The opinion of the court was delivered by: HERMAN
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).
6. The aforesaid combination and conspiracy consisted of a continuing agreement understanding, and concert of action among the defendants and coconspirators to fix, stabilize, and maintain the prices of anthracite coal.
7. In formulating and effectuating the aforesaid combination and conspiracy, the defendants and coconspirators did those things which they combined and conspired to do."
An agreement to fix, stabilize and maintain prices is "per se" an unreasonable restraint of trade under the Sherman Act, 15 U.S.C. § 1. United States v. Socony Vacuum Oil Co., 310 U.S. 150, 84 L. Ed. 1129, 60 S. Ct. 811 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 71 L. Ed. 700, 47 S. Ct. 377 (1927). The indictments do not merely restate the provision of the statute as alleged by the Defendants, but specify the particular restraint of trade which is the subject of the charged conspiracy. The Defendants are charged with a conspiracy to fix, stabilize and maintain the prices of anthracite coal, an illegal restraint of trade under the Sherman Act, 15 U.S.C. § 1. United States v. Greater Kansas City Retail Coal Merchants' Association, 85 F. Supp. 503 (W.D. Mo. 1949).
It is true that the indictment in this case is not a model of specificity, but it is specific enough to withstand a motion to dismiss. An indictment under the Sherman Act does not have to be detailed or evidentiary. The gist of a conspiracy charge is agreement rather than action, and the agreement is usually established by a course of dealing or pattern of conduct and the reasonable inferences to be drawn therefrom. United States v. United States Steel Corporation, 233 F. Supp. 148, 152 (S.D. N.Y. 1964).
Defendants, while citing no case in which an indictment under Section 1 of the Sherman Act, 15 U.S.C. § 1, was held insufficient, have pointed to a number of cases in which indictments containing more factual averments than are in the present indictment withstood challenges. By so doing they attempt to substitute the factual specificity found in those cases for minimal requirements. In particular the Defendants point to United States v. Johns-Manville, 213 F. Supp. 65 (E.D. Pa. 1962), United States v. United States Steel Corp., 233 F. Supp. 148 (S.D. N.Y. 1964) and United States v. Braniff Airways, Inc., 428 F. Supp. 579 (W.D. Tex. 1977). The Government relies mainly on United States v. A. P. Woodson Co., 198 F. Supp. 579 (D.D.C. 1961), a case with an indictment nearly identical to the one in this case except that it concerned building materials. They also point to United States v. Maine Lobstermen's Association, 160 F. Supp. 115 (D. Me. 1957) and United States v. Greater Kansas City Retail Coal Merchants' Association, 85 F. Supp. 503, 508 (W.D. Mo. 1949).
The Braniff Airways case, although disapproving of an indictment, did not decide its validity and is therefore distinguishable.
The indictments in Johns-Manville and in United States Steel were both more specific in alleging terms of the agreement and meetings at which terms were agreed on. There is some question, however, as to whether such averments are necessary in the indictment. The indictment in the A.P. Woodson case was upheld even though it stated the conspiracy in more general terms. We believe the A.P. Woodson case establishes a minimum standard which the indictment in the present case meets. To the same effect, relying on A.P. Woodson, is United States v. Globe Chemical Co., 311 F. Supp. 535 (D. Ohio 1969). Also see, United States v. Universal Milk Bottle Service, 85 F. Supp. 622 (S.D. Ohio 1949).
Because Defendants place great reliance on Russell v. United States, 369 U.S. 749, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962), we should point out that the situation in that case differs from the one presently before this Court. In Russell, the indictments charged that witnesses before a Congressional subcommittee had violated 2 U.S.C. § 192 in refusing to answer questions which were "pertinent to the questions then under inquiry" by the subcommittee, without specifying the precise subject under inquiry at the time of the alleged offense. The Supreme Court recognized that the core of criminality under 2 U.S.C. § 192 is the pertinency to the subject under inquiry of the questions which the Defendant refused to answer, and so the Supreme Court held there was insufficient notice of the precise charges, and inadequate assurance that the grand jury had actually considered and determined the pertinency of the questions, given the state of the indictment. This was a much more serious defect than any appearing in the present indictment.
Finally, we note that the effects of the conspiracy are adequately stated in paragraph eight of the indictment.