United States v. Armco Steel Corporation

• Decision Date: 04 March 1966
• Docket Number: Crim. No. 35326.
• Citation: 252 F. Supp. 364
• Parties: UNITED STATES of America, Plaintiff, v. ARMCO STEEL CORPORATION, Dresser Industries, Inc., United States Steel Corporation, and the Youngstown Sheet and Tube Company, Defendants.
• Court: U.S. District Court — Southern District of California

252 F. Supp. 364

UNITED STATES of America, Plaintiff, v. ARMCO STEEL CORPORATION, Dresser Industries, Inc., United States Steel Corporation, and the Youngstown Sheet and Tube Company, Defendants.

Crim. No. 35326.

United States District Court S. D. California, Central Division.

March 4, 1966.

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Draper W. Phillips, Dept. of Justice, Antitrust Div., John J. Schimmenti and Rudolph Pearl, Los Angeles, Cal., for plaintiff.

Breed, Abbott & Morgan, New York City, by Robert A. Bicks, David S. Patterson, Curtis W. Enyeart, New York City, and Flint & McKay, by John C. Argue, Los Angeles, Cal., for defendant Armco Steel Corp.

McCutchen, Black, Verleger & Shea, by Philip K. Verleger and Jack D. Fudge, Los Angeles, Cal., for defendant Dresser Industries, Inc.

Musick, Peeler & Garrett, by Jesse R. O'Malley, and Donald R. Gail, Los Angeles, Cal., for defendant United States Steel Corp.

Adams, Duque & Hazeltine, by Lawrence T. Lydick, Los Angeles, Cal., and J. F. Wagenhauser, Gen. Counsel, Continental-Emsco Co., Dallas, Tex., for defendant Youngstown Sheet & Tube Co.

HALL, District Judge.

There are two ultimate questions to be decided:

First: Whether or not jeopardy did attach to Count 2 in this case, that is, can the Government again file and prosecute to judgment the same indictment as is contained in Count 2 against the same defendants, except for those pleading nolo?

Second: If jeopardy did attach to Count 2, does it attach under the facts in this case as to Count 1, as every case must be decided on its own facts.

The resolution of these questions requires the examination and decision of several other questions, some not raised or argued by counsel. They are what I call "nagging questions," that when you attempt to approach the central question in the case these subsidiary questions keep nagging you.

And while I am conscious of the oft-repeated statement by the Supreme and other appellate courts that they will not examine or decide questions not raised in the court below, I am also conscious of the fact that now and then (and one never knows just when) such courts do consider matters which have not been raised in the court below because they are either "ripe for decision" or are "in the interest of justice," and they proceed to decide them even though they may only be peripheral or may only "lurk in the record," as Justice Frankfurter described them in one case.

So even though counsel, perceiving the law on such questions so much more clearly than I, did not raise or argue them I feel behoved to decide them.

The constitutional provision bears repeating. It says, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

I adhere to the opinion that I announced at the commencement of the argument, that double jeopardy is an absolute right, it is not modified such as searches and seizures by the word "unreasonable," it is not modified as the right of condemnation which must be for "public use," it is not subject to the elasticity of the phrase "due process of law" and other modifications of other rights, and under that clause, if a person is once placed in jeopardy for an offense he simply cannot be prosecuted for that offense again, regardless of the reasonable or unreasonableness or the public interest which may bespeak a prosecution.

It is noted that constitutional jeopardy applies to "persons." Everybody here had assumed that "persons" included corporations, but in an examination of the Constitution I find no definition of "persons."

In the cases of United States v. General Electric, D.C., 40 F.Supp. 627, and United States v. Ozark Canners, 51 F. Supp. 150, corporations as well as individuals were indicted. Those cases involved motions concerned with whether or not the indictment stated only one offense But in neither of them nor in any of the other cases examined by the court, including those cited by the parties, has there been found any discussion as to whether or not the constitutional jeopardy extended to persons also included corporations.

It again is one of those kind of questions which nag for an answer and which may "lurk in the record" and may become "ripe for decision" when this case reaches the appellate court.

Sections 7 and 12 of Title 15, the antitrust law, both define "persons" as including corporations. Section 7 has specific reference to Section 1 under which the present indictment is brought so that under the antitrust law corporations are included as persons.

Section 1 of Title 1 of the United States Code does likewise when the question is, "determining the meaning of any act or resolution of Congress," and there are literally scores of similar statutory definitions contained in other acts of Congress to the same effect. I counted more than 120 references to the definition of "persons" in different statutes in the Code Index.

And while all of such definitions relate to acts of Congress—and there is no constitutional definition and no case that I can find that has discussed or decided the matter—nevertheless in view of the consistency of such congressional definitions and similar consistent holdings by the courts from the earliest times with relation to statutes and contracts, and in view of the fact that "persons" while they are not corporations, either directly or indirectly ultimately persons own all corporations and thus "persons" must ultimately suffer whatever penalties are imposed upon the corporations, it seems beyond doubt to me that the constitutional jeopardy extended to "persons" includes corporations, which each of the four remaining defendants is.

The punishment of Section 1 of Title 15 is that a violation thereof shall be a misdemeanor, and the punishment prescribed is a fine not exceeding $50,000 or by imprisonment not exceeding one year.

While the constitutional provisions speak of "jeopardy of life or limb," (and corporations have neither lives nor limbs) and while we have no punishment prescribed which permits the sacrifice of any limbs, and there are only two crimes which permit the taking of one's life as punishment, nevertheless here again is another question which "lurks in the record" because the common law jeopardy extended only to felonies.

But that matter was settled by the Supreme Court in 1873 in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, where the court held that pleas of once in jeopardy are now valid in felonies, minor crimes and misdemeanors alike.

In one of the contentions of the Government it premises, that inasmuch as the court held the bill of particulars insufficient, such insufficiency invalidated the indictment and that jeopardy cannot attach on an invalid indictment.

This contention must find support in the proposition that the Government can file an indictment which states an offense and is in all respects otherwise valid on its face but that by failing or refusing, whether given one or five opportunities to respond to lawful orders for bills of particulars, in the language of Ball v. United States, decided in 1896, 163 U.S. 662, at 667, 16 S.Ct. 1192, at 1194, 41 L.Ed. 300:

"* * * presents the novel and unheard of spectacle of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect as a reason for a second trial, when it was not pretended that the merits were not fairly in issue on the first."

The Government's position in this respect is so repugnant too and at variance with any concept of the criminal law to which I have been exposed in 50 years at the bar that it should be rejected out of hand. And this is further so because I think it may be said that it is universally held that the validity and sufficiency of an indictment must be determined from the face of the indictment alone.

But in view of what I said at the beginning concerning questions which may be "ripe for decision" or "lurk in the record" at some time I have felt impelled nevertheless to examine the question as to whether or not jeopardy does or does not attach upon an invalid indictment, although as indicated no one has raised that question in this case.

At the argument the court was of the opinion that the common law rule prevailed, which was that once in jeopardy could not attach if the indictment was invalid.

In that respect the court has made a further examination of the cases and finds that my holding and statement at that time was the generally accepted doctrine in the United States until the question was first presented to the Supreme Court in 1896 in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, which held jeopardy could attach even on a defective indictment.

The case of Kepner v. United States (1904), 195 U.S. 100, at 130, 24 S.Ct. 797, 49 L.Ed. 114, affirmed that proposition as "settled law."

The holding in neither of these cases has been overruled by the Supreme Court, although a number of lower courts have stated there must be a valid indictment.

In the Ball case, Millard Ball, John Ball and Robert Boutwell were charged and tried for the murder of one Box. John Ball and Boutwell were convicted but Millard Ball was acquitted. Thereafter John Ball and Boutwell took an appeal to the Supreme Court of the United States, which they could then do, on the ground that the indictment was insufficient and the Supreme Court in Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377, so held and remanded the case with directions to quash the indictment.

Thereafter Millard Ball, John Ball and Boutwell were again indicted for murder, and all three were convicted; Millard Ball having objected to proceeding to trial on a plea of former jeopardy, which was overruled.

After the conviction of all three of them, Millard Ball took an appeal to the Supreme Court on his plea of former jeopardy. The court in that case, which is 163 U.S. 662, beginning at page 666, 16 S.Ct. 1192 reviewed the...