The opinion of the court was delivered by: BRYAN
In each of these two criminal actions all the defendants have joined in a motion to transfer the case to the United States District Court for the Western District of Pennsylvania sitting at Pittsburgh, pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. The motions in both cases were brought on and heard together.
Each of the indictments, returned by a grand jury in this district, charge a combination and conspiracy in unreasonable restraint of trade and commerce in violation of § 1 of the Sherman Act, 26 Stat. 209, 15 U.S.C. 1. Indictment, 63 Cr. 312, (the wheels case) alleges that the defendants, United States Steel Corporation (U.S. Steel), Bethlehem Steel Corporation (Bethlehem), Armco Steel Corporation (Armco), Edgewater Steel Company (Edgewater) and Baldwin-Lima-Hamilton Corporation (Baldwin-Lima),
are the only manufacturers of wrought steel wheels in the United States and that they conspired to eliminate price competition among themselves throughout the country. Indictment 63 Cr. 313 (the pipe flanges and rings case) charges the same type of conspiracy by the defendants Taylor Forge and Pipe Works (Taylor Forge), Alco Products, Inc. (Alco), Edgewater and Baldwin-Lima, in the sale of rolled steel pipe flanges and rings, although the defendants are not alleged to be the sole manufacturers of these products. Both conspiracies are alleged to have been carried on at least from 1948 to 1961.
Under the heading 'Jurisdiction and Venue' both indictments allege that the conspiracy was carried out in part in the Southern District of New York. Thus venue properly lies in this district.
In the wheels case the Government concedes 'that venue would properly lie in Pittsburgh as well as in the Southern District of New York.' In the pipe flanges and rings case, the Government originally took the position that the indictment did not allege the commission of the offense in the Western District of Pennsylvania. At my direction the Government submitted a bill of particulars specifying the activities of the defendants in the Western District of Pennsylvania upon which it plans to rely at the trial. The bill indicates that the Government expects to establish an unspecified number of meetings in the Western District of Pennsylvania, and a number of telephone calls to and from that district. On the basis of these particulars it is clear that in the pipe flanges case too, venue properly lies in the Western District of Pennsylvania where a number of acts in furtherance of the alleged conspiracy occurred, as well as in this district. United States v. Kimball Securities, Inc., 25 F.R.D. 172, 174 (S.D.N.Y. 1960); 18 U.S.C. § 3237.
The pipe flanges and rings case
The only one of the remaining three defendants in this case which makes out what could be considered a persuasive case for transfer is Edgewater.
Taylor Forge is an Illinois corporation, with its principal place of business in Cicero, Illinois, where it keeps such records as might be relevant to the charges in the indictment. While it does have a manufacturing facility and a sales office in the Western District of Pennsylvania, its position, in essence is that Pittsburgh is closer to its head office and therefore would be more convenient than New York. Plainly this alone is insufficient to require a transfer.
Alco is a New York corporation, with its principal place of business in New York City. Its manufacturing plant and production and sales records relating to pipe flanges and rings are at Latrobe, Pennsylvania, in the Western District. Its position is that a trial in Pittsburgh would be considerably more convenient for it than a trial in New York. However, the fact that its main office is in New York indicates that no great hardship would result from a trial here. Nor am I much impressed with the fact that its pipe flange and ring records are in Latrobe. There is no showing that such records as may be necestary at the trial are so voluminous as to make their production in New York an undue hardship on Alco. Certain executives may have to be brought on from Latrobe if the trial is held in New York but the trip to New York is a short one and there appears to be no reason why such arrangements cannot readily be made.
Edgewater, on the other hand (a defendant in both cases), is a Pennsylvania corporation, with its principal place of business and all its manufacturing facilities at Oakmont, Pennsylvania, in the vicinity of Pittsburgh. It is a relatively small steel company, as such companies go, with assets of some $ 10,000,000, net sales of about $ 16,000,000 annually, and some 900 employees. It urges that it would undergo severe hardship were the trial to be held in New York, and stresses a number of factors which would cause such hardship. It points to the necessity of retaining New York counsel in addition to its general counsel in Pittsburgh, who in any event must participate in the defense. It claims that it has only two executives with overall responsibility, both of whom will be witnesses and one of whom should be present throughout the trial. Its main executives, four principal employee witnesses, and other employee witnesses, all reside in or near Pittsburgh. Edgewater claims that its business would be seriously disrupted by the absence of these men when their presence was required in New York. One of the principal employee witnesses is said to have recently suffered two heart attacks though he is still in the active service of the company. Edgewater also claims that the production of necessary records in New York would entail great difficulties. The burdens and substantial expense on Edgewater arising from a trial here must be weighed against the countervailing factors in favor of such a trial.
The Government, while it does not contravene most of the facts on which the various defendants' claims of hardship are based, urges that such claims are greatly exaggerated and are 'merely a parade of imaginary horrors.'
In the pipe flanges and rings case it contends that 95% Of the activities with which the defendants are charged, including a large majority of the meetings at which the alleged conspiracy was planned and carried out, took place in the City of New York. Meetings of the American Tire Manufacturers Export Association, out of which the conspiracy is alleged to have arisen, also were regularly held here. The Government's estimate finds support in the extensive grand jury minutes which the Government submitted to the court.
The Government states that at the present time it intends to call only witnesses who testified before the grand jury. Of the 18 witnesses called before the grand jury in this case, the Government states that only 5 reside in the Western District of Pennsylvania. The residences of the other witnesses are widely scattered and include New York, the Eastern and Middle Districts of Pennsylvania, with 8 residing in Illinois or Wisconsin.
Moreover, the Government points out that the Antitrust Division of the Department of Justice, the agency prosecuting the case, has no field office in the Western District of Pennsylvania, whereas it has an office here staffed to handle the three cases which arose out of the investigation of steel prices by the grand jury in this district, including the pipe flanges case. In addition to the two now before me the third indictment (No. 62 Cr. 393) charges Bethlehem, U.S. Steel and others with price fixing in the open die steel forgings industry. There has been no attempt to transfer the forgings case to Pittsburgh and it will be tried in this district. The Government points to the difficulties of trying one of these cases in New York and the others in Pittsburgh and the staff problems which that would create.
Whether a criminal proceeding should be transferred to another district where venue also lies, in the interests of justice, is a question addressed to the sound discretion of the court. Minnesota Mining & Manufacturing Company v. Platt, 314 F.2d 369, 371 (7 ...