Appeals from the District Court of the United States for the District of Colorado; John Foster Symes, Judge.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
Numbers 2356, 2357, 2358, 2359, 2360, and 2361.
An indictment containing two counts was returned against the appellants in causes Nos. 2356 to 2361, inclusive. The first count charged a conspiracy to restrain trade and commerce in violation of § 1 of the Sherman Act, 15 U.S.C.A. § 1. The second count charged a conspiracy to monopolize trade and commerce in violation of § 2 of the Sherman Act, 15 U.S.C.A. § 2. The appellants entered pleas of nolo contendere. The trial court imposed a sentence on each count. The appellants urged that the offense charged in the first count is the identical offense charged in the second count, and there being but one offense charged, they were, therefore, subject to but one punishment.
Section 1 of the Sherman Act declares that every contract, combination, or conspiracy in restraint of trade or commerce among the several states is illegal, and that every person who shall make any contract or engage in any combination or conspiracy declared by such section to be illegal shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $5,000 or by imprisonment not exceeding one year, or by both such punishments.
Section 2 of the Sherman Act provides that every person who shall combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states shall be guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both such punishments.
The crime defined by § 1 is legally distinct from the crime defined by § 2.*fn1
Congress may provide that separate steps in a single transaction shall constitute separate offenses. If offenses are distinct in law they are not identical, regardless of how closely they are connected in point of fact. A single act may be an offense against two statutes. The test laid down by the adjudicated cases as to the identity of offenses under separate statutory provisions is, does each statutory provision require proof of a fact which the other does not.*fn2
We shall assume, without deciding, that the indictment charged but one agreement. Even if the defendants, as a part of a single transaction or agreement, agreed that they would act together to accomplish the object of restraining trade, and further agreed that they would act together to accomplish the object of monopolizing trade, we are of the opinion that they would be guilty of separate and distinct offenses. Proof of that portion of the agreement to act together to restrain trade would sustain a conviction under § 1 of the Act. Proof of that portion of the agreement to act together to monopolize trade would sustain a conviction under § 2 of the Act. Each would require proof of a fact or a portion of the unlawful agreement which the other would not. Here, the indictment charged an unlawful agreement to accomplish the object of restraining trade and an unlawful agreement to accomplish the object of monopolizing trade. We conclude it charged separate and distinct offenses. This conclusion is supported, we think, by United States v. Buchalter, 2 Cir., 88 F.2D 625, and United States v. Shapiro, 2 Cir., 103 F.2d 775.
What we have said with respect to causes Nos. 2356 to 2361, inclusive, applies equally to causes Nos. 2368 and 2369.
Count one of the indictment consists of 38 numbered paragraphs.
Paragraph 17 defines "defendant retail lumber dealers" as the corporations and individuals named defendants in paragraphs 14 and 15 of the indictment, and alleges that such retail lumber dealers throughout the period covered by the indictment ...