United States v. National Dairy Products Corporation, 20542.

• Decision Date: 10 January 1967
• Docket Number: No. 20542.,20542.
• Citation: 262 F. Supp. 447
• Parties: UNITED STATES of America, Plaintiff, v. NATIONAL DAIRY PRODUCTS CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Missouri

262 F. Supp. 447

UNITED STATES of America, Plaintiff, v. NATIONAL DAIRY PRODUCTS CORPORATION, Defendant.

No. 20542.

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

January 10, 1967.

Thomas S. Howard, James E. Mann, Robert Eisen, Raymond P. Hernacki, Antitrust Div., Dept. of Justice, Chicago, Ill., for plaintiff.

John T. Chadwell, Chicago, Ill., Martin J. Purcell, Kansas City, Mo., for defendant.

MEMORANDUM OPINION AFTER SUPREME COURT REMAND TO GIVE FURTHER CONSIDERATION TO THIS CASE IN LIGHT OF Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973

JOHN W. OLIVER, District Judge.

Pursuant to the mandate and per curiam opinion of the Supreme Court in National Dairy Products Corp. v. United States, 384 U.S. 883, 86 S.Ct. 1913, 16 L.Ed.2d 995, we have given further consideration to this case in light of Dennis v. United States, supra. Our findings of fact and conclusions of law are stated in this memorandum opinion. For reasons we state in detail, defendant's postmandate motion for new trial is denied. What we believe is an appropriate order is entered at the conclusion of this memorandum opinion.

I. Summary of Defendant's Postmandate Motion for New Trial

As a part of the postmandate proceedings, defendant filed a motion of record "in order to formalize defendant's motion for new trial, and the grounds therefor, as heretofore set forth in its briefs."¹

That postmandate motion asserts two grounds in support of new trial. In regard to its first ground, defendant alleged:

As its first ground for a new trial, defendant states that government counsel, at the trial of this case, pursuant to leave of Court, utilized portions of the prior testimony of the following witnesses before the grand jury for the stated purpose of refreshing their recollections: Arthur Augenstein, John Flanagan, Frank Gardner, John W. Baird, David W. Stewart, Vincent Crimmins and Edward H. Gilmore (sometimes hereinafter referred to as "refreshment witnesses"). It is undisputed that in each instance, defense counsel moved to inspect the portions of the grand jury transcripts so utilized and all other portions concerning the same subject matter, and these motions were denied. The seven persons hereinabove listed were important witnesses at the trial and played important roles in the events at issue under the charges of the indictment (as set forth in defendant's briefs, including particularly Brief of Defendant on Remand dated September 16, 1966, pp. 15-17, and Appendix A thereto). By reason of these facts, defendant had a "particularized need" to inspect portions of the refreshment witnesses' grand jury testimony related to their testimony on direct examination at the trial, and other testimony relevant to the charges of the indictment, and denial of defendant's motions therefor constituted reversible error.

The second alleged ground of defendant's postmandate motion relating to "non-refreshment witnesses" — i. e., witnesses whose grand jury testimony was not utilized for the refreshment of the testimony of any trial witness — contains the allegation that:

Defendant's attorneys made no motion to inspect pertinent grand jury testimony of the non-refreshment witnesses inasmuch as government counsel did not utilize the same at trial for impeachment or to refresh recollection, and defendant's attorneys believed that they were precluded from inspecting said grand jury transcripts under the decisions of the United States Supreme Court in United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), and Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959).²

It was also there alleged that:

As its second ground for a new trial, defendant states that government counsel had access to the ground jury transcripts of numerous other important prosecution witnesses (hereinafter sometimes referred to as "non-refreshment witnesses"), and understands that they utilized the same outside the courtroom in preparing said persons to testify against defendant.

Defendant then alleged that "the non-refreshment witnesses were in most cases hostile to defendant, and they gave testimony which was helpful to the prosecution and harmful to the defense, and defendant's counsel had no access to their grand jury testimony." The names of the non-refreshment witnesses, some thirty in number, were set forth and defendant alleged that its postmandate claim of "particularized need" was established by the alleged fact that all of those witnesses were, for various alleged reasons, hostile and adverse to the defendant's interest. Defendant then alleged that:

Defendant is without knowledge as to whether or not impeachment material or material otherwise useful to the defense is contained in the grand jury testimony of the non-refreshment witnesses hereinabove listed, but avers that there is a reasonable possibility that said testimony contains impeachment material, including statements inconsistent with, explanatory of, or useful in placing in proper perspective their testimony given at the trial, or otherwise useful to the defense. Defendant further has no knowledge as to whether the grand jury testimony of the non-refreshment witnesses hereinabove listed contains material which might have been affirmatively helpful to the defense and, having been forgotten or concealed by said persons, was not called to their attention by government counsel; however, defendant believes there is a strong possibility that said grand jury testimony contains such material.

Defendant's legal contentions will be later stated in detail.

II. Defendant's Contention in Regard to Command of the Supreme Court's Mandate is Untenable

As a preliminary matter it must be noted that the parties are in radical disagreement in regard to the meaning of the Supreme Court's per curiam opinion and its mandate commanding that this Court give this case "further consideration in light of Dennis v. United States."

Defendant contends that the only "logical * * * and indeed reasonable — explanation * * * that the Supreme Court sent its mandate to this Court was that it expected this Court would make the determination of whether the requested grand jury minutes were producible under the rules laid down in Dennis, and if so, to order a new trial — just as it would be required if the question involved the producibility of Jencks Act statements" (D.B. 10/28/66, p. 11).³ Defendant insists that "the Supreme Court in effect directed a new trial in this case" (D.B. 11/18/66, p. 2). Defendant argued orally that the only reason the Supreme Court did not reverse National Dairy outright was because of the alleged existence of some sort of a general custom of courtesy that the Supreme Court allegedly extends to the lower federal court (O.A.Tr. 16-17).⁴

At the time of oral argument, we expressed the tentative view that if defendant's contentions in regard to what the Supreme Court actually held in Dennis were tenable then "the only reasonable thing for the Supreme Court of the United States to have done would have been to have simply reversed this case and sent it back for trial" (O.A. Tr. 38). Subsequent research and reflection has confirmed that tentative view.

The Court of Appeals for the Eighth Circuit recently received a similar remand from the Supreme Court in American Guild of Variety Artists v. Smith, 384 U.S. 30, 86 S.Ct. 1283, 16 L.Ed.2d 332. The original judgment of the Court of Appeals reported in 349 F.2d 975 was vacated and the case was remanded for further proceedings in light of United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. The Court of Appeals on remand, Smith v. American Guild of Variety Artists, Nos. 17856 and 17857, 368 F.2d 511, states that the Court of Appeals gave "careful consideration to the Supreme Court opinions in this case and Gibbs" with the understanding that "we are directed to apply the law as stated in Gibbs to our present case insofar as common issues are presented."

The Court of Appeals analyzed the rational of Gibbs and noted that reversal had been based primarily upon the Supreme Court's determination that the standard of proof prescribed by § 6 of the Norris-La Guardia Act had not been met. It also noted that the Supreme Court had full knowledge of the fact that the Court of Appeals had not considered § 6 in its prior opinion. The Court of Appeals then commented:

If the failure to consider § 6 was error per se upon the record made whether or not the § 6 issue was properly before the Court, we would assume the Supreme Court would have reversed outright as it did in Gibbs. (Page 513 of Smith, Doing Business as Smith Entertainment Agency and as Smith & Dale Circus v. American Guild of Variety Artists, Nos. 17856 and 17857.)

The Third Circuit had much the same reaction to the Supreme Court's similar remand in Joines v. United States, 357 U.S. 573, 78 S.Ct. 1380, 2 L.Ed.2d 1547, in which it was directed to give further consideration to its earlier opinion reported in 246 F.2d 278, in light of Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514. In complying with the Supreme Court's mandate, the Third Circuit commented in its opinion on remand, reported as United States v. Joines, 3 Cir. 1958, 258 F.2d 471, that if the Supreme Court had considered a particular "decisive factor to have been controlling there would have been no purpose in remanding the case to us for further consideration." That case added that "on the contrary, had the Supreme Court * * * thought this undeniable fact controlling, it would certainly have reversed the defendant's conviction" (258 F.2d at 472). Both the Eighth and Third Circuits adhered to their respective previous judgments. The Supreme Court denied certiorari in regard to the Third Circuit case. See Joines v. United States, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109. The Eighth Circuit case is probably on its way back...