The opinion of the court was delivered by: WORTENDYKE
WORTENDYKE, District Judge:
"Count I of the Indictment charges all the defendants with a conspiracy, in unreasonable restraint of interstate trade in gasoline in violation of Section 1 of the Sherman Act, to fix tank wagon and retail prices of gasoline in trading area. In furtherance of this conspiracy, defendants did 'substantially restrict the amount of gasoline available to distributors and dealers engaged in the sale of private brand gasoline in the trading area.' An effect of the conspiracy was to restrain and suppress 'competition from distributors and dealers engaged in the sale of private brand gasoline in the trading area.' The 'Amendment' of April 19, 1968 merely exonerates American Oil, Humble Oil, Sinclair Refining and Socony Mobil Oil of agreeing with anyone to restrict the amount of gasoline available to distributors and dealers engaged in the sale of private brand gasoline in the trading area."
Accordingly the Court concluded that the "Amendment" of April 19, 1968 did not enlarge the charge in Count I as returned by the Grand Jury.
By motions dated January 8, 1968, the defendants American Oil Company, Humble Oil & Refining Company, Sinclair Refining Company and Socony Mobil Oil Company sought to strike portions of the Bills of Particulars relating to Count I of the Indictment and also for a severance or separate trial. The aspect of those motions addressed to the Bills of Particulars was disposed of by this Court in its Opinion of July 15, 1968; but at the request of counsel for the movants argument and consideration of the motions for severance or separate trial was deferred until after the Court's disposition of the motions to strike portions of the Bills of Particulars. Superseding briefs have been filed respecting the latter aspect of the pending motion in behalf of the movants and of the Government respectively. The superseding brief for movants adds to the arguments set forth in their previous brief the contention that Count I of the Indictment is duplicitous and violates Rule 8(a) of the Federal Rules of Criminal Procedure.
That Count I of the Indictment is not duplicitous on its face is obvious from an analysis of the allegations of the Indictment. The gravamen of the offense is a violation of Section 1 of the Sherman Act consisting of a single conspiracy in restraint of trade. That conspiracy is alleged to be found in one continuing agreement the substantial term or objective of which has been to "raise, fix, stabilize and maintain prices." The motions to dismiss Count I, made on September 15, 1965 by all the defendants, did not assert that the allegations thereof were duplicitous. The subsequent motion of Atlantic, dated December 20, 1967, to dismiss Counts I, II and III, made after the Bills of Particulars were filed, did not allege duplicity. In any event this Court's Orders of November 13 and December 26, 1967, which required that all appropriate motions in the case be filed no later than January 8, 1968 precluded the pending attack upon the Indictment upon the ground of duplicity.
The Bills of Particulars may not be relied upon to support the charge that Count I is duplicitous because this Court's Opinion of July 15, 1968 held that the Bills of Particulars did not enlarge upon the allegations of Count I of the Indictment, and this holding must be considered the law of the case requiring that the charge be overruled at this time. Even if the law were otherwise, Demand C-6 for Particulars is addressed to paragraph 14 of the Indictment which states that the single conspiracy and therefore the single offense charged therein has consisted of one continuing agreement to fix prices. The Demand inquires "* * * what action, in fact, each defendant and co-conspirator agreed to take, i.e., the means and methods agreed to, by which * * *" prices were to be fixed. This Demand presumes the existence of agreements on action to be taken, i.e., on "means and methods" by which prices were to be fixed. The Government's answer to this Demand is responsive thereto and merely explains and particularizes the single offense charged in Count I. A charge of conspiracy does not become duplicitous by alleging multiple objectives. Braverman v. United States, 317 U.S. 49, 87 L. Ed. 23, 63 S. Ct. 99 (1942). I hold therefore that Count I of the Indictment is not duplicitous either on its face or in the light of the Bills of Particulars.
The presently moving defendants, invoking the provisions of Rule 14 of the Federal Rules of Criminal Procedure, contend that this Court should sever from the Indictment, and separately try, Count I and the presently moving defendants. Applying the principles stated in United States v. Quinn, 365 F.2d 256 (7 Cir. 1966) movants assert that they will be prejudiced if tried together with the remaining defendants because: (1) the case is complex and confusing; (2) the differences and relationships between the several claims made in the Indictment are difficult to grasp; (3) certain of those claims present issues which are extraneous to the guilt or innocence of the movants of the offense with which they are charged or are otherwise prejudicial to them; (4) a mass of testimony is expected; and (5) limiting instructions will, at best, be of dubious practical effect in protecting the movants.
Particularizing the foregoing prejudicial characteristics of the case movants point out that they, as well as all non-moving defendants, and the four alleged non-defendants co-conspirators, are large oil companies which have numerous employees and almost countless transactions. It is further emphasized that the price-fixing conspiracy charged in Count I, and all prices of dealers to the public in the tri-state trading area for any defendant's or co-conspirator's gasoline during a period of at least 10 years will be implied from rather than expressly disclosed by the evidence; and that the Government, as has been disclosed by the Bills of Particulars, will attempt to prove the conspiracy circumstantially from evidence of approximately 230 so-called "Acts," and from over 50 documents. Finally movants point out that the trial of all defendants upon all counts of the Indictment will involve a multiplicity of defendants, numerous alleged co-conspirators, an undisclosed number of the personnel of each, in addition to the testimony of an undisclosed number of alleged victims of the charged conspiracy.
Rule 8(b) of the Federal Rules of Criminal Procedure permits two or more defendants to be charged in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." However a defendant may be entitled to a severance or to a separate trial under F.R. Cr. P. 14 upon a showing that he will be prejudiced by a joint trial with others.
The three separate statutory offenses charged in Counts I, II and III respectively rest on one set of facts, and the Government represents that no evidence will be offered in support of Counts II and III which will not also be offered and admissible to prove Count I. As has already been stated, Count I charges a conspiracy, Count II a monopoly and Count III an attempt to monopolize. Of these charged offenses, that in Count I violates Section 1, and those in Counts II and III violate Section 2 of the Sherman Act. One set of facts may suffice to prove each of the statutory offenses alleged. American Tobacco Co. v. United States, 328 U.S. 781, 90 L. Ed. 1575, 66 S. Ct. 1125 (1946).
Movants argue that if the motion for severance is denied and movants are required to stand trial with the other defendants, movants will suffer prejudice in being required to meet seven major claims viz: (1) that the non-moving defendants agreed to substantially restrict the amount of gasoline available to distributors and dealers engaged in the sale of private brand gasoline; (2) that movants participated as co-conspirators with the non-moving defendants and others in a conspiracy to monopolize interstate trade in gasoline in the tri-state area; (3) that the alleged agreement of the non-moving defendants to restrict supply was made in furtherance of the alleged conspiracy to fix tank wagon and retail prices in which movants are said to have engaged; (4) that the asserted agreement of the non-moving defendants constituted a part of the alleged conspiracy to monopolize in which movants are alleged to have participated; (5) that movants had a specific intent to monopolize, jointly with the non-moving defendants and others; (6) that movants participated with the non-moving defendants and others in carrying out the alleged conspiracy to monopolize by engaging in conduct in furtherance thereof; (7) that the conduct participated in by movants together with the non-moving defendants and others closely approached bringing about a joint monopolization of interstate trade in the tri-state area.
It must be borne in mind that Count I of the Indictment charges all of the defendants with violation of Section 1 of the Sherman Act by their combination and conspiracy in unreasonable restraint of inter-state trade in gasoline in the tri-state area, and that conspiracy consisted of a continuing agreement, understanding and concert of action among them and co-conspirators to fix tank wagon and retail prices of gasoline in the area. The evidence to be presented in support of this accusation will be generally circumstantial in character, and the conclusion of participation in the conspiracy ...