On June 2, 1977, indictments were returned against James J. Tedesco and Thomas J. Gillen by a grand jury sitting in Harrisburg, Pennsylvania. The indictments charged that the two Defendants, along with numerous coconspirators,
engaged in a continuing combination and conspiracy in unreasonable
restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act, as amended prior to December 21, 1974, 15 U.S.C. § 1.
It is alleged that the combination and conspiracy began as early as 1961, the exact date being unknown to the grand jurors, and continued through November of 1974,
consisting of a continuing agreement,
understanding and concert of action among the Defendants and unindicted coconspirators to fix, stabilize, and maintain the prices of anthracite coal, with the Defendants and coconspirators doing those things which they combined and conspired to do. The Government's bill of particulars, paragraph three, states that the conspiracy alleged in the indictment concerned the prices of anthracite coal which was offered for sale or sold to customers located in the states of Pennsylvania, New York, New Jersey, Massachusetts, Maryland and Ohio.
The indictment states that the combination and conspiracy had the effects, among others, of fixing, stabilizing and maintaining prices for anthracite coal at artificial and noncompetitive levels,
of depriving customers of free and open competition in the purchase of anthracite coal, and of restraining competition in the sale of anthracite coal.
Before the Court at this time are numerous pretrial motions. Both Defendants have filed motions to dismiss the indictment; for discovery and disclosure of exculpatory material; for bills of particulars; and for severance. These motions will be discussed seriatim.
MOTIONS TO DISMISS THE INDICTMENT
SPECIFICITY OF THE CHARGE
The Defendants have challenged the indictment as being impermissibly vague and for failing to state facts sufficient to constitute an offense against the United States. For the reasons set forth below we find the indictment is sufficiently specific and states facts which constitute a violation of the Sherman Act, 15 U.S.C. § 1.
An indictment must be sufficiently specific to apprise the Defendants of the charges against them so that they may prepare an adequate defense, and must also be specific enough to avoid the possibility of the Defendants being placed in double jeopardy. Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Federal Rule of Criminal Procedure 7(c) requires that an indictment be a "plain, concise and definite written statement of the essential facts constituting the offense charged."
The essential elements of a Sherman Act indictment are the time, place, manner, means and effect of the alleged violation. United States v. A.P. Woodson Co., 198 F. Supp. 579 (D.D.C. 1961); United States v. Maine Lobstermen's Association, 160 F. Supp. 115 (D. Me. 1957); United States v. Greater Kansas City Retail Coal Merchants' Association, 85 F. Supp. 503 (W.D. Mo. 1949). Overt acts need not be alleged in a Sherman Act conspiracy indictment, for it is the conspiracy itself which is the crime. Nash v. United States, 229 U.S. 373, 57 L. Ed. 1232, 33 S. Ct. 780 (1913); United States v. Globe Chemical Co., 311 F. Supp. 535 (S.D. Ohio 1969); United States v. A.P. Woodson Co., supra.
The indictment in the present case is comprised of nine paragraphs, in a manner quite similar to the indictments upheld in United States v. Globe Chemical Co., supra, and United States v. A. P. Woodson Co., supra. Paragraph one describes the Defendants, paragraph two names a number of unindicted coconspirators, paragraphs three and four define the anthracite coal industry and its role in interstate trade and commerce, paragraphs five, six, and seven set out the combination and conspiracy charged, paragraph eight lists the effects of the alleged combination and conspiracy, and paragraph nine deals with jurisdiction and venue.
The element of time is found in paragraph five of the indictments, and states that the offense began as early as 1961 and continued through November of 1974, the exact date of beginning being unknown to the grand jurors. This is a sufficiently definite statement as to time. Frankfort Distilleries, Inc. v. United States, 144 F.2d 824, 831 (10th Cir. 1944), rev'd in part on other grounds, 324 U.S. 293, 65 S. Ct. 661, 89 L. Ed. 951 (1945); United States v. Johns-Manville, 213 F. Supp. 65 (E.D. Pa. 1962).
The geographic area where the conspiracy occurred is stated sufficiently in paragraph nine of the indictment which alleges that the conspiracy took place in part, within the Middle District of Pennsylvania. Frankfort Distilleries v. United States, supra, at 831; United States v. A. P. Woodson Company, supra ; See, United States v. Johns-Manville, supra.
It is the description of the manner and means of the conspiracy which the Defendants have attacked most vigorously. The indictment provides in paragraphs five, six and seven, under the heading "OFFENSE CHARGED" that:
"5. Beginning at least as early as 1961, the exact date being unknown to the grand jurors, and continuing thereafter through November 1974, the Defendants and coconspirators engaged in a continuing combination and conspiracy in unreasonable restraint of the aforesaid interstate trade and commerce in violation of Section 1 of the Sherman Act, as amended to December 21, 1974 (15 U.S.C. § 1).