United States v. Maryland State Licensed Bev. Ass'n, 7189.

• Decision Date: 03 January 1957
• Docket Number: No. 7189.,7189.
• Citation: 240 F.2d 420
• Parties: UNITED STATES of America, Appellant, v. MARYLAND STATE LICENSED BEVERAGE ASSOCIATION, Inc., et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

240 F.2d 420 (1957)

UNITED STATES of America, Appellant, v. MARYLAND STATE LICENSED BEVERAGE ASSOCIATION, Inc., et al., Appellees.

No. 7189.

United States Court of Appeals Fourth Circuit.

Argued November 16, 1956.

Decided January 3, 1957.

Gordon B. Spivack, Atty., Dept. of Justice, Washington, D. C. (Victor R. Hansen, Asst. Atty. Gen., and Horace L. Flurry, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

John Henry Lewin, Baltimore, Md. (David C. Green, G. C. A. Anderson, Everett L. Buckmaster, Charles Mindel, Robert E. Coughlan, Jr., Eugene M. Feinblatt, Baltimore, Md., John R. Fitzpatrick, F. Joseph Donohue, Washington, D. C., Hilary W. Gans, Edwin Harlan, Isaac Hecht, Louis Hoffman, Ellis Levin, Zanvyl Krieger, Baltimore, Md., William D. Macmillan, Pasadena, Md., David R. Owen, George D. Hubbard, William L. Marbury, John W. Hardwicke, Read A. McCaffrey, C. Gordon Haines, Morris Rosenberg, Baltimore, Md., Hugh B. Cox, James C. McKay, Washington, D. C., and Stanley H. Wilen, Baltimore, Md., on the brief), for appellees.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and HOFFMAN, District Judge.

PARKER, Chief Judge.

This is an appeal by the United States in a prosecution under the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note, from an order requiring the government to elect whether it would proceed under the first or second count of the indictment, and when it elected to proceed under the first, dismissing the second count. Appellees have moved to dismiss the appeal or transfer it for hearing to the Supreme Court. We think that the motion should be denied and that the order requiring the election and dismissing the second count of the indictment should be reversed.

Count one of the indictment charged conspiracy in violation of section 1 of the Sherman Act to restrain interstate commerce by establishing "fair trade" prices for alcoholic beverages in the State of Maryland and taking steps to have them observed. Count two charged conspiracy to monopolize in violation of section 2 of that act. In answers to interrogatories and at the bar of the court counsel for the government stated that "the proof under count one will be relied upon as proof of the other counts" that there will be "no variation as far as proof is concerned" and that the government's evidence as to each count will be "the same evidence of that course of conduct". The trial judge recognized that different offenses were created by sections 1 and 2 of the Sherman Act as held in American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; but, because of the foregoing admissions by government counsel, thought that only one conspiracy was involved and that, because of the holding in Braverman v. United States 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23, he should require one of the counts to be dismissed. In this we think he was in error.

The fact that the same evidence was relied upon to establish the conspiracies charged in both counts of the indictment does not mean necessarily that there was only one conspiracy. It might very well establish separate conspiracies to fix prices and to monopolize, with the direct evidence as to each having probative value with respect to the other. Even if only one conspiracy was involved, however, this would not support the action taken by the District Judge. Braverman's case holds merely that there may not be more than one punishment for a single conspiracy, not that a single conspiracy may not be charged as a crime in several counts to meet different interpretations that might be placed upon the evidence by the jury. Upon the government's evidence, which has not yet been produced, the jury might conceivably conclude that the accused were guilty of conspiracy to restrain trade by fixing prices but not of conspiracy to monopolize, or they might conclude that they were guilty of conspiracy to monopolize but not to fix prices or they might conclude that they were guilty of conspiracy to do both. If the evidence showed that there was only one conspiracy, the judge would impose only one punishment; but this is no reason for requiring dismissal of one of the counts in the early stages of the case; and parties should not be allowed thus to try their case in advance and by piecemeal. "It has long been the approved practice to charge, by several counts, the same offense as committed in different ways or by different means, to such extent as will be necessary to provide for every possible contingency in the evidence". 27 Am.Jur. p. 688.

In the case of United States v. Anderson, 7 Cir., 101 F.2d 325, 333, one of the cases upon which defendants place their chief reliance for the proposition that only one punishment can be imposed for a single...