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February 9, 1961

Dominic ALAIMO

The opinion of the court was delivered by: MURPHY

Defendant found guilty by verdict of a jury on thirty-four counts of violating § 302(b)(d) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186(b)(d), *fn1" moves for judgment of acquittal or a new trial. *fn2" In support thereof defendant asserts failure of proof, errors in ruling upon evidence, in the conduct of the trial, and in the charge of the court.

A person who is a representative of employees employed in an industry affecting commerce may be held to have wilfully violated § 186(b) upon a showing that he received or accepted money from the employer of such employee (or from the agent of such employer) with knowledge (1) that he was receiving or accepting money, and (2) that the person who was giving him the money was an employer of employees (or the agent of such employer) that the represented. United States v. Lavery, supra, 161 F.Supp. at page 286, and see United States v. Ryan, supra, 350 U.S. at page 305, 76 S. Ct. at page 404; United States v. Ryan, 2 Cir., 1956, 232 F.2d 481, 483.

 'The chief, if not only, purpose of the section was to put a stop to practices that, if unchecked, might impair the impartiality of union 'representatives',' United States v. Ryan, supra, 232 F.2d at page 483; 'to prevent employers from tampering with the loyalty of union officials, and disloyal union officials from levying tribute upon employers,' L. Hand dissenting in United States v. Ryan, 2 Cir., 1955, 225 F.2d 417, at page 426, and see United States v. Ryan, supra, 350 U.S. at pages 305-306, 76 S. Ct. at pages 404-405; Arroyo v. United States, 1 Cir., 1958, 256 F.2d 549, 551, reversed on other grounds 359 U.S. 419, 79 S. Ct. 864, 3 L. Ed. 2d 915, as to 'shaking down the employer'; United States v. Pecora, 3 Cir., 1959, 267 F.2d 512, as to buying labor peace.

 Taking that view of the evidence, including all inferences reasonably deducible therefrom in favor of the verdict, see Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680, there was substantial competent evidence that on thirty-four separate and distinct occasions, *fn3" defendant, a Committeeman of Local No. 8005, United Mine Workers of America, *fn4" and, as such, a 'representative' 5 of employees of the Knox Coal Company, an industry affecting commerce, *fn6" received and accepted various sums of money *fn7" from Knox, all in violation of the provisions and purposes of the Act.

 Under § 302(c) of the Act, 29 U.S.C.A. § 186(c) the broad provision of subsection (b) is made inapplicable '* * * (1) with respect to any money or other thing of value payable by an employer to any representative who is an employee or former employee of such employer, as compensation for, or by reason of, his services as an employee of such employer; * * *' *fn8"

 '* * * payments that subsection (c) covers would fall within (a) and (b) except for the exception.' Mechanical Contractors Ass'n of Philadelphia, Inc. v. Local Union 420, supra, 265 F.2d at page 611.

 Arroyo v. United States, supra, 256 F.2d at page 552, teaches 'a representative of employees would be guilty under subsection (b) if he received money or other thing of value from an employer unless the receipt were covered in the exceptions stated in subsection (c)'; Arroyo v. United States, supra, 359 U.S. at page 424, 79 S. Ct. at page 867, that both employer and employee would be guilty if the payment were ostensibly made for one of the lawful purposes specified in § 302(c), Id. 186(c), if both knew that such a purpose was merely a sham.

 It is incumbent upon one who relies upon an exception to set it up and establish it. McKelvey v. United States, 1922, 260 U.S. 353, 357, 43 S. Ct. 132, 67 L. Ed. 301; Carnahan v. United States, 8 Cir., 1929, 35 F.2d 96, 99, 67 A.L.R. 1035; Evans v. United States, 1894, 153 U.S. 584, 590, 14 S. Ct. 934, 38 L. Ed. 830; Stokes v. United States, 1895, 157 U.S. 187, 191, 15 S. Ct. 617, 39 L. Ed. 667; United States v. Mertine, D.C.D.N.J.1946, 64 F.Supp. 792, 795; 27 Am.Jur. Indictments and Informations, § 107, and see IX Wigmore on Evidence, 3rd Ed., §§ 2511, 2512(a) and cf. Id. § 2497.

 Without weighing the evidence or determining the credibility of witnesses, see Glasser v. United States, supra, 315 U.S. at page 80, 62 S. Ct. at page 469, suffice it to say there was sufficient evidence from which a jury might, and we may assume did, find that the payments accepted and received by defendant were not received or accepted as compensation for services rendered as an employee.

 In view of the foregoing, defendant's motion for judgment of acquittal will be denied.

 As to the motion for new trial --

 Defendant's unsupported request for inspection of the Grand Jury minutes of testimony of witnesses who had previously testified was properly denied. See Pittsburgh Plate Glass Co. v. United States, 4 Cir., 1958, 260 F.2d 397, 402-404, affirmed 1959, 360 U.S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323.

 Defendant himself did not testify but having on cross examination and through other witnesses attempted to show performance of services for which he was entitled to compensation, the government, in rebuttal, over objection, *fn9" was permitted to show that defendant, testifying on January 9, 1958, before a Federal Grand Jury, stated *fn10" he was in the dress business since 1953 and that he ceased working in the mines two years previously. Such testimony was clearly admissible, see VIII Wigmore, op. cit. supra, § 2363, p. 727; United States v. Johnson, D.C.M.D.Pa.1947, 76 F.Supp. 542, 548, affirmed 3 Cir., 165 F.2d 42, 45-46; Metzler v. United States, 9 Cir., 1933, 64 F.2d 203, 206; United States v. Miranti, 2 Cir., 1958, 253 F.2d 135, 138; United States v. Grunewald, D.C.S.D.N.Y.1958, 164 F.Supp. 644, 646. Its significance is at once apparent when compared with the period covered in the indictment, i.e., from August 15, 1957, to December 31, 1958.

 After some intervening questions which defendant, asserting the privilege against self-incrimination, declined to answer, defendant reiterated that he had worked in the mines until 1956 and made other admissions. *fn11"

 On the government's side, on direct, there was abundant evidence of his union membership, his being a committeeman, and receiving a salary as such. *fn12" The additional evidence in that regard was therefore at best cumulative. See and cf. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 235, 60 S. Ct. 811, 84 L. Ed. 1129; United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 184, 65 S. Ct. 254, 89 L. Ed. 160; 1 Wigmore, op. cit. supra, § 21, pp. 377, 378; F.R.Crim.P., Rule 52(a), 18 U.S.C.A.

 The government is not obliged to refrain from asking questions, answers to which may be incriminating. United States v. Neff, 3 Cir., 1954, 212 F.2d 297, 312. The amendment speaks of compulsion. If the witness desired the protection of the privilege against self-incrimination he 'was required to claim it. United States v. Monia, 317 U.S. 424, 427 (63 S. Ct. 409, 410, 87 L. Ed. 376) (1943). The privilege 'is deemed waived unless invoked.' United States v. Murdock, 284 U.S. 141, 148 (52 S. Ct. 63, 64, 76 L. Ed. 210) (1931).' Rogers v. United States, 1951, 340 U.S. 367, 370-371, 71 S. Ct. 438, 440, 95 L. Ed. 344.

 Disclosure of a fact waives the privilege against self-incrimination as to details. Id., 340 U.S. at page 373, 71 S. Ct. at page 442; United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837, 838-840, 147 A.L.R. 240. 'Requiring full disclosure of details after a witness freely testifies as to a criminating fact does not rest upon a further 'waiver' of the privilege against self-incrimination.' Rogers v. United States, supra, 340 U.S. at page 374, 71 S. Ct. at page 442.

 Defendant argues that his Grand Jury testimony was coerced and therefore inadmissible. No hard and fast rule regarding this phase of the law has developed in the federal courts. The test if whether, all things considered, the testimony in question was voluntarily given. United States v. Neff, supra, 212 F.2d at page 312; United States v. Block, 2 Cir., 1937, 88 F.2d 618.

 Defendant, without counsel, *fn13" in response to a subpoena, testified before a Special Grand Jury in the Southern District of New York, inquiring into the affair at Apalachin. *fn14" He had a duty to attend and testify. Blair v. United States, 1919, 250 U.S. 273, 280-281, 39 S. Ct. 468, 63 L. Ed. 979. Apart from the right against self-incrimination, a witness may not set limits to the investigation the grand jury may conduct. Id., 250 U.S. at page 282, 39 S. Ct. at page 471. After being advised as to his constitutional right against self-incrimination, *fn15" defendant freely and voluntarily stated he had been in the dress business since 1953; that he ceased working in the mines about 1956; and that he had since had no other employment or substantial source of income.

 As to the other admissions (see Note 11, supra), a short answer would be that the evidence was cumulative, its receipt harmless, and that they added only details. To remove any doubt, we think they were freely and voluntarily given and therefore otherwise admissible. *fn16"

  There was no error in government counsel asking a payroll clerk why defendant received two checks at the end of a single pay period and what such checks represented.

 Evidence as to how Anthony Argo and Charles Piasecki -- the other two committeeman -- were paid was admissible to show the modus operandi, to show a course of action, negative accident and mistake. See and cf. United States v. Laurelli, D.C.M.D.Pa.1960, 187 F.Supp. 30, at page 33.

 In our charge we read § 186(b) and stated the purposes of the legislation as indicated in United States v. Ryan, supra, 225 F.2d at page 426; 232 F.2d at page 483; 350 U.S. at pages 305-306, 76 S. Ct. at pages 404-405; Arroyo v. United States, supra, 256 F.2d at pages 551-552; United States v. Pecora, supra, 267 F.2d 512. See United States v. Hood, 1952, 343 U.S. 148, 151, 72 S. Ct. 568, 96 L. Ed. 846; Boyce Motor Lines v. United States, 1952, 342 U.S. 337, 340, 72 S. Ct. 329, 330, 96 L. Ed. 367, 'A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.'

 As to Bianchi v. United States, 8 Cir., 1955, 219 F.2d 182, at page 190, see and cf. United States v. Ryan, supra, 232 F.2d at page 483; Arroyo v. United States, supra, 256 F.2d at page 551; Rosenberg v. United States, 1953, 346 U.S. 273, 294, 73 S. Ct. 1152, 1163, 97 L. Ed. 1607, 'Where Congress by more than one statute proscribes a private course of conduct, the Government may choose to invoke either applicable law.'

 We made it abundantly clear, N.T. 610, 628, 629, that the burden of proof was upon the government and that it never shifted throughout the trial. While defendant had the burden of coming forward to prove that the payments used came within the exception in § 186(c) in the end the burden of proving guilt remained that of the government. See discussion at page 628, supra, and see McKelvey v. United States, supra, 260 U.S. 353, 43 S. Ct. 132, 67 L. Ed. 301; IX Wigmore, op. cit. supra, §§ 2511, 2512(a), and cf. § 2497.

 Reviewing the whole trial, placing each episode in its proper setting -- see United States v. Kafes, 3 Cir., 1954, 214 F.2d 887; United States v. Stoehr, supra, 100 F.Supp. at page 164 -- the record leaves no doubt that the case was fairly tried and submitted to the jury in a clear, impartial and thorough charge as to both the facts and the law.

 Defendant's motion in arrest of judgment, for judgment of acquittal and new trial will therefore be denied in an order filed herewith.

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