United States v. Kramer
| Citation | 355 F.2d 891 |
| Decision Date | 25 April 1966 |
| Docket Number | 14963.,No. 14962,14962 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roy E. KRAMER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Matthew BREEN, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
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Anna R. Lavin, George J. Cotsirilos, Frank J. McGarr, William Gibbons, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, David Philip Shippers, Jr., Chicago, Ill., for appellee, Lawrence Jay Weiner, Asst. U. S. Atty., of counsel.
Before DUFFY and SWYGERT, Circuit Judges, and GRUBB, Senior District Judge.
Certiorari Granted in Part and Denied in Part April 25, 1966. See 86 S.Ct. 1366.
The consolidated appeals are taken from judgments of conviction based on jury verdicts of guilty as charged in Counts One and Two of a Ten-Count Indictment. Count One charged defendants Roy Edward Kramer and Matthew Breen with a violation of § 1951, Title 18 U.S. C.A., commonly known as the Hobbs Act. Kramer was the sole defendant in Count Two which states a violation of § 186(b), Title 29 U.S.C.A., § 302(b) of the Labor Management Relations Act of 1947, as amended in 1959.
The charges arose out of certain transactions which took place between one George E. Noldan, the owner of D. and N. Ironworks, Incorporated, of Niles, Illinois; Kramer, who was an officer of Local 393, Bridge, Structural Re-inforcing Steel and Ornamental Ironworkers, Riggers and Machinery Movers Union of Aurora, Illinois, and Breen who was an ironworks contractor. On June 1, 1961, Noldan's company obtained the sub-contract for the reinforcing structural and ornamental steel work on new construction in Aurora, Illinois, for the Illinois Bell Telephone Company. The building on completion was intended to house a local dial central office for customer dialing of local, toll, intra- and interstate telephone traffic. The sub-contract carried an oral stipulation that Noldan would have men on the job the following day or he would lose the contract immediately.
From the evidence of record the jury could find that on the day the sub-contract was let, the job supervisor for the general contractor on the construction and the foreman for Noldan's company went to see Kramer, the business agent and financial secretary and treasurer of Local 393, and asked him to furnish ironworkers to unload reinforcing steel for the Illinois Bell Telephone job. Kramer questioned why a local contractor did not get the job and told them that they could not have the men because 48 hours' notice was required.
It was Kramer's function to determine which men were to be sent on a given job. On other occasions, when an order was put in for ironworkers, the men were sent out the following day or sometimes in two days. No men were furnished in this instance and the general contractor had to unload the steel for the Illinois Bell Telephone job himself.
Early in June, one Ruckino DiCarlo, a concrete construction contractor who had known Noldan and Breen for more than ten years, contacted Breen on behalf of Noldan. Breen, a member of the local contractor's association, had been an unsuccessful bidder on the Illinois Bell Telephone construction. DiCarlo told Breen that Noldan had the ironwork contract and needed good men "to make out." Breen answered that he could do nothing since it was supposed to have been his job. After talking to Noldan, DiCarlo called Breen again to inquire what could be done for his friend. Breen said that if Noldan needed help "it is going to cost him." DiCarlo then contacted Noldan and once more called Breen. He was told by Breen that it would cost $3,000.
After this last telephone conversation, DiCarlo called on Breen to see if the amount could be reduced or made in partial payments. Breen stated that it would have to be in one lump sum. After contacting Noldan, DiCarlo again called Breen to ask if he would take $50 or $100 a week. Breen refused. It would have to be in one lump sum because it had to be divided among so many people. If Noldan paid $3,000, he would have good men and be able to make up the $3,000 by having good apprentices, good journeymen, and he would be able to use his own men and work shorthanded. If Noldan did not have $3,000, Breen said he shouldn't be in the business.
The ironworkers furnished to Noldan in June and July were poor in quantity and quality. On August 1, 1961, he called Kramer and said that he understood Kramer wished to see him. Noldan and Kramer met on August 2, 1961. Kramer said he knew he was giving Noldan a hard time and asked him what it would be worth to resolve his labor difficulties. Noldan told him that he could not afford to come up with $3,000. Kramer replied, "Well, this is the reason that we have adjusted the figure downwards." He inquired what Noldan could afford and stated that $400 or $500 would not be adequate since it would have to be split three or four ways. He further stated that his people had offered to make or adjust the amount downward to a figure of about $1,000, and wondered if Noldan could manage this sum. Noldan said he could not handle the amount in "one piece," but could pay it as a payroll expense of about $100 a week. Kramer stated that he would have to talk to his people. He called Noldan the next morning and informed him that the deal was all right with his people and that Noldan could lay off the men that were on the job, referring thereby to the slow ironworkers previously furnished.
Noldan again talked to Kramer on August 4 and August 7 and was assured that men would be available when necessary. The work progressed well and there was no further labor trouble. On August 18, Noldan again called Kramer to confirm the financial arrangements. His offer to pay by check was rejected; Kramer wanted it "fresh."
Noldan made three payments of $100 each on August 23, September 1, and September 22, 1961, respectively. On the date of the last payment, agents of the FBI confronted Kramer. After this date, the work proceeded very poorly.
The Illinois Bell Telephone building was not completed until six weeks after the scheduled completion date. Various delays in construction were caused by labor difficulties.
In the construction of the Illinois Bell Telephone building materials were used which came from sources outside of the State of Illinois. Included in these materials were cut stone and steel channels. The latter commodities were furnished to Noldan from inventories within the State of Illinois, which came from sources in Indiana on July 20, 1961.
Kramer contends that he has been charged with and convicted of offenses which are mutually inconsistent through performance of the same acts. He further challenges the sufficiency of the proof as to various elements of the offenses and claims that there was prejudicial error in evidentiary rulings, in the denial of severance for trial, in allowance of improper argument to the jury and in the charge to the jury. Breen challenges the sufficiency of the proof to sustain his conviction and also claims prejudicial error in evidentiary rulings, in the charge to the jury, in the denial of his request for severance and for waiver of the jury.
The contention as to the inconsistency of the charges of the indictment and the convictions is based on a misconception as to the scope of the misdemeanor offense under the Labor Act.
In the enactment of § 186(b), Title 29 U.S.C.A., the Labor Management Relations Act of 1947, as amended 1959,1 Congress did not intend to duplicate state criminal offenses. It was concerned with adequate criminal sanctions for conduct that would corrupt the collective bargaining process, including all forms of bribery and extortion. See Analysis of Labor-Management Reporting and Disclosure Act of 1959, 1959 U.S.Code Cong. & Ad. News, 2318, 2360, and Arroyo v. United States, 359 U.S. 419, 424-426, 79 S.Ct. 864, 3 L.Ed.2d 915 (1959).
The terms of the statute are not limited to receipt and acceptance which may be passive, but also penalize the request and demand of any payment. The words "request" and "demand" are not qualified. They contemplate a situation where an employee representative might resort to pressure to obtain payment by conduct that may be characterized as coercive. Arroyo v. United States, supra, at 426, 79 S.Ct. 864.
The Hobbs Act, § 1951, Title 18 U.S.C.A.2 proscribes interference with commerce by threats or violence. It comprehends the offense of extortion. § 186 (b) of Title 29 U.S.C.A., of the Labor Act, states a misdemeanor offense, independent and separate from that of the Hobbs Act felony. When the charge under the Labor Act is based on a coercive demand or request by a representative of employees, this conduct may also constitute extortion under the Hobbs Act. The fact that the same conduct may give rise to separate and independent violations of law does not render the charges or convictions based thereon inconsistent or mutually exclusive.
The sufficiency of proof has been challenged as to the element of interstate commerce under the Hobbs Act; the element of fear as part of the proof concerning extortion under the Hobbs Act; the status of Kramer as a "representative" of employees under the Labor Act; the interstate nature of the employment of the employees represented by Kramer for purposes of the Labor Act; and the willfulness of Kramer's conduct under the Labor Act. Breen also challenges the lack of substance of the totality of the evidence to sustain his conviction under the Hobbs Act.
The Hobbs Act prohibits conduct that "obstructs, delays or affects commerce or the movement of any article or commodity in commerce." The broad language contemplates interference...
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