United States v. Metropolitan Leather & Findings Asso.

United States v. Metropolitan Leather & Findings Asso.

Opinion

 [*450]  On November 15, 1948 Isaac Lippman and Max Perlstein, two of the defendants in this criminal anti-trust action, moved to dismiss the indictment as not stating facts sufficient to constitute an offense against the United States. They asserted that the allegations of venue in paragraph 16 of the indictment were insufficient and that the indictment failed to allege the commission of any acts in furtherance of  [*451]  the conspiracy. I denied this motion on November 23, 1948, without opinion.

On November 30, 1948 certain other of the defendants moved to dismiss the indictment, and, along with defendants Lippman and Perlstein, requested bills of particulars. Federal Rules of Criminal Procedure, rules 7(f), 12(b), 18 U.S.C.A. After argument, the case was adjourned for a further hearing on December 15 and 16. At that time, certain other defendants moved to dismiss and requested bills of particulars.

I. Motions to Dismiss.

A. Multiple Punishment

The defendants were indicted in two counts for conspiracies [**3]  in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2.  The charging paragraph (13) of count one alleges a violation of Section 1 and the charging paragraph (18) of count two a violation of Section 2, each substantially in the words of the statute. Both charging paragraphs are followed by identical paragraphs (14 and 19) which state the substantial terms of the conspiracies. Defendants The United States Leather Company and Robert L. Lerch have moved to dismiss counts one and two as violative of the Fifth Amendment in that they 'allege conspiracies which are not reciprocally distinguishable from and independent of each other,' citing such cases as Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, and Albrecht v. United States, 1927, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505. Defendants contend that, if convicted on each count, they will be punished twice for the same acts, since every ingredient of a violation of Section 1 is, by the terms of the indictment, present in a violation of Section 2.

] The problem of multiple punishment or double jeopardy in connection with a course of conduct that violates more than one statute is complex, and [**4]  the criteria for determining just how much criminal liability may constitutionally be pressed from the defendant's course of conduct are not wholly satisfactory. See Notes, Double Jeopardy and the Multiple-Count Indictment, 57 Yale L.J. 132(1947); Identity of Offenses: A Study in Judicial Method, 45 Harvard L.Rev. 535 (1932). The complexity increases when the offenses charged are conspiracies, especially when their 'possibilities for miscarriage of justice to particular individuals' increase as the number involved 'is broadened to include more and more, in varying degrees of attachment to the confederation.' Kotteakos v. United States, 1946, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557.

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