Western Laundry and Linen Rental Co., and Morris A. Hazan v. United States

424 F.2d 441 WESTERN LAUNDRY AND LINEN RENTAL CO., and Morris A. Hazan, Appellants, v. UNITED STATES of America, Appellee. No. 24280. United States Court of Appeals, Ninth Circuit. March 30, 1970. Gerald H. Gottlieb (argued), Los Angeles, Cal., Bell & Morris, Las Vegas, Nev., for appellants. Seymour Dussman, Washington, D. C. (argued), Atty., Anthony E. Desmond, Atty., Anti-Trust Div., San Francisco, Cal., Richard W. McLaren, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Robert S. Linnell, U. S. Atty., Las Vegas, Nev., for appellee. Before MADDEN * , Judge of United States Court of Claims, and ELY and HUFSTEDLER, Circuit Judges. MADDEN, Judge: 1 In April 1968, an indictment charging five corporations, one partnership, which was Western Laundry and Linen Rental Co., (Western) one of the appellants herein, and five individuals, one of whom was Hazan, the other appellant herein, was filed in the United States District Court for the District of Nevada. The indictment charged violation of Section 1 of the Sherman Anti-Trust Act. 15 U.S.C. Section 1 . The indictment charged a conspiracy to raise, stabilize and maintain prices of linen supplies in the Las Vegas, Nevada area;…

(concurring):

I concur in Judge Madden’s principal opinion, and I also agree with Judge Hufstedler’s views concerning Hazan’s waiver of any right on his part to urge, in our court, that he has been doubly jeopardized.

In April 1968, an indictment charging five corporations, one partnership, which was Western Laundry and Linen Rental Co., (Western) one of the appellants herein, and five individuals, one of whom was Hazan, the other appellant herein, was filed in the United States District Court for the District of Nevada. The indictment charged violation of Section 1 of the Sherman Anti-Trust Act. 15 U.S.C. Section 1 . The indictment charged a conspiracy to raise, stabilize and maintain prices of linen supplies in the Las Vegas, Nevada area; to refrain from soliciting one another’s customers; and to allocate business.

On July 24, 1968, all of the defendants were convicted upon pleas of nolo con-tendere. Each defendant was sentenced to pay a fine. The fines varied from a minimum of $1,000.00 to a maximum of $35,000.00. Western was fined $25,000.-00. Hazan was fined $1,000.00. No sentence of imprisonment was imposed upon any of the defendants.

On September 17, 1968, the defendants Western and Hazan, hereinafter designated as the defendants, filed, in the District Court, a “Motion to Eliminate and to Reduce Sentences”. That motion was based primarily upon the argument that the indictment of both…

(specially concurring).:

I concur in that portion of the majority opinion holding that a partnership is subject to indictment for violating the Sherman Act. I cannot concur in the remainder of the opinion, for I seriously question that United States v. A & P Trucking Co. (1958) 358 U.S. 121 , 79 S.Ct. 203 , 3 L.Ed.2d 165 can bear the burden the majority places ■ on it. The Court there held simply that a partnership could violate certain regulatory statutes even if the individual partners did not participate in or have knowledge of the violations. The Court then added as dictum the sentence relied upon by the majority: In such an instance the fine levied on the partnership should not be collected from the partners’ individual assets. The setting in A & P was thus very different from the setting in our case. I doubt that the Court’s dictum can be expanded to a case in which a partner is not “completely free of personal guilt.” In addition, A & P dealt with a specific intent crime (United States v. Chicago Express, Inc. (7th Cir. 1956) 235 F.2d 785 ), and hence its limitation of liability is not necessarily transportable to a Sherman Act offense.

But even if A & P Trucking can be…