United States v. Maine Lobstermen's Association

• Decision Date: 20 December 1957
• Docket Number: Crim. A. No. 57-35.
• Citation: 160 F. Supp. 115
• Parties: UNITED STATES of America v. MAINE LOBSTERMEN'S ASSOCIATION and Leslie Dyer.
• Court: U.S. District Court — District of Maine

160 F. Supp. 115

UNITED STATES of America v. MAINE LOBSTERMEN'S ASSOCIATION and Leslie Dyer.

Crim. A. No. 57-35.

United States District Court D. Maine, S. D.

December 20, 1957.

Peter Mills, U. S. Atty., Portland, Me., John J. Galgay, Hartsdale, N. Y., and

Alan L. Lewis and Philip Bloom, Anti-Trust Division, Dept. of Justice, New York City, for plaintiff.

Stanley R. Tupper, Augusta, Me., Philip F. Chapman, Jr., Portland, Me., A. Alan Grossman, John L. Knight, Rockland, Me., for defendants.

GIGNOUX, District Judge.

On October 15, 1957, an indictment was returned in the United States District Court for the District of Maine, charging the Maine Lobstermen's Association, and Leslie Dyer, its president, with a violation of Section 1 of the Sherman Act (26 Stat. 209, 15 U.S.C.A. § 1). The indictment alleged that the defendants combined and conspired with each other, and others, to fix and establish a minimum selling price for live Maine lobsters sold to lobster dealers; to refrain from catching lobsters until such minimum price was obtained; and to induce and compel all Maine lobstermen, including non-members of the defendant Association, to adhere to the terms of the conspiracy charged, all in unreasonable restraint of the interstate trade and commerce in live Maine lobsters.

On October 25, 1957, the defendants filed five motions and a document entitled "Interrogatories," as follows:

1. Motion to Dismiss by both defendants on the ground that the indictment does not state facts constituting a criminal offense against the United States.

2. Motion to Dismiss by the defendant Dyer on the ground that he had obtained immunity.

3. Motion for Relief for Prejudicial Joinder by the defendant Dyer.

4. Motion for Bill of Particulars by both defendants.

5. Motion to Dismiss by the defendant Association on the ground that it had obtained immunity.

6. A document entitled "Interrogatories" filed by both defendants.

Hearing on the aforesaid motions and documents was held before this Court on December 3, 1957, all parties being represented by their respective attorneys. At the hearing the attorneys for the defendant Association requested permission to withdraw its motion to dismiss on the ground that it had obtained immunity, and the attorneys for both defendants requested permission to withdraw the document entitled "Interrogatories." Both requests were granted by this Court, and argument was limited to the four remaining motions, which the Court will now consider in the order in which they are listed above.

I. The Defendants' Motion to Dismiss on the Ground That the Indictment Does Not State Facts Constituting a Criminal Offense Against the United States.

Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides that the indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Although it has been stated that an antitrust indictment may be subject to dismissal if the defendant is charged only in terms of the Sherman Act, Frankfort Distilleries, Inc. v. United States, 10 Cir., 1944, 144 F.2d 824, 830, reversed on other grounds, 1945, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 564, it is fundamental that an indictment is sufficient if, when construed as a whole, it informs the accused of the nature of the charges against him so that the defendant can prepare a defense and plead double jeopardy in a second prosecution for the same offense. United States v. Northeast Texas Chapter, National Electrical Contractors Ass'n, 5 Cir., 1950, 181 F.2d 30; United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied 1948, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122; Wilson v. United States, 5 Cir., 1947, 158 F.2d 659, certiorari denied 1947, 330 U.S. 850, 67 S.Ct. 1095, 91 L.Ed. 1294; United States v. Armour & Co., 10 Cir., 1943, 137 F.2d 269.

This Court is satisfied that the instant indictment contains all the allegations necessary to charge a violation of Section 1 of the Sherman Act and meets the requirements of Rule 7(c) and the additional requirements established by judicial decision for Sherman Act cases.

The indictment only contains one count, the essential allegations with respect to the conspiracy being set forth in Paragraphs 12, 13 and 14. In Paragraph 12 the defendants are charged in the generic language of the statute with having from on or about June, 1957, to the date of the return of the indictment:

"* * * engaged in a combination and conspiracy to fix, stabilize and maintain the prices for live Maine lobsters sold by both MLA member and non-member lobstermen to lobster dealers, in unreasonable restraint of * * * trade and commerce * * * in violation of Section 1 of the * * * Sherman Act * * *."

In Paragraph 13 of the indictment the elements of the alleged combination and conspiracy are specified in the following language:

"13. The aforesaid combination and conspiracy has consisted of a continuing agreement and concert of action among the defendants, the co-conspirators described herein, and other persons to the Grand Jury unknown, the substantial terms of which have been and are that the defendants and the co-conspirators agree:

"(a) To fix and establish a minimum selling price for live Maine lobsters sold to lobster dealers;

"(b) To refrain from catching lobsters until said minimum price was obtained;

"(c) To induce and compel all Maine lobstermen, including nonmembers of MLA, to adhere to the terms of the conspiracy hereinbefore charged."

In Paragraph 14 of the indictment it is further alleged that:

"14. During the time covered by this indictment, the defendants and the co-conspirators, by agreement, understanding and concert of action, have done those things which, as hereinbefore charged, they conspired and agreed to do."

In United States v. Minneapolis Electrical Contractors Ass'n, D.C.Minn.1951, 99 F.Supp. 75, appeal dismissed, 8 Cir., 1953, 207 F.2d 782, the court upheld an indictment under Section 1 of the Sherman Act for conspiracy to restrain trade which was substantially identical to the indictment in the present proceeding. The court pointed out that, as in the instant indictment, the indictment not only charged an offense in the language of the statute, but also set forth the substantial terms of the alleged unlawful conspiracy and agreement and the purpose which was sought to be accomplished. The court held that the indictment was sufficient, saying (99 F.Supp. at page 78):

"Although an anti-trust indictment may be subject to dismissal if the defendant is charged only in the terms of the Sherman Act, Frankfort Distilleries, Inc. v. United States * * * it is fundamental that the indictment need not be detailed or evidentiary * * * The allegations go far past the mere words of the statute and apprise the defendants of the agreements charged against them so that they can recognize what the Government claims were the terms of the conspiracy and what conspiracy was involved. To require the indictment to contain the detail now sought by defendants would render the indictment considerably evidentiary and would make purposeless the rules permitting the bill of particulars which defendants also seek. * *"

To the same effect see Las Vegas Merchant Plumbers Ass'n v. United States, 9 Cir., 1954, 210 F.2d 732, certiorari denied, 1954, 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645; American Tobacco Company v. United States, 6 Cir., 1944, 147 F.2d 93, 117, affirmed 1946, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; cf. United States v. Employing Plasterers Ass'n of Chicago, 1954, 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618.

In view of the plain language of Rule 7(c) and the decisions testing indictments brought under the Sherman Act, this Court is of the opinion that the indictment in this proceeding contains all the allegations necessary to charge a violation of Section 1 of the Sherman Act and sufficiently states facts constituting a criminal offense against the United States. Accordingly, the defendants' motion to dismiss on the ground that the indictment does not state facts constituting a criminal offense against the United States is denied.

II. The Defendant Dyer's Motion to Dismiss on the Ground That He Had Obtained Immunity.

Defendant Dyer in his motion to dismiss the indictment on the ground that he had obtained immunity states that he "was compelled under process of subpoena issued by this Honorable Court to appear and give evidence to the Grand Jury for their proceedings and deliberations which said deliberations resulted in this said indictment against your defendant."

This representation by the defendant is not true, and the claimed immunity is clearly without any legal basis. The Government requested and, with the consent of counsel for the defendants, was granted permission to file with the Court the affidavit of John J. Galgay, Esq., trial attorney in the Anti-Trust Division of the United States Department of Justice, disclosing the facts and circumstances surrounding Dyer's appearance and testimony before the Grand Jury. As appears from this affidavit, a subpoena duces tecum, dated August 14, 1957, directed to the "Maine Lobstermen's Association, 427 Main Street, Rockland, Maine," was served on the same date by a Deputy United States Marshal at the indicated address upon Dyer, president of the Association, who accepted such service on behalf of the Association. The subpoena duces tecum directed the Association to produce certain documents relating to the Association's organizational structure and membership activities. On August 20, 1957, Dyer appeared at the United States Courthouse, Portland, Maine, and informed government counsel that he had in his possession the documents called for in the subpoena. He was, thereupon, called into the Grand Jury room to produce the subpoenaed material before the Grand Jury. He was not placed under oath. While in the Grand Jury room, he was asked his name and...