U.S. v. Korfant

• Decision Date: 26 August 1985
• Docket Number: No. 1278,D,1278
• Parties: 1985-2 Trade Cases 66,756 UNITED STATES of America, Appellee, v. Raymond M. KORFANT, Appellant. ocket 85-1046.
• Court: U.S. Court of Appeals — Second Circuit

Page 660

771 F.2d 660

1985-2 Trade Cases 66,756

UNITED STATES of America, Appellee, v. Raymond M. KORFANT, Appellant.

No. 1278, Docket 85-1046.

United States Court of Appeals Second Circuit.

Argued June 11, 1985.

Decided Aug. 26, 1985.

Philip J. Korey, Cleveland, Ohio (Thomas G. Longo, Cleveland, Ohio, of counsel), for appellant.

Marion L. Jetton, Dept. of Justice, Washington, D.C. (John J. Powers III, Charles F. Rule, Dept. of Justice, Washington, D.C., Melvin Lublinski, Martha E. Gifford, Robert Einstein, John J. Greene, Dept. of Justice, New York City, of counsel), for appellee.

Before FRIENDLY, OAKES, and WINTER, Circuit Judges.

PER CURIAM:

Raymond M. Korfant appeals from a ruling of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, denying Korfant's motion to dismiss on ground of double jeopardy the Government's prosecution of him in the District of Connecticut for conspiracy to fix food prices. We affirm.

FACTS

Korfant was indicted by a grand jury in the District of Connecticut on August 15, 1984, for participating in a conspiracy to fix the prices of substantial quantities of grocery products and meat items, including eggs and turkeys, sold at retail to consumers in Connecticut and western Massachusetts, in violation of 15 U.S.C. Sec. 1 (1982). At the root of Korfant's double jeopardy claim is his prior indictment and conviction in the United States District Court for the Northern District of Ohio, also on charges of conspiracy to fix food prices in violation of 15 U.S.C. Sec. 1.

Korfant was for many years an executive of a Cleveland food retailer, Pick-N-Pay Supermarkets, Inc. ("Pick-N-Pay"), serving from 1975 to 1978 as vice president for buying and merchandising until being promoted in May 1978 to senior vice president for marketing and sales. In 1978, Pick-N-Pay, which until then had operated stores only in Ohio, merged with First National Supermarkets, Inc. ("First National"), a food retailer that, prior to the merger, had operated in six New England states and New York. The company resulting from the merger retained the name of First National Supermarkets, Inc., doing business in Ohio under the Pick-N-Pay name while operating under the "Finast" name in New England and New York.

On October 10, 1980, a federal grand jury impaneled in the Northern District of Ohio, Eastern Division, returned an indictment against First National and two other Cleveland food retailers, Fisher Foods, Inc., and Association of Stop-N-Shop Super Markets, and against Korfant and Richard J. Bogomolny, John Fazio, and Charles A. Rini, charging the defendants with two counts of conspiracy in restraint of trade in violation of 15 U.S.C. Sec. 1. The indictment alleged, under Count 1, that from as early as 1976 until at least June 1977 the defendants had agreed to fix "the advertised prices and everyday shelf prices of grocery products and the advertised prices of some meat items" sold to consumers in Cuyahoga County, Ohio. Under Count 2, the indictment alleged that the defendants had made the same agreement described in Count 1, but over a time period beginning at least as early as August 1977 and extending until at least October 1978.

On February 19, 1982, all of the defendants, including Korfant, pleaded nolo contendere to the indictment, and Korfant was sentenced to six years of imprisonment and a fine of $200,000 but with sentence suspended on condition that he serve a five-year probationary period; $125,000 of the fine was suspended, leaving $75,000.

On August 15, 1984, a federal grand jury sitting in the District of Connecticut returned a single count indictment against Korfant; Waldbaum, Inc. ("Waldbaum"), which operated a chain of supermarkets in Connecticut and Massachusetts; and Kenneth Abrahams, then a vice president of Waldbaum and president of its Food Mart Division. The indictment charged Korfant, Waldbaum, and Abrahams with conspiring, in violation of 15 U.S.C. Sec. 1, to fix grocery product and meat item prices, including those of eggs and Thanksgiving turkeys, in Connecticut and western Massachusetts during a period beginning at least as early as the fall of 1978 and continuing until late 1980.

In response to the indictment in Connecticut, Korfant filed a motion in the district court on October 9, 1984, claiming that, in light of his Ohio prosecution and conviction, prosecution in Connecticut is barred by the double jeopardy clause of the Fifth Amendment and should therefore be dismissed. An evidentiary hearing on the motion followed, and on January 31, 1985, 612 F.Supp. 1307, the district court filed its ruling denying Korfant's motion to dismiss. ¹

DISCUSSION

In determining the merits of double jeopardy claims arising in the context of successive conspiracy prosecutions, this court has identified a number of factors as relevant to the task of individuating conspiracies. Among these factors are (1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies. See, e.g., United States v. DeFillipo, 590 F.2d 1228, 1234-35 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979); United States v. Papa, 533 F.2d 815, 821-22 (2d Cir....