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United States v. Pecora

decided: August 31, 1973.

UNITED STATES OF AMERICA, APPELLANT,
v.
THOMAS J. PECORA, APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 71-133).

Gibbons, Rosenn and Hunter, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge:

Thomas J. Pecora was indicted under § 186(b) of the Labor-Management Relations Act which makes it an offense for an employee representative to receive from an employer "any payment, loan, or delivery of any money or other thing of value."*fn1 After a prehearing conference, the government and appellee entered into a stipulation as to the facts upon which the indictment was returned. This stipulation was attached to a motion to dismiss the indictment filed by appellee. The district court, 351 F. Supp. 164, granted appellee's motion, and the government has appealed. We must consider two questions: (1) Whether the government has the right to appeal the dismissal of the indictments under 18 U.S.C. § 3731; and (2) if it does, whether the district court was correct in its dismissal.

Appellee Thomas J. Pecora was the business manager of Local 1058, Construction and General Laborers and Materials Handlers. In July, 1968 the Thomas Pecora Testimonial Dinner Committee was formed to honor appellee for his involvement in the labor movement. Tickets to the dinner cost fifty dollars per couple and advertisements in a souvenir program cost three hundred dollars per page. Appellee was not a member of the committee nor did the stipulation state he instigated the planning.

The committee's efforts were fruitful. It sold $44,400.00 worth of tickets and advertising. Employers who employed some members of Local 1058 purchased $25,450.00 worth of tickets and advertising.

At the dinner, appellee received a new car worth $5,324.96, a color television set worth $448.00, a plaque, a citation from the International Union, and a 30-year pin. Following the dinner, after $11,871.72 was deducted to cover expenses, appellee received the balance of the proceeds: $26,755.32 in cash. It was the receipt of this cash and the gifts which the government claims violated § 186(b).

The district court decided that the stipulated facts did not constitute a violation of § 186 and dismissed the indictment. The court reasoned that the government had not alleged any facts which showed any direct involvement of appellee in the solicitation of contributions from the employers.*fn2 The court determined that a corrupt purpose had to be shown for an indictment to be valid under § 186 and that "the mere receipt of money" was not sufficient. The government challenges that interpretation.

Before we reach that issue, we must decide whether the government has the right to appeal the district court's order.

I. APPEAL BY THE GOVERNMENT

In 1971, 18 U.S.C. § 3731 was amended*fn3 to read, in pertinent part, as follows:

"§ 3731. Appeal by United States

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court, dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy ...


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