2. Control of the handling, sales and prices of commodities at
the place of origin before their interstate journey begins, or in
the destination where the interstate movement ends, may operate
directly to restrain and monopolize interstate commerce. P.
291 U. S.
297.
3. The Sherman Act denounces every conspiracy in restraint of
interstate trade, including those that are to be carried on by acts
constituting intrastate transactions. P.
291 U. S.
297.
4. In the presence of evidence of a highly organized scheme and
conspiracy, maintained by the levy, collection, and expenditure of
enormous sums, for the purpose of dominating a great and permanent
business, the defense of abandonment requires definite proof --
abandonment cannot be presumed. P.
291 U. S.
297.
5. The silence of defendants whom the evidence tends to
implicate and who were present at the taking of the testimony is
evidence of the persistence of the conspiracy and of their
participation in it. P.
291 U. S.
298.
6. In a suit under the Sherman Act to enjoin a conspiracy,
parties who have been convicted in a criminal prosecution for the
same conspiracy are estopped to deny their connection with it
before the indictment. P.
291 U. S.
298.
7. A decree of injunction under the Sherman Law should enjoin
acts of the sort that are shown by the evidence to have been done
or threatened in furtherance of the conspiracy; it should be broad
enough to prevent evasion, and doubts as to the scope of its
prohibitions should be resolved in favor of the Government and
against the conspirators. P.
291 U. S.
299.
8. Intrastate acts will be enjoined whenever necessary or
appropriate for the protection of interstate commerce against any
restraint denounced by the statute. P.
291 U. S.
299.
Affirmed.
Page 291 U. S. 294
Appeal from a decree of injunction under the Sherman Antitrust
Act. For opinions of the District Court in connection with some of
the interlocutory rulings,
see 44 F.2d 393 and 53 F.2d
518.
MR. JUSTICE BUTLER delivered the opinion of the Court.
The decree appealed from is an injunction against a conspiracy
commenced in May, 1927, by the appellants and others to restrain
and monopolize interstate commerce in live and freshly dressed
poultry in violation of §§ 1 and 2 of the Sherman Anti-Trust Act,
15 U.S.C. §§ 1, 2. Most of the issues were litigated before the
same court in a criminal prosecution commenced August 28, 1928.
Sixty-five of the defendants in this case were there convicted
November 21, 1929. The Circuit Court of Appeals affirmed.
*
This suit was commenced February 7, 1930. The defendants are the
Greater New York Live Poultry Chamber of Commerce, Local 167 of the
International Brotherhood of Teamsters, Chauffeurs, Jobbers &
Stablemen of America, the Official Orthodox Poultry Slaughterers of
America, Inc., called the shochtim union, and 100 individuals, 75
of whom are wholesalers, hereafter called marketmen. The chamber is
an association of marketmen. The members of Local 167 haul live
poultry. Shochtim are the only persons qualified to slaughter
poultry in accordance with Jewish dietary laws; they are employed
by the marketmen.
Page 291 U. S. 295
Live poultry for sale and consumption in the New York
metropolitan area continuously moves in great volume from points in
distant states to commission men, called receivers at railroad
terminals in Manhattan and Jersey City. The receivers sell to
marketmen. The larger part of the poultry is delivered directed
from the cars; the remainder from stands maintained by the
receivers. The purchasers have the coops loaded on trucks and
hauled to their places of business where, without avoidable delay,
they sell, slaughter, and deliver to retailers. Marketmen organized
the Chamber of Commerce and allocated retailers among themselves
and agreed to and did increase prices. The chamber, through a levy
of a cent a pound upon poultry sold by the marketmen, raised money
-- more than $1,000,000 in the first year -- to pay for enforcement
activities. To accomplish various purposes of the conspiracy, the
conspirators hired men to obstruct the business of dealers who
resisted. They spied on wholesalers and retailers and, by violence
and other forms of intimidation, prevented them from freely
purchasing live poultry. And, for like purpose and to extort money
for themselves and their associates, members of Local 167 refused
to handle poultry for recalcitrant marketmen, and members of the
shochtim union refused to slaughter.
The petition contains allegations identical with those of the
indictment as to the conspiracy and the means used to carry it into
effect. The convicted defendants denied all the material
allegations. On the government's motion, the court struck out as
sham their denials of the conspiracy prior to the commencement of
the criminal prosecution, but let stand their denials of its
continuance after that date. Decree was entered against 52
defendants by consent. Among the 49 resisting were the Chamber of
Commerce, Local 167, the shochtim union, and 29 individuals who had
been convicted. At the conclusion of the evidence, the trial judge,
in an oral opinion, stated that, except as to two individual
defendants, every material
Page 291 U. S. 296
allegation had been proved. In accordance with that ruling, the
court later made findings of fact, stated its conclusions of law,
and entered a comprehensive decree. Only Local 167, the shochtim
union and 14 individuals, members of the one or the other union,
have appealed.
In their brief and oral argument, appellants contend: (1) there
is no proof that they intended to restrain or did interfere with
interstate commerce; (2) if ever concerned in the conspiracy, they
voluntarily abandoned it before this suit was commenced, and there
is no probability of resumption; (3) there is no credible evidence
against Weiner, Rosenman, and Markman; (4) the court erred in
striking out as sham the denials of convicted defendants; (5) the
decree should be modified by eliminating a paragraph that enjoins
them in respect of both interstate and intrastate commerce and by
limiting the injunction to interstate commerce.
The assignment of errors includes more than 250 specifications,
and occupies more than 35 pages of the record. While it is possible
to find among them bases for the five points indicated, they
contain so much that is irrelevant that they tend to confuse,
rather than to define, the issues to be presented. They do not
appropriately serve the convenience of the appellee or of the
court.
Phillips & Colby Const. Co. v. Seymour,
91 U. S. 646,
91 U. S. 648;
Central Vermont Ry. v. White, 238 U.
S. 507,
238 U. S. 508;
Chesapeake & Del. Canal Co. v. United States,
250 U. S. 123,
250 U. S. 124;
Seaboard Air Line Ry. v. Watson, 287 U. S.
86,
287 U. S. 91. In
view of the omission of appellee to object and the lack of
precedent definitely in point, we refrain from dismissing the
appeal for failure substantially to comply with the statute and our
rule in respect of the assignment of errors. 28 U.S.C. § 862. Rule
9. But what is here said is to be understood as an announcement
that, in the future, a failure of that sort may be taken as
sufficient ground for dismissal.
Page 291 U. S. 297
Appellants' contention that there is no proof that they intended
to restrain or did interfere with interstate commerce has no
merit.
The evidence shows that they and other defendants conspired to
burden the free movement of live poultry into the metropolitan
area. It may be assumed that, sometime after delivery of carload
lots by interstate carriers to the receivers, the movement of the
poultry ceases to be interstate commerce.
Public Utilities
Comm'n v. Landon, 249 U. S. 236,
249 U. S. 245;
Missouri v. Kansas Gas Co., 265 U.
S. 298,
265 U. S. 309;
East Ohio Gas Co. v. Tax Comm'n, 283 U.
S. 465,
283 U. S. 470.
But we need not decide when interstate commerce ends and that which
is intrastate begins. The control of the handling, the sales, and
the prices at the place of origin before the interstate journey
begins or in the state of destination where the interstate movement
ends may operate directly to restrain and monopolize interstate
commerce.
United States v. Brims, 272 U.
S. 549;
Coronado Coal Co. v. United Mine
Workers, 268 U. S. 295,
268 U. S. 310;
United States v. Swift & Co., 122 F. 529, 532-533.
Cf. Swift & Co. v. United States, 196 U.
S. 375,
196 U. S. 398.
The Sherman Act denounces every conspiracy in restraint of trade,
including those that are to be carried on by acts constituting
intrastate transactions.
Bedford Co. v. Stone Cutters'
Assn., 274 U. S. 37,
274 U.S. 46;
Loewe v.
Lawlor, 208 U. S. 274,
208 U. S. 301.
The interference by appellants and others with the unloading, the
transportation, the sales by marketmen to retailers, the prices
charged, and the amount of profits exacted operates substantially
and directly to restrain and burden the untrammelled shipment and
movement of the poultry while unquestionably it is in interstate
commerce.
Appellants' contention that the proof shows that they abandoned
the conspiracy before the commencement of this suit cannot be
sustained.
The conspiracy was not for a temporary purpose, but to dominate
a great and permanent business. It was
Page 291 U. S. 298
highly organized and maintained by the levy, collection, and
expenditure of enormous sums. In the absence of definite proof to
that effect, abandonment will not be presumed.
Hyde v. United
States, 225 U. S. 347,
225 U. S. 369;
Nyquist v. United States, 2 F.2d 504, 505. The government
introduced substantial evidence which, uncontradicted and
unexplained, tends to show that the conspiracy and appellants'
participation continued until the filing of the amended complaint.
They were present in court, but failed to testify in their own
defense. It justly may be inferred that they were unable to show
that they had abandoned the conspiracy and did not intend further
to participate in it. Under the circumstances of this case, their
silence rightly is to be deemed strong confirmation of the charges
brought against them.
Mammoth Oil Co. v. United States,
275 U. S. 13,
275 U. S. 52;
Bilokumsky v. Tod, 263 U. S. 149.
There was evidence tending to show that Weiner, Rosenman, and
Markman were connected with the conspiracy. All were present, but
none testified. As, on cross-examination, full disclosure would
have been called for, failure to take the witness stand strongly
suggests that they could not give an account of their conduct that
would be consistent with the denial interposed by answer or tend to
repel what had been shown against them. The District Court rightly
held them to be parties to the conspiracy.
The judgment in the criminal case conclusively established in
favor of the United States and against those who were found guilty
that, within the period covered by the indictment, the latter were
parties to the conspiracy charged. The complaint in this suit
includes the allegations on which that prosecution was based. The
defendants in this suit who had been there convicted could not
require proof of what had been duly adjudged between the parties.
And, to the extent that the answers attempted to deny participation
of convicted defendants in the conspiracy of which they had been
found guilty,
Page 291 U. S. 299
they are false and sham, and the District Court rightly so
treated them.
Oklahoma v. Texas, 265 U. S.
76.
Cf. Coffey v. United States, 116 U.
S. 436,
116 U. S. 442;
Stone v. United States, 167 U. S. 178,
167 U. S.
184.
Appellants seek elimination of the provision of the decree that
enjoins them from using any of the offices or positions in Local
167 or the shochtim union
"for the purpose of coercing marketmen to buy poultry, poultry
feed, or other commodities necessary to the poultry business from
particular sellers thereof."
The United States is entitled to effective relief. To that end,
the decree should enjoin acts of the sort that are shown by the
evidence to have been done or threatened in furtherance of the
conspiracy. It should be broad enough to prevent evasion. In
framing its provisions, doubts should be resolved in favor of the
government and against the conspirators.
Warner & Co. v.
Lilly & Co., 265 U. S. 526,
265 U. S. 532.
The evidence shows that delegates of the unions coerced marketmen
to use coops of a company that had or sought to secure a monopoly
of such facilities, and charged excessive rentals for them. The
lack of specific evidence that coercion has been practiced or is
threatened in respect of every detail or commodity is no adequate
ground for striking out the clause or for limiting it to a mere
specification of the coops. Having been shown guilty of coercion in
respect of the coops in which poultry is kept and fed, appellants
may not complain if the injunction binds generally as to related
commodities, including feed and the like. When regard is had to the
evidence disclosing the numerous purposes of the conspiracy and the
acts of coercion customarily employed by defendants, it is plain
that the clause referred to cannot be condemned as unnecessary or
without warrant.
And, maintaining that interstate commerce ended with the sales
by receivers to marketmen, appellants insist that the injunction
should only prevent acts that restrain commerce up to that point.
But intrastate acts will be enjoined
Page 291 U. S. 300
whenever necessary or appropriate for the protection of
interstate commerce against any restraint denounced by the act.
Bedford Co. v. Stone Cutters' Assn., ubi supra.
Gompers v. Buck's Stove & Range Co., 221 U.
S. 418,
221 U. S. 438.
In this case, the evidence fully sustains the decree.
Affirmed.
* 47 F.2d 156,
cert. denied, 283 U.S. 837.