II.

II

The district court refused to submit count II to the jury because it decided that it would not sentence the defendants under both counts even if the jury found them guilty on both. The district court never expressly ruled on the multiplicity argument raised in the defendants' motion to elect, but it implicitly approved the motion because it said that the defendants "committed only one crime" and "should be tried for that one crime." The court also remarked that "the conspiracy to violate the antitrust law is totally subsumed by the conspiracy to defraud," and that the defendants should not be "double dipped."

There is no merit to the defendants' argument that counts I and II are multiplicitous. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court established a test of multiplicity. Where each offense requires proof of a fact not required by the other, a defendant can be punished under both statutes for a single act or transaction. Accord Abernaz v. United States, 450 U.S. 333, 338-39, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981) (Congress can impose multiple punishment for a single act that violates more than one statute); United States v. Tedder, 801 F.2d 1437, 1446-47 (4th Cir.1986) (no multiplicity even though same evidence used to prove each conspiracy because conduct in question violated different statutes defining separate offenses).

Under the Blockburger test, counts I and II charged separate offenses. The Sherman Act requires a showing of an effect on interstate or foreign commerce but not an effect on the government. Section 371 requires a showing of fraud on the government but not an effect on commerce. The two statutes serve separate and distinct purposes. The Sherman Act prohibits collusive activity in restraint of trade. Section 371 forbids the perpetration of fraud against the United States government.

In United States v. Walker, 653 F.2d 1343, 1351 (9th Cir.1981), the court held that under the Blockburger test, 18 U.S.C. Sec. 371 and Section 1 of the Sherman Act are two separate offenses. We concur with the Ninth Circuit and hold that the defendants' multiplicity argument is meritless.

The defendants contend that the district court did not dismiss count II but rather made a factual determination that there was insufficient evidence to support sending both counts to the jury. The defendants argue further that the trial judge's action constituted an acquittal on count II that is unappealable.

There is no support for this contention. The district judge explicitly called his ruling on count II a dismissal. Moreover, the trial judge stated that there was sufficient evidence of a conspiracy to fix prices. Although the court entered a judgment of acquittal on count I, it did not acquit the defendants on count II.

The district court had no discretion to refuse to submit count II. Rules 8(a) and 14 of the Federal Rules of Criminal Procedure provide for the joinder of multiple offenses arising from the same acts, unless joinder would be prejudicial to defendant. In United States v. Maryland State Licensed Beverage Ass'n, 240 F.2d 420, 422 (4th Cir.1957) we held that the government could not be forced to elect between two conspiracy counts, each alleging a violation of a different section of the Sherman Act, arising from the same conspiracy because there was no possible prejudice to the accused from trying the two counts together. Similarly, in this case the defendants would not have been prejudiced by having counts I and II tried together.

In our system, courts are not free to "interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965); see also In re Grand Jury, 315 F.Supp. 662, 672-74 (D.Md.1970). Even in those instances where Congress intended only one conviction and one sentence for the violation of two statutes, the court should instruct the jury on both counts. If the jury returns guilty verdicts for each count, the court should enter judgment on only one of the statutory offenses. Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985). Based on this precedent, it is clear that when both counts can support separate convictions, both should be submitted to the jury. If, as here, the district judge believes only one sentence is appropriate, he can achieve that result by combining the counts for sentencing or imposing concurrent sentences. The Sentencing Guidelines provide the procedure for imposing punishment for crimes committed after the Guidelines' effective date when a defendant is convicted on multiple counts.

The district court's refusal to submit count II to the jury and the subsequent dismissal of the count was an unauthorized intrusion upon the prerogative of the government to seek an adjudication of guilt on each count.

III

The government urges us to remand the case to the district court for a new trial of the defendants on count II. The defendants oppose this appeal generally, and remand specifically, on the grounds that retrial on count II is barred by the double jeopardy clause of the Constitution. The double jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The defendants argue that under the "same evidence test" employed in United States v. Ragins, 840 F.2d 1184 (4th Cir.1988), double jeopardy bars retrial on count II because essentially the same evidence which was used against the defendants in the trial on count I would suffice to convict on count II.

In Ragins, the government filed a new conspiracy indictment against a defendant who had been acquitted of conspiracy at an earlier trial. The defendant claimed that he was being reprosecuted for the same conspiracy. In determining whether the successive...