The opinion of the court was delivered by: WEINFELD
This is a consolidated motion by all the defendants, eight corporations and two individuals, to dismiss the indictment herein, charging them and others with conspiracy in restraint of trade in carbon steel sheets in violation of section 1 of the Sherman Act.
The motion is based upon the ground that it fails to charge an offense with the definiteness, certainty and specificity required by the Fifth and Sixth Amendments to the Constitution and Rule 7(c) of the Federal Rules of Criminal Procedure.
The indictment contains one count, divided into seven headings, within each of which are included various paragraphs. The headings are: 'I -- DEFENDANTS'; 'II -- THE CO-CONSPIRATORS'; 'III -- DEFINITIONS'; 'IV -- NATURE OF TRADE AND COMMERCE'; 'V -- OFFENSE CHARGED'; 'VI -- EFFECTS'; 'VII -- JURISDICTION AND VENUE.'
The first eight paragraphs of the indictment identify the defendants and three alleged co-conspirators not named as defendants, define 'carbon steel sheets' and 'extras' and describe the interstate aspect of trade and commerce in carbon steel sheets.
Paragraphs 9, 10 and 11 are under 'OFFENSE CHARGED.' Paragraph 9 alleges that the defendants and the alleged co-conspirators, beginning in 1955 and continuing to at least 1961, 'engaged in an unlawful combination and conspiracy in unreasonable restraint of the aforesaid interstate trade and commerce, in violation of section 1 of the * * * Sherman Act.'
Paragraph 10 alleges that: 'The aforesaid combination and conspiracy consisted of a continuing agreement, understanding and concert of action among the defendants and co-conspirators to eliminate price competition in the sale of carbon steel sheets.'
'11. For the purpose of effectuating the aforesaid combination and conspiracy, the defendants and co-conspirators did those things which they combined and conspired to do, including the following:
'a. Agreed from time to time upon the establishment of charges for extras in the price lists for carbon steel sheets employed by the defendant corporations;
'b. Agreed from time to time upon changes in charges for extras in the price lists for carbon steel sheets employed by the defendant corporations;
'c. Agreed from time to time upon the elimination of certain extras in the price lists for carbon steel sheets employed by the defendant corporations;
'd. Agreed from time to time upon the interpretation of, and the application of, extras for carbon steel sheets;
'e. Agreed from time to time upon uniform standards, specifications and charges for carbon steel sheet products being produced, and for new carbon steel sheet products to be introduced in the market by defendants;
'f. Held meetings, at which no minutes were kept, at the Biltmore and Sheraton East hotels in New York, New York, among other places, in order to accomplish many of the things which the defendants and co-conspirators combined and conspired to do as set forth in subparagraphs a. through e. above.'
The defendants' attack centers upon paragraphs 9 and 10, which they refer to as the charging paragraphs. The essence of their position is that the allegations of these two paragraphs merely charge that from 1955 to 1961 the defendants engaged in a conspiracy to eliminate price competition in the sale of carbon sheets, but omit the essential factual terms of the alleged agreement -- accordingly, the indictment is invalid because (1) it fails to inform them adequately of the charge to enable proper preparation for trial; (2) it does not provide sufficient information upon which a judgment may be pleaded in bar of a subsequent charge for the same offense, and ...