The opinion of the court was delivered by: VANARTSDALEN
The defendant, Johnnie Lee Sink, was charged in a four count indictment with violations of 29 U.S.C. § 186(b) (1) and (d). He was convicted by a jury on three counts and acquitted on one count. A motion for a judgment of acquittal, or in the alternative, for a new trial has been filed.
Count I charged that the defendant, President of a local labor union, "being a representative of the employees of certain companies in the building services industry," accepted payment of a hotel bill in Miami, Florida, by MacClean Service Company, Inc.
Count II charged that the defendant "being a representative of the employees of Real Estate Maintenance, Inc." accepted payment of a hotel bill in Grand Bahama Island and payment of airline fare to and from the Island by Real Estate Maintenance, Inc.
Count IV charged that the defendant "being a representative of the employees of Temco Building Maintenance, Inc." accepted payment of a hotel bill in Freeport, Grand Bahamas, and payment of airline fare to and from said island by Temco Building Maintenance, Inc. Defendant was acquitted on Count III, involving alleged free use of an automobile supplied by Temco Building Maintenance, Inc.
Defendant did not, and does not now, dispute the fact that the trips were made and paid for as alleged in the indictment (Defendant's Brief, p. 3), but rather raises four contentions with regard to the significance of the evidence and certain alleged trial errors.
Defendant contends that the motions to dismiss the indictment filed immediately prior to trial should have been granted on the authority of United States v. Donovan, 339 F.2d 404 (7th Cir. 1964), cert. denied, 380 U.S. 975, 14 L. Ed. 2d 271, 85 S. Ct. 1338 (1965). Donovan held that the indictment in a prosecution brought under 29 U.S.C. § 186(b) (1) must specify whether the defendant is being charged as a representative of the employer's employees (§ 186(a) (1)), or as an officer or employee of a union which represents, seeks to represent, or would admit to membership any of the employer's employees (§ 186(a) (2)), or as an officer or employee of any labor union being sought to be bribed (§ 186(a) (4)).
As the defendant candidly admits, Donovan has been questioned. See United States v. Fisher, 387 F.2d 165, 169 (2nd Cir. 1967), cert. denied, 390 U.S. 953, 19 L. Ed. 2d 1146, 88 S. Ct. 1047 (1968). It is clear from this indictment that the defendant was given sufficient notice of the charges against him. A similar contention was raised and rejected in United States v. Ricciardi, 357 F.2d 91, 99 (2nd Cir.), cert. denied, 384 U.S. 942, 16 L. Ed. 2d 540, 86 S. Ct. 1464 (1966):
The four counts of the present indictment are equivalent. Each count charges that the defendant, "Johnnie Lee Sink, President of Building Service Employees International Union Local 69, being a representative of the employees . . . ."
The indictment, together with the pretrial discovery that was permitted in this case, afforded defendant ample opportunity to be fully advised as to the charges against him.
The motion to dismiss the indictment was therefore properly denied.
Defendant next submits that in any event the motion to dismiss Count I of the indictment should have been granted. Defendant's theory is that the words "would admit to membership" (§ 186(a) (2)) are unconstitutionally vague in the context of the government's presentation and the instructions given to the jury by the court. To be constitutionally sustainable, defendant suggests, the words must be qualified by "if requested to do so." Any other construction, under the defendant's theory, would be to uphold punishment for a crime which has not yet occurred.
The evil which the statute sought to prevent is obvious. It prohibited, with certain exceptions, payments by an employer to the labor union representatives of the employer's labor force. The statute recognized a similar, and possibly greater danger, in comparable situations where the laborers would be unionized in the future. Therefore, the statute prohibited payments by employers to labor union representatives of unions that "would admit to membership, any employees of such employer." (§ 186(a) (2)).
Based on the evidence, the jury could have found as follows: MacClean Service Company, Inc., a New York based corporation, engaged in the business of cleaning and servicing commercial buildings, was actively contemplating expanding into the Philadelphia area. The defendant was president of a Philadelphia local union that represented janitors, cleaning persons, and other employees who serviced commercial buildings in the Philadelphia area. The local union would accept as members of its union employees of MacClean Service Company, Inc., provided they were employed in the Philadelphia area and their trade involved cleaning and servicing of buildings. MacClean Service Company, Inc., paid for the defendant's stay at the Fountainbleau Hotel in Miami, Florida. These circumstances, if so found by the jury, would come squarely within the literal prohibitions of the statute, and would ...