United States v. American Honda Motor Company

• Decision Date: 01 September 1967
• Docket Number: No. 40956.,40956.
• Parties: UNITED STATES of America, Plaintiff, v. AMERICAN HONDA MOTOR COMPANY, Inc., et al., Defendants.
• Court: U.S. District Court — Northern District of California

271 F. Supp. 979

UNITED STATES of America, Plaintiff, v. AMERICAN HONDA MOTOR COMPANY, Inc., et al., Defendants.

No. 40956.

United States District Court N. D. California.

September 1, 1967.

Lyle L. Jones, Antitrust Division, Dept. of Justice, San Francisco, Cal., for plaintiff.

Leonard S. Lyon, Jr., Roland N. Smoot, James J. Short, Los Angeles, Cal., and the firm of Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, Cal., for defendant.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

Defendant, American Honda Motor Company, Inc., (hereinafter Honda) a California corporation engaged in the distribution of Japanese-made Honda motorcycles throughout the United States, was indicted in this district on August 3, 1966, on a charge of violation of Section I of the Sherman Act, 15 U.S.C. § 1, by conspiring with its co-defendants, independent San Francisco Bay Area Honda dealers, to fix, maintain and stabilize retail prices of Honda motorcycles, parts and accessories "in the San Francisco Bay Area".

The case is before the Court on a motion by American Honda under Rules 12(b) (1) and 12(b) (4) Fed.R.Crim.P., to dismiss the indictment upon the grounds that it has been placed in double jeopardy and has been deprived of due process in violation of the Fifth Amendment.

The record shows that on June 10, 1966, defendant Honda was convicted for what it claims to be the same offense in the case of United States v. American Honda, in the United States District Court for the Southern District of California, Case No. 35909, in which indictment was returned March 15, 1966, and a plea of nolo contendere taken March 30, 1966, and a fine of $10,000 imposed on June 10, 1966.

Further, the record shows that on September 12, 1966, defendant Honda was similarly indicted for what it claims to be the same offense in the United States District Court for the Northern District of Illinois, Eastern Division, Case No. 66 CR 574, in which the indictment is still pending on motion to dismiss upon the same grounds as urged here.

Further, the record shows that on November 22, 1966, defendant Honda was similarly indicted in the Southern District of Ohio in which case the defendants have been arraigned with the case still pending.

The record also shows that subpoenas to produce voluminous records were directed to American Honda, not only in Los Angeles (May, 1965) but also in San Francisco (March, 1966), Ohio (April and June, 1966) and in Illinois (May, 1966).

The indictment upon which American Honda was convicted in the Los Angeles case is substantially the same as the indictment in the pending San Francisco case except (1) different alleged co-conspirators in the Greater Los Angeles Area are named; (2) different dates of commencement of the conspiracy are alleged, and (3) the Los Angeles conspiracy was alleged to have been to fix, maintain and stabilize retail prices of Honda motorcycles, parts and accessories sold "in the Greater Los Angeles Area".

The Illinois and Ohio indictments are substantially similar to the Los Angeles and San Francisco indictments except: (1) different alleged co-conspirators are named; (2) different dates of commencement are alleged, and (3) similar conspiracies for a similar purpose concerning the same products are alleged to have been "in the Chicago Area" and "in the State of Ohio", respectively.

Defendant, American Honda, contends that the indictment here (and the pending indictments in Illinois and Ohio) have placed it in double jeopardy in violation of the Fifth Amendment.

The basic question raised by this contention is whether the conspiracy charged in the pending indictment is part of a single nationwide conspiracy (for which American Honda has already been convicted and punished in the Los Angeles case and for which it stands presently indicted in the Illinois and Ohio cases) or is a separate conspiracy entered into by defendant Honda with its co-defendants herein.

Defendant Honda makes the further contention that, apart from the issue of double jeopardy, these successive prosecutions are in effect such harassment as deprives defendant of due process in violation of the Fifth Amendment—a contention which we will later and separately consider.

In support of its contentions, defendant has filed affidavits of Okumoto and McCormick (filed 10/3/66), affidavits of McCormick 2d, Cullwell, Okumoto 2d, Westcott and Short (filed 11/7/66), affidavits of Kawashian, Reeves, Roland and Short 2d (filed 1/10/67), an affidavit of Tatum (filed 3/7/67).

In opposition the government has filed affidavits of Spivok and Duvall (filed 12/12/66).

A hearing was held on January 16th at which defendant presented brief oral testimony of two witnesses concerning certain aspects of the case. Both sides have indicated that they have no further evidence to present and the motion stands submitted.

PROCEDURAL ASPECTS

Concerning procedural aspects of the pending motion, we note there is no special plea by which these defenses can be raised. The only pleas allowed under our procedure are "not guilty, guilty and nolo contendere". All other pleas, demurrers and motions to quash are abolished. Defenses and objections raised before trial, which heretofore could have been raised by any one or more of them, must be raised only by motion to dismiss or to grant appropriate relief as provided in the Federal Rules of Criminal Procedure. (See Rules 11-12).

Rule 12(b) provides that any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion and, further, that issues of fact on such motions shall be determined by the Court with or without a jury or on affidavits or in such other manner as the Court may direct unless jury trial is required under the Constitution or by an Act of Congress.

In Arnold v. United States, 336 F.2d 347, 351 (9th Cir. 1964), the parties had stipulated that an issue of double jeopardy be tried by the trial Court at the conclusion of a jury trial on the main issues. The Court of Appeals for this Circuit, following Short v. United States, 91 F.2d 614, 112 A.L.R. 969 (4th Cir. 1937) (decided before promulgation of the Federal Rules of Civil Procedure on December 24, 1944), stated that "where it may not be said that a plea of former jeopardy either does or does not lie as a matter of law from a comparison of the two indictments, then the issue should be submitted to the jury under appropriate instructions." The Court agreed, however, that upon trial of the issue the record of both proceedings may be referred to and findings and conclusions in conjunction with the two indictments based thereon. In that case the Court did not expressly exclude the use of other relevant evidence—such as might be supplied by affidavits as now provided by Rule 12(b). The Court of Appeals merely held that it did not appear from an analysis of the record of both proceedings that one large conspiracy had been split into two small ones and that the Court below had not erred in finding that the offenses were not identical in law and were in fact separate in distinct conspiracies.

In United States v. Koontz, 232 F.Supp. 312, 315-321 (D.Md.1964) the Court, citing Rule 12(b), carefully reviewed the procedure concerning a pre-trial double jeopardy motion like the one here involved. Rejecting a government contention that the double jeopardy issue (unless determinable as a matter of law), must be submitted to the jury along with the general issue, the Court ordered a pre-trial evidentiary hearing without a jury at which testimony in addition to the record was received. (See the outcome of this hearing in the second Koontz case, 257 F.Supp. 295 (D. Md. 1966.)

This Court is of the opinion that such procedure is proper under the Rules and that the issues raised on the pending motion can be, and should be separately determined prior to trial upon comparison of the various indictments and upon evidentiary affidavits such as have been filed by both Honda and the government in this case.

DOUBLE JEOPARDY—ONE OR SEVERAL CONSPIRACIES

The subject of double jeopardy and multiple penalty in criminal prosecutions under the Sherman Act has been considered in a number of cases which can be grouped according to the various situations in which the question arose.

In American Tobacco v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Montrose Lumber Co. v. United States, 124 F.2d 573, 575 (10th Cir. 1941); United States v. Shapiro, 103 F.2d 775 (1939), the question was whether convictions on multiple counts separately charging conspiracy to restrain commerce under Section I and conspiracy to monopolize and monopoly under Section II, amounted to double jeopardy and multiple punishment for the same offense. Those Courts held that such multiple convictions and penalties do not violate the Fifth Amendment because each of the elements of Sections I and II of the Sherman Act constitutes a distinct offense.

In United States v. Anderson, 101 F.2d 325, 330 (7th Cir. 1939) and United States v. New York Great Atlantic & Pacific Tea Co., 137 F.2d 459 (5th Cir. 1943) the question was whether conviction of two or more defendants of conspiracy in violation of the Sherman Act should be reversed as prejudicial to some defendants because the alleged conspiracy amounted, not to a single, but to several different conspiracies with which some of the complaining defendants had no conspiratorial connection. In these two cases the Courts, examining the factual record, concluded that the evidence showed, not separate conspiracies, but a single conspiracy.

In United States v. Armco, 252 F.Supp. 364 (S.D.Cal.1966) the government had brought a two-count indictment, one charging defendants with a Sherman Act price fixing conspiracy with respect to subsurface pumps and parts through the United States from 1963 to date of indictment and the other count charging 7 of the same defe...