United States v. Armour & Co.

• Decision Date: 21 January 1946
• Docket Number: No. 13389.,13389.
• Citation: 64 F. Supp. 855
• Parties: UNITED STATES v. ARMOUR & CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

64 F. Supp. 855

UNITED STATES v. ARMOUR & CO. et al.

No. 13389.

District Court, E. D. Pennsylvania.

January 21, 1946.

Gerald A. Gleeson, U. S. Atty., and Joseph E. Gold, Asst. U. S. Atty., both of Philadephia, Pa., for the Government.

Thomas D. McBride, of Philadelphia, Pa., for defendants Clarence J. Sharpless, Edward H. Wolfe, and Thomas J. Reilly.

Maurice Stern, of Philadelphia, Pa., for defendants Morris Needles, Daniel Bassett, Joseph Mahon, Lester Macht, Charles Gable, Harold Goodman, James Brown, Jack Jenkins, and Frederick C. Gebicke.

KENNEDY, District Judge (Assigned).

The above case is before the Court at the present time on special pleas in bar interposed by the several defendants named above. The instant controversy grows out of the following facts:

On May 15, 1945, the above named defendants, in response to a subpoena, appeared before an official of the Office of Price Administration accompanied by their counsel. Before the defendants were called upon to give evidence under oath at said hearing, the representative of the Office of Price Administration who was conducting the investigation was advised that said defendants claimed their right of immunity under the law and that such right of immunity would not be waived in connection with their testimony, to which the official in charge of the investigation replied that no immunity would be granted to any of the witnesses who had been subpoenaed and sworn in.

Thereafter the said defendants gave sworn testimony in response to questions propounded by the official in charge. It has been stipulated that all of the defendants as witnesses gave substantially the same testimony and that for the purposes of this hearing the testimony of the defendant and witness Harold Goodman may be accepted and adopted by the Court as a basis for a consideration and decision of the case of each defendant now before the Court. Without setting forth this testimony verbatim, it appears that in substance the defendant as a witness was asked if he knew the regulations pertaining to tie-in sales, to which his reply was in the affirmative. He was asked if at any time he had received any orders such as in order for a customer to buy one particular item that he had to purchase another particular item, to which the response of the defendant was that he had received no orders from anybody and that he had acted solely upon his volition. The witness in response to a question testified that he had never received any instructions as to tie-in sales at any meetings of salesmen of the defendant corporation nor had he received any letters of instruction from its Chicago office. In response to a question, the defendant as a witness testified that there were signs posted through the branch offices that there should be no tie-in sales by company policy. In response to a question, the defendant and witness testified that he had not violated any O.P.A. Regulations and that he had never told customers that in order to get a certain item such as poultry that they would have to take eggs.

Thereafter and under an indictment filed in this Court on September 6, 1945, the defendant Armour & Company and the individual defendants here represented, together with others, were charged with a conspiracy to violate the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 901 et seq., and certain revised maximum price regulations thereunder. The indictment, by its terms, describes the defendant corporation and identifies the individual defendants by name and residence as salesmen or sales managers of the defendant corporation. Then follows a description of the regulations invoked and an allegation that the defendants did knowingly, wilfully, corruptly and feloniously conspire, combine, confederate and agree together and with each other to commit offenses against the United States by causing to be made sales, deliveries, transfers and shipments of commodities in violation of the regulations, which sales were in violation of such regulations and in evasion of and higher than the maximum price permitted — "in that the defendants, well knowing that such sales by them were for the purpose of resale by said purchasers in the course of business, by tying agreement offered, solicited, demanded, required and compelled said purchasers to purchase other commodities as a condition to the sale and delivery of the food products hereinabove set forth." Then follows in the indictment the setting out of certain overt acts by which each individual defendant at a certain time and place and to certain customers is alleged to have made specific tie-in sales.

The question for decision by the Court here is as to whether or not, under the facts and the law applicable, the defendants by being witnesses, compelled to testify under subpoena, are entitled to immunity against prosecution under the present indictment. The facts are not in dispute and the solution of the problem depends upon the reasonable inferences to be drawn from the facts and the law covering the situation thereby disclosed. It can scarcely be in dispute that the defendants are charged with a conspiracy to violate the Emergency Price Control Act and the regulations thereunder, by the indulgence of tie-in sales which in simple language means to compel a customer to purchase a certain commodity as a condition to being furnished with the principal commodity desired by the customer. What has been outlined in connection with the testimony solicited from the defendants at the prior investigation reflects beyond peradventure that the witnesses were interrogated by the examiner as to their knowledge of tie-in sales; as to whether or not they had received orders to indulge in such sales by their employer; as to whether or not they...