United States v. American Oil Company

• Decision Date: 30 December 1965
• Docket Number: Crim. No. 153-65.
• Citation: 249 F. Supp. 130
• Parties: UNITED STATES of America, v. The AMERICAN OIL COMPANY et al., Defendants.
• Court: U.S. District Court — District of New Jersey

249 F. Supp. 130

UNITED STATES of America, v. The AMERICAN OIL COMPANY et al., Defendants.

Crim. No. 153-65.

United States District Court D. New Jersey.

December 30, 1965.

David M. Satz, Jr., U. S. Atty., by Donald Horowitz, Asst. U. S. Atty., Bernard Wehrmann, Dept. of Justice, for the Government.

McCarter & English, by Merritt Lane, Jr., Newark, N. J., for Atlantic Refining Co.; Howrey, Simon, Baker & Murchison, by Harold F. Baker, Terrence C. Sheehy, Washington, D. C., Edward J. Kremer, Jr., Philadelphia, Pa., of counsel.

Pitney, Hardin & Kipp, by Donald B. Kipp, Newark, N. J., for Sinclair Refining Co.; Wickes, Riddell, Bloomer, Jacobi & McGuire, by Harold F. McGuire, D. K. McIntosh, Frank R. Clampitt, J. Howard Marshall, Jr., New York City, of counsel.

Carey & Jardine, by Robert Carey, Jr., Newark, N. J., for Gulf Oil Corp.; Kissam & Halpin, by Leo T. Kissam, Anthony S. Genovese, Frederick L. Scofield, Arthur Vangeli, New York City, Jesse P. Luton, Jr., Pittsburgh, Pa., of counsel.

Stickel & Stickel, by Fred G. Stickel, Jr., Newark, N. J., for American Oil Co.; Kirkland, Ellis, Hodson, Chaffetz & Masters, by Hammond E. Chaffetz, Chicago, Ill., Ronald S. Daniels, New York City, Sam L. Erwin, Chicago, Ill., of counsel.

Milton, Keane & DeBona, by Joseph Keane, Jersey City, N. J., for Cities Service Oil Co. and Cities Service Co.; Paul, Weiss, Rifkind, Wharton & Garrison, by Simon H. Rifkind, Jay H. Topkis, George H. Colin, New York City, of counsel.

Stryker, Tams & Dill, by William L. Dill, Jr., Newark, N. J., for Humble Oil & Refining Co.; Milbank, Tweed, Hadley & McCloy, by A. Donald MacKinnon, Henry F. Hartmann, New York City, Dillard W. Baker, Houston, Tex., of counsel.

Riker, Danzig, Scherer & Brown, by Dickinson R. Debevoise, Newark, N. J., for Socony Mobil Oil Co. Inc.; Dewey, Ballantine, Bushby, Palmer & Wood, by John E. F. Wood, Edward N. Sherry, Charles F. Rice, New York City, of counsel.

WORTENDYKE, District Judge:

Defendants have brought three motions to dismiss the indictment in this case. This opinion relates to motion number 1.

On April 8, 1965 the Grand Jury in and for the District of New Jersey returned its indictment charging the defendant corporations, sellers of gasoline within a trading area covered by the States of New Jersey, Pennsylvania and Delaware, with having conspired, during the period stated in the indictment, to unreasonably restrain interstate trade and commerce in gasoline in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and to monopolize such trade and commerce in violation of Section 2 of the Act, 15 U.S.C. § 2, by raising, fixing, stabilizing and maintaining tank wagon and retail prices of gasoline, and restricting the amount of gasoline available to distributors of private brands of gasoline in that area. The defendants The Atlantic Refining Company, Cities Service Oil Company, Cities Service Company, and Gulf Oil Corporation are further charged with attempting to monopolize, in violation of Section 2 of the Act.

All of the defendants have moved the Court for a dismissal of the indictment upon the ground that the grand jury which returned the indictment was improperly constituted and impanelled by reason of the systematic and deliberate exclusion therefrom of women. There is no disagreement between the defendants and the Government respecting the procedure followed by the appropriate officials in selecting and impanelling persons for service upon the grand jury.¹

The movants contend that that procedure resulted in the systematic and deliberate exclusion of more than 50% of the potential female jurors in the vicinage from which the grand jurors were drawn, so that jurors were selected from only a portion of those persons available for service rather than from all persons eligible.

The Clerk of this Court has explained that the same general pattern is disclosed in the selection of grand and petit jurors, and that the panels drawn are initially weighted in favor of men. The object of this practice is stated to be not to exclude or to limit women from participating on juries, but to achieve a better balance of men and women on juries in the light of the experience, over a period of at least 24 years, that more men than women request to be and are, for valid reasons, excused from jury service.

Movants rely principally upon Ballard v. United States, 1946, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, for support of their contention that the method of selecting the panel from which the grand jurors who returned the indictment in this case were drawn invalidates the indictment. At the outset it should be noted that Ballard was decided December 9, 1946. At that time, 28 U.S.C. § 411 (1940 ed., since supplemented by § 1861 of the 1948 revision of that Title), provided that "jurors in a federal court shall have the same qualifications as those of the highest court of law in the State" in which the federal court sits. Ballard, supra, 190, 67 S.Ct. 263. The trial court in Ballard sat in California, where women were eligible for jury service under State law. 28 U.S.C. § 1861 provides that any citizen of the United States who has attained the age of 21 years, and resides within the judicial district, is competent to serve as a grand juror, subject to certain conditions not here relevant. This section was adopted June 25, 1948, as Chapter 646, 62 Stat. 951. Section 1863 of the same Title, and part of the same Chapter, authorizes the exclusion from the jury panel of "any class or group of persons * * *, for the public interest, * * * based on a finding that such jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice." The Supreme Court directed the dismissal of the indictment because, as stated in the majority opinion, 329 U.S. at p. 194, 67 S.Ct. at p. 264, "A flavor, a distinct quality is lost if either sex is excluded" from a grand or petit jury, and "the exclusion of women from jury panels may at times be highly prejudicial to the defendants." (p. 195, 67 S.Ct. p. 265). (Emphasis supplied.)

The case at bar did not involve the systematic exclusion of women from the panel from which the grand jury was selected. There was, however, an intentionally prearranged systematic disproportion between the number of women and the number of men whose names were placed in the wheel from which the drawing by lot was made. The method and purpose of creating this disproportion is clearly stated in the letter of the Court Clerk disclosing the procedure employed, which states in part:

"We first seek to obtain a representative number from each county serving the Newark area. From the 1950 census we obtained the population of each county. We seek to have in the wheel from which the drawing is made the same ratio by county as the ratio of each county to the total population of those counties. After deciding on the number of wheel cards to be taken from the pool for each county and placed in the wheel for drawing, we determine that 2/3 rds of the cards should be those of men and 1/3 those of women. This is not discrimination, but there is a valid reason therefor. Experience indicates that more men request and are excused from jury service than women. Therefore, by this method we should obtain a better balance. * * * Even though the cards were 2-1 on the male side, when the 6,314 cards were placed in the drum, lady luck determined the division of the 2,000 removed. * * A check of the names upon an exhibit submitted by the Clerk shows 1,031 men and 969 women, or 48.4% women on the list from which jurors will be summoned for service. So, though only 33% of women went into the drum, by luck of the draw, 48.4% came out."

18 U.S.C. § 3321 provides, in pertinent part:

"Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. * *"

28 U.S.C. § 1864 provides, in pertinent part:

"The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing.

"The jury box shall from time to time be refilled by the clerk of court, or his deputy, and a jury commissioner, appointed by the court.

* * * * * *

"The jury commissioner and the clerk, or his deputy, shall alternately place one name in the jury box without reference to party affiliations, until the box shall contain at least 300 names or such larger number as the court determines. * * *." (Emphasis supplied.)

Officials charged with the responsibility of selecting names of persons for service on grand and petit juries may exercise some discretion to the end that competent persons be selected, but procedures must be employed in such selection whereby juries will be truly representative of a cross-section of the community. It is not, however, essential that every grand jury or petit jury include representatives of all racial, economic, or social groups of the community; nor is an exact proportional representation of ethnic, economic or social groups a prerequisite to the validity of an indictment or verdict. An indictment becomes vulnerable only if representatives of such groups were systematically and arbitrarily excluded from the list of persons from which the jury was chosen. Bary v. United States, 10 Cir. 1957, 248 F.2d 201, 206, citing Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.

The conceded facts presented upon the pending motion fail to support the movants in their endeavor to discharge the burden of showing that, from the grand jury which returned the indictment against them, there...