The opinion of the court was delivered by: DUSEN
Paragraph 7(b) of the Indictment reads as follows:
'7. Various corporations and individuals not made defendants herein have participated as co-conspirators in the offense charged herein, and have performed acts and made statements in furtherance thereof. These co-conspirators, some of them being unknown to the grand jurors, include, but are not limited to, the following:
'(b) American Society for Testing Materials, Inc., a Pennsylvania corporation with headquarters at Philadelphia, Pennsylvania. It is composed of members drawn, among others, from many of the more important industries of the United States. One of its purposes is the standardization of specifications and methods of testing various materials, including asbestos-cement pipe and couplings.'
Paragraph 15(f) of the Indictment reads as follows:
'15. For the purpose of effectuating the aforesaid combination and conspiracy, the defendants and co-conspirators did those things which they combined and conspired to do, including, among other things, the following:
'(f) Agreed upon and proposed, and brought about or attempted to bring about, the adoption by the American Society for Testing Materials, the American Water Works Association, other organizations, municipalities and awarding authorities, of specifications designed to increase the costs of foreign-made asbestos-cement pipe and couplings, to render such products ineligible for use, and to otherwise restrict and eliminate competition from such foreign-made products;'
The American Society for Testing and Materials (hereinafter referred to as 'ASTM') has taken the following steps:
(1) Approximately ten days before the scheduled start of the trial (January 6), ASTM filed, on December 27, 1963, a motion to submit a statement, which was attached to the motion (Document 152 in Criminal No. 21118), setting forth the nature and purpose of its operation and the predicament in which it was placed by being named in the Indictment without being made a defendant. The motion and statement were made a part of the Clerk's file in Criminal No. 21118.
(2) Shortly before, or at the time that, the Government concluded the presentation of its evidence in April 1964, ASTM moved to strike paragraphs 7(b) and 15(f) of the Indictment and filed a brief (Document 308 in Criminal No. 21118) in support of this motion. In the comment to the ruling on the motions made at that time (see Order of 4/16/64, being Document 195 in Criminal No. 21118), the following paragraph was included at page 6:
'The Government has not established that the American Society for Testing and Materials and the American Waterworks Association are co-conspirators or that they had knowledge of the conspiracy. Hence, the jury will be instructed to disregard § 7(b) and (c) of the Indictment (Document 1), which shall be considered as having been deleted therefrom.'
(4) When counsel at the trial were submitting their points for charge, ASTM requested that the jury be instructed to ignore those parts of the Indictment that mentioned it because there was no evidence in the record to justify them. The instructions to the jury (N.T. 14,374-14,378 in Criminal No. 21118) covered the Government's allegations of the part played by ASTM in the conspiracy charged in the Indictment and the following points for charge, submitted by defendants, were read to the jury (N.T. 14,376-14,377):
"I instruct you that the activities of the defendants in agreeing upon and proposing, and attempting to bring about the adoption of specifications concerning the alkalinity test and uncombined calcium hydroxide test by the American Society for Testing Materials and the American Water Works Association were entirely legal and permissible and ...