The opinion of the court was delivered by: MEDINA
On November 15, 1948 Isaac Lippman and Max Perlstein, two of the defendants in this criminal anti-trust action, moved to dismiss the indictment as not stating facts sufficient to constitute an offense against the United States. They asserted that the allegations of venue in paragraph 16 of the indictment were insufficient and that the indictment failed to allege the commission of any acts in furtherance of the conspiracy. I denied this motion on November 23, 1948, without opinion.
On November 30, 1948 certain other of the defendants moved to dismiss the indictment, and, along with defendants Lippman and Perlstein, requested bills of particulars. Federal Rules of Criminal Procedure, rules 7(f), 12(b), 18 U.S.C.A. After argument, the case was adjourned for a further hearing on December 15 and 16. At that time, certain other defendants moved to dismiss and requested bills of particulars.
The defendants were indicted in two counts for conspiracies in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2. The charging paragraph (13) of count one alleges a violation of Section 1 and the charging paragraph (18) of count two a violation of Section 2, each substantially in the words of the statute. Both charging paragraphs are followed by identical paragraphs (14 and 19) which state the substantial terms of the conspiracies. Defendants The United States Leather Company and Robert L. Lerch have moved to dismiss counts one and two as violative of the Fifth Amendment in that they 'allege conspiracies which are not reciprocally distinguishable from and independent of each other,' citing such cases as Blockburger v. United States, 1932, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, and Albrecht v. United States, 1927, 273 U.S. 1, 47 S. Ct. 250, 71 L. Ed. 505. Defendants contend that, if convicted on each count, they will be punished twice for the same acts, since every ingredient of a violation of Section 1 is, by the terms of the indictment, present in a violation of Section 2.
The problem of multiple punishment or double jeopardy in connection with a course of conduct that violates more than one statute is complex, and the criteria for determining just how much criminal liability may constitutionally be pressed from the defendant's course of conduct are not wholly satisfactory. See Notes, Double Jeopardy and the Multiple-Count Indictment, 57 Yale L.J. 132(1947); Identity of Offenses: A Study in Judicial Method, 45 Harvard L.Rev. 535 (1932). The complexity increases when the offenses charged are conspiracies, especially when their 'possibilities for miscarriage of justice to particular individuals' increase as the number involved 'is broadened to include more and more, in varying degrees of attachment to the confederation.' Kotteakos v. United States, 1946, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557.
Antitrust cases, however, lay down a sufficiently clear rule as to indictments charging violations of Sections 1 and 2 of the Sherman Act based on the same evidence. American Tobacco Co. v. United States, 6 Cir., 1944, 147 F.2d 93, 116-117, certiorari granted on other grounds, 1945, 324 U.S. 836, 65 S. Ct. 864, 89 L. Ed. 1400, rehearing denied, R. J. Reynolds Tobacco Co. v. United States, 1945, 324 U.S. 891, 65 S. Ct. 1021, 89 L. Ed. 1438, affirmed on other grounds, 1946, 328 U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575; Montrose Lumber Co. v. United States, 10 Cir., 1941, 124 F.2d 573, 575-576; United States v. Shapiro, 2 Cir., 1939, 103 F.2d 775; United States v. Buchalter, 2 Cir., 1937, 88 F.2d 625, 628, certiorari denied sub nom. Shapiro v. United States, 1937, 301 U.S. 708, 57 S. Ct. 942, 81 L. Ed. 1362; United States v. MacAndrews & Forbes Co., C.C.S.D.N.Y. 1907, 149 F. 836, writ of error dismissed, 1908, 212 U.S. 585, 29 S. Ct. 681, 53 L. Ed. 661; United States v. A. B. Dick Co., N.D. Ohio 1947, 7 F.R.D. 437, 439-441; cf. United States v. Socoyn-Vacuum Oil Co., 1940, 310 U.S. 150, 224 n. 50, at 226, 60 S. Ct. 811, 84 L. Ed. 1129. I am not persuaded that American Tobacco Co. v. United States, 1946, 328 U.S. 781, 787-788, 815-816, 66 S. Ct. 1125, 90 L. Ed. 1575, is to the contrary. See United States v. A. B. Dick Co., N.D. Ohio 1947, 7 F.R.D. 437, 439-441.
True it is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 1932, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306; Albrecht v. United States, 1927, 273 U.S. 1, 47 S.Ct 250, 71 L. Ed. 505; Morgan v. Devine, 1915, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153. But a monopoly may well be the consummation of a restraint of trade or a series of restraints of trade; and a conspiracy to restrain trade a mere preliminary or step in a conspiracy to monopolize. Moreover, and in any event, intent forms a radical ingredient of each crime and the fact of intent to restrain trade under Section 1 is not the same as the fact of intent to monopolize under Section 2.
The motion is denied. B. Venue -- Statute of Limitations
Defendants The Goodyear Tire & Rubber Company and Harry L. Post have moved to dismiss on the ground that 'The indictment does not contain a sufficient allegation that the combination and conspiracy alleged was formed in part and carried out in part within the Southern District of New York within the applicable period of limitations.'
Count one of the indictment is similar, in the respects challenged, to count two. The pertinent paragraphs of count one are:
'1. Whenever the term 'Metropolitan area' is used herein, it shall mean the State of New Jersey, except the City of Camden, and the Counties of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester in the State of New York.
'11. More than 6,000 shoe repairmen are located within the Metropolitan area, and their total annual volume of trade amounts to approximately $ 50,000,000. Nearly all said shoe repair shops purchase leather and shoe findings from approximately 200 finders within the Metropolitan area. The total annual volume of trade done by finders within the Metropolitan area is approximately $ 20,000,000.
'13. Beginning in or about the year 1930, the exact date being to the Grand Jurors unknown, and continuing to the time of the presentment of this indictment, the defendants and other persons to the Grand Jurors unknown, have been engaged in a continuing combination and conspiracy in restraint of the aforesaid trade and commerce among the several states in leather and shoe findings, in violation of Section 1 of the Act ...