MEMORANDUM AND ORDER

DUNCAN, District Judge.

The defendants, Consolidated Coal Company (hereinafter "Consol") and eight of its agents and employees are variously charged in a 172-count indictment with conspiring to defraud the government and to violate the Federal Coal Mine Health and Safety Act in violation of 18 U.S.C. § 371; with knowingly making false statements and representations in "mine data cards" filed with the Department of the Interior in violation of 30 U.S.C. § 819(d); with willfully violating specified mandatory health standards in violation of 30 U.S.C. § 819(b); and with knowingly authorizing, ordering, and carrying out violations of the mandatory health standards by Consol in violation of 30 U.S.C. § 819(c). On September 12, 1975, the defendants entered pleas of not guilty to all counts; thereafter, all but one of these defendants filed motions to dismiss as to some or all of the counts relating to them. All of the various contentions raised in these motions are discussed hereinbelow.

I. Conspiracy Question: Can A Corporation Be Charged and Convicted of Conspiring Solely with Its Own Employees?

Counts I and II of the indictment charge the defendants with violations of the conspiracy statute as set forth in 18 U.S.C. § 371. Count I alleges a conspiracy to defraud the United States of its right to have the dust sampling program administered in accordance with the Federal Coal Mine Health and Safety Act, specifically with the provisions of sections 814(i) and 842 of Title 30, United States Code, and the rules and regulations thereunder. Count II alleges that defendants conspired to violate 30 U.S.C. § 819(b) and 819(d). In each count it is alleged that the individual defendants were employees of Consol at the time of their participation in the conspiracy. Consol submits that a corporation may not be charged or convicted of conspiring solely with its own employees. In support of its contention the company cites a host of civil conspiracy cases involving antitrust actions under §§ 1 and 2 of the Sherman Act, 15 U.S.C. § 1 and 2, and several cases alleging conspiracies to cause a breach of a contract. Although this Court is willing to recognize for purposes of this motion a general principle that a corporation cannot conspire with its officers or agents to violate antitrust laws, I believe that this principle arises from the restraint of trade concept of the Sherman Act and consequently that these civil Sherman Act cases are inapposite to the case at bar. Also inapplicable are civil cases involving alleged conspiracies to induce a breach of contract. As Mr. Justice Harlan observed in his concurring opinion in United States v. Wise, 370 U.S. 405, 417, 82 S.Ct. 1354, 1362, 8 L.Ed.2d 590 (1962):

[T]he fiction of corporate entity, operative to protect officers from contract liability, had never been applied as a shield against criminal prosecutions. . . .

Finally, the Court does not believe that United States v. Carroll, 144 F. Supp. 939 (S.D.N.Y. 1956), a criminal case also cited by Consol, in which the court refused to find a conspiracy between a corporate defendant and an individual defendant, is determinative. Rather than espousing a general rule that corporations cannot conspire with its employees, the court in Carroll appeared to make a narrow finding based on the particular facts involved. In Carroll a corporation, Sheba Bracelets, Inc., was charged with conspiring with its agent, Robert Carroll, to use and acquire gold so as to violate the federal gold laws. The court noted that no evidence was presented regarding the ownership of Sheba, but it did find that it was dominated by Carroll. Although in his ruling District Judge Palmieri discussed civil antitrust conspiracy cases, the gist of his decision seems to be his unwillingness, under the facts presented, to "over-extend the fiction of corporate personality." United States v. Carroll, supra at 941. Judge Palmieri explained his decision thusly:

The purpose behind not merging conspiracy into a completed crime, as happens with attempts, is separately to penalize and to deter criminal organization, an evil quite apart from the substantive delicts which more likely than not result from such organization. This purpose is served by holding combinations of corporations and often combinations of directors of one corporation, guilty of conspiracy. . . . However, the policy does not apply when one man uses a corporate form to carry out his crime. There is no organization and no one other than the sole criminal to deter or punish. In effect, a man would be more severely punished if he chose to commit his crime by using a corporate form than he would be if he committed it through another business device.

I conclude that the Carroll decision must be read in light of its facts and limited to them.

In researching this issue the Court did not find any case which analyzed the precise question presented herein. However, some indication as to a proper outcome can be had by implication from cases dealing with criminal conspiracies. In United States v. Wise, 370 U.S. 405, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962), a corporation and one of its officers were indicted for engaging in a conspiracy to eliminate price competition in the sale of milk in the Kansas City area in violation of § 1 of the Sherman Act. The Supreme Court considered the question of whether a corporate officer could be prosecuted along with the corporation when he is acting solely in his capacity as an officer, director or agent of the corporation. In answering in the affirmative, the Court stressed the language of § 1 which imposes criminal sanctions upon "every person"; a corporate officer remains a person within the statutory language even if his acts are also chargeable to his corporation. Moreover, it is clear that the term "person" within the meaning of 18 U.S.C. § 371 also includes corporations.

In Alamo Fence Company of Houston v. United States, 240 F.2d 179 (5th Cir. 1957) a corporation and various of its officers and employees were charged with a conspiracy in violation of § 371 and with the making of false statements to the Department of Housing and Urban Development. In considering the applicability of these statutes to a corporation which had subsequently been dissolved, the court stated:

No contention is made, or can reasonably be made, that the federal statutes involved are not directed against corporate misconduct. " Whoever" commits the inhibited acts is covered by Section 1010, while Section 371 refers to a conspiracy of "two or more persons." The context of neither statute indicates any meaning other than that a "corporation" is included in accordance with 1 U.S.C.A. § 1.

In United States v. Sherpix, 168 U.S.App.D.C. 121, 512 F.2d 1361 (1975), the government argued that a corporation could be held criminally responsible for the acts of its officers and thus could be charged with their conspiracies. While finding that the allegations of the particular indictment were insufficient to charge a conspiracy against the corporation, the Circuit Court did, however, note that it believed the government's argument was correct. United States v. Sherpix, 512 F.2d at 1367, n. 7.

Finally, although not discussing the issue presented herein, a number of cases have implicitly recognized that a corporation can be prosecuted for conspiring with its corporate personnel. See e.g., Nye Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Baker v. United States, 393 F.2d 604 (9th Cir. 1968); United States v. Bridell, 180 F. Supp. 268 (N.D.Ill. 1960); United States v. Kemmel, 160 F. Supp. 718 (M.D.Pa. 1958).

Obviously, a corporation is within the statutory language of "person" and can operate only through its agents. However, employment alone by a corporation does not so merge the employee's mind and being with that of the corporation so that one person's cognition remains rather than more than one. When separate individual judgments and decisions are capable of being made by both a corporation and one or more of its employees, there is a vast dissimilarity to the facts of Carroll in which one man used the corporate form to commit a criminal act. The Court concludes then that a corporation can be charged with conspiring with its corporate personnel. The motion of Consol to dismiss on this ground is therefore denied.

II. Whether a Violation of 30 U.S.C. § 819(d) Has Been Properly Alleged in the Indictment.

Defendants attack counts 3-13 and 172-174 of the indictment which charges them with violations of 30 U.S.C. § 819(d) for knowingly making false statements and representations in mine data cards. This section provides that:

whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter or any order or decision issued under this chapter shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or both. (Emphasis added.)

Defendants contend that nowhere in Chapter 22, referred to in the emphasized portion of § 819(d), is there a section providing that a mine data card is a record, report, or other document filed or required to be maintained thereunder. They argue that since the filing of a coal mine dust sampling cassette is required by the Act but the filing of a mine data card is required only by regulation, criminal liability can only attach if a person makes a false statement or representation on or in the cassette. The Court believes, however, that such an interpretation is unnecessarily artificial and overly restrictive.

Section 842(a) requires each operator of a coal mine to take accurate dust samples and to transmit them to the Secretary of the Interior. This same section further provides that "[s]uch samples shall be transmitted . . . in a manner established by [the Secretary] and analyzed and recorded by him in a manner that will assure application of the provisions of section 814(i) . . ." The Act then directs the Secretary to establish a method or system for the taking of dust samples and bestows upon the system the same force and effect as if it were written into the Act by Congress itself.

Moreover, § 819(d) applies to all records filed or required to be maintained by the Act. If the Act itself grants to the Secretary the authority to require the keeping of a record then the Court believes that it can be said that the Act itself requires the keeping of any record authorized by the Secretary. Section 821(b) of Title 30 states:

In addition to such records as are specifically required by this chapter, every operator of a coal mine shall establish and maintain such records, make such reports, and provide such information, as the Secretary may reasonably require from time to time to enable him to perform his functions under this Act.

I believe that a mine data card is a report which the Secretary could reasonably require in order to perform his functions under the Act. Certainly, this is true in light of the nature of the cassette used to collect and transmit the respirable dust samples required by § 842. The cassette is merely a piece of paper encased in plastic. By its very nature it does not allow for the writing of pertinent information, such as the name of the company forwarding the sample or the area of the mine from which it is being taken, information without which the cassette would be meaningless. Since under the Act the Secretary is responsible for the manner in which dust samples are transmitted to him and may further require such reports as are necessary to enable him to obtain the dust samples, I conclude that § 819(d) properly applies to mine data cards. Accordingly, this ground for defendants' motion to dismiss is denied.

III. Whether Counts 16-170 Fail to Charge an Offense Under 30 U.S.C. § 819(b) by Failing to Allege a Willful Violation by a Corporate Officer, Agent, or Employee Who Meets the Statutory Definition of "Operator" in the Federal Coal Mine Health and Safety Act.

Counts 16-171 allege violations of certain mandatory health standards set forth in 30 U.S.C. § 842(a) and certain implementing regulations found in 30 C.F.R. Part 70. The even-numbered counts charge the corporate defendant pursuant to 30 U.S.C. § 819(b) with willfully violating these provisions while the odd-numbered counts charge various individual defendants pursuant to 30 U.S.C. § 819(c) with knowingly authorizing, ordering or carrying out violations of these provisions. Defendant Consol contends that the counts against it must fail because there is no allegation that a person meeting the statutory definition of "operator" committed the alleged willful violations.

Section 819(b) provides in relevant part that:

Any operator who willfully violates a mandatory health or safety standard . . . shall, upon conviction, be punished,. . . .

Essentially Consol's argument proceeds as follows: (1) A corporation can only be vicariously liable; that is, it can only be made liable by acts of its corporate personnel. (2) However, contrary to the civil penalties of § 819(a) where any employee's violations can result in corporate liability, the actions of only certain types of agents or employees should subject the corporation to criminal sanctions. (3) This type of employee or agent should be one meeting the definition of "operator" set forth in § 802(d) — an "owner, lessee, or other person who operates, controls, or supervises a mine."

Consol relies upon United States v. Consolidation Coal Company, 504 F.2d 1330 (6th Cir. 1974) for support of the above-argument. The Court does not believe this reliance is well-placed. United States v. Consolidation Coal Company involved the reversal of the conviction of an individual defendant (Kidd) on the ground of insufficient evidence and the conviction of a corporate defendant because of an error in the trial court's instruction on willfulness. The Court simply does not read the opinion as approving Consol's contention that only persons meeting the statutory definition of operator can criminally bind a corporation. In reversing defendant Kidd's conviction, the Court stated:

Upon consideration of all the evidence we conclude that there is a total failure of proof to show that Donald M. Kidd willfully or even knowingly violated, or authorized any one to violate the Act as charged in the information. Kidd was only a foreman for coal mining operations and was in charge of a crew of miners. There is no evidence that he ever had anything to do with policy matters or managerial functions of Consolidation.

Further, the Court believes that § 819(b) should be read in pari materia with § 819(c) which provides in pertinent part that:

Whenever a corporate operator violates a mandatory health or safety standard . . . any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation . . . shall be subject to the same . . . fines and imprisonment that may be imposed upon a person under subsections (a) and (b) of this section.

It would be rather anomalous to subject these types of persons to criminal sanctions if their acts could not be attributable to the corporation under § 819(b).

The motion to dismiss on this ground is denied.

IV. Counts I and II and Even-numbered Counts 16-170 are Defective Since the Validity and Accuracy of Dust Samples Can Only Be Determined by Reference to the Standards for Determining Sample Accuracy Set Forth in the Regulations at 30 C.F.R. § 70.701 et seq., which Regulations Are Invalid by Reason of Improper Rule Making.

In branch four of the motion to dismiss, defendants argue that counts 1 and 2 and 16 through 171 of the indictment fail to charge offenses against the United States because they are dependent upon regulations which are invalid. According to defendants, the Secretary of the Interior and the Secretary of Health, Education and Welfare were required to follow rule-making procedures set forth in 30 U.S.C. § 811(d) when adopting the regulations in question. Since they did not, the regulations must be considered void and the counts dependent upon them must be dismissed. The government asserts on the other hand that 30 U.S.C. § 811(d) is inapplicable and that the regulations were adopted pursuant to 30 U.S.C. § 842(a) which specifically authorizes the two Secretaries to adopt the regulations.

In United States v. Finley Coal Company, 345 F. Supp. 62 (E.D.Ky. 1972), the court was faced with a contention similar to that made herein. Defendants had been charged in 24 counts with violations of safety standards established in Subchapter III — Interim Mandatory Safety Standards for Underground Coal Mines, 30 U.S.C. § 861, 878. They argued that in promulgating standards the Secretary of the Interior was obliged to follow the procedures of 30 U.S.C. § 811(c) and that having failed to do so, the counts involving these standards must be dismissed. The Court found that:

The language of Section 811(c) requires consultation with specifically named classes within or materially concerned about the coal industry in "the development and revision of mandatory safety standards." The Secretary has proceeded to amend and revise the mandatory standards without such consultation.

The Court did proceed, however, to draw a distinction between the challenged regulations based upon the particular statutory section they attempted to revise. Thus in four of the nine safety standards involved in the indictment, the Secretary was given specific statutory authorization to prescribe certain regulatory standards whereas in the remaining five standards no specific authorization was given. The Court concluded that:

Where the regulations or standards promulgated by the Secretary are in response to authority granted in Sections 862 through 878, the regulations are proper and will apply in the trial of this case. But where the regulations published on November 20, 1970 by the Secretary do not reflect the exercise of authority granted in the provisions of Section 862 through 878, we hold the authority for issuing such standards lies in Section 811 and the conditions imposed by Section 811(c) are applicable.

On appeal the judgment of the lower court was affirmed, the United States Court of Appeals for the Sixth Circuit also finding that the Secretary had in the regulations amended and revised standards within the language of Section 811 so as to make the procedures of Section 811(c) applicable. United States v. Finley Coal Company, 493 F.2d 285 (6th Cir. 1974). However, I do not believe that the Court of Appeals altered the distinction, drawn by the lower court, between what could be called self-executing statutes and those dependent upon section 811. The Court was careful to note it was only considering one specific regulation before it on appeal, see n. 14 infra, and that it was expressing no opinion as to the validity of any of the other regulations involved. United States v. Finley Coal Company, 493 F.2d at 291 n. 6.

Defendants believe that the distinction is not proper since the regulations found to be validly promulgated by the Secretary were adopted under the specific authority of Section 861 which is applicable only to the safety standards of Title III and has no counterpart in the health standards of Title II which are the subject of the indictment herein.

While admittedly this is a very close question, this Court concludes that the statute involved in the challenged counts specifically authorizes the Secretaries of the Interior and of Health, Education and Welfare to prescribe the procedures by which samples are to be taken. See 30 U.S.C. § 842(a). Further, 30 U.S.C. § 957 provides that the Secretaries of these departments are "authorized to issue such regulations as each deems appropriate to carry out any provision of this chapter." The specific regulations in question do no more than set forth procedures which prescribe the "methods, . . . locations, . . . intervals, . . . and manner" by which samples pursuant to section 842 are to be taken. The setting of such procedures is the very thing authorized by section 842.

Additionally, although the point has not been briefed, the Court has some question as to whether the regulations in question are actually amendments or revisions of statutory standards within the meaning of section 811. No sampling procedures were set forth in the Act itself since Congress designated this be done by the Secretaries of the Interior and of Health, Education and Welfare by section 842; thus in actuality there is no statutory standard which can be amended. Further, as mentioned above, the regulations do not concern substantive standards but rather procedural matters pertaining to sampling.

For these reasons the Court concludes that this branch of defendants' motion to dismiss should be denied.

V. Counts 16 through 171 of the Indictment Are So Vague and Indefinite So As to Inform Defendants of the Charges Against them.

The even-numbered counts of 16 through 171 charge that on a specified date at a specified place and time, Consol willfully failed to take and transmit an accurate sample of respirable dust following the issuance of a notice of violation. The odd-numbered counts of 16 through 171 specify certain individual defendants who are alleged to have ordered or carried out the violations. Defendants assert that these allegations are so vague that they do not inform them of the charges against them. The essential, and perhaps the only meritorious, complaint raised by defendants is that the indictment does not specify the exact manner in which the defendants are alleged to have failed to take and transmit an accurate dust sample; that is, did they fail to take and transmit any sample at all, or did they take and transmit an inaccurate sample?

Upon consideration, the Court believes that the failure of the indictment to specify the exact manner in which the alleged offense was committed does not render it defective. While the defendants are perhaps entitled to such information, this is a matter more reasonably handled through the procedure of a bill of particulars rather than by dismissal of the indictment. The Court believes that as written, the indictment adequately charges all the essential elements of the violation charged with reference to the pertinent statutes and regulations.

Accordingly the motion to dismiss by reason of vagueness is denied.

VI. Multiplicity

Defendants next argue that the indictment is defective because of multiplicity and for this reason the majority of the 172 counts alleged should be dismissed. Essentially defendants categorize the counts into three groups of counts — conspiracy, fraud, and willful or knowing violation of a mandatory health standard — and with respect to the latter two groups they assert that they should only be charged with one violation per group. The government contests the assertion of multiplicity, and, additionally, contends that the counts of the indictment should actually more properly be divided into four groups. Upon review of the pertinent statutory sections and regulations thereunder, the Court accepts the government categorization. The first group of counts consists of counts 1 and 2 which charge a conspiracy. The second group includes counts 3-13 and 172-174 charging the making of false statements and representations in a document filed with the Secretary of the Interior. The third group, counts 16-156, involves a willful or knowing failure to submit an accurate dust sample required to be submitted in order to abate a notice of violation of 30 U.S.C. § 814(i); 30 C.F.R. § 70.220(a)(3). The fourth and final group of violations consists of counts 157-171 which charge that during a sampling cycle the defendants failed either to take one high risk sample for the section being sampled for each of five consecutive production shifts each of which was worked on a separate day, 30 C.F.R. § 70.220(a)(1), or failed to submit a sample taken to satisfy this requirement.

In resolving the question of multiplicity it is necessary to determine "[w]hat Congress has made the allowable unit of prosecution," United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952), under the Federal Coal Mine Health and Safety Act. That is, did Congress intend to punish a course of conduct or did it intend to punish separate items in such a course.

In Universal a defendant employee was charged with 32 counts of violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215 and 216(a). The Supreme Court grouped the counts into three groups: six counts were for failure to pay minimum wages, twenty were for violations of the overtime provisions and six counts were for failure to comply with prescribed record-keeping provisions. In considering the question of whether the penalty provisions of the Fair Labor Standards Act proscribed a course of conduct as a criminal offense or whether each individual act in violation of the FLSA constituted a separate offense, the Court stated:

Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. . . They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique. . . . For that reason we may utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. Very early Mr. Chief Justice Marshall told us, "Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived. . . ." Particularly is this so when we construe statutes defining conduct which entail stigma and penalties and prison. Not that penal statutes are not subject to the basic consideration that legislation like all other writings should be given, insofar as the language permits, a commonsensical meaning. But when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.

Whether an aggregate of facts constitute a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts.

The motion to dismiss on the ground of multiplicity will be overruled at this time without prejudice to the right of defendants to raise the issue subsequently. See 8 Moore, Federal Practice ¶ 8.07[1] and [2].

In addition to the grounds discussed above, several of the individual defendants have briefly raised various additional grounds which the Court considers to be insubstantial so as not to merit discussion. The motion to dismiss on these grounds is accordingly denied.

For the reasons discussed in the above memorandum, the motion to dismiss by defendants is denied in its entirety.

* * * * * *