conspiracy to cheat and defraud is a statutory and common law offense. See 18 Purdons Pa. Statute Annotated § 4302. It has been stated that 'Cheats affecting the public or a large number of individuals are punishable as common law crimes.' Kessler, Criminal Procedure in Pennsylvania, 174; See also Tricket, Criminal Law in Pennsylvania, 596; Judge Ullman's Instructions to the Jury, Transcript 3626, 3631; and the cases cited in Judge Ullman's Opinion, pp. 105-107.
While aware of the technical differences under Pennsylvania law as to Larceny and a Conspiracy to Cheat and Defraud, I conclude that for the purposes of the Labor-Management Reporting Act, § 504, the state crime of conspiracy to cheat and defraud is the equivalent of grand larceny as used in § 504.
Such a construction seems particularly consistent with the Congressional intent where the cheating and defrauding which resulted in the illegal dissipation of union funds were among the acts which Congress intended to eliminate by the enactment of the Labor-Management Reporting Act of 1959.
In order to ascertain the scope of the term larceny in § 504,
this term must also be reviewed as to its federal usage. Serio v. Liss, 300 F.2d 386, 390. A review of the relevant federal statutes demonstrates that Congress has designated as crimes acts which were within the former common law classification of larceny, and in those instances, Congress has acted without using the nomenclature of 'larceny' in the definition of the offense and without designating the legislation as a larceny statute. In addition, Congress has designated gradations of offenses which, though substantially similar, are distinguishable from the classic common law contours of larceny; yet for both classes of offenses -- the precise common law offense and the offense similar but distinguishable from the common law offense -- the Federal Courts have referred indiscriminately to the applicable legislation as 'larceny statutes.'
Chapter 31 of 18 U.S.C.A., broadly labeled Embezzlement and Theft, provides, in § 641:
' § 641. Public money, property or records 'Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or 'Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted -- 'Shall be fined not more than $ 10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $ 100, he shall be fined not more than $ 1,000 or imprisoned not more than one year, or both. * * *'
Even though Congress did not use the term larceny, the Court of Appeals of the First Circuit held that in § 641 'The Congress (was) defin(ing) the crime of larceny of government property.' O'Malley v. United States, 227 F.2d 332, 336.
In Crabb v. Zerbst, 99 F.2d 562 (5th Cir. 1938) the Court interpreted the predecessor sections of § 641; these sections were similar to § 641 and also did not contain the term of larceny. The Court of Appeals held as follows:
'* * * it is doubtful if at common law any fixed definition or formula was not strained in its application to some of the cases clearly constituting the offense (of larceny). Modern criminal codes treat the offense in various ways. Some define the offense by following the old cases and are merely declaratory of the common law, while others have broadened the offense to include offenses previously known as embezzlement, false pretenses, and even felonious breaches of trust. * * * The obvious purpose of this apparent merger is to avoid the pitfalls of pleading where a defendant might escape a conviction for one offense by proof that he had committed another. * * * The modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses * * *. Id. at 564. (Emphasis added.)
Plaintiff's contention can perhaps be best tested by the following hypothetical: Would a government employee who had been indicted and convicted, pursuant to § 641, for stealing thousands of dollars be subject to the prohibitions of § 504 in the Labor-Management Reporting and Disclosure Act? Plaintiff's answer necessarily would be 'No' because the employee who had stolen the funds had not been indicted by a statute which was titled 'Larceny' or which used the term larceny. Yet, the courts have held that § 641 is actually a statute defining 'larceny of government property.' O'Malley v. United States, Id., 227 F.2d at 336. I cannot assume that Congress was unaware of § the fact that numerous statutes such as § 641 have been held by the courts to be larceny statutes, and accordingly, I must conclude that Congress intended to cover a criminal offense, such as plaintiff's '* * * by whatever name it may be called.' Crabb v. Zerbst, Id., 99 F.2d at 564.
Particularly in view of this Circuit's decision in Serio, supra, I find the argument of the Government more persuasive than plaintiff's. The Department of Justice and the Department of Labor argue, as amicus curiae, that:
'There is a clear indication on the face of the statute that the offenses in question are among those to which Congress was addressing itself. The very same title of which 504(a) is a part, Congress specifically made the same offense a crime under federal law, providing any person who embezzles, steals, or unlawfully and wilfully abstracts or converts to his own or the use of another any of the monies or other assets of a labor organization of which he is an officer or by which he is employed directly and indirectly shall be fined not more than $ 10,000 or imprisoned for not more than five years, or both. § 501(c). 'It seems inconceivable that Congress would think such (embezzlement or stealing-type) conduct as inimical to the purposes of the Act as to warrant specific prescriptions by criminal provision with serious penalties, and yet would tend to omit it from the disqualifying crimes of § 504(a) -- which include some so indirectly related to the purpose of the Act as rape and burglary.'
For all of the foregoing reasons, I find that plaintiff's request for a preliminary injunction must be denied and that plaintiff is not entitled to a declaratory judgment which would sanction placing his name on the ballot for the forthcoming election.