United States v. Johns-Manville Corporation

• Citation: 213 F. Supp. 65
• Decision Date: 13 December 1962
• Docket Number: Cr. No. 21118.
• Parties: UNITED STATES of America v. JOHNS-MANVILLE CORPORATION, Keasbey and Mattison Company, Robert F. Orth, Louis F. Frazza, Robert R. Porter, Norman L. Barr, and James R. Reichel.
• Court: U.S. District Court — Eastern District of Pennsylvania

213 F. Supp. 65

UNITED STATES of America v. JOHNS-MANVILLE CORPORATION, Keasbey and Mattison Company, Robert F. Orth, Louis F. Frazza, Robert R. Porter, Norman L. Barr, and James R. Reichel.

Cr. No. 21118.

United States District Court E. D. Pennsylvania.

December 13, 1962.

COPYRIGHT MATERIAL OMITTED

Drew J. T. O'Keefe, U. S. Atty., and Raymond K. Carson, Kenneth R. Lindsay and Rodney O. Thorson, Attys., Dept. of Justice, Washington, D. C., for plaintiff.

Thomas D. McBride, Philadelphia, Pa., for defendants Johns-Manville Corp., Orth and Frazza.

Henry T. Reath, Philadelphia, Pa., for defendants Keasbey & Mattison Company, Barr and Reichel.

Joseph W. Swain, Jr., Philadelphia, Pa., for defendant Porter.

VAN DUSEN, District Judge.

The defendants in this criminal action under 15 U.S.C.A. §§ 1 and 2 are two manufacturing corporations and certain individuals employed (or previously employed) by them, and the case is now before the court on Motions To Dismiss the indictment (Documents Nos. 15-21 and 23-26).

The indictment alleges that beginning sometime prior to 1954, the exact date being to the grand jurors unknown, and continuing thereafter up to and including the date of the return of the indictment, the defendants and other co-conspirators have engaged in a combination and conspiracy in unreasonable restraint of interstate and foreign trade and commerce and in a combination and conspiracy to monopolize interstate and foreign commerce in asbestos-cement pipe and couplings. Also, the defendants are charged with attempting to monopolize the interstate and foreign trade and commerce in asbestos-cement pipe and couplings.

The Motions to Dismiss the indictment have been argued in the following three groups:

I. Motions of all defendants to dismiss the indictment for lack of specificity;

II. Motions of all defendants to dismiss because of irregularities in the use of the grand jury process; and

III. Motion on behalf of three defendants, Messrs. Frazza, Barr and Reichel, to dismiss on the grounds that their prior testimony made them immune from this indictment.

I. Alleged Lack of Specificity (see briefs docketed under Nos. 36 & 38)

Paragraph 11 of the indictment alleges that defendants are "the only manufacturers of asbestos-cement pipe and couplings in the United States" and accounted for approximately 95% of the sales of such products in the United States; imports accounted for approximately 5% of such sales.

Paragraph 14 of the indictment sets forth the substantial terms of the continuing agreement, understanding and concert of action which is alleged to be the basis of the illegal combination and conspiracy.¹ Paragraph 15 sets forth certain acts which the defendants are alleged to have done for the purpose of effectuating the conspiracy and paragraph 16 sets forth the alleged effects of the conspiracy and attempt to monopolize. Paragraph 17 states:

"The offense charged in this count of the indictment has been committed in part within the Eastern District of Pennsylvania and within the jurisdiction of this Court. During the period of time covered by this indictment and within five years next preceding the return thereof, the defendants have performed within the Eastern District of Pennsylvania many of the acts hereinbefore charged."

The defendants contend that the indictment does not meet the standards imposed by the Fifth and Sixth Amendments of the United States Constitution and Rule 7(c) of the Federal Rules of Criminal Procedure.²

1. The indictment contains the elements of the offenses intended to be charged and sufficiently apprises the defendants of what they must be prepared to meet.

An examination of cases which have been brought under the Sherman Act establishes that this indictment is not objectionably vague, indefinite or uncertain and that defendants' position that it fails to allege sufficiently the constituent elements of the crimes must be rejected.

In a conspiracy charge under the Sherman Act, overt acts, other than the conspiracy itself, do not have to be pleaded or proved. E. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223-225, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Nash v. United States, 229 U. S. 373, 378, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); Mercer v. United States, 61 F.2d 97, 98-99 (3rd Cir., 1932); United States v. Sherwin-Williams Co., 9 F.R.D. 69, 70 (W.D.Pa.1949).³

The field of trade and commerce in which the conspiracy operated was specified with sufficient definiteness in the indictment, which referred to it as the "asbestos-cement pipe and coupling field." See United States v. New York Great A. & Pacific Tea Co., 137 F.2d 459, 462-463 (5th Cir., 1943), cert. den. 320 U.S. 783, 64 S.Ct. 191, 88 L.Ed. 471 (1943); United States v. The Metropolitan Leather and Find. Ass'n., 82 F.Supp. 449, 453 (S.D.N.Y.1949).

(a) The time that the conspiracy started⁴

Since the conspiracy is alleged to be a continuing one, it is not necessary that the indictment set forth the exact date that it commenced. Frankfort Distilleries v. United States, 144 F.2d 824, 831 (10th Cir., 1944), reversed on other grounds, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 564 (1945); United States v. The Metropolitan Leather and Find. Assn., supra. See United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663 (1911); Mercer v. United States, supra.⁵

(b) The known members of the conspiracy

The failure of the indictment to name all the alleged co-conspirators does not make it defective. United States v. Gasoline Retailers Association, Inc., 285 F.2d 688, 691-692 (7th Cir., 1961). In this case, the court said:

"It is contended by appellants that the indictment was insufficient and should have been dismissed because it failed to list the names of some of the co-conspirators whose names were known to the government and the grand jury.

"Rule 7(c) of the Federal Rules of Criminal Procedure provides that the indictment shall be `a plain, concise and definite written statement of the essential facts constituting the offense charged' and `need not contain * * * any other matter not necessary to such statement.' The indictment in this case did set forth `essential facts' constituting the offense of conspiracy in restraint of trade, and there was no need to set out the particular names or identity of possible witnesses who at the trial might prove to have been co-conspirators. United States v. Glasser, 7 Cir., 1941, 116 F.2d 690. We are of the opinion that it was not necessary for the indictment to specify the names of co-conspirators even though they were known to the grand jury."

See United States v. Consolidated Laundries Corporation, 291 F.2d 563, 567 (2nd Cir., 1961).

(c) The terms of the agreement to restrain or monopolize commerce

The conspiracy counts are sufficiently specified in this indictment. Any words which fairly import a concerted action for conniving together to restrain trade are sufficient to charge conspiracy. American Tobacco Co. v. United States, 147 F.2d 93, 117 (6th Cir., 1944), aff'd. 328 U.S. 781, 809, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). In this case, the defendants are not merely charged with the offense substantially in the words of the Sherman Act, but the indictment also sets forth sufficient details of the crime by setting forth the substantial terms of the "agreement, understanding and concert of action",⁶ as well as certain acts allegedly done in pursuance of the illegal agreement. See Frankfort Distilleries v. United States, supra, 144 F.2d at p. 832.

(d) Specification of means by which the co-conspirators intend to carry out their conspiracy

The indictment alleges the conspiracy, the substantive terms thereof, and also the methods, means and practices allegedly employed for the purpose of effectuating the monopoly.⁷ Such allegations are a sufficient statement of "means." See Frankfort Distilleries v. United States, supra; cf. United States v. Socony-Vacuum Oil Co., supra, 310 U. S. 150, at p. 250, 60 S.Ct. 811, at pp. 856, 857, 84 L.Ed. 1129.

Count Three, which alleges an attempt to monopolize in violation of 15 U.S.C.A. § 2, is likewise sufficient. An attempt to monopolize has been defined as:

"* * * employment of methods, means and practices which would, if successful, accomplish monopolization, and which, though falling short, nevertheless approach so close as to create a dangerous probability of it, which methods, means and practices are so employed by the members of and pursuant to a combination or conspiracy formed for the purpose of such accomplishment." American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 1127, 90 L.Ed. 1575 (1946).

The indictment sets forth the background of the industry in question, the relation of the corporate defendants thereto (i. e., they are the only two manufacturers of asbestos-cement pipe and couplings in the United States), as well as other pertinent facts which would support a conviction on the attempted monopoly charge (see, for example, paragraph 15). The indictment is sufficiently specific as to Count Three. See American Tobacco Co. v. United States, supra, and a copy of the information in that case.

2. The indictment will not preclude the defendant from pleading an acquittal or conviction in other proceedings based on the same subject matter.

The foregoing discussion makes clear that the indictment is sufficiently definite and certain to enable the defendants to plead an acquittal or conviction under it in bar of any other proceeding against them based on the same subject matter. See United States v. Sherwin-Williams Co., supra, and cases there cited 9 F.R.D. at pp. 70-71.

3. The indictment is sufficient to enable the court to determine whether evidence admissible under its terms is sufficient to support a conviction if one should be had.

This indictment is sufficient to show the basis upon which an eventual conviction might be had and, hence, does not fall within the condemnation...