author: NICKERSON, District Judge.

text:
    UNITED STATES of America, v. Jesus Augusto RODRIGUEZ, Defendant.
    No. 85 CR 59.
    United States District Court, E.D. New York.
    Sept. 12, 1985.

      Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Ephraim Savitt, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for plaintiff.
    Marion A. Seltzer, New York City, for defendant.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

The indictment charges that defendant conspired to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. He moves to dismiss on the ground that the trial has not been held within the time limits of the Speedy Trial Act (the Act), 18 U.S.C. §§ 3161-3174.

I

Defendant has been in custody since his arrest on January 16, 1985. He was assigned an attorney from the Criminal Justice Act Panel. The government filed the indictment on January 25,1985. On February 11, 1985 he and his attorney appeared before a judge for a status report. The judge set March 15, 1985 as the date for filing pretrial motions and March 29, 1985 as the date for jury selection. On March 14, 1985 defendant’s attorney delivered to the government and the clerk’s office a motion to obtain discovery and to suppress evidence.

On March 15, 1985 the judge held a status conference. Defendant, although in custody in the courthouse, was not present. His assigned counsel stated that he was about to begin a seven week criminal trial in another district. The judge said he had no objection to a postponement “but in order for my record, I need your defendant to sign a waiver on this speedy trial issue.” Defendant’s counsel then said: “Wouldn’t this be excludable time anyway in that I filed a motion?” Turning to the Assistant United States Attorney, the judge asked “Is that acceptable to you?” The Assistant United States Attorney replied that the time would be excludable because of the pending motion “which immediately triggers excludable delay under the Speedy Trial Act and because of the unavailability of counsel.” The judge concluded “So, we won’t need the defendant.” On ascertaining that defendant’s counsel hoped to finish his other trial by the week of April 29, 1985, the judge set a status conference for May 13, 1985.

For reasons that do not appear of record no conference took place on that date. The other trial of defendant’s counsel ended on May 23, 1985, and the judge held a status conference on June 5,1985 at defense counsel’s request so that the court might apprise defendant “in court as to the reason for the adjournments already taken,” “enter an order of judicial delay as a result of my unavailability,” and determine whether defendant was “satisfied with my representation,” as to which counsel said there had been some complaint.

On being asked if he wished new counsel defendant replied “[n]o, no,” and “[h]e’s doing a very good job.” In response to the judge’s query, defense counsel confirmed that “[a]ll this has been excludable time” because of the pendency of the motion. The judge then said he would not handle the case unless it were tried at the Union-dale courthouse and unless defendant waived his rights to object to a jury panel to be drawn in Uniondale no earlier than July 12, 1985. Defendant’s counsel, concluding that there would be “speedier progress” in Brooklyn, agreed, with his client’s acquiescence, that the case should be reassigned to a judge sitting in Brooklyn. The Assistant United States Attorney also consented.

The case was reassigned to this judge on June 10, 1985 by random selection. The government made no response to the pretrial motion and no effort to bring it on for a hearing or to take other action to bring to trial a case the government believed would last no more than a day. By July 2, 1985 defendant, evidently disturbed by the delay in the disposition of his case, had retained different counsel who on that date made the present motion to dismiss.

Under the Act the trial of a defendant must generally commence within seventy days from the filing date of the indictment or the date of defendant’s first appearance before a federal officer of the court, whichever is later. 18 U.S.C. § 3161(c)(1). As of July 2, 1985 the seventy days had long since expired, and the chief question is whether there are periods of excludable delay under 18 U.S.C. § 3161(h) that make the unexcludable delay to that date seventy days or less.

II

The government urges that the period from March 15, 1985 onward is excludable as serving the “ends of justice” within the meaning of 18 U.S.C. § 3161(h)(8). This subsection excludes delay resulting from a continuance if the court grants it on the basis of its “findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial” and sets forth in the record “its reasons” for so finding.

The subsection also provides that in determining whether to grant a continuance the court shall consider, among other things, whether the failure to grant the continuance (1) would deny the defendant “reasonable time to obtain counsel,” or (2) “unreasonably” deny him “continuity of counsel,” or (3) would deny his counsel “the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.”

A court may only rarely grant this exclusion. See United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir.1985). Moreover, a condition of the grant is that the court address the above concerns, determine that the need for a continuance outweighs the interests of the public and the defendant in a speedy trial, and set forth the reasons for the determination. Id. at 76-77. The requirement that the court state those reasons on the record gives assurance that the court in fact weighed all the relevant matters and provides the appellate court with a record to review the adequacy of the stated reasons. Id. at 77. See also United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983).

There is no indication in the transcript of the March 15, 1985 status conference that the judge balanced the pertinent concerns. The record affirmatively establishes that he made no statement of reasons why a delay might outweigh the interest in a speedy trial. The attorneys for both parties simply assumed that with the filing of the pretrial motion, which triggered a period of excludable delay, there was no need to focus on the “ends of justice” exclusion. The judge apparently then made the same assumption. The government did not urge him on March 15, 1985 to consider whether it would be in defendant’s interest to have new and available counsel assigned to him rather than await for a long time the trial of a one day case. Nor did the government suggest that the judge make the prerequisite findings or state his reasons on the record.

The government says that defendant’s comments at the June 5, 1985 status conference show that he “understood perfectly” the reasons for the delay. The implication is that he waived his speedy trial rights. Assuming arguendo that the defendant could then waive the Act’s time limits, the court holds that something far more explicit than defendant’s remarks here would be required.

Even if the time during which assigned counsel was unavailable because of his other engagement were to be excluded, there would be no compliance with the seventy day limit. As noted, the filing of the indictment was on January 25, 1985. Forty seven days elapsed before defense counsel served the pretrial motion. His other trial ended on May 23, 1985. Thirty nine days elapsed between that date and July 2,1985, when defendant’s new counsel made the present motion. Thus, there was a delay of a total of eighty six days which are in any event not excludable.

Ill

The court must also decide whether the entire time is excludable from March 14 to July 2, 1985 under subsection 18 U.S.C. § 3161(h)(1)(F). This subsection excludes any period of delay “... resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.”

A period of excludable delay began when the pretrial motion was filed. But that period includes only the time “reasonably necessary” to conclude a hearing or to submit the matter to the court. United States v. Cobb, 697 F.2d 38, 44 (2d Cir.1982). Plainly the subsection did not contemplate that a trial could be delayed by indefinitely postponing the processing of motions. Id.

While the government did not respond formally to the motion, the attorneys appear to have assumed on March 15, 1985 that the government opposed. Thus the delay in hearing the motion from that time until at least May 23, 1985 was attributable to assigned counsel’s unavailability.

Although there appear to be no published opinions on the point, this court holds that, where the delay in hearing a pretrial motion is due to the asserted unavailability of defense counsel, the court may not deem such a delay reasonably necessary under 18 U.S.C. § 3161(h)(1)(F) unless it focuses in advance on the same factors and makes the same findings and statement of reasons as are required under 18 U.S.C. § 3161(h)(8), discussed above. To adopt a less strict standard for subsection (h)(1)(F) would be to invite frustration of the objectives of subsection (h)(8).

As already noted, on March 15, 1985 the judge neither made the needed findings nor stated any reasons why the ends of justice served by a delay would outweigh the interest of the public and defendant in a speedy trial. Thus the time from that date through May 23, 1985 was not reasonably necessary to bring the motion to a hearing. In light of this conclusion the court need not decide whether, had that time been excludable, a delay from May 23,1985 until July 2, 1985 would have been reasonably necessary even though the hearing on the motion admittedly would have occupied less than three hours.

IV

There remains the question whether the court should dismiss the indictment with or without prejudice. Under 18 U.S.C. § 3162(a)(2) the court should consider three factors, namely, “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.”

Addressing the first factor, the court finds the offense charged to be serious, even though the cocaine held by defendant may have been the relatively small amount that his present counsel claims. Therefore a minor delay would not justify dismissal with prejudice. United States v. Russo, 741 F.2d 1264, 1267 (11th Cir.1984). But here the delay has been so lengthy as to neutralize the seriousness of the offense. Id.

In evaluating the third factor the court concludes that reprosecution would further the public interest in the light of the serious nature of the offense and despite widespread scepticism of the deterrent effect of prosecutions of persons such as defendant. On the other hand a dismissal without prejudice would frustrate the purpose of the Act to bring criminals to justice quickly. See United States v. Caparella, 716 F.2d 976, 981 (2d Cir.1983). These competing considerations fairly balance out.

The facts and circumstances of the case persuade the court to order dismissal with prejudice. Defendant has been in custody since January 16, 1985. He is an alien who speaks Spanish but apparently little if any English. The Magistrate assigned as counsel an attorney who spoke no Spanish and who, so far as the record shows, did not inform defendant on or prior to March 15, 1985 that counsel would be unavailable for a lengthy period. The government estimated defendant’s trial would last “all of a day.” Although defendant was in the pen in the courthouse on March 15,1985 he was not produced for the status conference during which the judge postponed for a lengthy period the hearing on the motion. The government did nothing after that date to expedite the hearing of a motion estimated to last less than three hours or to bring this short case to trial.

The government has the obligation to insure the speedy prosecution of criminal charges. See United States v. Bufalino, 683 F.2d 639, 646 (2d Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983). It did not fulfill that obligation. There is merit to the comment of defendant’s present counsel that defendant found himself in a strange country, speaking an alien tongue, and at the bottom of the list of priorities in the prosecution of criminal justice.

V

The court need not reach the constitutional issues raised by defense counsel. The indictment is dismissed with prejudice. So ordered.


source: Caselaw Access Project

author: JAMES R. MILLER, Jr., District Judge.

license: Public Domain

text:
    UNITED STATES of America v. John W. REED.
    Crim. No. M-83-00476.
    United States District Court, D. Maryland.
    Sept. 12, 1985.

      Catherine C. Blake, U.S. Atty. for the D. of Md., and Wendy Arnell, Asst. U.S. Atty., Baltimore, Md., for plaintiff.
    Fred Warren Bennett, Federal Public Defender, and Stephen J. Cribari, Asst. Federal Public Defender, Baltimore, Md., for defendant.
   MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

On December 2, 1983, John W. Reed was charged in a three count information with driving while intoxicated in violation of 18 U.S.C. § 7 and 36 C.F.R. § 50.28(c); reckless driving in violation of 18 U.S.C. § 7 and 36 C.F.R. § 50.32(a); and failure to drive in a single lane in violation of 18 U.S.C. § 7 and 36 C.F.R. § 50.32(j) (Paper No. 1). He subsequently pleaded not guilty to all counts and consented to trial before a United States magistrate.

On February 13, 1984, a jury trial began before Magistrate Clarence E. Goetz. After approximately one and a half days of trial, the jury found the defendant not guilty of failing to drive in a single lane, but guilty of reckless driving. They were unable to agree on a verdict on the driving while intoxicated charge [hereinafter DWI]. By agreement of all parties, Magistrate Goetz discharged the jury (2 Tr. at 119).

The government elected to retry the defendant on the DWI charge. Prior to that scheduled trial, the defendant filed a motion to dismiss the DWI charge on the ground that retrial on that charge would subject him to double jeopardy (Paper No. 11).

On August 8, 1984, Magistrate Goetz denied the defendant’s motion to dismiss and the instant appeal followed.

I. Statement of Facts

On June 22, 1983, defendant visited Bowie Race Course (“Bowie”). While there, according to his testimony, he consumed a bowl of claim chowder and about one and one-half draft beers. (2 Tr. 14-15). After leaving Bowie, he drove his 1977 Plymouth home to Washington, D.C., via the Baltimore-Washington Parkway (2 Tr. 18-19). Officer David Kerr of the United States Park Police was assigned that day to radar traffic control on the Parkway. He testified that at about 5:30 p.m., he was patrolling the southbound lanes on the Parkway approximately one mile north of Interstate 95 (1 Tr. 53). He observed a blue 1977 Plymouth run off the pavement onto the grass median three times in the space of a mile (1 Tr. 53-54). Traffic was heavy at the time. Officer Kerr explained that the Plymouth would move over into the right lane as if it were trying to pass on the shoulder, then change back into the left lane, and come close enough to the cars in front of him that the driver had to put on his brakes (1 Tr. 53-54).

Officer Kerr stopped the Plymouth and identified the driver as the defendant, John Reed. Officer Kerr testified that while asking the defendant for his driver’s license, he detected what he felt was the odor of alcohol (1 Tr. 55). Therefore, he asked the defendant to get out of his car and come to the rear of it to check the defendant’s balance. He stated that defendant appeared unsteady, and that he immediately asked if he could go off the Parkway to urinate. Officer Kerr testified that as defendant began to walk down about a 55 degree embankment, he lost his balance and fell all the way down the hill, and that after he had finished urinating, that he fell down several times trying to get back up the hill (1 Tr. 55-56, 74-76).

Officer Kerr then testified that he administered a field sobriety test. He explained that he asked the defendant to recite the alphabet; that the defendant was unable to recite successfully beyond the letter H; that he asked the defendant to touch the tip of his nose with each index finger in turn; that the defendant was able to do so only with his left index finger; that he asked defendant to walk a straight line, heel-to-toe, and that defendant was unable to do so (1 Tr. 56-57). Officer Kerr concluded that the defendant was drunk and that his ability to drive was impaired. He placed the defendant under arrest and took him to the Greenbelt substation (1 Tr. 58-59).

On cross-examination, Officer Kerr testified that the defendant was polite and cooperative (1 Tr. 93). However, defense counsel was able to introduce certain prior inconsistent statements that Officer Kerr had made. While Officer Kerr testified that the odor of alcohol about defendant was strong, he admitted that he had indicated in his police report on this case that the odor was moderate (1 Tr. 70-71). While he testified that defendant’s walk was unsteady, Officer Kerr admitted that, in his report, he had described defendant as staggering (1 Tr. 87). Officer Kerr also admitted that he was unfamiliar with the instructions for examination for the field sobriety report, that he had not tested defendant’s ability to articulate certain suggested difficult phrases, that he had not administered certain suggested field tests, that he had not followed the specific instructions, and that he had altered or truncated other tests (1 Tr. 79-81). Officer Kerr further admitted that he had tested some people who had been unable to walk a straight line, heel-to-toe, regardless of whether or not they were intoxicated (1 Tr. 82).

After defendant was arrested and taken to the Greenbelt substation, Officer Thomas Johann of the United States Park Police administered a breathalyzer test to defendant and determined that defendant’s blood alcohol content level was 0.18 percent (1 Tr. 124-125). He estimated that a man of defendant’s weight would have had to have consumed seven 12 ounce beers or seven ounces of alcohol, in a one hour period, to measure a blood alcohol content level of 0.18 percent within one hour (1 Tr. 135).

The defendant testified in his own behalf. He admitted that he had drunk one and a half draft beers, but he offered a different explanation for his driving. He stated that on his way home, he had turned on his car air conditioner because the day was so warm, but that, after a period of time, the air conditioner had begun to work improperly, and the car interior had begun to heat up. He leaned across the passenger seat to try to roll down the passenger side window far enough to allow air into the interi- or. As he did so, the car veered into the other lane. He said that he stopped trying to roll down the window until he had regained control of the car. He explained that he made this attempt three times until he successfully rolled down the window, and that each time, the car would veer into the other lane (2 Tr. 19-21).

The defendant stated that he suffered from a bleeding prostate gland, which caused him frequent urgency and irritation and was the reason that he asked Officer Kerr if he could go off the Parkway to urinate (2 Tr. 28). He denied that Officer Kerr had asked him to recite the alphabet, or walk a straight line, or touch his fingers .to his nose either before the officer arrested him and put him into the patrol car, or at any subsequent time (2 Tr. 29).

II. Legal Analysis

The defendant argues that the government’s decision to retry him on the DWI charge subjects him to double jeopardy in violation of the Fifth Amendment. He bases this argument on the theory of implied acquittal. Specifically, he contends that the government’s rebuttal argument converted the reckless driving charge into a lesser included offense of the DWI charge. Therefore, he argues, when the jury returned a guilty verdict on the reckless driving charge and failed to reach a verdict on the DWI charge, it impliedly acquitted him of the DWI charge.

There are two questions for consideration before deciding whether to grant defendant’s motion to dismiss. First, the court must consider whether the government’s rebuttal argument can convert the separate offense of reckless driving into a lesser included offense of the separate charge of DWI. Second, the court must consider whether the jury’s guilty verdict on the reckless driving charge, taken together with its failure to reach a verdict on the DWI charge, is an implied acquittal on the DWI charge.

The Double Jeopardy Clause forbids multiple prosecution for the same offense. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717-18, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307-08, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). To determine whether two offenses are the same for double jeopardy purposes the basic test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) is applicable. The Blockburger rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied, to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id. at 304, 52 S.Ct. at 182.

Thus, the Blockburger rule is one of statutory construction, in which the court must determine the legislative purpose underlying the statute. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981); see also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Furthermore, while the test is satisfied only if each offense requires proof of elements not required by the other offense, see, e.g., United States v. Merchant, 731 F.2d 186, 190 (4th Cir.), cert. denied, — U.S.-, 105 S.Ct. 153, 83 L.Ed.2d 91 (1984), the test may also be satisfied “notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975). See also United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983); United States v. Ward, 696 F.2d 1315, 1319 (11th Cir.), cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); United States v. Neal, 692 F.2d 1296, 1306 (10th Cir.1982); Andiarena v. Keohane, 691 F.2d 993, 995 (11th Cir.1982).

The laws at issue here are those promulgated by regulation to apply in special territorial jurisdictions of the United States as defined in 18 U.S.C. § 7. They are 36 C.F.R. § 50.32(a) which states:

“Reckless driving; prohibited operations.
Persons operating motor vehicles within areas covered by this part shall drive in a safe manner. The following are prohibited:
(a) Driving carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property ...”

and 36 C.F.R. § 50.28(c) which states:

“Use of liquors; intoxication.
(c) Driving motor vehicle while intoxicated.
No person who is under the influence of intoxicating liquor or narcotic drugs shall operate or drive a motor vehicle of any kind in any area covered by this part.”

As is apparent, the reckless driving charge requires proof that the defendant drove carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or that he drove without due caution or circumspection, at a speed or in a manner so that he endangered or was likely to endanger other persons or property. The DWI charge requires proof that the defendant drove his car while he was under the influence of intoxicating liquor. It is clear from comparing the two regulations that proof of a DWI charge does not always entail proof of reckless driving. Nor, of course, does reckless driving require proof of intoxication. Each regulation requires proof of a fact which the other does not.

Defendant argues, however, that while reckless driving is not normally a lesser included offense under DWI, it was made so in this case by the government’s rebuttal argument.

In closing argument defense counsel had argued that the government has failed to produce any evidence to show that the defendant’s conduct was in willful or wanton disregard of the rights or safety of others. Therefore, the reckless driving charge had not been proven.

In rebuttal, the government argued:

“Now with reference to the driving recklessly, Mr. Reed pointed out that there is no evidence that the defendant was driving in a willful and wanton disregard of the rights of others. Well Magistrate Goetz is going to tell you that willful means voluntarily and intentionally and with specific intent to do something the law forbids. And we would submit that if you’re driving while under the influence of alcohol or while you’re intoxicated, if you have voluntarily taken a glass filled with alcohol and put it to your lips and you have swallowed it, that that’s voluntary. And if you get in an automobile and you start it and you drive down 95, that that’s intentional. And I think that it’s clear to all of us that, most of us, and I can’t see any reason why we should assume that Mr. Reed didn’t know, that driving while you are intoxicated or under the influence of alcohol is in violation of the law. Or he was doing something, he intended to do something that he knew that the law forbids. And Magistrate Goetz is also going to instruct you that wanton means and careless or reckless disregard or indifference to the rights of one or more person. And I think we can also assume that if you are driving while you’re drunk and you’re driving at the tailend of rush hour on a heavily traveled or moderately traveled freeway and you realize that you have had something to drink, that you are not considering the rights of other individuals. You’re indifferent to the rights of other individuals. What you’re concerned about is your convenience or your need to get where you’re going and you get behind the wheel. I don’t think there’s anything that has been inconsistent with the finding that he was indifferent to the rights of others or that he was in careless or reckless disregard if he got behind the wheel of his automobile when his blood alcohol content level was .18.”

2 Tr. at 86-87.

In essence, the defendant argues on this appeal that the government, in order to sustain its reckless driving charge, relied on evidence of intoxication. Thus, the government’s theory, according to the defendant, was that reckless driving is a lesser included offense in the DWI charge.

Some courts have held that, in determining whether a defendant will be subjected to double jeopardy, one must examine, not only the statutes involved, but also the offenses as charged in the indictment and the evidence and procedures at trial, see United States v. Sampol, 636 F.2d 621, 652 (D.C.Cir.1980); United States v. Pino, 606 F.2d 908, 915-16 (10th Cir.1979). That approach, however, in light of Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), appears untenable.

In Albemaz, the defendant received consecutive sentences for related charges of conspiracy to import marijuana and conspiracy to distribute marijuana. The conspiracy was the same. The only issue before the court was whether the two statutes, distinguished only by their purposes, constituted the “same offense.” The court articulated the Blockburger rule as one of statutory construction, which serves as a means of discerning congressional purpose. Id. at 340, 101 S.Ct. at 1143. See United States v. Bridges, 717 F.2d 1444 (D.C.Cir. 1983), cert. denied, — U.S.-, 104 S.Ct. 1310, 79 L.Ed.2d 708 (1984). The District of Columbia Circuit, the same court that decided Sampol, stated:

“Albemaz sheds new light on Sampol, and effectively overrules it. The lodestar must be the intent of Congress. The court’s application of Blockburger must look to what Congress has said; the court’s application of Congress’ intent ought not be led astray by the happenstance of what evidence comes before the court.
The Court’s approach in Albemaz also makes solid common sense. In applying the Blockburger test to statutes, the court performs an objective and easily policed function; it simply compares the terms of the relevant statutory provisions. The congressionally established scheme of punishment is not subject to disruption by an overreaching court. The court, in keeping with its place in the balance of powers, merely applies such penalties as Congress has prescribed.
The Sampol approach, by contrast, requires the court to pursue a more treacherous and intrusive course of action. The Sampol approach artificially focuses the court’s attention on that portion of the evidence that supports both convictions. First, the court must scrutinize only the shared evidence to see if it alone could have supported both convictions. The court must undertake this invasion of the jury’s province even where no objection to the sufficiency of the evidence could be made where all the evidence was considered. Second, if it finds that the shared evidence alone could support both convictions, the court must take the paradoxical step of discarding one of the penalties — no matter how heinous and analytically dissimilar the crimes may be, no matter that in fact the jury’s determination may not have rested on the shared evidence. The court must perform all these tasks without regard to the presumptive congressional intent to punish twice those who break the law twice.”

Id. at 1450-1457. See also United States v. Sinito, 723 F.2d 1250, 1262 (6th Cir.1983) reh’g en banc denied (1984) (determining whether RICO is lesser included offense of continuing criminal enterprise, court must compare elements of offenses in abstract rather than looking to facts of any specific case); Virgin Islands v. Smith, 558 F.2d 691, 696 (3d Cir.) (determining whether possession of dangerous weapon is lesser included offense of second degree murder requires court to focus evidence necessary to prove statutory elements, not evidence adduced at trial), cert. denied 434 U.S. 957, 98 S.Ct. 486, 54 L.Ed.2d 316 (1977).

Thus, it appears that the Blockburger rule requires a court, considering whether two offenses are the same for double jeopardy purposes, to focus exclusively on the legislative purpose as articulated in the statutory elements of each offense. As noted earlier, the reckless driving and DWI offenses are separate offenses, with separate penalty provisions, articulated in distinct subparts of the Code of Federal Regulations. Each act is individually proscribed. Each offense requires proof of statutory elements which the other does not. Therefore, the two offenses are not the “same” under Blockburger.

The fact that the jury might have considered evidence of defendant's driving while in an intoxicated state as evidence that he drove carelessly and heedlessly, is irrelevant. The jury might also have considered evidence that defendant was speeding, changing lanes, and tailgating, as proof that he drove recklessly. For purposes of determining whether reckless driving is a lesser included offense of DWI, the court must focus solely on the fact that each of these offenses requires proof of a fact which the other does not. Evidence that the jury considered is irrelevant to this consideration.

The defendant also argues that on retrial the government will use evidence supporting the reckless driving charge, of which the defendant has been convicted, to prove the DWI charge. This he argues violates double jeopardy principles set forth in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

In Vitale, the defendant was tried and convicted of failing to reduce the speed of his car to avoid colliding with a person. The State of Illinois subsequently charged Vitale with two counts of involuntary manslaughter. Id. at 411-13, 100 S.Ct. at 2262-63. Vitale claimed double jeopardy barred a second trial.

Justice White stated for the majority: “The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar later prosecution.”

Id. at 419, 100 S.Ct. at 2266 (emphasis supplied). He noted, however, that if in fact the State found it necessary at the manslaughter trial to rely on conduct involving the failure to slow to prove the manslaughter charge, “because Vitale has already been convicted for conduct that is a necessary element of the more serious crime ... his claim of double jeopardy would be substantial.” Id. at 420, 100 S.Ct. at 2267.

In the case at bar, there exists a possibility that the government will attempt to use reckless driving conduct to prove the DWI charge. As discussed previously, however, a driving while intoxicated offense does not require proof of recklessness. Even if an intoxicated person drives his car with utmost care, he can be charged with driving while intoxicated. It is the intoxication, not any outwards sign of recklessness, which is the offense.

As Vitale established, the mere possibility that the government will use reckless driving evidence to prove the DWI offense is not sufficient ground to bar that prosecution. Consequently, the defendant’s first argument, that reckless driving was made a lesser included offense of DWI, must fail.

The defendant also argued that the jury’s guilty verdict on the reckless driving charge, together with its failure to reach a verdict on the DWI charge, is an implied acquittal on the latter charge.

In United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), the Supreme Court (Story, J.) articulated the rule that the failure of the jury to agree on a verdict was an instance of “manifest necessity” that permitted the trial court to terminate the first trial and retry the defendant. Otherwise, “the ends of public justice would ... be defeated.” Id. 9 Wheat at 580. Since that time, the Court has consistently adhered to the rule that retrial following a “hung jury” does not violate the double jeopardy clause, see, e.g., United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976). A trial court’s declaration of a mistrial following a “hung jury” does not terminate the original jeopardy to which the defendant had been subjected. See Richardson v. United States, — U.S. -,-, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984).

In support of his argument that the mistrial declared by Magistrate Goetz was not a mistrial, but was an implied acquittal on the DWI charge, thus barring retrial, defendant relies upon Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

At Green’s first trial, the court instructed the jury that it could find him guilty of either first degree murder (killing while perpetrating a felony, arson) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but was silent as to any verdict on the first degree murder charge. On appeal, his conviction was reversed and the case remanded for a new trial. At this new trial, Green was tried again, not for second degree murder, but for first degree murder, and was convicted. The Supreme Court reversed, saying:

“Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the later. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.”

355 U.S. at 190-91, 78 S.Ct. at 225-26 (emphasis added).

In Price, the situation was much the same. There, Price was charged with murder, and the jury returned a verdict of guilty to the lesser included offense of voluntary manslaughter. The verdict made no reference to the charge of murder. The appellate court reversed the conviction and remanded for a new trial. At the second trial, Price again was tried for murder under the original indictment, and the jury again convicted him of voluntary manslaughter. The Supreme Court again reversed:

“[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial, whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.”

398 U.S. at 329, 90 S.Ct. at 1761 (emphasis added).

Thus, an implied acquittal barring reprosecution must necessarily entail a determination that one of the offenses charged was the lesser included offense of the other. Only where the jury is given the full opportunity to return a verdict either on the greater or, alternatively, on the lesser included offense does the doctrine of implied acquittal obtain. Defendant admits as much in his Memorandum in Support of his Motion to Dismiss (Paper No. 11, at 6-7).

However, as noted earlier, reckless driving is not a lesser included offense of DWI, so that the jury was given the full opportunity not to return a verdict on either the greater or the lesser charge, but instead, to reach a verdict on separate, distinct offenses. Thus, the jury’s failure to reach a verdict on the DWI charge was not an implied acquittal of defendant on that charge. The failure of the jury to reach a verdict is not an event that terminates jeopardy, Richardson, — U.S. at -, 104 S.Ct. at 3086. The Double Jeopardy Clause does not bar reprosecution in this case.

Accordingly, the Magistrate’s decision to deny the defendant’s motion to dismiss is affirmed.


author: ALLEN SHARP, Chief Judge.

text:
    Robert A. MORRISON d/b/a Morrison Enterprises, Plaintiff, v. MURRAY BISCUIT COMPANY, Defendant.
    No. S 82-349.
    United States District Court, N.D. Indiana, South Bend Division.
    Sept. 13, 1985.

      David B. Weisman, South Bend, Ind., for plaintiff.
    Cory Brundage, Debra S. Easterday, Indianapolis, Ind., Thomas F. Lewis, Jr., South Bend, Ind., for defendant.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This is a civil action seeking damages for alleged violations of the Sherman Antitrust Act, 15 U.S.C. § 1. Plaintiff filed this case on July 16, 1982. Both parties conducted extensive discovery. A waiver of jury trial was received from both parties and the court ordered, on July 27, 1984, the case tried as a bench trial. On March 5,1985, in open court, the parties (by counsel) stipulated to bifurcation of the issues of liability and damages. All depositions were ordered published and were admitted into evidence without objection. The parties also stipulated that the issue of liability would be tried to the court. Finally the parties stipulated that the evidence on the issue of liability would consist of the exhibits admitted in evidence and the depositions published and admitted in evidence. The plaintiff filed a brief on the issue of liability on May 11, 1985, this was followed by defendant’s brief on the issue of liability filed on July 15, 1985, and plaintiff filed a reply brief on August 5, 1985. Both parties presented oral argument on the issue of liability to the court on August 8, 1985. The court now finds facts and states its conclusions of law thereon in accordance with Rule 52 of the Federal Rules of Civil Procedure.

I.

FINDINGS OF FACT

Although there are no specific allegations of facts regarding a nexus to interstate commerce this court finds sufficient support in the record to reach an inference of a nexus to interstate commerce.

Plaintiff, Robert A. Morrison d/b/a Morrison Enterprises (Morrison), is a self-employed distributor of cookies and crackers. Morrison began serving the South Bend, Indiana area in that capacity approximately 26 years ago. Prior to that time Morrison was employed as a driver for other baked goods distributors in the South Bend area for approximately 6 years. These years of experience in the business provided Morrison with knowledge of the way in which the manufacturer/distributor/customer relationship functioned. In addition, Morrison gained knowledge of the limits under which the industry functioned. A pertinent example of this type of knowledge occurred when Morrison was employed by a bread distributor and discovered that before calling on a “chain” store a distributor or his agent must contact the home office of the chain store and receive permission to call on the store. This limitation exists because often the home office purchases through a brokerage or distributor located in the same geographical center as the home office. In this case Morrison’s knowledge of such limitations coupled with the oral instructions to him not to call on stores whose home office or warehouse was located outside the South Bend area should have been sufficient to avoid the alleged problems.

During Morrison’s 26 years as a self-employed distributor, the area he served grew to include a fifty mile radius from South Bend, Indiana. The length of time Morrison worked in this field and the extent of the area he served clearly indicate that he was fully aware of which stores were affiliated with specific chains or warehouses.

Defendant, Murray Biscuit Company (Murray), is an unincorporated division of Beatrice Foods, Inc., and is authorized to do business in Indiana. Murray is a manufacturer of cookies and crackers. Murray utilizes both “brokers” and “broker-distributors” to sell and distribute its products.

A broker is distinguished from a broker-distributor in several ways. A broker does not take possession of the goods which he sells to his clients. The broker merely “services” accounts and places orders directly to Murray for the client. In addition, the broker is not directly involved in the delivery of goods to the purchaser, nor does the broker collect payments on accounts. All delivery of orders placed by brokers was accomplished utilizing Murray’s labor force and equipment. The price at which all brokers offer Murray’s products is unilaterally determined by Murray. In general this determination is made by summing Murray’s cost of manufacturing, labor, equipment, warehousing, and the commission which the broker was to receive from Murray. Brokers are special agents of Murray whose authority was limited to coordinating orders of Murray products for the broker’s clients.

A broker-distributor, acting in a distributor capacity, purchases goods directly from Murray. The broker-distributor takes possession of the goods. Murray delivers the goods to the broker-distributor’s warehouse. The broker-distributor in turn delivers the goods to the individual purchasers utilizing the broker-distributors’ labor and equipment. The only significance of the term broker in the title broker-distribitor is that the price paid for goods delivered to his warehouse is the price at which all brokers could offer to any other client. The broker-distributor would receive a commission for goods sold, including any sales to his own warehouse. Murray did not control nor did they attempt to control the price at which a distributor could offer Murray products. In general the considerations a broker-distributor included when determining the price of goods were the cost to purchase the goods from Murray, and the broker-distributor’s expenses for labor, equipment, and warehousing.

Morrison discovered that Murray products were available and decided to seek a distributorship. In his quest for such a distributorship Morrison called Mr. David Feldman, of Feldman Brokerage Company (Feldman), in Chicago, Illinois. When Morrison was connected with Feldman’s office he was informed that Mr. Lester Riggs (Riggs) was present in the office. Riggs at that time was brokerage sales manager for Murray, and his responsibilities included regular visits to Feldman’s Company. The brokerage sales manager also has authority to appoint or terminate brokers and broker-distributors. This authority was subject to approval or order of the vice-president in charge of sales. Feldman put Riggs on the telephone to talk with Morrison. Morrison inquired about an appointment as a Murray distributor for the South Bend, Indiana area. Riggs in turn made inquires regarding Morrison’s experience and the area Morrison was presently serving. Morrison explained his experience and described the area he served as including a fifty mile radius around South Bend, Indiana. Feldman objected to Riggs appointing Morrison to serve the South Bend area because Feldman has representatives working in the area. Riggs, however, felt Morrison could expand Murray’s market penetration. Riggs did not want to create intrabrand competition and instructed Morrison that he was appointing him as a distributor in the South Bend area but Morrison was not to call on stores which were already established Murray customers. Riggs told Morrison a letter confirming the appointment would be sent. The letter of appointment dated March 4, 1980 described the assigned territory as including a fifty mile radius around South Bend, Indiana, but did not include the restrictions concerning already established Murray customers.

Although the letter of appointment did not include the restrictions involving already established Murray customers, Morrison was not assigned an exclusive territory. Murray’s market share was only 1 to 1.5 percent of the national market, in a market dominated by two major companies who comprised 40.66 percent of the market in 1983. To prevent intrabrand competition and stimulate interbrand competition, Riggs orally placed restrictions on the territory assigned to Morrison. These restrictions are pertinent in this case. Specifically the restriction on calling on stores affiliated with Certified warehouse located in Chicago, Illinois. The Certified warehouse was within Feldman’s territory and had been his client for approximately 20 years. The Certified warehouse served several groups of stores in the greater Chicago and Northwest Indiana area. Morrison, by his admission, continuously called upon stores affiliated with the Certified warehouse.

Mr. Craig Williams (Williams), a Murray sales representative, was assigned responsibility for the territory assigned to Morrison. Williams verified the fact that Morrison was cognizant of the restrictions placed upon him. Morrison denies receiving any instruction concerning calls on Certified warehouse affiliates before March or June 1981. However, Williams and Morrison discussed the restrictions during Williams’ first visit to work with Morrison. Williams visited this territory every 3 to 4 months. Consequently, Morrison was cognizant of the restrictions not later than June 1980.

Morrison was given an “Outstanding Sales Achievement” award which suggests that Riggs’ feeling about the potential market for Murray products in the South Bend area was correct. Williams pointed out that during that same period of time there were complaints from Morrison’s customers. The complaints concerned Morrison’s service of accounts. The customers voiced complaints involving overloading the complaintant’s store with merchandise or unauthorized use of shelf space which had been specifically assigned to another manufacturer’s products. Williams also described incidents' which involved other brokers or distributors where Morrison had called upon stores who had been established clients of other Murray brokers or distributors. Although Williams believed those incidents had been resolved, Morrison stated at least one had never been resolved.

The controversey in this case focuses on a letter of termination dated November 16, 1981, and the alleged related incidents preceding the drafting of that letter. The letter is from Mr. Bill Eddins (Eddins), who became brokerage sales manager on September 14, 1981, succeeding Riggs. The November 14, 1981 letter was addressed to Morrison and was intended to terminate Morrison’s relationship with Murray. The stated reason was “repeated violations of your agreement with Murray Biscuit Company.” The letter went on to list two types of violations. The first type was continually calling on customers affiliated with the Certified warehouse. The second type was “utilizing confidential information to undercut prices.” On this record there is ample evidence, including Morrison’s admission, that Morrison continuously called on Murray customers affiliated with the Certified warehouse in Chicago, Illinois as well as other established Murray customers of other brokers or distributors. Regarding the second type of violation no demand to terminate Morrison was ever made by any broker to Murray concerning any Morrison activity which might have involved price cutting. The author of the precise price cutting language is disputed by Riggs and Eddins, the two Murray employees responsible for the decision to terminate Morrison. The author of the specific language is not material to the result reached by this court, since there is no evidence of any threat to terminate Morrison if he did not stop undercutting prices; nor was there any evidence that a demand or request to terminate Morrison was made as a result of any alleged price cutting.

There were requests made to Murray to have Morrison cease calling upon persons who were already established Murray customers. Most recently, Feldman called Riggs, in October 1981, and complained that someone was calling upon stores affiliated with his client Certified warehouse. At the time of the call Feldman did not know the identity of the person he was complaining about. Feldman also forwarded a copy of the “presentation” made to the store to Riggs. Riggs subsequently called Eddins on November 16,1981 and informed him of the breach of Morrison’s agreement with Murray. Riggs told Eddins that as brokerage sales manager it was his responsibility to terminate Morrison regardless of the length of time Eddins had been brokerage sales manager. Eddins drafted the letter according to Riggs’ instructions and Morrison was terminated.

II.

CONCLUSIONS OF LAW

This court has jurisdiction over the parties and subject matter of this cause of action under Section 1331 of Title 28 of the United States Code and venue is proper under Section 1391 of Title 28 of the United States Code.

The Supreme Court of the United States, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) announced the standard required to prove a contract, combination or conspiracy in violation of Sherman Antitrust Act, Section 1. The Court held that the antitrust “plaintiff must present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective.’ ” Id. at 1471; citing, Edward J. Sweeney & Sons v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981); H.L. Moore Drug Exchange v. Eli Lilly & Co., 662 F.2d 935, 941 (2d Cir.1981), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982); American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946) (Circumstances must reveal a “unity of purpose or a common design and understanding or a meeting of minds in an unlawful arrangement.”) The standard announced in Monsanto has been described as requiring evidence which tends to exclude the possibility of independent action. Therefore the burden is on the plaintiff to present direct or circumstantial evidence which excludes the possibility of independent action by the manufacturer.

The evolution of the application of the Sherman Antitrust Act is illustrated by two lines of cases. One line controls litigation under contracts, combinations, or conspiracies which rise to the level of being per se illegal. See United States v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Fashion Originator’s Guild of America v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941); Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1944); Timken Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); United States v. Parke-Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). The other line controls litigation where a contract, combination, or conspiracy does not rise to the level of per se illegal and is analyzed under the Rule of Reason. See Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Traditionally, per se treatment is reserved for that type of conduct which the courts through experience have found to have a pernicious effect on competition. Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). The test has also been described as looking for a practice which “facially appears to be one that would always or almost always restrict competition and decrease output”. Broadcast Music, Inc. v. Columbia Broadcast Sys. Inc., 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562-1563, 60 L.Ed.2d 1 (1979); accord, Continental T.V., Inc v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Activities which the Supreme Court of the United States has found to be per se violations of § 1 of the Sherman Act include horizontal price-fixing, horizontal market-allocations, group boycotts, tying agreements, and certain vertical price-fixing agreements because they involved concerted action which had a pernicious effect on competition. United States v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Fashion Originator’s Guild of America v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941); Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1944); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); United States v. Parke-Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). See also Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Abadir & Co. v. First Mississippi Corp., 651 F.2d 422 (5th Cir. 1981); Vogel v. American Soc. of Appraisers, 744 F.2d 598 (7th Cir.1984). The Rule of Reason analysis, which requires an evaluation of the effect of the conduct upon the relevant market, is applicable to all other types of challenged activity. Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Moore v. Boating Industry Associations, 754 F.2d 698, 706 n. 12 (7th Cir.1985). This series of cases shares two important characteristics. First there was concerted action and second that concerted action had a pernicious effect on competition.

In this case the plaintiff alleges that the actions of the defendant are per se violations. “The plaintiffs attachment of the per se label is simply inadequate in itself to sustain the complaint, the defendants alleged activity must be scrutinized to determine whether such characterization is appropriate.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir. 1984); citing, Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1284 (7th Cir.1983). Consequently, this court has independently scrutinized the activity to determine if the per se label is appropriate.

The facts of this case do not create a per se violation either of horizontal price-fixing or horizontal market-allocation. To find any horizontal agreement the parties to the agreement must occupy the same level in the manufacturer/broker/broker-distributor hierarchy. Valley Liquors v. Renfield Importers, Ltd., 678 F.2d 742, 744 (7th Cir.1982). See United States v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). The parties to the alleged agreement do not occupy the same level in the heirarchy. Therefore, there is no horizontal per se violation.

This case may be characterized as a distributor-termination. The Supreme Court of the United States recently announced two important distinctions which must be analysed in such cases. The distinctions are those between concerted action to set prices, and concerted action on non-price restrictions. Monsanto Co. v. Spray-Rite Services Corp., 465 U.S. 752, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984). This court will first address whether there was concerted or independent action to set prices. The plaintiff alleges that the defendant and a broker acted in concert to terminate the plaintiff and thereby fix prices.

The acts may be characterized in either of two ways. First, brokers can be analogized to employees of Murray. Although the brokers are apparently independent contractors, acting as special agents of Murray, they perform the functions that an in-house sales force would perform. This characterization precludes a violation of Section one of the Sherman Antitrust Act because “officers or employees of the same company can not conspire for the purpose of antitrust violations.” Brunswick v. Riegel Textile, 752 F.2d 261 (7th Cir.1984), Citing, University Life Insurance v. Unimarc, 699 F.2d 846 (7th Cir. 1983). The second characterization is that the brokers are a level below the defendant in the vertical hierarchy. In that characterization the relationship between the defendant and defendant’s broker is vertical. The plaintiff alleges that the vertical restrictions amount to horizontal price restraints which would trigger the per se rule.

The plaintiff relies on Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164 (3rd Cir.1979) to support their allegation of horizontal impact achieved through vertical restraints, which is intended to support the claim of horizontal price-fixing. Cemuto does not declare that all horizontal impacts of a vertical restraint are per se violations of Section One of the Sherman Antitrust Act. Cernuto merely raises the possibility that a factual situation might exist which would rise to the level of pernicious effect that would be deemed a per se violation. The Court of Appeals for the Seventh Circuit, in dictum, indicated that if the proper case presented itself the court would follow Cernuto. Alloy Int’l Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222, 1226 (7th Cir. 1980). However, in Alloy the Court of Appeals points out that proof of an agreement to set prices is required before Cernuto would be applicable. Id. In a footnote the circuit court states that “[a] unilateral purpose held by only one party to the agreement would not seem to meet? that element of § 1 which requires an agreement of two or more persons.” Id. at 1226 n. 6. The evidence indicates complaints by one broker but the broker did not know the identity of the person he was complaining about and did not demand termination. Furthermore, the complaint was not lodged for price-cutting but for violation of non-price restrictions. Therefore, the authority relied upon by the plaintiff is not controlling. The facts of this case do not meet the Seventh Circuit’s requirement of proof of agreement to set prices. The direct evidence of this case illustrates a unilateral decision to terminate the plaintiff.

III.

Not all vertical arrangements are considered per se illegal. Only those vertical arrangements which create a price-fixing scheme are considered per se violations. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984). The guidance of the Supreme Court of the United States requires a court to quickly determine whether an agreement is clearly anticompetitive or lacks any deeming competitive virtues. Vogel v. American Soc. of Appraisers, 744 F.2d 598, 603 (7th Cir. 1984); citing Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562-1563, 60 L.Ed.2d 1 (1979); National Collegiate Ath letic Ass’n v. Board of Regents, — U.S. -, 104 S.Ct. 2948, 2960, 82 L.Ed.2d 70 (1984). The plaintiff in the present case alleges a conspiracy to fix prices. The Supreme Court of the United States set the standard of evidence required to prove a claim of concerted price-fixing. Monsanto at 1470. At the same time the Court cautioned that “If an inference of such an agreement may be drawn from highly ambigious evidence, there is considerable danger that the doctrines announced in Sylvania and Colgate will be seriously eroded.” Id. In addition the Court expressed concern that an inference of agreement “merely from the existence of complaints or even from the fact that termination came about ‘in response to’ complaints could deter or penalize perfectly legitimate conduct.” Id. The facts of this case demonstrate that the defendant did set brokerage prices, had non-price territorial restrictions and terminated the plaintiff following a non-price complaint regarding violation of territorial restrictions. Plaintiff also relies on the statement in the termination letter that the plaintiff was a price-cutter to support the alleged violation of section one. However, a statement alone is not sufficient to meet the plaintiff’s burden to prove a “meeting of the minds” or conscious design to terminate a price-cutter. Any setting of prices was unilateral. The brokers were special agents of the defendant and only had authority to sell the products at the price established by the defendant. This arrangement is the only logical method to determine broker prices since all costs and expenses, related to the price were strictly costs and expenses of the defendant. All of the variables, which were included in the price brokers could offer were actual costs which the defendant incurred in production, promotion, and distribution. In fact the plaintiff sets the prices at which he and his agents offer the products at by considering the similar variables. This type of price determination does not involve an agreement between either horizontal or vertical parties. The only variable in the price determination which might be considered as the product of an agreement is the rate of commission. Therefore, with absolutely no possibility of agreement between the defendant and any of the defendant’s brokers to fix the price of the defendant’s products there can be no vertical conspiracy to fix prices.

It is clear from the record that the plaintiff was free to sell those goods which he acquired for sale through his distributorship at any price which he chose. There is no allegation nor any evidence that the defendant threatened to terminate the plaintiff for freely setting prices of products sold through his distributorship at any price which he chose. There is no allegation nor any evidence that the defendant threatened to terminate the plaintiff for freely setting prices of products sold through his distributorship.

IV.

Non-price vertical restraints are analyzed by the Rule of Reason analysis. Continental T.V., Inc. v. GTE Sylvania, 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The rule of reason asks: “whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” Chicago Bd. of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918).

Vertical territorial restraints may inhibit intrabrand competition and at the same time promote interbrand competition. GTE Sylvania, 433 U.S., at 57-59, 97 S.Ct. at 2561-2562. The defendant’s national market share was only 1 to 1.5 percent. In fact, due to the low market share in the South Bend area the defendant’s brokerage sales manager appointed the plaintiff over the objection of a broker who had some accounts in that area. The restrictions placed on the plaintiff were territorial and were directed at decreasing intrabrand competition. This was to enable distributors to give greater attention to interbrand competition. The record demonstrates that this market strategy worked. The defendant’s sales did increase in the South Bend area. Therefore, the territorial restrictions had precisely the positive effect envisioned by the Supreme Court of the United States in GTE Sylvania and Monsanto. Furthermore there is no evidence of an increase in intrabrand prices beyond a reasonable competitive level.

The plaintiff asks this court to address a problem which resembles the one addressed by Judge Posner in Valley Liquors. The court is asked to exclude the possibility of unilateral action based on inferences of an agreement and ambigious evidence that the plaintiff was a price-cutting distributor. As in Valley Liquors if the defendant had had a desire to stimulate intrabrand competition, contrary to the defendant’s restrictions on the plaintiff, then the defendant would not have terminated the plaintiff for repeated violations of those restrictions. Valley Liquors at 743. The antitrust laws do not prohibit a manufacturer from limiting distribution of its products “merely because its distributors went along so they would have less price competition.” Valley Liquors at 744. Although there is no evidence to support any inference that brokers agreed to territory restrictions to have less price competition. Assuming there were, that alone would not be sufficient to violate § 1 of the Sherman Antitrust Act. Valley Liquors was decided before the Supreme Court’s decision in Monsanto. However, the opinion in Valley Liquors does not violate the test of Monsanto but is wholly within the cautions which the Court expressed. The plaintiff asks this court to find that since a broker asked the defendant to stop the intrabrand competition and approximately one month later the plaintiff was terminated then they must have acted in concert. Those circumstances, in light of the evidence, are not sufficient to meet the Monsanto test. There must be evidence which tends to exclude the possibility that the defendant was acting to promote an independent conception of self-interest. Monsanto at 1469-1470. See also Valley Liquors, Inc. v. Renfield Importers, Ltd., 678 F.2d 742 (7th Cir.1982). The burden is on the plaintiff to produce evidence which refutes the evidence of independent action. This court finds that there is no direct or circumstantial evidence which excludes the possibility of independent action by the defendant.

Accordingly and for the foregoing reasons this court finds that: (1) there was no horizontal agreement to set prices or for market-allocation, (2) there was no vertical agreement to set prices, (3) the vertical non-price restrictions are not unreasonable restraints on trade, and (4) there was no vertical agreement which had a horizontal impact of price-fixing. Therefore, Section one of the Sherman Antitrust Act has not been violated. It is ordered that judgment for the defendant, Murray Biscuit Company, be, and is hereby GRANTED. It is further ordered that costs shall be assessed in favor of the defendant, Murray Biscuit Company.

      . In Morrison’s deposition he referred to the Basics store as a chain store. Basics is one of the affiliates of the Certified warehouse in Chicago, Illinois.

      . Servicing accounts includes personally calling on the client’s stores to discuss the individual store’s needs and problems.

      . The record does not indicate a specific date on which the telephone call was made. It is inferred from the facts that it was within two weeks of March 5, 1980, the date of the letter of appointment.

      . It is not clear whether the 50 mile radius is a description which Riggs originated or whether it was merely in response to Morrison’s description of the area he was then serving.

      . June 1980 is an interpolation from information contained in the deposition of Mr. Craig Williams, and the letter from Mr. Lester Riggs to Mr. Robert Morrison dated June 25, 1980. It should be noted that this is the latest possible date and Morrison could have had personal knowledge of the restrictions as early as March 1980.