United States v. Fischbach and Moore, Inc.
| Decision Date | 22 December 1983 |
| Docket Number | Crim. No. 83-98. |
| Citation | 576 F. Supp. 1384 |
| Parties | UNITED STATES of America, Plaintiff, v. FISCHBACH AND MOORE, INCORPORATED, The Howard P. Foley Company, Lord Electric Company, Inc., Sargent Electric Company, E.C. Ernst, Inc., Tri-City Electric Company, Inc., Joseph J. Rodgers, Paul E. Arbogast, Frederic B. Sargent, Ralph D. Vryenhoek, and James L. Oesterle, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Hays Gorey, Jr., Gary S. Humble, Mark C. Schechter, Dept. of Justice, Antitrust Div., Washington, D.C., for U.S.
Joseph S. Van Bokkellen, Goldsmith, Goodman, Ball & Van Bokkellen, P.C., Highland, Ind. and Charles Scarlata, Pittsburgh, Pa., for Tri City Elec. Co., Inc.
H. Yale Gutnick, Strassburger, McKenna, Messer, Shilobod & Gutnick, Pittsburgh, Pa., for Joseph J. Rodgers.
Norman H. Seidler, Gordon B. Spivack, Lord, Day & Lord, New York City, and P. Jerome Richey, John P. McComb, Jr., Buchanan & Ingersoll, Pittsburgh, Pa., for Fischbach & Moore, Inc.
Robert F. McDermott, Marianne Corr, Jones, Day, Reavis & Pogue, Washington, D.C. and Robert J. Cindrich, Pittsburgh, Pa., for the Howard P. Foley Co.
Clyde Armstrong, Thorp, Reed & Armstrong, Pittsburgh, Pa., for Paul E. Arbogast.
Melvin Schwartz, Baskin & Sears, P.A., Boca Raton, Fla. and Harold Gondelman, Gondelman, Baxter, McVerry, Smith, Yatch & Trimm, Pittsburgh, Pa., for Frederic B. Sargent and Ralph D. Vryenhoek.
James G. Richmond, Highland, Ind. and Charles Scarlata, Pittsburgh, Pa., for James L. Oesterle.
Jeffrey C. Slade, Paul, Weiss, Rifkind, Wharton & Garrison, New York City and Jon Hogue, Pittsburgh, Pa., for Lord Elec.
Peter F. Gass, Deborah Fabricant, Peter N. Wang, Friedman & Gass, P.C., New York City, for E.C. Ernst, Inc.
The defendants in this case were indicted by a federal grand jury and charged with criminal violations of Section 1 of the Sherman Act, 15 U.S.C. § 1. The government allegations charge defendants with conspiracy and bid rigging in connection with electrical contracting work done for United States Steel at its "Western Pennsylvania Works" from 1974 to 1981.1 Specifically, the government claims that defendants formed a continuing agreement by which they allocated electrical construction projects among themselves, fixed the prices at which these projects were bid, and submitted noncompetitive, collusive bids, or refrained from bidding with relation to the construction projects. The defendants were involved in bidding on over 150 projects during this period.
Before the Court are a number of joint discovery motions made by defendants: 1) Motion for a Bill of Particulars; 2) Motion for Disclosure Regarding Alleged Prior Misconduct or Conviction; 3) Motion to Compel Discovery; 4) Motion for Disclosure of Matters Occurring Before the Grand Jury; 5) Motion to Strike Surplusage; and 6) Motion to Disclose Electronic Surveillance.
Defendants have moved, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure for a bill of particulars. In support of this motion, defendants argue that they need more information to 1) prepare their defenses, and 2) ascertain whether they may be prosecuted a second time in the future for the offenses presently charged. The defendants claim that the conspiracy alleged by the government covers a seven-year period and over 150 projects, but that the counts of the indictment are so general that defendants are unable to ascertain which projects the government asserts were the subjects of the conspiracy, when the actions took place, or who was involved.
The government, in opposition to this motion, argues that defendants are not entitled to a script of the government's case; that the case is a simple one involving bid rigging; that defendants have received the grand jury testimony of 28 witnesses and numerous documents and exhibits, and that defendants have access to all information necessary to prepare their defenses. The government has also claimed that all jobs bid for during this period are covered by the indictment as subjects of the conspiracy, and that the question of which particular jobs are involved is not relevant.
The defendants are entitled to more information as to the conspiracy and actions with which they are charged; we will therefore grant defendants' motion in part and deny it in part.
We note at the outset that the granting of a bill of particulars is a matter within the discretion of the trial court. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927), United States v. Armocida, 515 F.2d 49, 54 (3d Cir.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975). The purpose of a bill of particulars is to inform the defendant(s) of the nature of the charges brought against him to adequately prepare his defense, to avoid surprise at trial, and to protect against a second prosecution for an inadequately described offense. United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). See also, Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967); United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979).
It is well established that a bill of particulars is not to be used by the defendant as a discovery tool, United States v. Litman, 547 F.Supp. 645, 654 (W.D.Pa. 1982), by which defendants obtain disclosure of every detail of the theory and preparation of the government's case. United States v. Boffa, 513 F.Supp. 444, 485 (D.Del.1980). In ascertaining whether a bill of particulars is appropriate, the Court may consider not only the indictment, but also all of the information which has been made available to the defendants; United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); United States v. Bloom, 78 F.R.D. 591, 600-01 (E.D.Pa. 1977); United States v. Azzarelli Construction Co., 459 F.Supp. 146, 151 (E.D. Ill.1978), aff'd, 612 F.2d 292 (7th Cir.1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); United States v. Barrows, 122 F.Supp. 324, 325 (D.Del. 1954).
The government has already provided defendants with "relevant portions" of the grand jury testimony of twenty-eight witnesses, relevant grand jury exhibits from related District of Columbia grand jury proceedings, relevant exhibits from the Pittsburgh grand jury proceedings, relevant documents subpoenaed in connection with these proceedings, and documents voluntarily produced to the government. The government has also stated that it will provide to defendants a list of unindicted co-conspirators, as well as transcripts of relevant grand jury testimony of employees within the definition of Fed.R.Crim.P. 16(a)(1)(A).
A significant amount of information has already been made available to defendants. An indictment under the Sherman Act is not required to be detailed or evidentiary in nature, since the basis of a conspiracy charge is "agreement rather than action, and the agreement is usually established by a course of dealing or pattern of conduct and the reasonable inferences to be drawn therefrom." United States v. Tedesco, 441 F.Supp. 1336, 1340 (M.D.Pa.1977) (citing United States v. United States Steel Corp., 233 F.Supp. 148, 152 (S.D.N.Y. 1964)). Thus, overt acts need not be alleged in a Sherman Act conspiracy indictment, since the conspiracy itself is the nature of the crime. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913).
In Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), the Supreme Court held that a legally sufficient indictment must state the elements of the offense charged with sufficient clarity to apprise the defendant of what he must defend against and accurately record the crime for which the individual may be convicted or acquitted to avoid a second jeopardy of the same offense. Id. at 763-64, 82 S.Ct. at 1046-47.
Having considered this standard, the arguments of counsel, the indictment itself, and the information already in defendants' possession as well as what the government has promised to supply, we remain concerned with the number of projects bid on over the seven-year period during which the conspiracy allegedly took place. The "Western Pennsylvania Works" (as noted in footnote 1 hereof) comprises a number of plants. Some 150 contracts were bid on. We do not believe that it will unreasonably limit the government's case to require identification of which contracts are alleged to be the subject of the conspiracy to allocate bids among defendants, having bid prices fixed, or for which noncompetitive, collusive and rigged bids were submitted, and/or on which defendants and co-conspirators refrained from bidding pursuant to the alleged conspiracy. (Defendants' Motion for Bill of Particulars, ¶ 6(b)). Disclosure of this information should be sufficient to allow defendants to prepare for trial without "freezing" the government's proof. We will, therefore, grant ¶ 6(b) of the defendants' Motion for a Bill of Particulars, and deny the other requests included in that Motion.
Defendants have filed a joint motion to compel discovery pursuant to Fed.R. Crim.P. 16, Local Rule 24, and the Jencks Act, 18 U.S.C. § 3500. These requests are addressed to 1) Statements of Defendants, 2) Documents Material to the Defense and Evidence-in-Chief, 3) Reports of Examinations and Trials, 4) Evidence Favorable to Defendants and Brady material, and 5) Statements of Trial Witnesses Pursuant to the Jencks Act.
Defendants have moved for a) written or recorded statements of past or present employees of the corporate defendants including verbatim notes of...
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