United States v. Campbell Hardware, Inc.

• Decision Date: 09 April 1979
• Docket Number: Crim. No. 78-460-F.
• Citation: 470 F. Supp. 430
• Parties: UNITED STATES of America v. CAMPBELL HARDWARE, INC., David E. Thompson, Inc., Contract Hardware, Inc., H. C. I. Corporation, Dudley Hardware Company, David E. Thompson, and C. Robert Taylor.
• Court: U.S. District Court — District of Massachusetts

470 F. Supp. 430

UNITED STATES of America v. CAMPBELL HARDWARE, INC., David E. Thompson, Inc., Contract Hardware, Inc., H. C. I. Corporation, Dudley Hardware Company, David E. Thompson, and C. Robert Taylor.

Crim. No. 78-460-F.

United States District Court, D. Massachusetts.

April 9, 1979.

COPYRIGHT MATERIAL OMITTED

Eugene Hanson, U. S. Dept. of Justice, Anti-Trust Div., New York City, for plaintiff.

Stuart M. Gerson, Washington, D. C., Reed, Smith, Shaw & McCloy, Washington, D. C., for defendant Thompson Hardware, Inc.

Richard E. Bachman, Boston, Mass., Hale, Sanderson, Byrnes & Morton, Boston, Mass., for defendants Thompson and Taylor.

Alan R. Hoffman, Boston, Mass., Lynch, Brewer, Hoffman & Sands, Boston, Mass., for defendant Dudley Hardware.

MEMORANDUM AND ORDER

FREEDMAN, District Judge.

A federal grand jury named David E. Thompson, Inc., Dudley Hardware Company, David E. Thompson and C. Robert Taylor as defendants in an indictment charging violations of the Sherman Act, 15 U.S.C. § 1. The named defendants and co-conspirators allegedly combined and conspired in unreasonable restraint of interstate trade and commerce from "at least 1962 until at least October 1977." The alleged combination and conspiracy included, inter alia, a continuing agreement and concert of action to allocate among the defendants the architectural hardware projects in Massachusetts, Maine, New Hampshire, Connecticut and Rhode Island, and the submission of rigged bids in connection with these projects.

The case is now before this Court on defendants' motions to dismiss the indictment.¹ The various motions assert two basic grounds for dismissal. Defendants Thompson, Taylor, David E. Thompson, Inc. and Dudley Hardware Company argue that, as to them, the indictment does not satisfy the requirements of F.R.Crim.P., 7(c)(1), and its Fifth and Sixth Amendment underpinnings, in that it is unconstitutionally vague and fails to charge the essential elements of the criminal offense. In addition, defendant Dudley Hardware Company contends that the indictment should be dismissed, or in the alternative, that it should be severed for trial, pursuant to F.R. Crim.P., 8(b) due to improper joinder and pursuant to F.R.Crim.P., 14 because of prejudicial joinder.

For reasons stated herein, this Court, after having considered arguments of counsel and memoranda submitted on the issues, denies defendants' various motions to dismiss and to sever.

Sufficiency of the Indictment—Rule 7(c)(1)

Rule 7(c)(1), F.R.Crim.P. sets forth the requirements that an indictment must "be a plain, concise and definite written statement of the essential facts constituting the offense charged." Ordinarily, an indictment that follows the language of the statute creating the criminal offense is sufficient in this regard. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); 8, Moore's Federal Practice, ¶ 7.04 at 7-15. In any event, it is clear that an indictment meets sufficiency tests if it contains the elements of the offense charged, informs the defendant of the nature of the charges against him in order that he might prepare an adequate defense and, is specific enough to preclude subsequent prosecutions for the same offense. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374, 377-8, 74 S.Ct. 113, 98 L.Ed. 92 (1953). The fact that the indictment "could have been more definite and certain", is not the relevant standard. United States v. Debrow, supra at 378, 74 S.Ct. at 116.

In the instant case, paragraph 8 of the indictment sets forth, in the statutory language, the criminal offense charged. It also identifies the time period in question. The following two paragraphs are illustrative of what the combination and conspiracy was comprised of and the way in which it was effected. Paragraph 9 charges that the combination and conspiracy consisted of a continuing agreement and concert of action on the part of the defendants to divide among themselves the architectural hardware projects in the aforementioned five states. Paragraph 10 identifies the means employed by the co-conspirators, including agreeing upon low bidders and "exchanging information relating to prospective bids."

Defendants argue that this language is not adequate in that it fails to enumerate the specific times and places the alleged agreements took place and the roles played by, as well as the relationships between, the several alleged co-conspirators.

These arguments are not well taken. Defendants confuse the facts which the prosecution must establish at a trial on the merits of a criminal action with the allegations required to be made in an indictment charging a criminal offense. Much of the information sought by defendants, although not necessary to be contained in the indictment, is available to them by way of a bill of particulars.

It is well settled that an indictment which charges a conspiracy to commit an offense, as opposed to charging the substantive offense itself, need not allege the elements of the substantive offense with the same technical precision. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 71 L.Ed. 545 (1927); United States v. Sherwin Williams Co., 9 F.R.D. 69, 70 (W.D.Pa. 1949). Furthermore, where the alleged conspiracy involves the unlawful restraint of interstate trade, courts have upheld indictments that did not aver:

the names of those who formed the alleged conspiracy or combination; when and where it was allegedly formed; the manner and means by which it was allegedly formed; whether the alleged combination or conspiracy consisted of an express or an implied agreement; whether the alleged conspiracy was formed by oral or written agreement; the names of those who joined the alleged conspiracy or combination after its formation; when and where each of such parties allegedly joined; the manner and means by which each allegedly joined; whether each such alleged joining consisted of express or implied agreements; whether each such alleged joining was done in writing or orally; what particular part it is claimed each defendant had in the alleged combination or conspiracy; when, where, in what manner, and which defendants performed overt acts in furtherance of the alleged combination of conspiracy within the jurisdiction of the court within the applicable period of the statute of limitation; when and where they were performed; and by what defendants.

United States v. Greater Kansas City Retail Coal Merchants' Association, 85 F.Supp. 503, 507-8 (W.D.Mo.1949); accord United States v. Greater Blouse, Skirt & Neckwear Contractors' Association, Inc., 177 F.Supp. 213, 220 (S.D.N.Y.1959); United States v. Empire Hat & Cap Mfg. Co., 47 F.Supp. 395, 399 (E.D.Pa.1942). In light of the lesser standard of detail required of conspiracy indictments in general and Sherman cases specifically then, I hold that the language of this indictment does satisfy the mandate of rule 7(c)(1).²

The omission of the facts sought by defendants are more appropriately remedied by a motion for a bill of particulars. Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Frankfort Distilleries v. United States, 144 F.2d 824 (10th Cir. 1944), reversed on other grounds, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 564 (1945). Defendants did move for, and the government did file, a bill in this case. The details and specifics supplied by the bill of particulars fill many of the interstices that defendants have argued deny them the opportunity to prepare an adequate defense and the ability to protect against twice being placed in jeopardy for the same offense.

One of the functions of a bill of particulars is to apprise the defendants of details omitted from the indictment. It also serves to effectuate the requirements of the Fifth and Sixth Amendments. 8, Moore's Federal Practice, ¶ 7.06 at 7-31, 32. This bill provides details that should facilitate defendants' trial preparation as well as comprise part of the record which can be relied on in the event further proceedings are initiated against the defendants. Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

I point out that the foregoing discussion should not be taken as an indication that this bill of particulars operates to save an otherwise invalid indictment; that cannot be the case. Id. at 770, 82 S.Ct. 1038. I hold, rather, that the instant indictment, charging a combination and conspiracy in violation of the Sherman Act, standing alone, is constitutionally sufficient and meets the requirements of F.R.Crim.P., 7(c)(1) in that "the constituent elements of time, place, manner, means and effect. . . are generally alleged . . . so as to establish a violation of that act." United States v. Greater Kansas City Retail Coal Merchants' Association, supra at 508. The defendants are sufficiently apprised of the charges against them so as to be able to prepare an adequate defense and to plead the judgment here as a bar to a subsequent prosecution for the offense. Id. Accordingly, defendants' motions to dismiss based on this ground are denied.

Defendants have also contended that the indictment should be dismissed, pursuant to rule 7(c)(1), because it fails to charge a necessary element of the criminal offense — intent. Defendants rely upon United States v. United States Gypsum Company, 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed. 854 (1978) as the basis for this proposition. Defendants' reliance upon Gypsum is misplaced. In Gypsum, the Supreme Court was addressing not the sufficiency of the allegations in an indictment, but rather, whether intent was a necessary element to be proven, beyond a reasonable doubt, to the jury. Id. 98 S.Ct. at 2876. It is settled that where an indictment charges a conspiracy, it need not expressly allege intent because the intent must necessarily be implied. Frohwerk v. United States, 249...