United States v. Annunziato

• Decision Date: 26 July 1961
• Docket Number: Docket 26846.,No. 405,405
• Citation: 293 F.2d 373
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvatore ANNUNZIATO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

293 F.2d 373 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. Salvatore ANNUNZIATO, Defendant-Appellant.

No. 405, Docket 26846.

United States Court of Appeals Second Circuit.

Argued June 6, 1961.

Decided July 26, 1961.

Howard A. Jacobs (Stanley A. Jacobs, Jacobs, Jacobs, Jacobs & Jacobs, New Haven, Conn., on the brief), for defendant-appellant.

Harry W. Hultgren, Jr., U. S. Atty. for Dist. of Connecticut, Hartford, Conn., for plaintiff-appellee.

Before LUMBARD, Chief Judge, and GOODRICH^* and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

The trial of this seemingly simple criminal case, involving an alleged violation of 29 U.S.C.A. § 186(b), which at the time made it unlawful "for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value," has raised a host of problems, to the proper solution of which the Government's seven page brief, filed, in violation of our Rule 15(a), 28 U.S.C.A. on the eve of the argument, has rendered almost no assistance.

In 1957 the Terry Contracting Company, Inc., a New York City concern, was engaged in constructing the Connecticut Turnpike in Bridgeport, using materials from outside the state. Annunziato was business agent for the International Union of Operating Engineers, members of which were engaged in work on the site. The indictment alleged two violations of 29 U.S.C.A. § 186(b) by Annunziato — the receipt of $300 on or about July 3, 1957, and the receipt of $50 on or about December 24, 1957. Prior to trial the Government filed an information charging him with the same offense stated in the second count; without objection on his part, Count 2 of the indictment was nolled and Count 1 and the information were tried together. The jury brought in a verdict of guilty on the former, of not guilty on the latter. The court gave Annunziato the maximum prison sentence, one year, and imposed a fine of $2,500 plus costs of prosecution, 29 U.S. C.A. § 186(d).

The Government's proof on Count 1 was presented primarily through five employees of the Terry company, hereafter Terry, whose testimony can be summarized as follows:

(1) Walter Haas was timekeeper on the Bridgeport job, identified as Job No. 719, during June and July, 1957. He worked in a trailer, with a small office at one end, the other end open, and a door between. He first saw Annunziato on an occasion when the latter said "in a very loud voice" to Van Dommellen, the Terry superintendent, and to Frattini (later identified as the master mechanic), that "The job was to be covered — the letter of the contract was to be covered by regarding the handling of all the operating machines whereby the operating local was under their jurisdiction," and that the contract would be enforced "Right to the `T.'" A week or two later Annunziato appeared in the trailer and asked whether Mayhew, Terry's general superintendent who was located in New York, was on the job site. Haas said Mayhew was not but was expected. Mayhew arrived in the office with a Mr. Wolf, chief estimator, also from New York. When Haas saw Annunziato approaching, he left the office. He saw and heard Mayhew attempt to introduce Wolf; Annunziato declined the proffer, saying "This ain't no social call," whereupon Wolf also left the office. Haas then saw Annunziato pick up a small manila envelope from a table in the office.

(2) Arthur Van Dommellen, field superintendent of the Bridgeport job, recalled that late in June or early in July, 1957, Annunziato came into the trailer office and asked if someone from New York was there to see him. Van Dommellen answered "There's nobody here now, but I expect Mr. Mayhew later." Later Annunziato returned; Van Dommellen met him outside the trailer and told him Mayhew and Wolf were in the office if Annunziato wanted to see them. He did.

(3) William ("Bill") Mayhew was in general charge of all Terry construction projects. In June, 1957, the president of Terry was Harry Terker, deceased at the time of the trial. Mayhew was permitted to testify over objection that in the summer of 1957, on a day before he was scheduled to make a trip to New Haven, Harry Terker gave him a small manila envelope to deliver to the business agent for the operating engineers at Bridgeport. Mayhew asked the purpose; Harry Terker replied "It's for a commitment that I have made." When Mayhew demurred, Terker said, "Well, I have made the commitment, and I would like to keep up with it, and I would like you to do it, to take it with you, since you are going to New Haven." Arriving at Bridgeport, Mayhew and Wolf entered the trailer office. Annunziato came in and identified himself; Mayhew sought to introduce him to Wolf and proposed going out for a cup of coffee. Annunziato "said that he had not come for a social call; he was not interested in going for coffee." Mayhew handed the small envelope to Annunziato, who put it in his pocket. The envelope was about half an inch thick and flexible.

(4) Ralph Cohen was comptroller of Terry. He identified a Cash Voucher dated June 28, 1957, for $300, bearing the name "B. Mayhew" at the top and reading "Job #719, Sundries." It also bore the legend "Receipt of above is hereby acknowledged," with Cohen's initials. If in fact Cohen had given the money to Mayhew, he would have made Mayhew sign the receipt; instead Cohen had put it in an envelope and given it to Harry Terker. Cohen was allowed to testify, over objection, that Harry Terker had told him to draw the petty cash "For Mr. Mayhew's use to pay somebody" on the job.

(5) Richard Terker, son of Harry Terker, had been secretary and treasurer of Terry; after his father's death he became president. He was allowed, over objection, to testify to a luncheon conversation with his father late in June or early in July, 1957. The father informed the son "that he had received a call from Mr. Annunziato" and "that he had been requested by Mr. Annunziato for some money on the particular project in question, the Bridgeport Harbor Bridge. I asked him what he intended to do, and he had agreed to send some up to Connecticut for him." Cross-examination developed that the sum of money mentioned was $250.

Annunziato's Appearance Before the Grand Jury.

Appellant's first ground of appeal requires a statement of the proceedings prior to the indictment. Annunziato was summoned before a grand jury, first on September 16 and 17, 1959, and again on May 25, 1960. He claims that on neither occasion was he advised of his right to remain silent under the Fifth Amendment; and contends the indictment should therefore be quashed. We find it unnecessary to consider the legal issue, see United States v. Scully, 2 Cir., 1955, 225 F.2d 113, certiorari denied 1955, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788, since the factual premise is wanting. The transcript, which, of course, was not available to defense counsel, shows the prosecutor did advise Annunziato of his right to remain silent before taking him into the grand jury room on September 16, 1959, and on Annunziato's later appearance, he claimed the privilege with the very first question asked and repeated the claim, sustained by Judge Anderson when Annunziato was later taken before him, with every question that could possibly be incriminating.

Voir Dire of the Panel.

Moving to the trial, appellant criticizes the court's refusal, on the voir dire of the panel, to put a question, requested by him, whether any of the panel were members of or contributors to any organization having law enforcement as its object. He relies on Beatty v. United States, 6 Cir., 1928, 27 F.2d 323 and Bailey v. United States, 5 Cir., 1931, 53 F.2d 982, holding that defendants accused of operating stills during the prohibition era should have been allowed to inquire into membership of veniremen in a prohibition enforcement society, since an affirmative answer would have supplied information permitting more effective use of peremptory challenges. We are not required to determine whether or not we would follow those cases if the question which the judge here refused to put had dealt with a special interest of the veniremen in enforcing the particular type of law under which the defendant had been indicted; Annunziato cast his net too wide. The petit criminal jury has, of course, moved from its historic origins, 2 Pollock & Maitland, History of English Law 644-656; Plucknett, A Concise History of the Common Law, 120-129, but hardly so far that government owes a defendant charged with crime an opportunity to discover whether a prospective juror has the general interest in law enforcement which is every citizen's responsibility.

Hearsay Objections.

Our statement of the evidence has surely presaged another and more serious set of attacks — alleged violations of the hearsay rule. Appellant asserts this with respect to Mayhew's testimony that Harry Terker asked him to take the money to Bridgeport in order to keep a commitment that Terker had made to Annunziato, to Cohen's testimony that Harry Terker told him to draw $300 "For Mr. Mayhew's use to pay somebody" on the Bridgeport job, and, most importantly, to Richard Terker's account of his luncheon talk with his father.

We need not tarry long over the first two statements. These fall so clearly within Professor Morgan's sixth class, "Cases in which the utterance is contemporaneous with a nonverbal act, independently admissible, relating to that act and throwing some light upon it," A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 236 (1922), see Beaver v. Taylor, 1863, 1 Wall. 637, 642, 17 L.Ed. 601; Lewis v. Burns, 1895, 106 Cal. 381, 39 P. 778; Shapiro v. United States, 2 Cir., 1948, 166 F.2d 240, 242, certiorari denied 1948, 334 U.S. 859, 68 S.Ct. 1533, 92 L. Ed. 1779; McCormick, Evidence (1954), pp. 586-587, that we do not need...