The opinion of the court was delivered by: WORTENDYKE
WORTENDYKE, District Judge:
On October 20, 1966 this Court filed an Opinion requiring the Government to make certain disclosures in response to the defendants' demands for a Bill of Particulars. See United States v. American Oil Company, 259 F. Supp. 851 (D.N.J. 1966). Subsequently, an Order was entered, dated November 13, 1967, which provided, inter alia, that the defendants would be permitted to bring any additional appropriate motions within a designated period. This decision deals with the motions filed pursuant to the permission granted in that Order.
For the third time in this case, the defendants are seeking to overturn the Indictment returned against them because of alleged defects in the impanelling of the Grand Jury. The initial motion addressed to this point was denied on December 30, 1965. See United States v. American Oil Company, 249 F. Supp. 130 (D.N.J. 1965). The subsequent motion for reconsideration of that decision was likewise denied. See United States v. American Oil Company, 253 F. Supp. 783 (D.N.J. 1966). On this third application, the defendants rely upon much of the material presented on the previous motions. Therefore, repetition of the factual assertions and the legal contentions set out and disposed of on those occasions will be limited to a reiteration only of so much of that material which is essential to accurately place this most recent thrust of the defendants' argument in its proper context.
Defendants' initial attack upon the impanelling procedure was based upon the uncontroverted assertion that, by predetermination, of the 350 cards placed into the jury wheel, two-thirds contained the names of men while only one-third contained the names of women. Relying, inter alia, upon Ballard v. United States, 329 U.S. 187, 91 L. Ed. 181, 67 S. Ct. 261 (1946), the defendants asserted that the 2 to 1 predetermined disproportion in favor of men resulted in an improper systematic discrimination against and exclusion of women from the Grand Jury, requiring a dismissal of the Indictment. Building upon that initial premise, the defendants now put forth additional facts, again uncontroverted by the Government, which indicate that the end result of the initial 2 to 1 disproportion in favor of men's names placed into the jury wheel is the creation of an even greater disproportion between the number of men and women serving on Grand Jury panels. Defendants' moving papers disclose that of the twenty-five Grand Jury panels selected between April 1, 1958 and November 1, 1967, an average of 49.6% of the men selected were excused from Grand Jury service, whereas an average of 62.5% of the women selected were excused from such service. The percentages vary from a high in April 1958, when 38% more women were excused than men, to April 1965, when 12% more men were excused than women. Of the twenty-five Grand Juries selected during that ten year span, a greater percentage of women were excused on twenty-one occasions while a greater percentage of men were excused on four occasions.
Thus, defendants assert, the initial seeds of disproportion having been sown, and the inevitable harvest of a more unequal ratio between the sexes having been reaped, the Indictment must fall because the impanelling procedure utilized resulted in a Grand Jury selection process which failed to ensure fair cross-sectional representation from the community.
The additional facts presented change neither the primary thrust of defendants' initial contentions nor this Court's rationale in denying defendants' prior motions. From the face of the moving papers, it is apparent that we are not dealing with the type of exclusionary tactic which has been uniformly proscribed by the courts. See Ballard v. United States, supra, and United States v. Roemig, 52 F. Supp. 857 (N.D. Iowa 1943). Nor does the method under attack even remotely approach the equally repugnant procedure of tokenism which has likewise been condemned. See Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965) and Akins v. Texas, 325 U.S. 398, 89 L. Ed. 1692, 65 S. Ct. 1276 (1945). Compare Fay v. New York, 332 U.S. 261, 266 note #4, 91 L. Ed. 2043, 67 S. Ct. 1613 (1947).
The real import of the allegedly newly discovered evidence presented on behalf of the defendants is its apparent conflict with the validity of the initial premise upon which the Clerk of this Court presumably relied in instituting the disproportion between men and women. However, as I indicated upon the reconsideration of the prior motion, "* * * the Court's denial of the motion did not turn upon the contents of the Clerk's letter, * * *" which evidenced an intent to achieve a more equal ratio between men and women on the panels ultimately selected. United States v. American Oil Company, 253 F. Supp. 783 at 784. Therefore, the additional evidence, which indicates that the procedure adopted apparently compounded an imperfection which it sought to remedy, does not persuade this Court that the procedure was so deficient as to require a dismissal of the Indictment.
There has been no showing of any exclusionary procedure directed at a cognizable class forming a component of a fair cross-section of the community. Both men and women are represented in substantial numbers on all jury lists, even if disproportionately. The courts have never held that a defendant is entitled to proportionate representation of cognizable groups on the list from which jury panels are selected. In fact, just the opposite is true. See Swain v. Alabama, supra at 208 and Dow v. Carnegie-Illinois Steel Corporation, 224 F.2d 414 (3 Cir. 1955). In the final analysis "* * * it is doubtful whether any system could be devised to accomplish this purpose." United States v. Hoffa, 349 F.2d 20, 31 (6 Cir. 1965).
This Court is not unmindful that the controlling statutory sections involved in this motion, 28 U.S.C. § 1861 et seq., have recently been amended by the "Jury Selection And Service Act of 1968," 82 Stat. 53 et seq., 28 U.S.C. § 1861 et seq. The amendments to the jury selection statute evidence a continuing endeavor on the part of Congress to achieve a more perfect system of jury selection toward the end that the composition of juries may reflect a fair cross-section of the community. However, as Judge Kaufman, aware of the impending abandonment of the "key man" system because of the above-mentioned amendments, said, in upholding the validity of that system:
"We have found no case, pertaining to state juries and decided solely on a constitutional issue basis, or pertaining to federal juries and decided in the light of the federal court system's more exacting supervisory responsibilities, in which a federal court, from the vantage point of twenty-twenty hindsight, has decided that a jury selection system has been negligently and therefore unlawfully administered because such administration, while achieving substantial representation within all of the identifiable community groups discussed in the 1959 Conference Report, has also produced partial deviation from complete statistical balance within a few of those group categories. This Court will seek, as it has in the past, to achieve within its jury system, full representation of the community with regard to all such groups. In so doing, efforts directed toward improvements will be made. The recognition that such efforts are apposite in no way requires the conclusion that intentional or negligent discrimination occurred, or that substantial lack of representation of any identifiable group existed, in connection with the juries under attack in these cases." United States v. Cohen, 275 F. Supp. 724, 743 (D. Md. 1967).
I am of the opinion that the recently adduced evidence outlined above does not require a reversal of my prior rulings on this motion. Therefore, this most recent motion to dismiss the Indictment because of alleged defects in the impanelling of the Grand Jury is denied.
II. Atlantic Richfield's Motion to Dismiss Under Rule 12(b)
The sufficiency of the Indictment in this case under the criteria of F.R. Cr. P. 7(c) was upheld in this Court' s Opinion of January 26, 1966, 249 F. Supp. 799 (D.N.J. 1966). That determination was made without reference to any Bills of Particulars, the demand for which had not yet been made. There is presently before the Court a further motion by defendant, Atlantic Refining Company (now Atlantic Richfield) to dismiss the Indictment under Rule 12(b) of the Federal Rules of Criminal Procedure. Movant contends that, when the allegations of the Indictment are viewed in the "illumination" of the Bills of Particulars which have been obtained from the Government, none of the three Counts of the Indictment charges an offense on its part.
Atlantic's argument on this Count may be succinctly stated as follows:
(1) Count 1 alleges a conspiracy to raise, fix, stabilize and maintain tank wagon prices and retail prices in the relevant trading area.
(2) The Bills of Particulars in specifying acts done in furtherance of the alleged conspiracy speak exclusively in terms of "dealer tank wagon prices."
(3) "Dealer tank wagon prices" are defined as tank wagon prices minus discounts and allowances normally given by producers to retailers to enable them to meet the retail prices of competitors. Therefore, "dealer tank wagon prices" are determined by the variable factors of the market place.
(4) Equalization of "dealer tank wagon prices" and tank wagon prices is a prerequisite to the conspiracy charged.
(5) Control over retail prices of competing non-conspirators is necessary to eliminate the inherent fluctuation ...