in the alleged conspiracy and, if not so engaged throughout the duration of the conspiracy, the times of each co-conspirator's joinder and withdrawal from the conspiracy, the inquiry should be responded to.
H(3): If, by the "act" by which each conspirator joined the alleged conspiracy, the defendants mean a meeting of persons, or course of correspondence, or exchange of documents resulting in a combination, the information should be furnished. If, however, no such "act" transpired, the Government should so state.
H(4): This demand is proper and should be complied with. The Government has already consented to state the date when the conspiracy began. The date when each alleged conspirator first joined the conspiracy, if known, will have been disclosed in the responses to demands B(2) and B(3). The instant demand for disclosure of the first date known upon which each conspirator initiated his participation in the conspiracy is equally the appropriate subject of inquiry with that sought in B(2) and B(3) respectively.
I1(c): This demand, which seeks the substance of an implied continuing agreement and an identification of the documents or acts from which it is implied, is improper and need not be complied with.
I3: This request which is similar to that contained in C3 is likewise improper.
I5, 6 and 7: Each of these demands is substantially and intimately related to the particulars which the Government has agreed to furnish responsive to demand I4 and its various subdivisions; therefore I5, 6 and 7 should be complied with.
I8(a), (b), and (c): These requests are also substantially and intimately related to particulars responsive to I6 above, and appropriately the subject of inquiry.
I9, 10, 11, and 12: These need not be answered because compliance therewith would involve an unwarranted intrusion into the Government's evidence.
J1-6: These demands are couched in language similar to that in which demands D1 through 6 are expressed. Similarly, the lack of specificity characterizing paragraph 23 of the indictment and the inclusion therein of the word "things", to which the demands immediately under consideration relate, entitle the defendants to compliance with the instant demands.
K1: This inquiry should be answered to permit defendants to adequately prepare for trial.
K3, 5, 7 and 9: These also are appropriate demands for particulars and should be answered.
K2, 4, 6, 8 and 10: These need not be answered because the allegations of the indictment sufficiently apprise defendants of the information sought to enable each of them to understand the offense charged and to prepare its defenses thereto.
L: For the reason stated in the disposition of demand F, ante, this should be responded to.
M: The Government has consented to respond to demands numbered 1, 5 and 6 of category lettered M. It should also answer demands numbered 2, 3 and 4 thereunder.
N1(a): By reason of the incorporation by reference, in paragraph 28 of the indictment, of the allegations of paragraphs 22 and 23 thereof, this demand should be responded to in the interest of clarity.
N1(b): In composing this demand, defendants attempt to incorporate by reference the demands set forth under Section I of their written motion for their Bill of Particulars. The Court disposes of the demands so incorporated as it did with regard to similar demands in Section I ante.
N1-6: These demands should be responded to for the reasons stated in the Court's disposition of demands D1-6 ante.
N8: This demand inquires whether the reference, in paragraph 28 of the indictment, to paragraphs 22 and 23 thereof is intended to include the co-conspirators mentioned in such paragraphs. The obscurity of this portion of the demand is probably justified by the obscurity of the language of the indictment paragraph referred to therein. A responsive answer to the instant inquiry should be given. However, the remainder of the instant demand entitles the defendants only to the name, address, and nature of business of the co-conspirators referred to.
O: The practice of incorporation of indictment allegations in one count by reference to another count, or other counts, has apparently suggested a similar practice to the presently moving defendants who, under Section O of their pending motion, request that the Government "give the same information as is requested in Sections K and L" thereof. The parties are therefore referred by the Court to its disposition of said Sections K and L ante.
The defendants also presently move the Court for an order directing that the particulars, which the Government may furnish responsive to defendants' demands therefor as allowed by the Court, "be impounded until further order of this Court, entered after trial of this action and final judgment herein; * * *." The impounding sought is motivated by the natural desire of each of the defendants to prevent possible private treble-damage plaintiffs from deriving any benefit from the present cause unless and until it shall have reached final judgment. 15 U.S.C. § 16(a) provides that a final judgment or decree rendered in any civil or criminal proceeding brought by or on behalf of the United States under the anti-trust laws "* * * to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under Section 15a * * *, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: * * *." The foregoing provisions have been construed, Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 567-568, 95 L. Ed. 534, 71 S. Ct. 408 (1951) reh. denied 341 U.S. 906, 71 S. Ct. 610, 95 L. Ed. 1345 (1951), as expressive of the Congressional purpose to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in anti-trust actions. See also Minnesota Min. & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 14 L. Ed. 2d 405, 85 S. Ct. 1473 (1965).
Such particulars as the Government may furnish to the defendants in this pending criminal action will not constitute evidence therein. They will serve only to limit the Government's proof and to assist the defendants in preparing their defenses. Such particulars, and the document or documents embodying the defendants' demands therefore, become part of the pretrial record in the cause. They are, therefore, equally open to public inspection as are the indictment and the plea or pleas thereto. In support of their application for a protective impounding order, defendants rely upon United States v. Anaconda American Brass Co., Criminal #10725 (D. Conn. 1963) and United States v. Archer-Daniels Midland Co., Criminal #8627 (W.D.N.Y. 1963).
I do not consider myself bound by either of these decisions. It is well understood that a criminal defendant may not obtain evidence which the Government may bring to use upon the trial by demanding a bill of particulars. Such particulars as the Government may voluntarily furnish to the defendants, or which may be required by the Court's order, would not be admissible as evidence against the defendants in a private civil action under the statute. Defendants have failed to show any fact, or cite any authorities, which would justify this Court in surrounding with the secrecy of an impounding order either the demands for particulars, or the particulars themselves, on file in the office of the Clerk of the Court in this pending cause. Accordingly, the motion for an impounding order is denied.