United States v. Greater Kansas City Retail Coal M. Ass'n

• Decision Date: 10 August 1949
• Docket Number: No. 17328.,17328.
• Citation: 85 F. Supp. 503
• Parties: UNITED STATES v. GREATER KANSAS CITY RETAIL COAL MERCHANTS' ASS'N et al.
• Court: U.S. District Court — Western District of Missouri

85 F. Supp. 503

UNITED STATES v.GREATER KANSAS CITY RETAIL COAL MERCHANTS' ASS'N et al.

No. 17328.

United States District Court W. D. Missouri, W. D.

August 10, 1949.

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Sam M. Wear, United States Attorney, Kansas City, Missouri, Herbert A. Bergson, Horace L. Flurry, George A. Keim, Jacob M. Roey, Fred D. Turnage, Special Assistant Attorneys General, for plaintiff.

Ira B. McLaughlin, Kansas City, Missouri, for defendantGrover C. Mathis, d. b. a. Apex Coal Co.

Terence M. O'Brien, Kansas City, Missouri, for all other defendants.

RIDGE, District Judge.

The indictment herein; revealing the following facts, charges the defendants(seven corporations, six of the officers thereof, and nine individuals) with forming a combination and conspiracy to fix, stabilize, maintain and raise the price of coal sold and distributed at retail in the greater Kansas City area.The terms "coal,""dealers," and "greater Kansas City area" are specifically defined and delimited in the indictment.The nature of trade and commerce involved is that users of coal within said area purchase the same almost entirely from defendant"dealers" who maintain places of business and coal yards in the area.All defendant dealers purchase such coal from wholesalers, jobbers or directly from coal producers, which coal is shipped directly to the dealers from coal mines located in states other than the states of Missouri and Kansas, and some of such coal is shipped from mines in the State of Kansas to dealers in the state of Missouri, and vice versa.Some defendant dealers located in the state of Missouri sell to users in the state of Kansas, and some dealers located in Kansas sell to users in the state of Missouri.The coal so purchased by dealers is car loaded at mines and transported therefrom in interstate commerce to sidings of the dealers, from whence a substantial quantity of it is delivered to users immediately after arrival of said cars.Some dealers stock pile said coal and make deliveries to users therefrom.

The indictment charges that since approximately September 15, 1933, the exact date being unknown, and continuously up to and including the day of the presentation of the indictment, the defendants have been engaged in a combination and conspiracy to fix, stabilize, maintain and raise the price of coal sold and distributed in said area, in restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act,15 U.S.C.A. § 1.The gist of the combination and conspiracy so charged is that defendants agreed and, by concert of action among them, (a) established a cash price which defendant dealers charged in sales of coal to users of domestic fuel in the area; (b) agreed upon the cash price charged in sales of coal to apartments, hotels, churches, garages, hospitals, private schools and other large users of coal; (c) submitted bids to sell coal to public school systems on the basis of bids at prices agreed upon; (d) and agreed upon uniform charges to be made by dealers for extending credit to purchasers of coal.Overt acts set forth in the indictment alleged to have been committed in furtherance of the conspiracy are stated as follows: (a)defendants from time to time on January 3, 1946, and thirteen other specified dates, including July 12, 1948, put into effect uniform price changes, raising the cash price at which they sold coal to users of domestic coal; (b) that defendant dealers during period covered by indictment submitted bids to sell coal to the public school system of Kansas City, Kansas, and Kansas City, Missouri, at uniform prices; (c) that during said period they put into effect uniform charges for extending credit to purchasers of coal; (d) that defendants threatened to cause the supply of coal to be cut off in the event dealers failed to adhere to the agreed upon prices; (e) that defendants caused producers and wholesalers to discontinue selling coal to dealers who sold coal at prices other than those agreed upon by defendants; (f)defendant association assessed and collected membership fees based on tonnage sales by dealers, accumulated large surplus therefrom, and forfeited dealers' right to share in redistribution of fund upon dealers' withdrawal from the association; and (g)defendants required dealers to make their business records available to defendant association auditors and caused audits of cost of dealers doing business and circulated same among its members for the purpose of promoting uniform price increases for coal.It is charged that the effect of the combination and conspiracy has been to directly, substantially and unreasonably restrain interstate trade and commerce in coal; to arbitrarily fix, stabilize, maintain and raise the price of coal shipped in interstate trade and commerce; to diminish competition between coal dealers in the sale and distribution of coal moving in such trade and commerce; and to control and limit the supply and movement of coal in interstate trade and commerce.Jurisdiction and venue is laid by allegation that the combination and conspiracy charged were entered into and carried out in part in the jurisdiction of this court, where a majority of the defendants reside, have their places of business, and transact business, and that within the applicable period of limitation, defendants, within the jurisdiction of this court, performed many of the overt acts charged.

Defendants challenge the sufficiency of the indictment, by way of motion to dismiss, because the indictment fails to allege: "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 an oral or a 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 conspiracy; what acts were performed in furtherance of the alleged combination of conspiracy within the jurisdiction of this court within the applicable period of the statute of limitation; when and where they were performed; and by which defendants."

Such challenge cannot be sustained when considered either separately or collectively.All such factors are more properly addressed to the indictment by way of a motion for bill of particulars and not through motion to dismiss for failure of the indictment to allege facts sufficient to charge an offense.Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 463, 86 L.Ed. 680.

The constituent elements of time, place, manner, means and effect through which the government here charges defendants with violation of the Sherman Act,15 U.S.C.A. §§ 1and2, are generally alleged in the instant indictment so as to establish a violation of that act."The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy for which (defendants) contend is not essential to an indictment" returned under the Sherman Act.Glasser v. United States, supra.Such an indictment is legally sufficient if it generally charges all the essential elements of the offense with sufficient clarity to advise the defendants of the accusation made against them, to enable them to prepare their defense, and to enable them to plead a judgment of conviction or acquittal thereon in bar to a subsequent prosecution for the same offense, Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518; even though the generality of the charges made may be subject to being particularized.Cf.United States v. Central Supply Ass'n, et al., D.C., 40 F.Supp. 964.

In regard to the "time" of the conspiracy here charged, it is alleged as beginning September 15, 1933, and continuing thereafter up to and including the day of the presentation of the indictment.The conspiracy thus alleged is in effect charged to have been renewed each day during its continuance.United States v. Borden Co., 308 U.S. 188, 202, 60 S.Ct. 182, 84 L.Ed. 181.The "place" where such conspiracy was entered into and performed in part is alleged to be in the "greater Kansas City area", within the jurisdiction of this district court."The allegation that the conspiracy was entered into and carried out in part within the district in which the indictment was returned was sufficient in respect to place, as against an attack by motion or demurrer on the ground of complete infirmity of the indictment."Frankfort Distilleries v. United States, 10 Cir., 144 F.2d 824, 832.

The manner and means by which defendants are alleged to have unlawfully conspired are detailed by the agreements and concert of action that the government charges defendants concluded to establish uniform retail prices of coal to users; in submitting bids on agreed prices; and in agreeing and establishing uniform charges for extending credit to purchasers of coal.These things the indictment charges constituted a conspiracy to restrain interstate trade and commerce, to diminish competition between coal dealers, or to control or limit the supply and movement of coal in such trade and commerce, as the case may be.Such particularity is all that is essential to allege the manner and means of effecting the conspiracy here charged.Glasser v. United States, supra.Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232;United States v. Empire Hat and Cap Mfg....