replied that I had no new information since my earlier testimony and that the company had done nothing wrong. Mr. Carson did most of the talking but both he and Mr. Lindsay exhibited a truculent attitude, reiterating that they had the evidence and that I should come clean.
'Mr. Carson and Mr. Lindsay did not invite me to talk with them but commanded me to follow them to their office, at which time the questioning related above went on for about one-half hour. Only then was I sent to testify before the grand jury as I had been subpoenaed to do.'
This witness also indicated at no place in his affidavit that he had not told the full truth to the grand jury.
The Government served on counsel for defendants on the day of the argument affidavits contradicting the above testimony, but such contradictions served at such a late date (over two months after he above-mentioned affidavits of defendants had been filed) have not been considered insofar as they contradict the foregoing affidavits.
They have been considered insofar as they are not inconsistent with defendants' affidavits.
As pointed out above, there is nothing in the record to establish that the witnesses were coerced in their testimony before the grand jury or that their testimony was in any way changed because of their discussions with Government counsel. Neither defendants nor the undersigned have been able to find any cases stating that a grand jury may only consider 'unrehearsed testimony.'
Federal courts have inherent power over their process to prevent abuse, oppression and injustice and the process of the court comprehends proceedings before the grand jury and the means whereby witnesses are compelled to attend such proceedings. In re National Window Glass Workers, 287 F. 219, 224-225 (E.D.Ohio 1922). Cf. McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943). However, it has been consistently stated that there should be no curtailment of the inquisitorial power of the grand jury except in the clearest case of abuse,
and mere inconvenience not amounting to harassment does not justify judicial interference with the functions of the grand jury.
Although a grand jury subpoena could be used abusively by the United States Attorney's office,
this record does not show that there was any such abuse of process in this case which would justify this court in dismissing this indictment. The fact that the witnesses were ordered to appear in the office of the United States Attorney is not inherently prejudicial to defendants.
Judge Miller stated as follows in United States v. Stirone, 168 F.Supp. 490 (W.D.Pa.1957),
at page 497:
'It is next suggested that the government's improper use of subpoenas requires the granting of a new trial. See Rule 17, F.R.Cr.P., 18 U.S.C.A. In many instances subpoenas were issued commanding the appearance of witnesses to testify in the 'United States District Court for the Western District of Pennsylvania' at '633' or at '644' New Federal Building, Pittsburgh, the latter being room numbers of the offices of the United States Attorney. The procedure followed is disapproved. The validity of the subpoenas from the viewpoint of the witnesses is not in question since each took the stand and without objection gave testimony in response to the subpoena. In re Meckley, 1943, D.C.M.C.Pa., 50 F.Supp. 274, affirmed, 3 Cir., 1943, 137 F.2d 310, certiorari denied, 1943, 320 U.S. 760, 64 S. Ct. 69, 88 L. Ed. 453; 97 C.J.S. Witnesses §§ 22, 25, pp. 374, 376 (1957). Assuming that defendant has standing to object to a misuse of the subpoena power, a valid objection must be based on prejudice to his cause. The United States Attorney informs the court that the subpoenas were drawn in the form described above only to insure the keeping of proper records for the payment of witness fees. There is no averment or proof of ulterior purpose or of prejudice. There accordingly is nothing before the court to justify a presumption of injury to some substantial right of the defendant. See Rule 52(a), F.R.Cr.P., 18 U.S.C.A.'
The undersigned concurs in the third sentence of the above quotation as applied to the record in this case, showing subpoenas directing witnesses to report to the United States Attorney's office. However, the testimony before the grand jury of the witnesses mentioned in (b) and (c) above has been examined and there is no indication of any effective pressure upon such witnesses.
Furthermore, it is noted that there are federal cases which take the position that the proper remedy for an abuse of the grand jury process is not to dismiss the indictment but through discipline of the offending officials by contempt or through other procedures. See United States v. Smyth, supra, footnote 13, 104 F.Supp. at pp. 301 and 308, and cases there cited.
It is also noted that the United States Supreme Court has stated: 'An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits.' Costello v. United States, supra, 350 U.S. at p. 363, 76 S. Ct. at p. 408, 100 L. Ed. 397. See, also, Lawn v. United States, 355 U.S. 339, 349, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1957).
III. Alleged Immunity of Defendants Frazza, Barr & Reichel
In April 1958, the individual defendants, Frazza, Barr and Reichel, testified under subpoena before a Grand Jury of this court investigating possible anti-trust violations in the asbestos-cement pipe and coupling industry. In June 1962, another grand jury of this court returned the indictment in this action, naming these three individuals as co-defendants. Count One of this indictment states (paragraph 13):
'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 this indictment, the defendants and the co-conspirators have engaged in a combination and conspiracy in unreasonable restraint of the aforesaid interstate and foreign trade and commerce in asbestos-cement pipe and couplings, in violation of Section 1 of the * * * Sherman Act.' (15 U.S.C.A. § 1)
Count Two of the indictment contains identical language to the above to the word 'conspiracy' and continues as follows (paragraph 19):
'* * * to monopolize the aforesaid interstate and foreign trade and commerce in asbestos-cement pipe and couplings, in violation of Section 2 of the * * * Sherman Act.' (15 U.S.C.A. § 2)
Count Three of the indictment states (paragraph 24):
'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 this indictment, the defendants have attempted to monopolize the aforesaid interstate and foreign trade and commerce in asbestos-cement pipe and couplings, in violation of Section 2 of the * * * Sherman Act.' (15 U.S.C.A. § 2)
The testimony given by these individual defendants in April 1958 concerned talks they had had of possible methods of restricting the importation of asbestos-cement pipe into this country from foreign manufacturers, as well as their responsibility and activities in establishing, and varying, standard prices set by the corporate defendants. These individual defendants were also questioned concerning the adoption of specifications for pipe to be used in this country in order to increase the cost of foreign-made pipe and the membership and organization of societies which adopted such specifications.
As part of the anti-trust laws, Congress has provided as follows:
'No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under sections 1-7 of this title and all Acts amendatory thereof or supplemental thereto, * * *.' (15 U.S.C.A. § 32)
In Heike v. United States, 217 U.S. 423, 431, 30 S. Ct. 539, 542, 54 L. Ed. 821 (1910), the court said:
'* * * we are of opinion that the statute does not intend to secure to a person making such a plea immunity from prosecution, but to provide him with a shield against successful prosecution, available to him as a defense, and that when this defense is improperly overruled it may be a basis for the reversal of a final judgment against him.'
As pointed out in United States v. Swift, 186 F. 1002 (N.D.Ill.1911),
immunity gained under a statute such as 15 U.S.C.A. § 32 does not grant a license to violate the law perpetually. 15 U.S.C.A. §§ 32 and 33 do not preclude prosecution of these defendants under an indictment alleging their participation on and after May 1, 1958, in the conspiracy charged and the attempt to monopolize charged. An examination of the testimony before the grand jury discloses that the grand jury had before it testimony concerning the offenses charged in the three counts of this indictment occurring after May 1, 1958.
This record does not justify the assumption that the matters covered in such testimony were 'substantially connected with the transactions in respect of which (these defendants) testified' in April 1958. See United States v. Monia, 317 U.S. 424, 430, 63 S. Ct. 409, 87 L. Ed. 376 (1943).
In Costello v. United States, supra, the court held 350 U.S. at p. 363, 76 S. Ct. at p. 408, 100 L. Ed. 397 (as quoted in part at p. 15 above):
'An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.'
See, also, Lawn v. United States, supra, 355 U.S. at pp. 348-350, 78 S. Ct. at pp. 317-318, 100 L. Ed. 397.
As to the requirement that the indictment provide a sufficient warning to these defendants of the time of commission of the offenses with which they are charged, an examination of many cases on this point indicates that the allegations in this indictment are sufficient as to the offenses charged in each of the three counts. See United States v. Cowell, 243 F. 730 (D.Ore.1917), aff'd sub. nom. Butchart v. United States, 295 F. 557, 579 (9th Cir., 1924); United States v. New Departure Mfg. Co., 204 F. 107, 112, 114 (W.D.N.Y.1913); United States v. Eccles, 181 F. 906, 908 (D.Ore.1910); and cases cited above at pp. 4-5.
In United States v. Borden Co., 308 U.S. 188, 60 S. Ct. 182, 84 L. Ed. 181 (1939), the court held that an indictment was sufficient even though it might be found that defendants had a license to engage in the conspiracy charged during part of the time alleged in the indictment. The court used this language 308 U.S. at p. 202, 60 S. Ct. at p. 190, 84 L. Ed. 181:
'There is indeed a contention that there was a license (No. 30) issued by the Secretary of Agriculture in 1934, amended in January, 1935, and in force until March 2, 1935, which related to the marketing of milk in the Chicago area, and hence that defendants operating under that license were not subject to the charges of the conspiracies alleged to have begun in January, 1935. But the allegations of the indictment are that the unlawful conspiracies continued throughout all the period mentioned in the indictment, that is, up to the time of its presentment in November, 1938. This clearly imports that the conspiracies were operative after the license came to an end and thus in the absence of any license. A conspiracy thus continued is in effect renewed during each day of its continuance.'
For the reasons given under I-III above, the Motions and Supplemental Motions to Dismiss the indictment must be denied.