that had already been presented at Los Angeles; that all the
co-conspirator defendants indicted in the three other areas
are different as to each of those areas and also different
from those indicted in Los Angeles.
Considered as a whole, the evidentiary record shows that the
products in question were nationally advertised and nationally
distributed by American Honda; that the objective of American
Honda was to fix and maintain prices in all regions where its
product was distributed; that dealers in the various regions
received advertising material showing the suggested prices;
that dealers in the various regions were told by regional
managers of American Honda's nationwide so-called fair trade
attempt to stabilize prices of the products everywhere; that
the formation of dealers' associations in the various regions
was part of Honda's policy for furthering, not only national
advertising, but national price maintenance; that dealers in
each regional association were aware of similar dealer
associations in other regions; that dealers and associations
in one region at times communicated with one another regarding
matters of common interest, including pricing structures; that
the purpose of American Honda's pricing policy was to assure
prestige of the product that it felt would be lost if
discounting was practiced in any region and allowed to spread;
that price maintenance was designed to assure, not only dealer
profit, but also dealer ability to maintain a correspondingly
high quality of servicing and advertising — all to maintain the
prestige of the product; that this prestige maintained in this
manner was an inducement to acceptance of dealerships in the
Given modern means of communication and transportation, it
is unrealistic to conclude that dealers in one region were
wholly unconcerned with the maintenance of prices in other
regions and were concerned only with price maintenance by
dealers in their own particular region. Moreover, the
affidavits filed herein indicate the contrary. Although the
degree of concern may have been greater as to price
maintenance vis-a-vis discounting among dealers within a
particular region, dealers in every region, nevertheless, had
a stake in maintaining an overall national pricing policy
which, if allowed to deteriorate into discounting in one
region, would soon spread to invite discounting in other
Although their concern with nationally maintained price
maintenance may have been less urgent than with regional
maintenance, it is difficult to conclude that local dealers
and associations did not share with American Honda the
objective of which the dealers in all regions were
beneficiaries. To this extent and in this respect local
dealers and regional associations shared a common objective
with American Honda.
If there was such a sharing of a common objective, which
local dealers and regional associations furthered by
contributing their part, it would make no difference that
dealers and associations came into the nation-wide conspiracy
at different times and at different places, or that they did
not personally know one another or all details of the
conspiracy everywhere or that there were local variations
— so long as they shared and participated as integral parts in
American Honda's objective.
As stated in American Tobacco Co. v. United States,
147 F.2d 93 (6th Cir. 1944), the character and effect of a conspiracy
are not to be judged by dismembering it and viewing it in its
separate parts but by looking at it as a whole. It is the
common design which is the essence of the conspiracy or
combination and this may be made to appear when the parties
steadily pursue the same object whether acting separately or
together by common or different means but always leading to
the same unlawful result.
So far as the issue of single conspiracy vis-a-vis separate
conspiracies is concerned, the factual situation shown by the
record is not essentially different than in United States v.
Anderson, 101 F.2d 325 (7th Cir. 1939); United States
v. Armco Steel Corporation, 252 F. Supp. 364 (S.D.Cal. 1966);
United States v. New York Great Atlantic & Pacific Tea Co.,
137 F.2d 459 (5th Cir. 1943); United States v. H.E. Koontz
Creamery, Inc., 257 F. Supp. 295 (D.Md. 1966); Lefco v. United
States, 74 F.2d 66 (3rd Cir. 1934). See also United States v.
General Electric Co., 40 F. Supp. 627 (S.D.N.Y. 1941).
On the other hand, we believe the factual situation here is
clearly distinguishable from those in Kotteakos, Canella and
We conclude therefore that Honda, having been prosecuted and
convicted for violating Section 1 of the Sherman Act in the
Los Angeles proceedings, may not again be charged in Chicago
with a Section 1 violation for activities which were part of
a single national conspiracy to maintain prices of its
products throughout the United States and which were part of
the same national conspiracy involved in the Los Angeles case.
The prohibition of the Fifth Amendment against double jeopardy
cannot be evaded by fragmentation.
DUE PROCESS — HARASSMENT
Defendant American Honda further contends, and we think
properly, that entirely apart from the double jeopardy
provision of the Fifth Amendment, successive Grand Jury
inquiries and indictments for alleged separate conspiracies
arising out of the same transactions may, and in this
situation do, constitute harassment in violation of the due
process provision of the Fifth Amendment which provision, as
explained by Justice Frankfurter in Joint Anti-Fascist Refugee
Committee v. McGrath, Attorney General, 341 U.S. 123, 71 S.Ct.
624, 95 L.Ed. 817 (1951), is essentially a recognition of the
requirement of fundamental fairness and fair play under a
given set of circumstances.
Indeed, the Government, itself, has recognized that its
policy should be and is "that several offenses arising out of
a single transaction should be alleged and tried together and
should not be made the basis of multiple prosecutions, a
policy dictated by considerations of fairness to defendants
and of efficient and orderly law enforcement." Petite v.
United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490
(1960) (Solicitor General's Statement on motion to remand an
appeal). (See also Marakar v. United States, 370 U.S. 723, 82
S.Ct. 1573, 8 L.Ed.2d 803 (1962)) The basic unfairness of any
other policy has been considered and recognized in In re
National Window Glass Workers, 287 F. 219 (N.D. Ohio 1922).
The wisdom of this interpretation and concept is
demonstrated by the instant case. Subpoenas calling for large
quantities of documents were issued in the original Los
Angeles Grand Jury investigation. Included were documents of
the dealers' associations in San Francisco, Chicago and
Columbus, as well as all other dealer associations throughout
the United States (a total of 33). More than 6,000 pages of
documents from all over the country were produced in Los
Angeles for consideration by the Grand Jury. Initially,
witnesses from various parts of the country were subpoenaed to
appear in Los Angeles though many of such subpoenas were
subsequently cancelled after it was determined to limit the
Los Angeles indictment to that area.
Shortly after the initial indictment was returned in Los
Angeles, subpoenas were issued in San Francisco, which were
substantially identical with those previously issued in Los
Angeles, requiring the production again of virtually all of
the San Francisco documents already produced in Los Angeles.
Similar patterns of conduct followed in Columbus and Chicago.
Except that the Department of Justice has apparently
determined not to prosecute in other areas in which Honda
dealer associations were organized and attempted to fix prices
at the national scale, there is no
reason why Honda would not face further repetition of the
subpoena process over and over again.
This is precisely the sort of harassment which fundamental
fairness and the due process clause prohibit. The Government
is not a ringmaster for whom individuals and corporations must
jump through a hoop at their own expense each time it
So far as American Honda is concerned, the motion to dismiss
the pending indictment is granted.
We come then to the motions to dismiss of the individual
defendants, none of whom was a defendant in the Los Angeles
case. Accordingly, no question of double jeopardy as such can
arise. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82
L.Ed. 917 (1938); Haddad v. United States, 349 F.2d 511 (9th
Cir. 1965). Nor does the due process-harassment question arise
as to them since they were not subpoenaed in any other case
and have not been put to any expense except that involved in
defending the charges against them in Chicago which will be
more convenient than if they had been indicted in Los Angeles.
With respect to the contention that they were simply
following Honda's directions and instructions, if this
constitutes a defense to the indictment, the question as to
the nature and extent of their participation in the conspiracy
is a question of fact to be determined at the trial. Whereas
the affidavits before the court demonstrate clearly the
national conspiracy with Honda as its central figure, they do
not suffice to establish the exact role of each individual
defendant (United States v. H.E. Koontz Creamery, Inc.,
257 F. Supp. 295 (D.Md. 1966)) (Second Case).
Accordingly, the motions to dismiss of the defendants other
than American Honda are denied. Appropriate orders will enter.