November 7, 1928.
Charles H. Tuttle, U.S. Atty., of New York City, and Israel B. Oseas, John Harlan Amen, and Walter L. Rice, Sp. Asst. Attys. Gen., for the United States.
Goldstein Goldstein and Alfred L. Becker, all of New York City (Jonah J. Goldstein, Alfred L. Becker, and Albert De Roode, all of New York City, of counsel), for Greater New York Live Poultry Chamber of Commerce.
Prosecution by the United States against the Greater New York Live Poultry Chamber of Commerce and others for conspiracy to violate the Sherman Anti-Trust Law. On motions to strike out the Greater New York Live Poultry Chamber of Commerce as party defendant, and to vacate the order granting leave to file an information, and on the government's demurrer to a special plea. Motion to strike out defendant named denied, motion to vacate order granting leave to file information held not reviewable, and demurrer to special plea sustained.
The facts were as follows: An information having been filed, charging the Greater New York Live Poultry Chamber of Commerce and others with conspiracy in violation of the Sherman Anti-Trust Law, certain defendants were arraigned and pleaded not guilty. Thereafter these defendants filed a paper, which they called a special plea to the said information, together with notice of motion and supporting affidavits. The motion and special plea asked for an order vacating the order granting leave to file the information and striking the information from the files, on the ground that the transactions charged in the information were not transactions in interstate commerce, and that the court had no jurisdiction of the subject-matter of the action. No contention was made that the information did not sufficiently charge a restraint of interstate commerce, but the motion was made purely on facts. The government, treating the motion and special plea as a special plea in bar, demurred. The president of the Chamber of Commerce also moved the court for an order striking the name of the Greater New York Live Poultry Chamber of Commerce from among the defendants specified in the information, on the ground that the Greater New York Live Poultry Chamber of Commerce as an unincorporated voluntary association was not subject to criminal prosecution.
As to the motion to strike out "Greater New York Live Poultry Chamber of Commerce" as a party defendant, I am of the opinion that the language of the Sherman Anti-Trust Act ( 15 USCA § 1 et seq.) was intended to cover a defendant of this character. It certainly is "an association existing under * * * the laws of * * * the United States." 15 USCA § 7. I do not believe that a combination of persons having a definite organization, with officers and directors, although unincorporated, is exempt from the provisions of the statute. If it is convicted of a violation of the law, its assets, if any, may be reached to satisfy the penalty of fine. Motion to strike out this particular defendant is denied.
As to the motion to vacate the order granting leave to file the information, it is evident that such leave was granted by a judge of this court in the exercise of a lawful discretion, and cannot here be reviewed.
The so-called "special plea," after the general plea, is too late. In any event, it is not jurisdictional, but is in effect an argument on facts, calculated to sustain the former plea of "not guilty." U.S. v. J.L. Hopkins Co. (D.C.) 228 F. 173.
The government's demurrer to the special plea will be sustained.