United States v. National Dairy Products Corp.

• Decision Date: 28 May 1964
• Docket Number: No. 20542.,20542.
• Parties: UNITED STATES of America, Plaintiff, v. NATIONAL DAIRY PRODUCTS CORP. and Raymond J. Wise, Defendants.
• Court: U.S. District Court — Western District of Missouri

231 F. Supp. 663

UNITED STATES of America, Plaintiff, v. NATIONAL DAIRY PRODUCTS CORP. and Raymond J. Wise, Defendants.

No. 20542.

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

May 28, 1964.

Earl A. Jinkinson, Chicago, Ill., for plaintiff.

John T. Chadwell, Richard W. McLaren, Chicago, Ill., Martin Purcell, Kansas City, Mo., John H. Lashly, St. Louis, Mo., for defendants.

JOHN W. OLIVER, District Judge.

This case pends on the separate motions of defendant Wise and defendant National for judgment of acquittal, notwithstanding the verdict and, in the alternative, for a new trial as to Counts Eleven, Twelve and Thirteen, and on the similar separate motion of defendant National in regard to Counts One through Ten.

The motions that relate to the Kansas City counts, (Counts Eleven, Twelve, and Thirteen) are identical except that paragraph 16 of defendant Wise's motion alleges in addition that we erred in refusing to sever defendant Wise and accord him a separate trial on the Kansas City counts for the reason that the introduction of evidence against defendant National on all the counts prevented defendant Wise from obtaining a fair trial in connection with the only counts in which defendant Wise was charged.

Defendant National's motion in regard to the distributor counts (Counts One through Ten, inclusive) contain many paragraphs that duplicate the allegations made in regard to the Kansas City counts and, except for naming different witnesses and different exhibits, follows the same general pattern of the separate motions that relate to the Kansas City counts.

The reasons assigned in all the pending motions, with one exception to be noted, are the reasons that careful lawyers usually assign in such motions in order that all questions of possible error be preserved for appellate review. For example, paragraphs 1 through 3 of defendant National's Kansas City counts motion are directed to our charge to the jury; paragraphs 4 through 9 relate generally to our rulings on questions of evidence; paragraph 10 and 11 are directed to the use we permitted and the procedure we followed in connection with the Grand Jury transcript; paragraphs 12 through 15 preserve defendants' various contentions concerning our refusal to sever and to grant separate trials, both in regard to the two defendants and in regard to the particular counts of the indictment; paragraphs 17 through 19 allege in general and usual fashion that the verdict is contrary to the weight of the evidence, that it is not supported by substantial evidence, and that it is contrary to the law; paragraph 20 alleges that we erred in denying the motion for acquittal filed at the conclusion of the Government's case and again at the close of all the evidence; and paragraph 21 alleges that we erred in overruling defendant Wise's motion to dismiss Count Thirteen.

Paragraph 16 of defendant National's motion, which we noted above as an exceptional allegation, reads as follows:

"16. The defendants were substantially prejudiced and deprived of a fair trial by reason of the comments and rulings by the Court, the restrictions placed by the Court upon cross-examination and presentation of evidence by defendants, and by the attitude of the Court toward defendants, defendants' evidence, and defendants' counsel during the trial."

The allegation just quoted is made in identical language by both defendants in regard to each count to which their separate motions are directed. (See paragraph 17 of defendant Wise's motion and paragraph A.11 on page 3 of defendant National's distributor motion directed to Counts One and Two. And see also paragraphs B.1 on page 3, C.1 on page 4, D.1 on page 4, and E.1 on page 5 of National's distributor motion where paragraph A.11 relating to Counts One and Two is incorporated by reference as being applicable to all of the other distributor counts).

In spite of the over 1000 pages of the post-trial briefs that have been filed, we do not believe it necessary for us to write an extensive memorandum and opinion in support of our action on the pending motions. In connection with the major contentions presented, the transcript reflects our particular rulings and the reasons upon which those rulings were based. We have studied the briefs filed; we have read the authorities cited; we have again considered each of the over 7300 pages of the transcript of the trial proceedings and are satisfied that the defendants had a fair trial and that defendants' contentions are not tenable.

In our memorandum and order of May 1, 1963, prior to trial, we ruled defendant Wise's motion for a separate trial. We there cited and applied what we believed are the controlling authorities. At several points during the trial we reviewed the question of whether Rule 14 should be invoked.^* We then determined that no necessity existed for its invocation. We are still of that view.

In like manner, our reasons for refusing to dismiss Count Thirteen are fully stated in another memorandum and order dated May 1, 1963. Our reconsideration of that question does not incline us to change our view of that question.

Both at the close of the Government's case in regard to the Kansas City counts and at the close of the Government's case in regard to the distributor counts, we called for briefs and heard extended oral argument on the question of the sufficiency of the evidence. The substance of the defendants' theory then presented is substantially the same as the substance of most of the arguments presented in more elaborate fashion in the post-trial briefs in support of defendants' motions for acquittal. See Tr. pages 2764 to 2826, and Tr. 4605 to 4672. On pages 2828 to 2839 and on pages 4672 to 4677, I expressed my views concerning the questions presented. My review of the entire record and my study of the briefs and the authorities cited does not convince me that the motions for acquittal should have been sustained.

A comparison of the arguments made at trial with the arguments made in the post-trial briefs, of course, reflects that the defendants in this case, after verdict, are more prone to indulge in vindictive and expletive language against the Government witnesses and the Government itself than they did in the arguments made during the trial. But we must, of course, judge the sufficiency of the evidence on the basis of the testimony as actually given. The post-trial argument that there was "nothing but suspicion as a basis for a finding of conspiracy" (page 41 of National's acquittal brief), for example, was made to and rejected by the jury (Tr. 6939, 6944-6945). We have determined that there was substantial evidence to support the verdict. We must and shall therefore rule that defendants' motions for acquittal notwithstanding the verdict must be denied.

We turn now to the alternative motions for new trial. In that connection we have again reviewed our charge. We obviously thought it fair when we gave it, or we would not have given it. We sought the aid and assistance of counsel early in the case and repeated our request for assistance at frequent intervals thereafter (see Tr. 2626, 2837-2839, 4676-4677, 5815-5822, 6585-6588). We used the assistance proffered and express our appreciation to counsel for their efforts.

We have reviewed our charge in light of our restudy of the transcript and are convinced that defendants' complaints do not go to matters of real substance.

In regard to defendants' comments concerning the outline of the evidence that had been adduced by both sides in connection with the particular counts, we have noted with some interest the suggestion made by Edward Bennett Williams in the panel discussion on The Problems of Long Criminal Trials held at the Judicial Conference of the Second Circuit last September as reported in 34 F.R.D. 155, at page 187. Mr. Williams suggested:

"I think that the jury can best be helped if the legal abstraction is superimposed on the facts in evidence and the judge points out to the jury the possible points of incidence.

Now, what I'm suggesting is that in these cases the courts exercise their right to review the evidence and, if necessary, to comment on it. I suppose this sounds most unorthodox coming from a defense lawyer because generally when a trial judge suggests that he's going to talk about the evidence trial lawyers on the defense side of the table are struck with palsy, but I have enough faith in the objectivity of the trial bench to believe that they can be helpful to juries in delineating the evidence against a specific defendant and that no prejudice will inure to defendants from following this practice."

We did not believe that justice required that we comment on the evidence adduced by the parties. We so advised the jury (Tr. 7117). We did, however, believe that an outline of the evidence in regard to each count would focus attention on the questions of fact that the jury was required to decide. We are confident that our repeated reference to what was said in regard to the outline and its purpose (Tr. 7061, 7117, 7149, 7155, 7160) and our closing instruction that the jury should not regard anything said in the instructions as suggesting what we would do if we were acting as a juror (Tr. 7211) could not have been misunderstood or misconstrued.

Of course, we agree with Judge William B. Herlands' statement as a member of the same panel to which we have made reference, that "it is much easier to love justice than to administer it," (l. c. 175 of 34 F.R.D.). But we do not share defendants' evident agreement with the idea that a defendant has only a 50-50 chance of obtaining a fair verdict in a criminal trial and that we fool ourselves if we believe that a jury of laymen can listen to a three-hour oral charge and retain it (see footnote 7 on page 12 of Defendant National's acquittal brief).

At the close of the Government's evidence on the Kansas City counts, we gave an interim charge to the jury in order to...