United States v. HE Koontz Creamery, Inc.

• Decision Date: 04 August 1964
• Docket Number: Crim. No. 26128.
• Citation: 232 F. Supp. 312
• Parties: UNITED STATES of America v. The H. E. KOONTZ CREAMERY, INC.
• Court: U.S. District Court — District of Maryland

232 F. Supp. 312

UNITED STATES of America v. The H. E. KOONTZ CREAMERY, INC.

Crim. No. 26128.

United States District Court D. Maryland.

August 4, 1964.

Lewis A. Rivlin, Sinclair Gearing, Milton A. Kallis and Margaret H. Brass, Attys., Dept. of Justice, Washington, D. C., Thomas J. Kenney, U. S. Atty. for Dist. of Maryland, for the Government.

W. Lee Harrison and Michael Paul Smith, Towson, Md., for H. E. Koontz Creamery, Inc.

John T. Chadwell, David L. Aufderstrasse, James E. Hastings, Chicago, Ill., J. Cookman Boyd, Jr., and Henry M. Decker, Jr., Chicago, Ill., for National Dairy Products Corp., and for John M. Lescure.

Ambler H. Moss and David R. Owen, Baltimore, Md., for Green Spring Dairy, Inc. Nathan Patz, Baltimore, Md., for Cloverland Farms Dairy, Inc. and Royal Farms Dairy, Inc.

M. William Adelson, Baltimore, Md., for Will's Dairy, Inc.

John S. McDaniel, Jr., and Richard F. Cadigan, Baltimore, Md., for Wilton Farm Dairy, Inc.

Robert D. Klages and Robert F. Skutch, Jr., Baltimore, Md., for High's of Baltimore, Inc., Clyde Shugart and C. Y. Stephens.

Robert E. Coughlan, Jr., and Alva P. Weaver, III, Baltimore, Md., for Milk Distributors Ass'n, Inc.

Z. Townsend Parks, Jr., and H. Emslie Parks, Baltimore, Md., for William S. Hebb.

Michael Paul Smith and Richard C. Murray, Towson, Md., for George C. Oursler.

G. C. A. Anderson and Ward B. Coe, Jr., Baltimore, Md., for James J. Ward, Sr. and James J. Ward, Jr.

R. DORSEY WATKINS, District Judge.

On December 20, 1962, the Grand Jury of the United States District Court for the District of Maryland returned an indictment charging all the captioned defendants with violation of United States Code, Title 15, section 1. All defendants were arraigned, and pleaded not guilty. Thereafter various motions were filed on behalf of some of the defendants, including motions for bill of particulars, and to inspect certain Grand Jury testimony and documents. After disposition of these matters, some without prejudice, defendants Koontz, National Dairy, Green Spring, Cloverland, Royal, Will's, Lescure, Hebb, Oursler and Ward, Jr. renewed motions, previously denied without prejudice, to dismiss the indictment on the ground of double jeopardy; and further moved the court "for a separate trial or hearing of the issues raised by such motion before the court without a jury, such trial to be held prior to the trial of the general issue * * *" The same defendants, with the addition of Ward, Sr., also renewed their motions, previously denied without prejudice, to dismiss the indictment on the ground of lack of due process. The moving parties also further moved the court "for a separate hearing of the issues raised by such motion before the Court without a jury prior to the trial of the general issue."

In conjunction with the due process motion, the moving defendants in such motion renewed their motion, previously denied without prejudice, to inspect and copy certain portions of the Grand Jury proceedings in a predecessor case.

The various motions were elaborately briefed, and were set for hearing on June 5, 1964.¹ At that hearing, it was represented to the court that C. Y. Stephens had died, and an order of dismissal was entered as to him.

Pleas of nolo contendere were tendered on behalf of Cloverland and Royal, which also withdrew from the motions to dismiss for double jeopardy, and lack of due process.² Counsel for the Department of Justice stated that the Department had no objection to the acceptance of the pleas.³

A plea of guilty was tendered on behalf of Green Spring; a plea of nolo contendere on behalf of Ward, Sr.; and the Government presented an order of dismissal as to Ward, Jr. Some interrogation led the court to decline the guilty plea, and the dismissal at that time, without prejudice to their renewal.

As to the three tenders of nolo contendere, the court took the position that without an outline of what the Government contended the facts to be, as to such defendants and the whole case, and the claimed relative involvement of all the defendants, it could not determine whether or not the nolo pleas should be accepted.⁴

Since it appeared that certain of the defendants had reached agreements with the Government, subject to the court's approval, the court undertook to withhold ruling on the double jeopardy and due process motions until all defendants had had a reasonable opportunity to endeavor to discuss proposed pleas with the Government. Such time has elapsed, and the court has not been advised on any progress.

Background.

The defendants, other than High's, Stephens, Shugart and Ward, Sr., had previously been indicted in Criminal No. 25542, superseded by an information, Criminal No. 25658, on charges⁵ of a conspiracy beginning prior to 1946 and continuing to the Fall of 1957, and a conspiracy from the Spring or early Summer of 1959, to the end of 1959, with respect to rigging of bids for so-called "school milk." The defendants ultimately pleaded nolo contendere, which pleas were accepted over the Government's objections and fines were imposed.

The present indictment charges the defendants, other than Oursler, Stephens, Shugart and High's with a conspiracy beginning some time prior to 1956 and continuing into the late fall of 1960, and the joinder of said conspiracy by Oursler sometime prior to October 1, 1957 and the joinder by Stephens, Shugart and High's sometime prior to December 1, 1958, to suppress and eliminate competition in the sale of milk and milk products "(other than sales to institutional customers purchasing by competitive bidding)"—which would exclude "school milk." The conspiracy alleged in the current indictment has, for convenience, been called the "general price-fixing conspiracy."

Although the current indictment has been meticulously drawn expressly to exclude school milk, and although the dates of the alleged school milk conspiracies and the general price-fixing conspiracy do not coincide, and although⁶ three defendants not alleged as participants in the school milk conspiracy are alleged to have participated during the latter part of the general price-fixing conspiracy, the moving defendants contend (a) as to double jeopardy, that the school milk and general price fixing conspiracies are really part and parcel of one conspiracy, the Government attempting to "fragmentize" the one conspiracy; and (b) as to due process, that even if the school milk and general price fixing conspiracies could be separately indictable offenses, they are so interrelated that to bring separate prosecutions is contrary to a "policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement" (Petite v. United States, 1960, 361 U.S. 529, 530, 80 S.Ct. 450, 451, 4 L.Ed.2d 490), and would be a denial of due process.

The moving defendants contend that these defenses should be heard non-jury in advance of trial of the general issue; that this is permissible and expedient. The Government contends that a jury trial of these issues, by the same jury empanelled to try the criminal charge,⁷ is mandatory and that if there were an element of discretion, it should be exercised in favor of a "unitary" trial.

Double Jeopardy.

The Law

Moving defendants cite F.R.Cr.P. 12 (b) (4) in support of their motions. To this court, Rule 12(b) (1) is even more apt. These sections read as follows:

"(b) Defenses and Objections Which May be Raised.

"(1) Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.

* * * * * *

"(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct."

The moving defendants also cite the provision of the Fifth Amendment that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb ***."

The Government cites the provisions of section 2 of Article III of the Constitution that:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ***."

While the cases in the state courts are in conflict as to whether the defense of double jeopardy must be tried by a jury⁸ the parties agree there is no controlling federal decision on this specific point. Before considering the authorities relied upon as supporting the divergent views, the court finds it necessary to refer to its point of fundamental departure from the analysis urged by the Government. The Government's argument is: conspiracy is a crime; the provision that all crimes shall be tried by a jury is modified only by the waiver provision recognized in Patton v. United States, 1930, 281 U.S. 276, 298, 312, 50 S.Ct. 253, 74 L.Ed. 854 embodied in F.R.Cr.P. 23(a) under which cases required to be tried by a jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the Government; that the Government has expressly refused to consent; therefore, there must be a jury trial. While abstractly unassailable, it is inapplicable. The hearing sought by the defendants is not a trial;⁹ it is a hearing to determine whether or not the moving defendants must stand trial. In such a hearing, the guilt or innocence of the moving defendants is immaterial; the only question is whether they have previously been placed in jeopardy for the offense alleged in the instant indictment.

In a trial of the conspiracy charge (the substantive crime) the moving defendants would be placed in jeopardy, the verdict would be guilty or not guilty; and if guilty, they would be subject to criminal...