OPINION AND ORDER
EDWARD R. BECKER, District Judge.
I. PRELIMINARY STATEMENT
Defendant Louis Lanni, Sr. ("Lanni"), Secretary-Treasurer of Teamsters Local 830, was convicted by a jury after a two-week trial of conspiracy and of violating section 302(b) of the Labor-Management Relations Act, 29 U.S.C. § 186(b) (1964). Section 302(b) makes it a crime for an employee representative or an officer or employee of a labor organization to receive or accept money from an employer whose employees he represents.
Defendant Mary Maiale ("Maiale"), Lanni's "girlfriend"
was convicted by the same jury of conspiracy. We have before us defendants' motion for judgment of acquittal, or, in the alternative, for a new trial. The principal, as well as most difficult question before us, is the propriety of the Court's charge to the jury as to the elements necessary to establish "receipt" by a labor leader of payments by an employer. This is apparently a case of first impression on the important question of whether or not it is necessary for the government to actually trace the funds into a labor leader's hands in order to sustain a conviction under section 302(b). Defendants have grounded their motion on a number of points in addition to the alleged error in the charge, and we will deal with each of them in this Opinion.
II. THE FACTS OF RECORD
Surprisingly, there is relatively little dispute between the parties as to most of the facts in the record. All of the witnesses who testified were put on by the government; Lanni and Maiale did not take the stand and did not offer any witnesses. The disputed areas emerge from the cross examination and closing arguments, and we will comment infra upon the crucial areas of dispute as to the facts. Since, in considering a motion for judgment of acquittal, the evidence must be viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Feldman, 425 F.2d 688 (3d Cir. 1970); United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959), we will now set forth the facts adduced from the witness stand during the trial from which the jury could have made a finding of guilty.
During the period from sometime prior to 1967 and up to and including August 1968, Joseph D'Agata ("D'Agata") was an officer of the D'Agata National Trucking Company ("D'Agata National"), which employed as drivers and helpers members of Teamsters Local 830.
At the time of the events in question, and for many years prior thereto, Lanni was Secretary-Treasurer of Local 830. D'Agata testified that in the latter part of 1966 his father wished to retire from the management of D'Agata National, which had been a family operation, and thereupon, D'Agata looked for a new investor in the company. D'Agata spoke with his attorney, Morris Goldman, of the Philadelphia Bar, who indicated that Maiale would be willing to invest in D'Agata National. There followed a meeting in Goldman's office, at which time Maiale agreed to invest approximately $33,000 in D'Agata National in return for a 25% stock ownership. Maiale was to be employed by D'Agata National as its bookkeeper at a salary of $150 a week. Lanni, according to D'Agata, took no part in these negotiations, but was aware that Maiale was to become an investor.
Beginning on January 1, 1967, Maiale was in fact put on D'Agata National's payroll as a bookkeeper at $150 a week.
On April 1, 1967, Lanni, who was like a "father" to D'Agata, suggested that D'Agata and his brother should draw $50 a week more for their salary because business was better and because they "deserved it", and Maiale's weekly salary was also increased by $50 to $200. However, from the time of the first paycheck until the last paycheck on August 2, 1968 (a nineteen-month period), Maiale never performed any bookkeeping services for D'Agata National, or any other services, and never invested any money. Maiale did not even go to D'Agata National to pick up her check; it was mailed to her every Friday. She then deposited these checks into her own bank account. The payments were reported to the federal government on W-2 forms for the years 1967 and 1968. During this entire period, Maiale was employed as a full-time bookkeeper for Local 830's Health and Welfare Fund. Lanni was aware that Maiale performed no services for D'Agata National.
While there finally came a time when D'Agata realized that Maiale was not going to invest in D'Agata National
and was not going to perform bookkeeping services, he nonetheless continued to send her a weekly check because during this period he had a good relationship with the union, business picked up, he got new customers, and because:
"I knew Mary was very close to Lou [Lanni], and I figured, you know, keep everything happy. I am not going to disturb nothing because I was doing good." (N.T. 142).