The indictment in the present case was returned by a special Grand Jury for the Eastern District of North Carolina on December 8, 1941. It charges, in the first count, a conspiracy to restrain interstate trade and commerce in potatoes in violation of Section 1 of the Sherman Act, 15 U.S.C.A. § 1; and, in the second count, a conspiracy to monopolize trade and commerce in potatoes in violation of Section 2 of the Sherman Act, 15 U.S.C.A. § 2.
Pleas in abatement, motions to quash, demurrers, motions for bills of particulars, and motions for severance and separate trials have been filed by certain defendants. I am satisfied that the allegations of each count of the indictment are sufficient to allege the commission of an offense against the United States and (except as to certain information ordered to be furnished defendants in the form of a bill of particulars during argument on the motions, as will appear from the record thereof) are stated with sufficient particularity to apprise the defendants of the offenses with which they are charged, in accordance with the requirements of the Fifth and Sixth Amendments to the Constitution. United States v. Cruikshank, 92
*190
U.S. 542,
An application for severance and separate trial is addressed to the discretion of the Court, and the general rule is that it is inadvisable to split a case into many parts, to be disposed of piecemeal, in the absence of very strong and cogent reason therefor. This is especially true in conspiracy charges. Dowdy v. United States, 4 Cir.,
By pleas in abatement and motions to quash, the defendants contend that the indictment is invalid because: (1) It was not signed, authorized, or endorsed by the District Attorney for the Eastern District of North Carolina, or any of his duly appointed and authorized assistants, but was signed and prosecuted before the grand jury by a special assistant to the Attorney General and special attorneys appointed under the Act of June 30, 1906, 5 U.S.C.A. § 310, and that such Act is unconstitutional and in violation of the Fifth Amendment to the Constitution. (2) It was based upon incompetent and improper evidence.
The record discloses that the special attorneys were duly appointed, commissioned and qualified as required by the statute, 5 U.S.C.A. §§ 310, 315, and that the District Attorney not only authorized the prosecution, but filed a notification and petition, alleging the necessity of a special grand jury investigation into conditions in the potato industry, upon which Judge Meekins signed an order convening a special term for such purposes. The District Attorney and his assistants assisted in the investigation and prosecution, but did not appear before the grand jury.
At the outset it should be noted that a plea in abatement, being a dilatory plea, must be regarded with disfavor by the courts, and every inference must be against the pleader. Olmstead v. United States, 9 Cir.,
The Act of June 30, 1906, 34 Stat. 816, 5 U.S.C.A. § 310, provides: “The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought.”
The constitutionality of this statute appears never to have been attacked, except in the case at bar. The other contentions made by defendants here with respect to the application of the statute have been considered and rejected in several cases. United States v. Sheffield Farms Company, Inc., D.C.S.D.N.Y. Feb. 4, 1942,
United States v. Huston, D.C.N.D. Ohio 1928,
With respect to the constitutionality of the statute, defendants rely upon the Fifth Amendment to the Constitution of the United States which provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, * * Defendants contend that an “indictment of a grand jury” under this amendment means an indictment obtained in accordance with the traditional grand jury procedure, at the common law, at the time this Amendment was adopted; and that, therefore, a later Congressional enactment cannot modify that traditional procedure by permitting the presence of prosecuting attorneys on behalf of the Government during the grand jury proceedings.
However, defendants have cited no decisions of any court in support of this novel contention. In United States v. Thompson,
Furthermore, defendants’ contention would prove too much. It would prevent the service as grand jurors of persons who, by reason of sex or race, were not qualified to serve on a grand jury at the time the Fifth Amendment was adopted, and would chain the courts, in the face of greatly changed conditions, to ancient formula and would be a denial of the flexibility and capacity for growth and adaptation in the law which is regarded as its “peculiar boast and excellence”. Funk v. United States,
Moreover, as has been stated above, this Court should not overthrow a statute enacted by Congress, a coordinate branch of the Federal Government, except in a case where its unconstitutionality is plain and free from doubt. In a doubtful case, and where no authorities in support of their contention that the statute is unconstitutional have been cited by defendants, it is the duty of this Court to uphold the validity of the Act of June 30, 1906, 5 U.S. C.A. § 310.
In any event, defendants cannot rely upon the above quoted provision of the Fifth Amendment for the reason that the offense charged in the indictment is not an “infamous crime”. Whether a crime is infamous within the meaning of the Fifth Amendment must be determined by the character of the punishment that may be imposed. Imprisonment in a penitentiary is infamous punishment whether it be with or without hard labor. Imprisonment at hard labor in any institution for any definite term is infamous punishment. The test does not depend upon the punishment that is imposed but upon the punishment that can be imposed. The penal provisions of the Sherman Act do not permit imprisonment exceeding one year, nor do they direct imprisonment in a penitentiary or at hard labor. The statute does not embody any specific provision making the particular offense infamous. Consequently, violation of the anti-trust laws, as charged by this indictment, is not an infamous crime, and prosecution could have been by information. Duke v. United States,
It was contended in the Sloan case that the Act of May 14, 1930, 18 U.S.C.A. § 753f, authorized the trial court to designate a penitentiary as a type of institution in which the defendant could be confined, if convicted, thus subjecting him to infamous punishment. However, in that case, it was said that: “The act provides that ‘all persons convicted of an offense *192 against the United States shall be committed, for such terms of imprisonment and to such types of institutions as the court may direct, to the custody of the Attorney General of the United States, or his authorized representative, who shall designate,’ etc. (Italics added.) It is conceded that the phrase ‘for such terms of imprisonment * * '* as the court may direct’ is subject to the limitation of statutes previously enacted, prescribing specific punishment for violations thereof. If this be true, then it would seem that Congress also intended that the words, ‘to such types of institutions as the court may direct’ would likewise be subject to the preexisting statute, 18 U.S.C.A. § 695, R.S. § 5541, as construed by the Supreme Court, that a person sentenced to imprisonment for a term not exceeding one year may not be confined in a penitentiary, except where the statute expressly provides punishment by imprisonment in a penitentiary.” 31 F. Supp. page 330.
It was also pointed out that “it seems that the purpose of the act was to diminish rather than enlarge the power of the courts”. 31 F.Supp. page 331.
Since the date of the Sloan case, Congress has twice amended the Act of May 14, 1930. An amendment on October 21, 1941, 18 U.S.C.A. § 753f, related to juvenile offenders and is not pertinent here. The amendment of June 14, 1941, 18 U.S.C.A. § 753f, deleted the words “and to such types of institutions” following the word “imprisonment” in the first sentence of the statute, and also added the proviso: “Provided, That any sentence of imprisonment for an offense punishable by imprisonment for a term of one year or less shall not be served in a penitentiary except with the defendant’s consent.” The effect of these modifications is likewise to diminish rather than enlarge the power of the district courts. The proviso, preventing sentence to a penitentiary except with the defendant’s consent, clearly invalidates .any contention defendants might make that the offense with which they are charged is an infamous crime because punishable by confinement in a penitentiary.
Accordingly, it is my opinion that the specially appointed counsel were authorized to conduct the grand jury proceedings in this case and that the omission of the United States Attorney’s signature is merely a formality, which does not invalidate the indictment. Caha v. United States,
Proceeding to a consideration of the contention that the indictment was not based upon proper evidence, the weight of authority is opposed to inquiry into proceedings before a grand jury when such proceedings on their face are regular, and the question of the sufficiency or insufficiency, competency or incompetency of the testimony adduced before the grand jury is a matter which the Court has no right to inquire into. The reasons for the rule are sound, and to hold otherwise would lead to endless confusion. There is no federal statute regulating proceedings before a grand jury or specifying the kind and degree of evidence necessary to the finding of a true bill. A grand jury is an informing and accusing body rather than a trial body. Its duty is to inquire and investigate. It is not the function of a grand jury to determine the guilt or the innocence of a person accused of crime. That is the duty imposed upon the petit jury. In order to find a true bill it is necessary only that the grand jury determine from the evidence that the person charged is probably guilty. Its duty is to decide from the evidence offered whether there is prima facie ground for criminal prosecution. United States v. Direct Sales Company, Inc., D.C.,
The foregoing conclusions reached in United States v. Direct Sales Company, Inc., supra, applies whether the plea asserting that the indictment is based upon improper evidence alleges that the indictment was found without any legal evidence whatever being produced before the grand jury, or whether it alleges that in *193 sufficient, incompetent or improper evidence was presented.
Of course, if a clear and positive showing is made to the effect that the impropriety of the evidence introduced before the grand jury is so flagrant as to constitute gross and prejudicial irregularity and fraud in the conduct of the grand jury proceedings, this Court would be warranted in interposing its authority to prevent injustice. But no such showing has been made here. Although certain newspaper editorials, asserting that potato growers were at the mercy of a monopoly and urging them to take action "against it, were offered as grand jury exhibits, it appears that these editorials were produced voluntarily by witnesses in order to explain and justify their own conduct with respect to matters properly under investigation by the grand jury, and that Government counsel cautioned the grand jury to disregard the editorials as evidence. Moreover, such editorials purport merely to express, in forceful language, the general opinion prevalent in the potato-growing regions from which the grand jury was drawn, and which had probably already been read by the members of the grand jury, and I cannot presume that they would have been influenced, to the prejudice of defendants, by such newspaper comment in disregard of their duty to be guided by proper evidence. United States v. Terry, D.C.,
It is also my view, even if the proceeding before the grand jury constituted gross irregularity, that the plea in abatement should not be sustained, because such irregularities were harmless. As stated above, the indictment does not charge an infamous crime and the defendants, therefore, could have been prosecuted by information.
Finally, motions to quash have been filed, urging that the indictment is duplicitous: First, on the ground that the means and methods used to effectuate the conspiracy are charged as separate indictable offenses; and, second, that the averment contained in paragraph 10 in Count 1, reincorporated by reference in Count 2, charges also a violation of Section 14 of the Clayton Act, 15 U.S.C.A. § 24. This paragraph states that whenever in the indictment reference is made to an act, deed or transaction on the part of any corporate defendant, such allegation shall be deemed to mean that the officers, agents and employees of said corporation, and its subsidiaries and affiliates, ordered or did such acts for and on behalf of said corporation while actively engaged in the management, direction and control of its affairs.
An analysis of the indictment convinces me that each alleged offense is sufficiently charged. The suggestion of duplicity, in part, appears to rest upon the assumption that each one of the alleged means and methods is charged as a separate indictable offense. The circumstances upon which the defendants rely establish, at the most, that the indictment, in the course of setting forth facts relevant to the offense which has been charged, discloses the commission of other offenses. Those circumstances, however, do not establish that the indictment in each Count charges defendants with having committed more than one offense. An indictment charging only one offense is not duplicitous merely because it discloses in its relevant facts that the defendants have committed an additional offense. In Rowan v. United States, 5 Cir.,
The Circuit Court of Appeals for this Circuit has restated the rule in Dowdy v. United States, 4 Cir., 1931,
It is immaterial whether the means and methods alleged were undertaken singularly or in concert because in either case they are alleged to have been in furtherance of the basic conspiracy charged in each Count. It is not necessary that each defendant in a conspiracy case perform the same function or play the same part in effectuating the common design. The activities of some conspirators may be different from those of others, some conspirators may not be known to others, and some may have entered the conspiracy at a different time than others, but all may be partaking in a criminal partnership to accomplish a common result. Berger v. United States,
Paragraph 10, which it is contended brings into question possible duplicity under Section 14 of the Clayton Act, states that reference in the indictment “to any act, deed, or transaction on the part of any corporate defendant, * * * shall be deemed to mean that the officers, agents, and employees of said corporation, and its subsidiaries and affiliates, ordered or did such act, * * * for and on behalf of said corporation while actively engaged in the management, direction, and control of its affairs.” This paragraph of the indictment is merely descriptive. It seems clear from the examination of the indictment and of Section 14 of the Clayton Act that the indictment charges, in each count, a violation of the Sherman Act and does not charge a violation of Section 14 of the Clayton Act.
Section 14 of the Clayton Act, 15 U.S.C.A. § 24, sought to reach the individuals who were responsible for combinations entered into by corporations in restraint of interstate commerce. It provides that: “Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation, * * * ”. If the officer or agent is personally charged with participation in the conspiracy there is no necessity for the application of Section 14 of the Clayton Act. It is now well settled that officers and agents may be indicted with their corporation under the Sherman Act. United States v. MacAndrews & Forbes Co., C.C.,
The history of Section 14 of the Clayton Act shows that it was passed in order to create a method of punishing directors who took part in certain unlawful conduct under the anti-trust laws. Under Section 1 of the Sherman Act, a combination may be charged with entering into contracts to unlawfully restrain trade, apart from the offense of conspiracy. In some of the earlier cases under the antitrust law, individual defendants sought to escape the application of the law on the ground that it was the corporate defendant that had entered into unlawful contracts and that its officers and agents could not be held unless they were shown to have participated in a conspiracy. Union Pacific Coal Co. v. United States, 8 Cir., 1909,
The contention as to the application of Section 14 was rejected in the General Motors case, supra [
Had not the indictment in this case contained the descriptive Paragraph 10, it might have been contended that it was defective in not sufficiently charging with participation in the conspiracy the 17 individual defendants named. In Meehan v. United States, 6 Cir., 1926,
No offense under Section 14 of the Clayton Act is charged in the present indictment, and as before stated, the fact that the indictment may disclose that the defendants have committed an additional offense does not make it duplicitous. The indictment specifies in two counts violations of the Sherman Act. To argue that it is duplicitous as charging an additional violation of the Clayton Act is analogous to arguing that it is duplicitous as charging a violation of the general conspiracy statute, 18 U.S.C.A. 88.
It is my view, for the foregoing reasons, that the indictment is certain and definite and not duplicitous, and the motions to quash on this ground, therefore, should be overruled.
An appropriate order will be filed in accordance with the foregoing conclusions.