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UNITED STATES v. RUBBISH REMOVAL INC.

December 24, 1984

UNITED STATES OF AMERICA, v RUBBISH REMOVAL INC., ONONDAGA ENVIRONMENTAL SYSTEMS, INC., LEASEWAY HAULERS, INC., A&T HAULERS, INC., ACE SANITARY HAULERS, INC., RAITE RUBBISH REMOVAL CORP., FEHER RUBBISH REMOVAL, INC., L. MICHAEL BLUMIN, JOSEPH TRIPOLI, SENIOR, JOSEPH TRIPOLI, JUNIOR, FRANCIS SCHRADER, THOMAS O'CONNER, SENIOR, and WINFRED TOUSLEY, Defendants; UNITED STATES OF AMERICA, v JOHN MAGGIO, Defendant.


The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, District Judge

MEMORANDUM-DECISION AND ORDER

 This is a criminal antitrust action in which the defendants are charged with conspiracy to allocate customers and rig bids and price quotations in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. Presently before the court is a motion by the defendants to dismiss the indictment for lack of subject matter jurisdiction.Defendants contend that subject matter jurisdiction is lacking because the allegations contained in the indictment do not satisfy the interstate commerce requirement of the Sherman Act. The government contends that the allegations are more than sufficient to demonstrate an interstate commerce nexus thereby satisfying the Sherman Act's interstate commerce requirement and establishing subject matter jurisdiction. For the reasons set forth below the court finds that the indictment sufficiently alleges an interstate commerce nexus and therefore the defendants' motion to dismiss the indictment must be denied.

 BACKGROUND

 The defendants are engaged in the containerized refuse removal business in Onondaga County, New York. On December 13, 1983 *fn1" a federal grand jury returned a one count indictment charging them with "engag[ing] in a continuing combination and conspiracy in unreasonable restraint of . . . interstate and foreign trade and commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1." Indictment P11. The indictment charges that the defendants conspired to allocate and divide customers and rig bids and price quotations in the provision of containerized refuse removal services in the Onondaga County area. In February, 1984 the government provided the defendants with a voluntary limited bill of particulars addressed to the interstate commerce issue. Thereafter, the defendants moved to dismiss the indictment contending that the interstate commerce allegations contained in the indictment do not satisfy the jurisdictional requirements of the Sherman Act and consequently, this court is without subject matter jurisdiction to hear the case. The government argues that the interstate commerce allegations in the indictment clearly establish this court's subject matter jurisdiction.

 DISCUSSION

 A preliminary matter must be addressed before considering the interstate commerce question. The defendants take the position that this court should consider the bill of particulars in determining the sufficiency of the interstate commerce allegations in the indictment. They argue that the reason the government provided them with a voluntary bill of particulars was to allow the defendants to prepare their motion to dismiss on jurisdictional grounds.

 The government contends that the sufficiency of the indictment must be determined by considering the allegations contained therein without reference to the bill of particulars. The government also argues that the letter accompanying the bill of particulars clearly indicates its position that its bill of particulars was not provided as a prerequisite to defendants' motion to dismiss. The letter, dated February 7, 1984 and addressed to defendants' lead counsel, states:

 In providing this voluntary response, we do not assent to any assertion by defense counsel that our voluntary response to your request for particulars was needed to enable you to file by March 5th any motion addressing the interstate commerce allegations of the indictment. In addition, the government asserts that the record in this matter demonstrates that it has fulfilled, in a timely fashion, all conditions precedent to filing by you on March 5th of any such motion. . . .

 The government provides these particulars without limitation upon its adding to or in any other way changing the information prior to or at trial.

 Letter from Charles V. Reilly to Leslie W. Jacobs (Feb. 7, 1984) (providing voluntary limited bill of particulars) at 2-3.

 The purpose of a bill of particulars is to apprise the defendant of the charges against him so that he can prepare an adequate defense. See e.g. United States v. Konefal, 566 F. Supp. 698, 702 (N.D.N.Y. 1983). The defendants here argue that a motion to dismiss the indictment is a defense and therefore, this court should consider the bill of particulars. In support of this position the defendants cite United States v. Carrier, 672 F.2d 300 (2d Cir.) cert. denied, 457 U.S. 1139, 73 L. Ed. 2d 1359, 102 S. Ct. 2972 (1982) wherein the Second Circuit stated:

 A bill of particulars may not save an invalid indictment; it may provide the defendant with the evidentiary details needed to establish his defense. *fn5"

 United States v. Carrier, 672 F.2d 300, 303 N.5 (2d Cir. 1982). While the cited language seems to suggest that a court may consider a bill of particulars on a motion to dismiss the indictment, this court concludes that it may not consider evidence outside the indictment on a challenge to its sufficiency. See e.g., United States v. Sampson, 371 U.S. 75, 78-79, 9 L. Ed. 2d 136, 83 S. Ct. 173 (1962); Russell v. United States, 369 U.S. 749, 769-70, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962); United States v. Mann, 517 F.2d 259, 266-67 (5th Cir. 1975) cert. denied, 423 U.S. 1087, 47 L. Ed. 2d 97, 96 S. Ct. 878 (1976); United States v. Murray, 297 F.2d 812, 819 (2d Cir.) cert. denied, 369 U.S. 828, 7 L. Ed. 2d 794, 82 S. Ct. 845 (1962); United States v. Greater Syracuse Board of Realtors, Inc., 449 F. Supp. 887, 899 (N.D.N.Y. 1978); 1 Wright & Miller, Federal Practice and Procedure § 194 at 714, (1982).

 Even if the rule were otherwise, the facts of this case would lead the court to conclude that consideration of the voluntary limited bill of particulars would be improvident. The government has clearly stated that the bill does not contain all of its evidence on the interstate commerce issue and that the list is subject to additions and modifications. *fn2" The defendants, therefore, are asking this court to consider a bill which the government admits is incomplete; in other words, the defendants want the court to dismiss the indictment based partially on the incomplete "evidence" contained in the voluntary bill of particulars. The court declines to do so. The indictment either adequately alleges jurisdiction or it does not; that is the only issue currently before this court. The court finds that that determination must be made from looking solely at the face of the indictment.

 A motion to dismiss a Sherman Act indictment for lack of jurisdiction assumes the truth of the allegations and must be denied if those allegations, taken as true, state facts which would support a finding of jurisdiction. E.g. United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 296, 89 L. Ed. 951, 65 S. Ct. 661 (1945); United States v. Greater Syracuse Board of Realtors, 449 F. Supp. 887, 894 (N.D.N.Y. 1978). The court must draw all the inferences that can be drawn in support of the indictment.United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.) cert. denied, 437 U.S. 903, 57 L. Ed. 2d 1133, 98 S. Ct. 3088 (1978). Additionally, the court must consider the government's allegations concerning the effects on commerce. United States v. Employing Plasterers Ass'n, 347 U.S. 186, 188, 98 L. Ed. 618, 74 S. Ct. 452 (1954); United States v. Greater Syracuse Board of Realtors, 449 F. Supp. 887, 894 n.4 (N.D.N.Y. 1978).

 Section 1 of the Sherman Act provides that "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U.S.C. § 1. The requirement that the illegal conduct be "in restraint of trade or commerce among the several States" has been held to be both a jurisdictional prerequisite and a substantive element of the offense. See e.g., United States v. Greater Syracuse Board of Realtors, Inc., 449 F. Supp. 887, 890 (N.D.N.Y. 1978). Thus, a criminal antitrust indictment must contain allegations that the defendant's illegal conduct occurred in the ...


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