Colella v. United States, 6513.

• Decision Date: 21 April 1966
• Docket Number: No. 6513.,6513.
• Citation: 360 F.2d 792
• Parties: Angelo COLELLA, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

360 F.2d 792 (1966)

Angelo COLELLA, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6513.

United States Court of Appeals First Circuit.

Heard February 9, 1966.

Decided April 21, 1966.

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Albert L. Goldman, Boston, Mass., for appellant.

Wallace H. Johnson and Peter R. Richards, Attorneys, Department of Justice, with whom Fred M. Vinson, Jr., Asst. Atty. Gen., was on brief, for appellee.

Before ALDRICH, Chief Judge, and MARIS^* and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from a judgment of the District Court for the District of Puerto Rico, following jury trial in a criminal action alleging violations of Section 501(c) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501(c).¹

The indictment contained six counts, similar except in amounts of money and in the description of the particular manner of commission of the crime alleged. Count One alleged that:

"* * * the defendant herein, while employed by the International Union of Electrical, Radio and Machine Workers (IUE) AFL-CIO, a labor organization within the meaning of the Labor Management Reporting and Disclosure Act of 1959 (29 U.S.C. 402(i) and (j)), embezzled, stole and unlawfully and willfully abstracted and converted to his own use, monies and funds belonging to said labor organization, approximately $174.30, which monies and funds were obtained by the defendant herein while acting as such employee on behalf of the said labor organization, in the following manner:

"The defendant Angelo Colella falsified vouchers to be reimbursed for hotel expenses incurred while allegedly staying at the La Rada Hotel, Santurce, Puerto Rico, during the month of March, 1961, falsely showing expenses to be $159.35 and $194.70, when he well knew that the true expenses incurred were in the amount of $179.75. He received payments from the aforementioned labor organization in accordance with the referred falsified vouchers."

The other counts similarly alleged other amounts totalling $2,910.67, obtained by falsifying vouchers for hotel expenses and automobile rentals.

Defendant, an experienced labor union organizer, currently President of the Congress of Industrial Organizers, was asked by the then Secretary-Treasurer of IUE, Alvin Hartnett, to go to Puerto Rico in the spring of 1961 to stave off a threat from allegedly communist forces to take over IUE's local unions, to settle a major strike, to resolve a dispute among officers of IUE's largest local, to consider the merits of an internal administrative reorganization, and generally to improve IUE's image in Puerto Rico.

Defendant went to Puerto Rico, arriving in late February 1961, and staying until June. His accomplishments were not inconsiderable. He helped bring about the affiliation with IUE of five locals; participated in two strikes and settlements that were favorable for IUE; helped in two other negotiations; advised on grievances with two other companies; helped resist raids from hostile unions in two other cases; and, in the opinion of one witness, improved the public image of IUE in Puerto Rico.

During this period, defendant testitified that he spent substantial sums in paying for lunches and dinners of organizers, feeding workers on picket lines, paying for medicine for some, paying for meetings and conferences. He had kept no records and was unable to be specific as to amounts. Others corroborated the fact that he frequently paid for food and drinks without attesting to precise amounts. He also covered the expenses of a several weeks' stay of members of his family in Puerto Rico, which, he said, had been authorized by the Secretary-Treasurer, as an inducement to persuade him to stay in Puerto Rico. A rough total of amounts which defendant testified he spent for his own board and lodging, for other union purposes, and for his family, is in excess of $4,000.

He made no effort to submit vouchers for reimbursement based on his actual expenditures but, instead, the government proved and he freely admitted that he inflated or fabricated hotel bills and fabricated car rental bills to serve as a basis for his reimbursement. Defendant testified that he followed this course pursuant to long standing instructions of Hartnett, IUE's Secretary-Treasurer, to recover monies spent for liquor, for payments to picket captains, and for other purposes "which could not be covered by strike relief" by inflating hotel or motel bills. Some ten other witnesses testified to having pursued this practice, with six of them attributing the instructions to do so to Hartnett.

The existence of such instructions was denied by Hartnett. Both the President, James Carey, and the Comptroller denied any knowledge of such a practice. In fact, defendant testified that Carey had later strongly criticized him for falsifying vouchers. There was evidence of an internal fight between Carey forces and Hartnett forces, with Hartnett using his alleged power to approve falsified vouchers as a device to reward his supporters and punish his opponents. Finally, there was evidence that defendant disliked the practice he and others had engaged in and sought to obtain a higher per diem allowance for organizers so that resort to subterfuge would not be necessary.

This summary of a hard fought fourteen day trial is admittedly incomplete and, to the extent that it favors either party, favors defendant. The jury returned verdicts of guilty on each count, imposition of sentence was suspended and the defendant placed on probation for three years. On appeal he urges reversible error at every stage from an arrest and seizure preceding the indictment to the instructions which the district court gave the jury. We have carefully reviewed the record of nearly 700 pages, the numerous exhibits, and the extensive briefs of counsel. We find no reversible error.

I

The first area of alleged error lies in the acquisition and use of evidence leading to the indictment. Defendant argues that there was no probable cause for the complaint and the arrest warrant against him; that the search and seizure incident to his arrest were therefore unlawful; that certain testimony of one Mendez before the grand jury resulted from the search; and that therefore the indictment was invalid.

The complaint contained the following allegations: (1) that defendant was an employee of IUE; (2) that he willfully and unlawfully embezzled and converted monies of IUE; (3) that he did so by falsifying an expense statement at a named hotel; (4) that the charge was based on an FBI investigation; and (5) that a named person, whose address was the named hotel, was a material witness. The warrant duplicated this information, except that it did not allege that IUE was defendant's employer, that there had been an FBI investigation, or that there was a material witness. At 2:03 a. m., on the day following the issuance of the warrant, defendant was arrested at a hotel, the officers announcing that they had a warrant for defendant's arrest, searching him, and taking a writing tablet and envelope lying on an open suitcase which defendant identified as his personal papers. The officers, after some scrutiny, stated that they were taking these as incidental to the arrest. No other search was made.

We hold that both the complaint and the warrant were valid. The averments of the complaint alleged the commission of a crime, the means used to commit it, the means used to discover it, and the name of a material witness. This is far more than the meager conclusory averment in Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, cited by defendant, and even more complete and specific than the averments in Jaben v. United States, 1965, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed. 2d 345. The defendant attacks the complaint for its failure to allege directly a fiduciary relationship, criminal intent, or the receipt of money by him pursuant to the false statement. To adopt such arguments would be to indulge in an overtechnical analysis of the complaint. Cf. United States v. Ventresca, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. What we have said about the complaint is equally applicable to the warrant, which charged both a crime and the means of committing it, in language similar to that of the complaint, omitting only the allegations of employment, and of the nature of the supporting evidence.

There remain the questions relating to the seizure of the writing tablet and envelope and the relation of any information thereby obtained to the proceedings of the grand jury. The writing tablet contained a page of notes of defendant's conversations with one Mendez and one Ugarte, employees of the IUE office in Puerto Rico, which reported them as saying that they had followed Hartnett's instructions (presumably as to falsifying vouchers) through fear of losing their jobs. The envelope contained intra-union correspondence in which the President, acting on an accounting report, called on various members (including defendant) to explain or justify their expense accounts and their replies, together with mimeographed reports of meetings on this investigation and newspaper clippings.

We do not reach the question whether these papers, as argued by the government, were instrumentalities or fruits of a crime, or, as defendant contends, were purely evidentiary. For there is no showing that the fruits of the search were used, directly or indirectly, against defendant. The papers seized were not presented to the trial jury, being merely marked for identification by defendant. The alleged taint relates only to the proceedings of the grand jury and is based on (1) the fact that among the papers seized was one sheet with defendant's notes of his conversation with Mendez; (2) the fact that although Mendez had refused to answer questions of government agents before defendant's arrest and the seizure...