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December 10, 1975

United States, Petitioner,
United States Gypsum Co., et al., Respondents

Parker, D.J.

The opinion of the court was delivered by: PARKER

Memorandum Opinion

 The proceeding which is the subject of the motion to dismiss under consideration herein is a criminal contempt action brought by the United States Government alleging violations of a Decree of this Court entered in May 1951. That Decree enjoined Respondents herein who are four corporations and four corporate officers all involved in the gypsum wallboard industry from engaging in price fixing activities. *fn1" Respondents have moved to dismiss the Contempt Petition, contending that their recent trial and convictions (the Pittsburgh trial) in the United States District Court for the Western District of Pennsylvania for the same price fixing activities which form the basis of this contempt proceeding bar this prosecution and require dismissal on double jeopardy and due process principles. After consideration of the memoranda and oral arguments of counsel for both sides and the entire record herein, this Court concludes that the motion to dismiss should be granted. *fn2"

 On December 27, 1973, the United States filed a Contempt Petition charging that Respondents, in violation of this Court's Final Judgment in United States v. United States Gypsum Co., et al., 340 U.S. 76, 71 S. Ct. 160, 95 L. Ed. 89, Civil No. 8017 (D.D.C. May 15, 1951), inter alia engaged in a conspiracy ". . . beginning sometime prior to 1960 and continuing thereafter at least until sometime in 1973 time prior to 1960 and continuing thereafter at least until sometime in 1973. . . to (a) raise, fix, maintain and stabilize the price of gypsum board; and (b) fix, maintain and stabilize the terms and conditions of sale thereof; and (c) adopt and maintain uniform methods of packaging, handling and delivery of gypsum board." (Contempt Pet. para. 16).

 On the same day the Contempt Petition was filed in this Court a federal grand jury in Pittsburgh, Pennsylvania indicted sixteen corporate and individual defendants, including each of the eight Respondents named in this proceeding, charging them with price fixing in violation of Section 1 of the Sherman Act, 15 U.S.C. ┬ž 1. The substantive allegations of the indictment are virtually identical to those of the Contempt Petition. Two of the individual Respondents in this case were among the defendants who pled nolo contendere to the charges in the Pittsburgh indictment. *fn3" The remaining six Respondents *fn4" were convicted in July of this year after a four month jury trial. All of the Pittsburgh defendants have now been sentenced *fn5" and those who were convicted after trial are appealing their convictions to the United States Court of Appeals for the Third Circuit.

 Motion to Dismiss

 In granting Respondents' motion to dismiss on double jeopardy and due process grounds this Court is persuaded that to subject them to a second protracted trial for contempt of this Court's 1951 Decree, when that second trial would involve the same evidence of the same conspiracy for which they have already been convicted, would contravene the spirit and the purpose of the double jeopardy bar, would amount to harassment of Respondents and would violate the concepts of fairness on which that bar is based. Justice Marshall recently observed that "when a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense." *fn6"

 Counsel for both sides have presented and discussed an array of cases dealing with the double jeopardy issue. Those cases and the unique circumstances involved in this contempt proceeding, however, indicate to the Court that the situation here presented involves one of first impression. All of the authorities cited by the Government can be readily distinguished; on the other hand, Respondents have relied principally on analogous cases, dicta or concurring opinions. Thus the resolution of this matter has become more difficult in the absence of directly applicable precedent.

 The Government argues that two separate prosecutions arising out of the same price-fixing conspiracy, one for contempt and another for the substantive criminal violation, are permissible because different offenses are involved. According to the Government, the Sherman Act *fn7" and the criminal contempt statute *fn8" have different elements, protect different interests and were intended by Congress to be separate crimes. In support of its position, the Government relies on the "same evidence" test as articulated in Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932):

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.

 In connection with this test, the Government argues that the wilful violation of the 1951 Decree must be proved in the pending contempt proceeding, but that wilfulness was not an element of the substantive crime for which Respondents were recently convicted. Since there are two separate offenses, it is urged that two trials and two punishments are not prohibited.

 Contrary to the Government's submission, this Court is persuaded that the proper application of the "same evidence" test focuses not merely on a comparison of the statutory elements of these two offenses, but on whether either trial will involve any significant categories of proof absent from the other. Here it appears that the contempt proceeding will be a replay of the Pittsburgh trial with the exception that proof of a wilful violation of the 1951 Decree will be adduced in the contempt trial. With this exception, both prosecutions are based on the same alleged conspiracy -- a conspiracy involving the same products, the same time period, and the same ...

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