The opinion of the court was delivered by: DUSEN
The defendants in this criminal action under 15 U.S.C.A. §§ 1 and 2 are two manufacturing corporations and certain individuals employed (or previously employed) by them, and the case is now before the court on Motions To Dismiss the indictment (Documents Nos. 15-21 and 23-26).
The indictment alleges that beginning sometime prior to 1954, the exact date being to the grand jurors unknown, and continuing thereafter up to and including the date of the return of the indictment, the defendants and other co-conspirators have engaged in a combination and conspiracy in unreasonable restraint of interstate and foreign trade and commerce and in a combination and conspiracy to monopolize interstate and foreign commerce in asbestos-cement pipe and couplings. Also, the defendants are charged with attempting to monopolize the interstate and foreign trade and commerce in asbestos-cement pipe and couplings.
The Motions to Dismiss the indictment have been argued in the following three groups:
I. Motions of all defendants to dismiss the indictment for lack of specificity;
II. Motions of all defendants to dismiss because of irregularities in the use of the grand jury process; and
III. Motion on behalf of three defendants, Messrs. Frazza, Barr and Reichel, to dismiss on the grounds that their prior testimony made them immune from this indictment.
I. Alleged Lack of Specificity (see briefs docketed under Nos. 36 & 38)
Paragraph 11 of the indictment alleges that defendants are 'the only manufacturers of asbestos-cement pipe and couplings in the United States' and accounted for approximately 95% Of the sales of such products in the United States; imports accounted for approximately 5% Of such sales.
Paragraph 14 of the indictment sets forth the substantial terms of the continuing agreement, understanding and concert of action which is alleged to be the basis of the illegal combination and conspiracy.
Paragraph 15 sets forth certain acts which the defendants are alleged to have done for the purpose of effectuating the conspiracy and paragraph 16 sets forth the alleged effects of the conspiracy and attempt to monopolize. Paragraph 17 states:
'The offense charged in this count of the indictment has been committed in part within the Eastern District of Pennsylvania and within the jurisdiction of this Court. During the period of time covered by this indictment and within five years next preceding the return thereof, the defendants have performed within the Eastern District of Pennsylvania many of the acts hereinbefore charged.'
The defendants contend that the indictment does not meet the standards imposed by the Fifth and Sixth Amendments of the United States Constitution and Rule 7(c) of the Federal Rules of Criminal Procedure.
1. The indictment contains the elements of the offenses intended to be charged and sufficiently apprises the defendants of what they must be prepared to meet.
An examination of cases which have been brought under the Sherman Act establishes that this indictment is not objectionably vague, indefinite or uncertain and that defendants' position that it fails to allege sufficiently the constituent elements of the crimes must be rejected.
In a conspiracy charge under the Sherman Act, overt acts, other than the conspiracy itself, do not have to be pleaded or proved. E.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223-225, 60 S. Ct. 811, 84 L. Ed. 1129 (1940); Nash v. United States, 229 U.S. 373, 378, 33 S. Ct. 780, 57 L. Ed. 1232 (1913); Mercer v. United States, 61 F.2d 97, 98-99 (3rd Cir., 1932); United States v. Sherwin-Williams Co., 9 F.R.D. 69, 70 (W.D.Pa. 1949).
The field of trade and commerce in which the conspiracy operated was specified with sufficient definiteness in the indictment, which referred to it as the 'asbestos-cement pipe and coupling field.' See United States v. New York Great A. & Pacific Tea Co., 137 F.2d 459, 462-463 (5th Cir., 1943), cert. den. 320 U.S. 783, 64 S. Ct. 191, 88 L. Ed. 471 (1943); United States v. The Metropolitan Leather and Find. Ass'n., 82 F.Supp. 449, 453 (S.D.N.Y. 1949).
(a) The time that the conspiracy started
Since the conspiracy is alleged to be a continuing one, it is not necessary that the indictment set forth the exact date that it commenced. Frankfort Distilleries v. United States, 144 F.2d 824, 831 (10th Cir., 1944), reversed on other grounds, 324 U.S. 293, 65 S. Ct. 661, 89 L. Ed. 564 (1945); United States v. The Metropolitan Leather and Find. Assn., supra. See United States v. American Tobacco Co., 221 U.S. 106, 31 S. Ct. 632, 55 L. Ed. 663 (1911); Mercer v. United States, supra.
(b) The known members of the conspiracy
The failure of the indictment to name all the alleged co-conspirators does not make it defective. United States v. Gasoline Retailers Association, Inc., 285 F.2d 688, 691-692 (7th Cir., 1961). In this case, the court said:
'It is contended by appellants that the indictment was insufficient and should have been dismissed because it failed to list the names of some of the co-conspirators whose names were known to the government and the grand jury.
'Rule 7(c) of the Federal Rules of Criminal Procedure provides that the indictment shall be 'a plain, concise and definite written statement of the essential facts constituting the offense charged' and 'need not contain * * * any other matter not necessary to such statement.' The indictment in this case did set forth 'essential facts' constituting the offense of conspiracy in restraint of trade, and there was no need to set out the particular names or identity of possible witnesses who at the trial might prove to have been co-conspirators. United States v. Glasser, 7 Cir., 1941, 116 F.2d 690. We ...