U.S. v. Tucor Intern., Inc.
| Decision Date | 15 June 1998 |
| Docket Number | No. CR-92-0425 DLJ.,CR-92-0425 DLJ. |
| Citation | 35 F.Supp.2d 1172 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. TUCOR INTERNATIONAL, INC., et al., Defendants. |
Joseph O. Click, San Francisco, CA, James R. Wyrsch, Wyrsch Hobbs Marakian & Lee, Kansas City, MO, Jerrold M. Ladar, Ladar & Ladar, San Francisco, CA, Warren L. Dean, Jr., Dyer Ellis & Joseph, Washington, DC, for Philippine-American Moving & Storage Corp.
Joseph O. Click, San Francisco, CA, Jerrold M. Ladar, Ladar & Ladar, San Francisco, CA, Warren L. Dean, Jr., Dyer Ellis & Joseph, Washington, DC, for Luzon Moving & Storage Corp., George Schulze, Sr.
On December 3, 1997, the Court heard argument on defendant Tucor Industries' petition for a writ of error coram nobis and the Luzon defendant's motion to dismiss the indictment. Reginald K. Tom and Roger W. Fones appeared on behalf of the United States; Warren L. Dean, Jr. appeared for Luzon Moving and Storage Corporation, Philippine-American Moving and Storage Corporation, George Schulze, Sr., and George Schulze, Jr.; James R. Wyrsch, Charles M. Rogers, Phillip Torres and Jerrold M. Ladar appeared for Tucor Industries, Inc. Having considered the arguments of counsel, the papers submitted, the applicable law, and the record in this case, the Court hereby GRANTS the Luzon defendants' motion to dismiss the indictment and GRANTS Tucor Industries's petition for a writ of error coram nobis.
Defendants are corporations and individuals engaged in the business of transporting goods to and from United States military bases in the Philippines. Defendants were indicted on September 9, 1992 for violating Section 1 of the Sherman Act, 15 U.S.C. § 1. The indictment charges that defendants1 conspired "to suppress competition by fixing prices for moving services supplied in connection with the transportation of military shipments of household goods between the Philippines and the United States." Indictment ¶ 2. Defendants contend that because they provided transportation services solely within the Philippines, any price fixing activity was not unlawful pursuant to the Shipping Act of 1984, § 7(a)(4), 46 U.S.C.App. § 1706(a)(4).
Tucor Industries, Inc. is a Philippine company that is affiliated with and partly owned by Tucor International, Inc. Defendants Patrick B. Boll and Dale C. Bailey were corporate officers of defendant Tucor Industries. The indictment charged defendants Tucor International, Tucor Industries, Boll and Bailey ("the Tucor defendants") with one count of conspiring to fix prices in violation of the Sherman Act, 15 U.S.C. § 1.
At their arraignment following the return of the indictment, the Tucor defendants entered pleas of not guilty. On November 18, 1992, the Tucor defendants filed various pretrial motions, including two motions challenging the jurisdiction of the Court. In one of these motions, defendants sought "dismissal of indictment on the grounds of primary jurisdiction, implied immunity, § 6A, and vagueness." In the other, defendants moved "to dismiss the indictment on grounds of jurisdiction and comity." The United States filed memoranda in opposition to these pretrial motions. The Court conducted a hearing on defendants' motions on December 2, 1992.
While the Tucor defendants' motions to dismiss were under submission, the parties filed a plea agreement with the Court. The Court held a plea hearing on June 16, 1993.2 During the hearing, the Court accepted Tucor Industry's guilty plea and imposed a sentence of a $121,800 fine and a $200 special assessment. Pursuant to the plea agreement, the United States moved to dismiss the charges against defendants Tucor International and Bailey.3 Judgment was entered against Tucor Industries on June 22, 1993. See June 22, 1993 Judgment, as amended on June 25, 1993.
On August 15, 1997, defendant Tucor Industries ("Tucor") filed a petition for a writ of error coram nobis. Tucor argues that the Shipping Act of 1984 exempted it from criminal liability for price fixing and hence the conduct charged in the indictment could not constitute a crime. Tucor seeks to set aside its June 16, 1993 guilty plea.
The government filed its opposition to defendant's petition on September 10, 1997. Defendant filed its reply on September 22, 1997. At an October 8, 1997 hearing on the matter, the Court ordered the United States to provide further briefing regarding the applicability of the Shipping Act immunities to the conduct charged in the indictment. On November 7, 1997, the United States filed a supplemental memorandum in opposition to Tucor's petition to which Tucor filed a reply on November 10, 1997.
Defendants Luzon Moving & Storage Corp. ("Luzon"), Philippine-American Moving & Storage Corp. ("PAMSC"), George Schulze, Sr. and George Schulze, Jr. were charged with one count of conspiring to fix prices in violation of the Sherman Act, 15 U.S.C. § 1. Luzon and PAMSC claim to be corporations organized under Philippine law with their principle and sole place of business in the Philippines. Defendants George Schulze, Sr. and George Schulze, Jr. claim to be Philippine citizens who reside in the Philippines and are officers and sole shareholders of defendants Luzon and PAMSC. These defendants have not appeared before this Court for arraignment.
On August 15, 1997, defendants Luzon, PAMSC, Schulze, Sr., and Schulze, Jr. ("the Luzon defendants"), filed a motion for leave to make a special appearance for the limited purpose of filing a motion to dismiss the indictment. On the same date, defendants also filed their motion to dismiss the indictment. The Luzon defendants contend that the Shipping Act of 1984, § 7(a)(4), 46 U.S.C.App. § 1706(a)(4), immunizes them from liability for antitrust violations and, as a result, the indictment should be dismissed. On September 10, 1997, the government filed its opposition to defendants' motion for leave to make a special appearance. The government did not, however, file an opposition to defendants' motion to dismiss the indictment.
In an order dated October 20, 1997, the Court granted the Luzon defendants motion for leave to make a special appearance to file their motion to dismiss the indictment. Pursuant to the Court's order at the October 8, 1997 hearing, the United States filed a memorandum on November 7, 1997 in opposition to defendants' motion to dismiss the indictment. The Luzon defendants filed a reply on November 19, 1997. The matter has now been fully briefed and is properly before the Court.4
Under Federal Rule of Criminal Procedure 12(b), "[a]ny defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by a motion." Fed. R.Crim.P. 12(b). In considering a pretrial motion to dismiss an indictment, the court "must presume the truth of the allegations in the charging instrument." United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996). The court should not consider evidence that does not appear on the face of the indictment. Id; see also United States v. Chant, 1997 WL 231105, *4 (N.D.Cal.1997). To grant a motion to dismiss based on evidence outside the indictment would be tantamount to granting summary judgment for a criminal defendant. See Jensen, 93 F.3d at 669. Unlike in civil cases, there is no such summary judgment procedure in a criminal case. Id.
The writ of error coram nobis affords a remedy to attack a conviction when the defendant has served his sentence and is no longer in custody. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.1994); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989). Specifically, the "writ provides a remedy for those suffering from the `lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact' and `egregious legal errors.'" Walgren, 885 F.2d at 1420 (quoting Yasui v. United States, 772 F.2d 1496, 1498, 1499 & n. 2 (9th Cir.1985)).
The writ fills a very precise gap in federal criminal procedure. A convicted defendant in federal custody may petition to have a sentence of conviction vacated, set aside or corrected under the federal habeas corpus statute, 28 U.S.C. § 2255. United States v. Hayman, 342 U.S. 205, 207, 72 S.Ct. 263, 96 L.Ed. 232 (1952). If, however, the sentence has been served, there is no statutory basis to remedy the "lingering collateral consequences" of the unlawful conviction. Yasui, 772 F.2d at 1498. Recognizing this gap, the Supreme Court has held that the common law petition for writ of error coram nobis is available in such situations, even though the procedure authorizing the issuance of the writ was abolished in civil cases by Federal Rule of Civil Procedure 60(b). United States v. Morgan, 346 U.S. 502, 505 n. 4, 74 S.Ct. 247, 98 L.Ed. 248 (1954). District courts are therefore authorized to issue the writ in federal criminal matters pursuant to the All Writs Act, 28 U.S.C. § 1651(a), id. at 506, 74 S.Ct. 247, Walgren, 885 F.2d at 1420, but may not entertain a petition for the writ with respect to challenges to state convictions, Sinclair v. Louisiana, 679 F.2d 513, 513-15 (5th Cir.1982); see also Madigan v. Wells, 224 F.2d 577, 578 n. 2 (9th Cir.1955) (), cert. denied, 351 U.S. 911, 76 S.Ct. 700, 100 L.Ed. 1446 (1956).5
To qualify for coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case and controversy requirement of Article III; and (4) the error...
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