The opinion of the court was delivered by: MARSH
The defendants, Pecora and Martire, were indicted under § 501(c) of the Landrum Griffin Act (29 U.S.C.).
The indictment charged that on or about September 7, 1966, the defendants, while president and business manager, respectively, of Local Union 1058, International Laborers Union, AFL-CIO, a labor organization engaged in industry affecting commerce,
unlawfully and wilfully did convert to the use of another, to-wit, John S. LaRocca and Mary S. LaRocca, the sum of $61,500 of moneys and funds of such organization.
The jury found the defendants guilty. Each defendant timely moved for judgment of acquittal and, in the alternative, for a new trial. In my opinion the motions for judgment of acquittal should be granted.
From the evidence presented by the prosecution
it appears that in 1966, Local 1058 owned and occupied a building on Penn Avenue, Pittsburgh, Pennsylvania. At that time it seemed apparent that the Local might lose this property by condemnation to the Urban Redevelopment Authority for a Pennsylvania Railroad industrial park project.
On May 21, 1966, the 7-man Executive Board, which included both defendants, and a 4-man staff approved a motion that the building committee "go out and get bids on available property in the area".
On June 11, 1966, the Executive Board and staff, under unfinished business, received a report from the defendant Martire that the Building Committee had been investigating a property on Fifth Avenue; that the owner asked $150,000, and that he, Martire, had made a counter proposal for $100,000 on behalf of the Local Union. After a lengthy discussion the Board approved a motion authorizing the Building Committee to pay $135,000, if necessary, to buy the lot.
No independent appraisement of the lot was ordered.
The lot in question was a vacant lot on uptown Fifth Avenue, Pittsburgh (GX 5) in use as a parking lot. It was owned by John S. LaRocca
and Mary S. LaRocca, his wife. For convenience this lot will be referred to as Lot 46.
On June 25, 1966, the Executive Board and staff received a report from the Building Committee that they had offered the owner $130,000 plus taxes; that it had been accepted; that the Union had 90 days to close the deal without forfeiting the deposit. The Board approved a motion to put $10,000 deposit on the property. There was discussion about getting commitments from other unions and the pension and welfare fund to rent space "if we decide to build a large building" on Lot 46.
On June 27, 1966, a Special Membership Meeting was held; 400 members of Local 1058 attended. As the first item of business, the minutes of the Executive Board Meeting of June 11, 1966 were read. The membership unanimously approved a motion to "accept the minutes as read". Also, the minutes of the Executive Board Meeting held June 25, 1966 were read and were "by motion accepted as read", and "said motion was seconded and adopted by the membership."
The Constitution of the International Hod Carriers' Building and Common Laborers' Union of America (GX 7) at H(f) provided:
"The Executive Board shall not take any act authorizing or committing the Local Union to expend large sums of money, until and unless the same has been approved and adopted by vote of the membership at a meeting."
Government witness, Louis D. Elesie, was the Recording Secretary of Local 1058. His testimony indicated that approval of the minutes of the Executive Board was the procedure usually followed for membership approval of Executive Board action. Secretary Elesie testified that the action of the Executive Board relative to the purchase of Lot 46 was generally discussed at the meeting. It can hardly be doubted that the decision to purchase a vacant lot in Pittsburgh on which to construct a building large enough for a Union hall and to rent space to other unions and the pension and welfare fund was one designed for the benefit of the Local Union.
It was not disputed that plans were made and commitments to rent space were obtained from other unions and the fund. The subsequent decision a year or so later to forego the building plan does not negate the 1966 intentions to benefit. No motive other than to purchase a lot for the benefit of the Local Union was proved.
It was established by the evidence submitted by the government that in June, 1966, the agreement to purchase Lot 46 was not only to fill a need for the benefit of the Local but that the expenditure of $130,000 for the Lot was authorized and approved or ratified by the membership in accordance with the Constitution. Cf. United States v. Silverman, 430 F.2d 106 (2d Cir. 1970).
On June 28, 1966, the Executive Board, seven members participating, including both defendants, by Resolution
empowered the defendants and Herman A. Smith,
as Trustees on behalf of the Union, to hold title and manage Lot 46 to be purchased by the Union "in accordance ...