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UNITED STATES v. GREATER SYRACUSE BD. OF REALTORS

August 23, 1977

UNITED STATES of America
v.
GREATER SYRACUSE BOARD OF REALTORS, INC., Gallinger Real Estate, Inc., Eagan Real Estate, Inc., A. Menter Real Estate, Inc., Clark Real Estate Onondaga, Inc., Dewitt Real Estate Inc., Blatchford Realty Co., Inc., Longley-Jones Associates, Inc., L. D. Marshall Real Estate, Inc., Olson-Peck, Inc., John M. Gallinger, Thomas E. Teelin, Fred E. Woods, John M. Peiffer, Jr., and Walter J. Hansen, Jr., Defendants



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

 MUNSON, District Judge.

 This is a criminal action wherein the defendants stand accused, by Indictment Number 77-CR-57, with engaging in a combination and conspiracy in unreasonable restraint of interstate trade and commerce, in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Presently pending before this Court are motions for Bills of Particulars and discovery, brought on behalf of the various defendants. Because of the number of requests contained in those motions, the Court will render a Memorandum-Decision addressing the main areas of disagreement between the Government and the defendants and append to it an Order dealing with each of the defendants' specific requests.

 BILL OF PARTICULARS

 The proper function of a Bill of Particulars is to apprise a defendant of the nature of the charges against him, so that he can adequately prepare a defense, avoid prejudicial surprise at trial, and plead double jeopardy in any subsequent related action. United States v. Addonizio, 451 F.2d 49 (3d Cir. 1972), cert. den. 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812 (1972), reh. den. 405 U.S. 1048, 92 S. Ct. 1309, 31 L. Ed. 2d 591 (1972); United States v. Frumento, 405 F. Supp. 23 (E.D.Pa.1975); 8 Moore's Federal Practice para. 7.06 (2d Ed. 1976); 1 Wright, Federal Practice and Procedure, Criminal § 129. Within this very general framework, the granting of a Bill of Particulars lies solely within the Court's discretion. Wong Tai v. United States, 273 U.S. 77, 47 S. Ct. 300, 71 L. Ed. 545 (1927); United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975), cert. den. 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).

 The touchstone of a Bill of Particulars is to provide sufficient necessary information to enable a defendant to investigate the allegations against him, and adequately prepare a defense to them. It is generally said that what is required is that the defendant be supplied with those facts necessary to enable him, with reasonably diligent efforts, to prepare his defense. United States v. Manetti, 323 F. Supp. 683 (D.Del.1971).

 A defendant is generally not entitled to evidentiary matters, names of prospective Government witnesses, or legal theories in a Bill of Particulars. United States v. Addonizio, supra; United States v. Isaacs, 347 F. Supp. 743 (N.D.Ill.1972); United States v. Louis Carreau, Inc., 42 F.R.D. 408 (S.D.N.Y.1967). However, it is no answer to an otherwise proper demand under the aforementioned test that the particulars sought are evidentiary, or involve the naming of potential witnesses at trial. United States v. Crisona, 271 F. Supp. 150 (S.D.N.Y.1967); United States v. Smith, 16 F.R.D. 372 (W.D.Mo.1954). Similarly, it is no answer that the defendant should know the facts demanded, for the defendant is presumed to be innocent; in any event, the Bill of Particulars is aimed at the facts as alleged by the Government, rather than as they actually exist. United States v. Tucker, 262 F. Supp. 305 (S.D.N.Y.1966); United States v. J.M. Huber Corporation, 179 F. Supp. 570 (S.D.N.Y.1959); United States v. Smith, supra.

 The ruling upon a motion for a Bill of Particulars necessarily reflects a delicate balance between two competing concepts. On one hand, a defendant needs to know certain quasi-evidentiary facts in order to adequately prepare a defense. United States v. Manetti, supra; United States v. Crisona, supra. Yet the Government should not be forced into prematurely disclosing evidentiary matters to such an extent that they will be unduly confined in presenting their evidence at trial. Id. These factors should be considered by a court when exercising its discretion in matters related to Bills of Particulars.

 The courts which have, over the years, confronted the issue of Demands for Bills of Particulars in criminal antitrust cases have been unanimous in recognizing that such cases are different from the "ordinary" criminal case, in that generally the facts in an antitrust case are not so much in issue as how the law should be applied to those facts. See, e.g., United States v. J.M. Huber Corporation, supra; United States v. General Electric Co., 40 F. Supp. 627 (S.D.N.Y.1941). Unfortunately, for the sake of attempting to glean some basic principles from those cases, the uniformity ends there. On the matter of requests for Bills of Particulars, the cases reach such diverse results, as could be expected when dealing with matters of discretion, that their use as precedents in this case is, for the most part, futile. The Court will therefore consider the facts of this case, and exercise its discretion accordingly in ruling upon the various requests by defendants.

 The two elements of an offense under Section 1 of the Sherman Act are 1) an agreement, and 2) unreasonable restraint of interstate trade and commerce. Thus, the only thing that need be alleged in an Indictment charging a violation of that provision are those elements. United States v. General Electric Co., supra; United States v. U.S. Gypsum Co., 37 F. Supp. 398 (D.D.C.1941). This, of course, distinguishes such a case from those charging a conspiracy under 18 U.S.C. § 371, for example, since under that and other similar sections, an Indictment must allege at least one overt act. Id. ; see also United States v. Metropolitan Leather & Find. Ass'n., 82 F. Supp. 449 (S.D.N.Y.1949).

 With regard to the allegation of an agreement, the problem of what is appropriate for a Bill of Particulars is not as simple as it would appear at first blush. While overt acts need not be alleged, nor proven, in a case such as this, it is nevertheless true that a great majority of antitrust combination and conspiracy cases are presented, of necessity, by use of circumstantial evidence. Industrial Building Materials, Inc. v. Interchemical Corporation, 437 F.2d 1336 (9th Cir. 1970); Harlem R. Con. Coop., Inc. v. Associated Groc. of Harlem, Inc., 371 F. Supp. 701, 714 (S.D.N.Y.1974), aff'd. 493 F.2d 1352 (2d Cir. 1974); United States v. Metropolitan Leather & Find. Ass'n., supra. Such evidence usually is in the form of various overt acts performed in furtherance of the agreement, or effects of the agreement, both of which lead to the inference that an agreement existed.

 Many courts have responded to Bill of Particulars inquiries into what this proof will be with denials, finding them to be purely evidentiary requests. See, e.g., United States v. Greater Blouse, Etc., Contractors' Ass'n., 177 F. Supp. 213 (S.D.N.Y.1959); United States v. General Electric Co., supra. In fact, many courts have posited that, with respect to any criminal charge of conspiracy, the Government need not reveal the overt acts which it intends to show at trial. Wong Tai v. United States, supra (dictum); United States v. Murray, 527 F.2d 401 (5th Cir. 1976); United States v. Carroll, 510 F.2d 507 (2d Cir. 1975), cert. den. 426 U.S. 923, 96 S. Ct. 2633, 49 L. Ed. 2d 378 (1976). Other courts have required specification of all such acts to be proven at trial, in order to allow for adequate defense preparation and to avoid unfair surprise. See United States v. Anderson, 368 F. Supp. 1253 (D.Md.1973); United States v. Dioguardi, 332 F. Supp. 7 (S.D.N.Y.1971); United States v. Ahmad, 53 F.R.D. 194 (M.D.Pa.1971); United States v. Covelli, 210 F. Supp. 589 (N.D.Ill.1962); United States v. J.M. Huber Corporation, supra; United States v. Metropolitan Leather & Find. Ass'n., supra. In light of the anticipated complexity of this case, the Court will follow the latter line of cases and order that all overt acts, proof of which will be offered at trial, be specified to an extent sufficient to allow the defendants to identify and investigate them. Cf. United States v. Manetti, supra. The same holds true for any effects of the agreement which the Government intends to show.

 The Indictment contains a fairly detailed account of the trade and commerce alleged to have been restrained by defendants' actions. (Indictment Number 77-CR-57, para. 5-13). The defendants, however, have demanded further information in this regard, indicating inter alia that they intend to challenge the Indictment on this ground in a later motion. Their claim is that, while the matter could probably be investigated by utilizing defendants' records of past transactions, to do so would be costly. While the Court may be somewhat sympathetic towards this claim, the Indictment nevertheless sets forth the allegations on this element with sufficient clarity to allow an independent investigation to be conducted. That is all that is required. United States v. Manetti, supra. Hence, further particularization in a Bill of Particulars is unnecessary. See United States v. General Motors Corporation, 2 F.R.D. 346 (N.D.Ill.1942); United States v. U.S. Gypsum Co., supra.

 Another area of controversy involves the times when, and through whom, each of the defendants joined and withdrew from the conspiracy. The Government is ordered to state, as precisely as they are able, when and through whom each defendant is alleged to have entered the conspiracy. United States v. American Oil Company, 259 F. Supp. 851 (D.N.J.1966); United States v. Allegheny County R. Druggists' Ass'n., 12 F.R.D. 249 (W.D.Pa.1952). The time of each defendant's withdrawal is both irrelevant to the charges in the Indictment, and evidentiary, and therefore need not be specified. United States v. Ahmad, supra; United States v. Crisona, supra; United States v. Greater Kansas City Retail Coal M. Ass'n., 85 F. Supp. 503 (W.D.Mo.1949). The defendants' assertions that times of withdrawals are critical because of ...


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