United States v. Atlantic Commission Co.

• Decision Date: 14 May 1942
• Docket Number: No. 1710.,1710.
• Citation: 45 F. Supp. 187
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES v. ATLANTIC COMMISSION CO., Inc., et al.

45 F. Supp. 187

UNITED STATES v. ATLANTIC COMMISSION CO., Inc., et al.

No. 1710.

District Court, E. D. North Carolina, Wilson Division.

May 14, 1942.

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John W. Aiken and Harold L. Schilz, Sp. Assts. to the Atty. Gen., and J. O. Carr, U. S. Atty., of Wilmington, N. C., for the United States.

R. E. Whitehurst, of New Bern, N. C., for S. M. Jones.

L. I. Moore, of New Bern, N. C., for New Bern Oil & Fertilizer Co. and Hugh S. Swan.

L. Bruce Gunter, of Raleigh, N. C., for Farmer's Cooperative Exchange, Inc., and M. G. Mann.

W. A. Lucas, of Wilson, N. C., and George J. Feldman, of Washington, D. C., for Atlantic Commission Co., Inc., and others.

F. E. Kellam, of Norfolk, Va., and Ehringhaus & Ehringhaus, of Raleigh, N. C., for W. T. Phillips and others.

Battle, Winslow & Merrell, of Rocky Mount, N. C., for Thomas P. Thompson and another.

W. R. Ashburn, of Norfolk, Va., and J. Henry LeRoy, of Elizabeth City, N. C., for W. R. Britton and others.

W. R. Ashburn, of Norfolk, Va., and Wade A. Gardner, of Wilson, N. C., for Guy W. Capps.

Rodman & Rodman, of Washington, N. C., for Pamlico Chemical Co. Inc.

Connor & Connor, of Wilson, N. C., and Willcox, Cooke & Willcox, of Norfolk, Va., for Charles F. Burroughs and F. S. Royster Guano Co.

Godfrey Child, of Pocomoke City, Md., for William B. Tilghman, Jr., and others.

Oliver G. Rand, of Wilson, N. C., for Baugh & Sons Co. and G. Allen Ives.

Fred L. Carr, Jr., of Wilson, N. C., for another defendant.

WYCHE, District Judge.

The indictment in the present case was returned by a special Grand Jury for the Eastern District of North Carolina on December 8, 1941. It charges, in the first count, a conspiracy to restrain interstate trade and commerce in potatoes in violation of Section 1 of the Sherman Act, 15 U.S.C.A. § 1; and, in the second count, a conspiracy to monopolize trade and commerce in potatoes in violation of Section 2 of the Sherman Act, 15 U.S.C.A. § 2.

Pleas in abatement, motions to quash, demurrers, motions for bills of particulars, and motions for severance and separate trials have been filed by certain defendants. I am satisfied that the allegations of each count of the indictment are sufficient to allege the commission of an offense against the United States and (except as to certain information ordered to be furnished defendants in the form of a bill of particulars during argument on the motions, as will appear from the record thereof) are stated with sufficient particularity to apprise the defendants of the offenses with which they are charged, in accordance with the requirements of the Fifth and Sixth Amendments to the Constitution. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Johnson v. United States, 4 Cir., 5 F.2d 471; Hill v. United States, 4 Cir., 42 F.2d 812, 814; Martin v. United States, 4 Cir., 299 F. 287, 288.

An application for severance and separate trial is addressed to the discretion of the Court, and the general rule is that it is inadvisable to split a case into many parts, to be disposed of piecemeal, in the absence of very strong and cogent reason therefor. This is especially true in conspiracy charges. Dowdy v. United States, 4 Cir., 46 F.2d 417, 421; Tincher v. United States, 4 Cir., 11 F.2d 18, 21; Wood v. United States, 4 Cir., 204 F. 55, 57; Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225, 226; United States v. Fradkin, 2 Cir., 81 F.2d 56, 59. The defendants, Southeastern Chain Store Council, Inc., and Thomas B. Thompson, in their motion for severance predicate most of their argument upon facts contained in an affidavit of the defendants that they are innocent, and that the Government will not be able to prove their guilt. The purpose of a trial is to determine the guilt or innocence of a defendant. It is the duty of the Government to prove at the trial the guilt of these defendants beyond a reasonable doubt, and if it fails so to do the defendants will be acquitted. These defendants do not have the right, any more than any other defendant would have, on this ground, to escape being tried until after their alleged co-conspirators have been convicted. It is my opinion that the reasons advanced for severance and separate trials are not strong enough to require my granting such motions.

By pleas in abatement and motions to quash, the defendants contend that the indictment is invalid because: (1) It was not signed, authorized, or endorsed by the District Attorney for the Eastern District of North Carolina, or any of his duly appointed and authorized assistants, but was signed and prosecuted before the grand jury by a special assistant to the Attorney General and special attorneys appointed under the Act of June 30, 1906, 5 U.S.C.A. § 310, and that such Act is unconstitutional and in violation of the Fifth Amendment to the Constitution. (2) It was based upon incompetent and improper evidence.

The record discloses that the special attorneys were duly appointed, commissioned and qualified as required by the statute, 5 U.S.C.A. §§ 310, 315, and that the District Attorney not only authorized the prosecution, but filed a notification and petition, alleging the necessity of a special grand jury investigation into conditions in the potato industry, upon which judge Meekins signed an order convening a special term for such purposes. The District Attorney and his assistants assisted in the investigation and prosecution, but did not appear before the grand jury.

At the outset it should be noted that a plea in abatement, being a dilatory plea, must be regarded with disfavor by the courts, and every inference must be against the pleader. Olmstead v. United States, 9 Cir., 19 F.2d 842, 845, 53 A.L.R. 1472. Likewise, every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a reasonable doubt. In re Sinking Fund Cases (Union P. R. Co. v. United States), 99 U.S. 700, 718, 25 L.Ed. 496, 504; United States v. United States Industrial Alcohol Co., 4 Cir., 103 F.2d 97, 101.

The Act of June 30, 1906, 34 Stat. 816, 5 U.S.C.A. § 310, provides: "The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought."

The constitutionality of this statute appears never to have been attacked, except in the case at bar. The other contentions made by defendants here with respect to the application of the statute have been considered and rejected in several cases. United States v. Sheffield Farms Company, Inc., D.C.S.D.N.Y. Feb. 4, 1942, 43 F. Supp. 1; United States v. Central Supply Association, D.C.N.D. Ohio E.D.1941, 37 F.Supp. 890; Shushan v. United States, 5 Cir., 1941, 117 F.2d 110, 133 A.L.R. 1040; May v. United States, 8 Cir., 1916, 236 F. 495, 499.

United States v. Huston, D.C.N.D. Ohio 1928, 28 F.2d 451, relied on by defendants, involved grand jury proceedings conducted in Ohio by a Special Assistant to the Attorney General appointed to conduct proceedings in Missouri and Minnesota. The court in that case held that, upon a proper interpretation of the language of his commission, the Special Assistant to the Attorney General was not authorized to conduct proceedings in Ohio. No such question is presented in the present case, inasmuch as the commissions of Government counsel expressly authorize them to conduct grand jury proceedings in the Eastern District of North Carolina. Likewise, In re Confiscation Cases, 7 Wall. 454, 74 U.S. 454, 19 L.Ed. 196; United States v. Crosthwaite, 168 U.S. 375, 18 S.Ct. 107, 42 L.Ed. 507; United States v. Rosenthal, C.C.S.D. N.Y. 1903, 121 F. 862, relied upon by defendants, are not controlling here, since the Act of June 30, 1906, was evidently passed in order to obviate the effect of those decisions.

With respect to the constitutionality of the statute, defendants rely upon the Fifth Amendment to the Constitution of the United States which provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, * * *." Defendants contend that an "indictment of a grand jury" under this amendment means an indictment obtained in accordance with the traditional grand jury procedure, at the common law, at the time this Amendment was adopted; and that, therefore, a later Congressional enactment cannot modify that traditional procedure by permitting the presence of prosecuting attorneys on behalf of the Government during the grand jury proceedings.

However, defendants have cited no decisions of any court in support of this novel contention. In United States v. Thompson, 251 U.S. 407, 409, 40 S.Ct. 289, 64 L.Ed. 333, the Supreme Court, although not discussing the question of constitutionality, apparently gave its approval to the practice of appointing Special Assistants to the Attorney General under the Act of June 30, 1906, which was cited by the Court in its opinion. This may be considered as a tacit ruling that the statute was not unconstitutional. United States v. Sloan, D.C., 31 F.Supp. 327, 331.

Furthermore, defendants' contention would prove too much. It would prevent the service as grand jurors of persons who, by reason of sex or race, were not qualified to serve on a grand jury at the time the Fifth Amendment was adopted, and would chain the courts, in the face of greatly changed conditions, to ancient formulæ and would be a denial of the flexibility and capacity for growth and adaptation in the law which is regarded as its "peculiar boast and excellence". Funk v. United...