United States v. Bailes (120 F. Supp. 614, 1954)

WATKINS, District Judge.

This action is now before the court upon motion to dismiss the indictment. The indictment is in one count and charges that 37 defendants “did conspire with each other, and with other persons unknown to the grand jury, to unlawfully injure, oppress, threaten and intimidate” 58 named persons, “all citizens of the United States in the free exercise and enjoyment of rights, and because of their having exercised rights, secured to them by laws of the United States, in violation of Section 241, Title 18, United States Code, in this that” continuously from the 15th day of September, 1952, to and including the 20th day of October, 1953, in Clay County, West Virginia, defendants “did conspire with each other, and with other persons whose names are unknown to the grand jurors, to separately and severally” unlawfully injure, oppress, threaten and intimidate said citizens in the free exercise and enjoyment of the right “to refrain from self organization”, the right “to refrain from forming labor organizations”, the right “to refrain from joining labor organizations”, the right “to refrain from assisting labor organizations”, and the right “to refrain from engaging in concerted activities for the purpose of collective bargaining, and other mutual aid and protection”, all as set forth in paragraphs 1 through 5 of the indictment, and because of their having exercised such rights, as set forth in paragraphs 6 through 10 of the indictment. The indictment further alleges that such rights are secured to said citizens by Title 29, Section 157, United States Code, as amended [29 U.S.C.A. § 157], * * *.

The indictment further alleges that “at the time and place alleged the victims, * * * all citizens of the United States, were then and there engaged as employees of Elk River Coal and Lumber Company, a corporation, * * * in the mining of coal, which coal was transported in commerce, and was used in the production of goods for commerce, so that any injury, oppression, threat and intimidation of the said employees in the free exercise and enjoyment of the rights and privileges, and because of their having exercised the rights and privileges herein set out, by any of the defendants named herein, did tend to lead to labor disputes, burdening and obstructing the commerce and free flow of the commerce in the coal produced by the said company and the said employees, and in the production of goods for commerce from the State of West Virginia to other states.”

The first ground assigned by defendants is that the indictment is duplicitous, and therefore bad because it charges two offenses in the same count, namely, (1) a conspiracy to injure, oppress, threaten and intimidate persons in the free exercise of their rights (as alleged in paragraphs 1 through 5 of the indictment), and (2) a conspiracy to injure, oppress, threaten and intimidate persons because of their having exercised rights (as alleged in paragraphs 6 through 10 of the indictment) allegedly secured to them by the laws of the United States. Defendant relies on Rule 8(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which requires that each offense charged in an indictment be stated in a separate count. There is no merit in this contention for the reason that the offense charged is a conspiracy and a single count in an indictment for conspiracy to commit two or more substantive offenses is not bad for duplicity. Center v. United States, 4 Cir., 96 F.2d 127; Blum v. United States, 6 Cir., 46 F.2d 850; United States v. Renken, D.C.W.D.S.C., 55 F.Supp. 1, 5.

Second, the defendants say that the indictment fails to allege that the alleged victims were within the coverage of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq. They point out that the Labor Management Act, 1947, does not reach all industries but only those in or affecting interstate commerce, and only employees of employers whose activities may be said to fall within the purview of such commerce, are within the Act's coverage. Defendants say that in this indictment there is no averment that the alleged victims were employees of an employer ■engaged in or affected by interstate commerce so as to bring the employer or the employees within the meaning of either “employees” or “commerce” as defined by the Act. They cite as authority United States v. Berke Cake Co., D.C.E.D.N.Y. 1943, 50 F.Supp. 947. It seems to me that the provisions of the indictment set forth in the second paragraph of this opinion are sufficient in this respect, although the indictment might have gone further and alleged that the alleged victims were “employees within the coverage of the Act.”

Third, defendants say that the indictment is bad because it is vague and fails to state essential facts constituting the offense charged. Rule 7(c) of the Federal Rules of Criminal Procedure requires that the indictment contain the essential facts constituting the offense charged. There is no requirement in Section 241 of Title 18 U.S.C.A. that the persons accused do any overt acts pursuant to the conspiracy. Section 241 reads as follows:

“If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

“If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise