United States v. Postma

• Decision Date: 21 February 1957
• Docket Number: No. 48,Docket 24114.,48
• Parties: UNITED STATES of America, Appellee, v. Peter POSTMA and Joseph P. McConnon, Defendants-Appellants, and Nicholas Robilotto, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

242 F.2d 488 (1957)

UNITED STATES of America, Appellee, v. Peter POSTMA and Joseph P. McConnon, Defendants-Appellants, and Nicholas Robilotto, Defendant.

No. 48, Docket 24114.

United States Court of Appeals Second Circuit.

Argued November 16, 1956.

Decided February 21, 1957.

On Rehearing April 9, 1957.

COPYRIGHT MATERIAL OMITTED

E. Stuart Jones, Troy, N. Y. (Segal, Dorsman, Soffer & Segal, Albany, N. Y., on the brief), for appellant Postma.

Isadore Katz, of Lieberman, Katz & Aronson, New York City, for appellant McConnon.

Richard E. Bolton, Asst. U. S. Atty., N. D. N. Y., Troy, N. Y. (Theodore F. Bowes, U. S. Atty., and Andrew J. Culick, Asst. U. S. Atty., N. D. N. Y., Amsterdam, N. Y., on the brief), for appellee.

Before CLARK, Chief Judge, and FRANK^* and HINCKS, Circuit Judges.

HINCKS, Circuit Judge.

A one-count indictment was returned in April 1955, charging that Peter Postma, Joseph McConnon and Nicholas Robilotto, conspired from June 1951 to April 1955, when the indictment was returned, to interfere with interstate commerce by extorting money from eleven named truckers under threat of continuing a strike. The trial began in April 1956. Robilotto was acquitted by a directed verdict. The other two were found guilty and both appeal.

The Government's evidence showed that a union executive, the defendant Peter Postma, obtained $10,000 to his personal gain from a group of truck operators employing union drivers through threat of causing or continuing a drivers' strike. To carry the shakedown offer to the dealers and to collect the money demanded, Postma used as his go-between the codefendant, Joseph McConnon, manager of a firm engaged in the carriage of truck bodies by water and hence adversely affected by any strike stopping the movement of the trucks. Because of this interest, McConnon volunteered his services as go-between. Postma availed himself of McConnon's assistance but did not originally solicit it.

The Government presented among its witnesses nine members of the Highway Transport Association of Upstate New York, Inc., which group included many of the general freight haulers in the Albany area. It was shown that in 1951 when Peter Postma bargained for his union, Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, he accepted on its behalf a 13¢ per hour increase from the Association and terminated the bargaining session with a remark that "Next year when the contract expires in the fall, I will give you a proposal that you cannot accept and when you are out in the street, I will jam it down your throat."

In 1952, the bargaining for a new contract commenced with a demanded increase in wages and fringe benefits of approximately $1 per hour; a demand which the truckers viewed as exorbitant. Bargaining continued until Friday, November 7, 1952. At a meeting on that date, the truckers offered five "points," including a 10¢ hourly wage increase, each "point" being one of the categories in the package deal demanded by the union, and offered to bargain out the remaining two points. At this stage, when the truckers thought they were close to agreement, Postma unexpectedly refused the offer in a surly manner and departed after stating that the union demanded its original wage package which included a 44¢ hourly increase. That night the strike began.

Subsequent events may best be presented by excerpts from the direct testimony of John J. Vogel, Jr., president of a trucking firm and a member of the Truckers' Association. He testified that on the following Thursday, November 13, when he and another trucker were sitting in the Ten Eyck Hotel grill, in Albany, New York, McConnon came over to his table and said, "When are you going to get this strike over with?" Vogel replied that he did not know when the strike would end. McConnon left the table and then returned and requested Vogel to accompany him into the hallway for a private conversation. There McConnon said to Vogel, "If you will offer the seven points and ten thousand dollars, Pete Postma will settle the strike." Vogel's testimony continued: "When I heard that from McConnon, I was quite scared, and I was thinking about these operators signing these if and when contracts, and I was thinking that we certainly couldn't stay in business very long if we had to sign an `if and when' contract."

By this reference to an "if and when" contract Vogel referred to those truckers who had agreed with the union, in return for their individual immunity from the strike, that they would accept the terms of the collective bargaining agreement if and when that should finally be reached. The greater the number of truckers who thus obtained immunity from the strike, the greater was the economic pressure on competing strikebound truckers to surrender to union demands believed to be exorbitant. Surrender to these demands, it was thought, would be ruinous. Yet, because of the competitive pressure from those who had signed the "if and when" contracts, continuation of the strike would also ruin the truckers holding out. It was the fear of economic destruction or injury created by these alternatives which led the truckers to accept Postma's offer to terminate the strike upon a collective bargaining agreement calling for a modest increase in labor costs (the seven points), sweetened by a cash payment to him. That, at least, was a permissible inference from the evidence.

Vogel returned to the restaurant table where he and his colleague discussed the offer and drafted a list of truckers and the amounts each might contribute towards the needed $10,000. Then they went to the Association's strike headquarters in the hotel and discussed the offer with those truckers who were present. The truckers agreed to accept the offer and Vogel went downstairs and so informed McConnon. On the next day, Friday, McConnon told Vogel the cash requirement had been upped to $30,000. This the truckers refused to pay. On Saturday McConnon called Vogel and they met at the hotel. According to Vogel's testimony, McConnon said that Pete and they would take the ten thousand dollars, and that they wanted a small committee and a separate room. The room was obtained and Saturday afternoon a union committee of three met with Vogel and two other truckers, where, for two and a half or three hours they discussed Postma's trip to a union convention in California. Then Vogel walked to the other side of the room with Postma who said, "This town is very small and these operators will talk." Vogel said nothing. Postma then said, "Well, they are all getting theirs. I am going to get mine." After that they joined the group and Vogel asked if the "seven points" were acceptable. These included the 10¢ wage increase and the fringe benefits offered by the truckers before the strike began which then had been summarily refused by Postma. Without discussion Postma acceded. On the next day the trucks started rolling.

Thereafter, Vogel collected various sums from various truckers and paid $10,000 to McConnon in two installments. After the first installment, McConnon returned with a $500 bill and said that Postma wanted smaller bills in its stead. Vogel could not break it and suggested trying a bank. Later, in various conversations with Vogel, McConnon told him that all the money had been delivered to Postma.

Each defendant questions the sufficiency of the evidence to support his conviction. As we held in United States v. Masiello, 2 Cir., 235 F.2d 279, in the situation here presented, as to Postma and McConnon an absence of evidence sufficient to convict one will vitiate the conviction of the other. See also United States v. Austin-Bagley Corporation, 2 Cir., 31 F.2d 229.

We turn first to examine the evidence as to the guilt of McConnon. He did not testify or offer any evidence: as to him the case stands now as it did when the Government rested and McConnon moved for acquittal. See United States v. Calderon, 348 U.S. 160, footnote page 164, 75 S.Ct. 186, 99 L.Ed. 202. At that stage, there was evidence before the jury that McConnon, as manager of Trailerships Inc., for the first time cooperated with Postma after the strike had begun; that he did so at the behest of his employer whose business was adversely affected by the strike; and that McConnon before, during, and after the strike was on friendly terms with the truckers, who were his only customers. His claim, forcefully urged in his opening statement, throughout the trial, in summation and upon appeal is, to quote from his brief, "The evidence clearly established that McConnon did not join the alleged conspiracy but rather that he joined with the strike-bound employers, being an employer himself, to bring about a settlement of the strike by acting as the intermediary between Vogel, one of the struck employers, and Postma, the labor leader in charge of the strike." More simply, he claims that, being himself a victim of the strike, he could not and did not conspire to exploit the strike.

We do not agree. McConnon intentionally and actively allied himself with Postma's effort to shake-down the truckers. Postma was activated by hope of personal gain and perhaps a desire to bring the drivers, whom he represented, back into gainful work. McConnon was activated by a desire for the gain that would result, at least to his employer, from an end of the strike. Any difference in their motives or in their relationship to the parties to the strike is without significance for present purposes. The crucial fact is that each knowingly cooperated in an effort to coerce the truckers, through fear of the economic consequences of a continuation of the strike, to pay Postma a sum of money for its termination. There was evidence enough to establish that fact and to support the verdict of guilt which rested thereon. See United States v. Brandenburgh, 2 Cir., 146 F.2d 878, 879. The mere fact that a continuation of the strike directly or...