More recently, nolo pleas were accepted over government objection in an antitrust prosecution of an alleged price-fixing conspiracy in the trucking industry, another area which is regulated by the Interstate Commerce Commission. United States v. Hockaday Truck Brokerage, Case No. 82-83-Cr-CA (S.D.Fla., plea accepted April 12, 1982). The alleged conduct spanned a period of nine years and the defendants controlled approximately half of the relevant market. In reaching a decision, the Court looked to the absence of prior criminal conduct by the defendants, the potential costs of trial, and the severe financial hardship which would be visited upon the defendants if they were required to proceed to trial.
In this case, consideration of the defendants' degree of control within the industry and the resulting impact of the conduct upon the economy weigh in favor of denying the proposed pleas. Each defendant is a sizable force within the iron ore transport industry in the Great Lakes region. Cf. United States v. Saks & Co., 1975 Trade Cas. at 65,860 (nolo pleas accepted from corporate defendants involved in less than one percent of the relevant market). The resulting impact on the economy has been significant. In addition, as to the view of the Attorney General, the Court is mindful of the Justice Department's position that guilty pleas and convictions more readily advance the public interest. Standard Ultramarine, 137 F. Supp. at 172; United States v. Binney & Smith, Inc, 1980-81 Trade Cas. P 63,747 at 77,976 (S.D.N.Y.1980); see U.S. Department of Justice, Principles of Federal Prosecution, Part E at 33, reprinted in 27 Crim.L.Rep. (BNA) No. 18 at 3277-93 (July 28, 1980). These factors, however, are not sufficient in themselves to deny the present pleas in light of several additional factors.
Turning to the issue of the effect which the pleas would have upon deterrence of such conduct, it is significant that the defendants voluntarily terminated their activities prior to indictment.
United States v. Minneapolis-Honeywell Regulator Co., 1963 Trade Cas. P 70,863 at 78,495-96 (D.Minn.1963). It therefore is not unreasonable to assume that these defendants and others in the industry will carefully avoid involvement in similar conduct in the future.
As to the deterrence considerations in light of the pending civil actions, the mere existence of those claims and the corresponding threat of treble damages is a significant factor. Cf., Standard Ultramarine, 137 F. Supp. at 172-73.
The Court has considered the interest of the private plaintiffs in securing the Clayton Act benefits which accompany a finding of guilt, however, in this Court's view, the existence of pending civil actions does not require a denial of the pleas. Charmer Industries, 1981-1 Trade Cas. at 76,865; Roblin Industries, 1980-81 Trade Cas. at 77,485. To conclude otherwise and find that acceptance of the pleas hinges on the existence of a threat of civil liability virtually eliminates the availability of a nolo plea whenever a private civil action is pending. There is no evidence that Congress intended to impose such a limitation on the scope of the Clayton provision. Burlington Industries, 1965 Trade Cas. at 80,615.
The effect that acceptance of the nolo pleas would have upon the duration and the complexity of trial is significant. The government notes, however, that where courts have considered such effect, acceptance of the plea would have eliminated the need for trial. See Charmer Industries, 1981-1 Trade Cas. at 76,866; Roblin Industries, 1980-81 Trade Cas. at 77,485. And since this is a conspiracy case the government claims that its proof will necessarily entail many matters regardless of which defendants remain.
These considerations notwithstanding, the absence of three of the four defendants would necessarily shorten the length of trial by eliminating many aspects of the case in opposition to the government. Saks & Co., 1975 Trade Cas. at 65,860; see supra n.4. These defendants intend to present scores of witnesses and exhibits at trial in the event their motions are denied. Elimination of the three defendants would decrease the number of contested issues and thereby reduce the complexity of the trial since the defense of N&W, the remaining defendant, is more narrowly focused
than that of the others.
The prior acceptance of Conrail's nolo contendere plea also favors acceptance of these pleas from the three defendants. See Burlington Industries, 1965 Trade Cas. at 80,615-616. The government argues, however, that because of major differences between these defendants and Conrail, acceptance of Conrail's plea should provide no support for the three defendants' motions. First, the government alludes to Conrail's troubled financial situation, but this is clearly a factor which bears upon the size of a fine rather than whether a plea should be accepted. The more difficult distinction is the degree and character of Conrail's cooperation with the government's investigation. Although each defendant cooperated with the government, unlike the others, Conrail voluntarily cooperated prior to indictment. In addition, Conrail released privileged documents which the government found to be especially helpful. It is significant to note that while Conrail made these documents available, the government has not placed any of the items on its exhibit list for trial. See Defendants' B&O and C&O's Memorandum of Points and Authorities at 4 n.5 (filed May 11, 1981). A further distinction is that Conrail conceded that the government could prove its case.
As to the relative involvement of the defendants, the government asserts that no one defendant is more culpable than any other. In this vein, the government adds that it was Conrail that took the initiative in ending the alleged conspiracy. The significance of that observation however, is diluted by the fact that Conrail, by holding a substantial share of the iron ore transportation market, exercised enough control over the alleged conduct that it was thereby able to terminate the activity unilaterally. See Bill of Particulars at 31 (filed December 9, 1981); Supplemental Bill of Particulars (filed May 7, 1981); Defendants' Memorandum, supra at 4. Whatever discrepancies may exist between the Conrail situation and that of the three moving defendants, those factors may be readily accounted for at sentencing.
The Court finds no compelling reason to reject the proffered nolo pleas. Their acceptance will reduce the complexity of the issues at trial and the existence of multiple treble damage actions adequately deters conduct similar to that alleged in the indictment.