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August 17, 1967

United States
American Radiator & Standard Sanitary Corp., et al. United States v. Plumbing Fixture Mfrs. Assn., et al.

Rosenberg, District Judge.

The opinion of the court was delivered by: ROSENBERG

Requests are here considered, as they were incorporated in joint motions to dismiss the indictments and to suppress evidence in the above entitled cases, for the hearing en camera of "any evidence, arguments or other proceedings in connection therewith" and for the impounding of the records thereof. These requests were collateral to motions as filed by the defendants for pretrial procedure *fn1" pursuant to Federal Rule of Criminal Procedure 17.1, not as it was suggested by defendants' counsel as they relate to the entire proceedings, but only so far as they relate to "discovery and bills of particulars or the equivalent thereof" and as they were to be made available en camera.

 After an extensive grand jury investigation into certain activities of plumbing manufacturers throughout the United States a grand jury at Pittsburgh, Pennsylvania, on October 6, 1966, presented two indictments, charging antitrust violations, against the named defendants. The first indictment at Criminal No. 66-295 charges eight corporate defendants, a trade association and eight individual defendants, with engaging in a conspiracy, in violation of Section 1 of the Act of Congress of July 2, 1890, commonly known as the Sherman Act. The indictment charges, in substance, that the defendants conspired to fix the prices of enameled cast iron and vitreous china plumbing fixtures beginning sometime in September 1962 and continuing at least until sometime in 1966. The second indictment at Criminal No. 66-296 charges ten corporate defendants and their trade association with engaging in a conspiracy in violation of Section 1 of the Sherman Act, in that such defendants conspired to fix the prices of staple vitreous and china plumbing fixtures beginning in November 1960 and continuing to June 1962.

 On November 15, 1966, at the arraignment, all the defendants pleaded not guilty. Counsel had met several times informally both in Pittsburgh and Washington to attempt to agree upon a course of action, and reported that they had arrived at no agreement. Thereafter time for the filing of preliminary motions was allowed the defendants. The defendants in each case then filed joint motions to dismiss the indictment, to suppress evidence, and for pretrial. Four separate motions to dismiss were also filed by three individual defendants and one corporate defendant.

 On May 22, 1967, an en camera hearing was had to determine the necessity for en camera proceedings on the motions to dismiss and to suppress evidence. At the argument as verified by the order of May 23, 1967, counsel for the parties were directed to file affidavits, setting forth the facts upon which the parties relied to support their positions for and against an en camera hearing.

 The defendants' reasons for en camera hearing as stated in their joint motions was "in order to preserve the defendants' rights pending the determination of the motion and to assure the defendants a fair trial if the motion should be denied." They contended that "Anything other than in camera treatment of the pretrial proceedings involving the Motions to Dismiss and Suppress would, in effect, deny the defendants Constitutional rights by placing upon the public record the complete background concerning the very material, the illicit creating and obtaining and the subsequent use and divulgence of which within the confines of the Grand Jury room, constitutes the error which is protested in the Motion."

 Both parties cite the Sixth Amendment which states:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense."

 The Government contends that the provisions of the Sixth Amendment which guarantees to an accused "the right to a speedy and public trial" reflects a basic premise in American law that all significant portions of the criminal trial should be in open court.

 The defendants, on the other hand, contend that they may waive their constitutional rights to a public hearing, *fn2" particularly pretrial hearings and thus be granted a private trial, or in any event a private pretrial proceeding or hearing on their motions to suppress evidence.

 First, to allow a private pretrial proceeding or hearing on the joint motions in this case would set a precedent for all other criminal cases of whatever nature. No one will argue that a criminal defendant is under pressure and tension; that he is frequently the object of publicity; and that he may be humiliated and sometimes disgraced or even stigmatized. The individual, man or woman, charged with crime may suffer from this in his immediate neighborhood or his everyday social life and employment. The businessman, additionally, often feels the effects in his business. Yet every day in our criminal courts, large numbers of persons stand charged with crimes of every kind. It is difficult to visualize a criminal processing by which all of these could waive their rights to a public trial, or even pretrail, and be tried privately. This does not mean that certain features in criminal proceedings may not be closed against the inquisitive, or that even, at times, the public generally may not be excluded from the courtroom. Such exclusion, for instance, is permissible where there are juvenile court matters, divorce proceedings, or certain crimes of sexual perversion. Wigmore, Evidence, § 1835.

 If reputations of the parties are at stake, as they maintain here, so are the reputations of every other defendant in every other criminal case. And if they are exonerated, either by suppression of evidence or by any other legal occurrence, then their position is no different from any other exonerated defendant. Thus, I do not see that because a group of defendants is charged with antitrust violations and finds itself open to possible publicity, as it may be to conviction and other penalties, it is to be preferred to defendants in criminal cases generally.

 I do not recognize the defendants' contention that a waiver of public hearing requires the action they request. The argument of the defendants that they have a right to waive a public hearing and demand a private hearing reflects an absurdity equal to the interpretation that the defendants have a right to waive a speedy trial, and so convert the word "speedy" in the Sixth Amendment to mean "protracted". The Amendment reads "speedy and public" not "protracted and private". Under such circumstances as argued by the defendants, all criminal charges could be defeated, and chaos would result. We cannot and do not make any absurd construction of the meaning of the words of the Constitution. It has been held that the trial by jury provided for in the Sixth Amendment does not mean that a defendant may waive the trial by jury without court approval. Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1964); Patton v. United States, 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253 (1930).

 While the Sixth Amendment does specify certain rights for the accused including his right to a public trial, it does not preserve to him a right to a private trial. In Singer v. United States, supra, 380 U.S. 24 at pages ...

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