United States v. Boyle, 72-1749.

• Decision Date: 16 July 1973
• Docket Number: No. 72-1749.,72-1749.
• Citation: 482 F.2d 755
• Parties: UNITED STATES of America v. W. A. BOYLE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

482 F.2d 755 (1973)

UNITED STATES of America v. W. A. BOYLE, Appellant.

No. 72-1749.

United States Court of Appeals, District of Columbia Circuit.

Argued March 2, 1973.

Decided July 16, 1973.

Certiorari Denied December 3, 1973.

COPYRIGHT MATERIAL OMITTED

E. Barrett Prettyman, Jr., Washington, D. C., with whom Peter F. Rousselot, Washington, D. C., was on the brief, for appellant.

Charles F. C. Ruff, Sp. Asst. Atty. Gen., Washington, D. C., with whom Thomas H. Henderson and Thomas L. Crowe, Attys., Dept. of Justice, were on the brief, for appellee.

Before McGOWAN, TAMM and WILKEY, Circuit Judges.

Certiorari Denied December 3, 1973. See 94 S.Ct. 593.

WILKEY, Circuit Judge:

Appellant W. A. Boyle is the former president of the United Mine Workers of America. Convicted on thirteen counts as an officer of the UMW of having (1) consented to unlawful contributions of labor union funds to the campaigns of candidates for federal office,¹ (2) unlawfully converting union funds for the purpose of making such a contribution,² and (3) conspired with others to commit these two offenses,³ appellant seeks reversal under a number of theories.⁴ We conclude that appellant's conviction on all charges was proper and affirm the District Court.

I. Facts

Labor's Non-Partisan League (League) was created in 1936 by the Congress of Industrial Organizations (CIO) to act as its legislative and lobbying arm. In 1940 the UMW left the CIO to become a separate entity. At that time the League as originally constituted disbanded, only to be immediately reconstituted as the lobbying and information branch of the UMW alone.

In persons and in property the League and the UMW have been closely identified. Since 1940 the president of the League and the current president of the UMW have been one and the same. From the time of the separation in 1940 until the time of the indictment in this case the League received all but a small portion of its funds from the UMW's general treasury.⁵

In 1947 Congress passed legislation which prohibited some forms of political contributions by labor organizations to candidates for federal office.⁶ Following the Act's passage the League made no more contributions to federal candidates until the mid-1960's.

In 1963 appellant Boyle became president of the UMW and automatically chairman of the League. In 1966 the UMW began again to be solicited for contributions by candidates for federal office, chiefly those who had recently discovered the "testimonial dinner" as a fountain of funds. Boyle knew of and authorized contributions which were made out of the League's treasury for this purpose, as the trial jury found.⁷

Robert Howe, director of the League for a part of the time in question, testified that he was concerned that contributions by the League might violate 18 U.S.C. § 610, which makes it "unlawful . . . for any labor organization to make a contribution" to a federal campaign. He testified that he and James Kmetz, another employee and Howe's successor as director, sought to hide the source of these funds by having checks on the League's account made out to cash, depositing the proceeds in their personal accounts, and then making the contributions with a personal check. The evidence is sufficient to permit a conclusion that Boyle knew and approved of this practice, that he knew of Howe's fears that the contributions were illegal, and that he knew and approved of efforts to conceal the source of the funds involved.

Monthly statements of these transactions were prepared. Appellant's executive secretary, Suzanne Richards, instructed that only one copy of this be sent to Boyle's office and that no copies be kept in the files of the League. Richards also instructed Howe to destroy any evidence that might incriminate Boyle or the UMW.

In the spring of 1969 the League's treasury was depleted. At the request of Kmetz, Boyle authorized a transfer of $5,000, which he characterized as a "loan," from the UMW treasury to the League. The jury concluded that this amount was actually transferred to facilitate the making of a political contribution by the League.⁸ This transfer was ratified by the International Executive Board of the UMW over two years after the "loan" in question.

II. Legality of the Political Contributions

As of the date of the indictment in this case, 18 U.S.C. § 610 (1970) provided in relevant part:

It is unlawful for . . . any labor organization to make a contribution or expenditure in connection with . . . a federal election.

Every . . . officer of any labor organization, who consents to any contribution or expenditure by the . . . labor organization . . . in violation of this section, shall be . . . fined and/or imprisoned.

The trial court found that the contributions described above constituted a violation of this Act, and that appellant Boyle was subject to fine and imprisonment for consenting to these contributions. Appellant contends that his conviction under this statute was invalid because: (A) the Government did not allege or show and the jury did not find that the funds contributed came from an "involuntary" source prohibited under the statute, and (B) the statute is an unconstitutional infringement on the union's freedom of speech.

A. The Need to Show an "Involuntary" Source.

On its face § 610 requires that the Government establish five distinct elements in order to prove a violation. The Government must prove beyond a reasonable doubt that (1) a labor organization (2) made a contribution or expenditure (3) in connection with a specified federal election (4) for purposes of active electioneering and that (5) the defendant officer consented to the making of the contribution. Appellant does not contest that the jury was properly charged on these elements, nor that there was sufficient evidence to permit the jury to find that these elements had been proved.

Appellant contends, however, that an additional element must be established to support a guilty verdict under § 610. He argues that there is a violation if, and only if, money ultimately contributed to a political candidate was collected by that union or organization through payments "actually or effectively required for employment or union membership."⁹ Such funds would, for example, be money collected from members in the form of dues or assessments and may be characterized as being given "involuntarily" to the union or affiliated organization in order for a person to remain a member of the union. Appellant contends that only contributions of such "involuntary" funds are forbidden, that the union is free to contribute any other funds it controls if those funds come from a "voluntary" source. Such a voluntary source, according to appellant, could be contributions by union members not required for membership or gifts to the union from outside sources.

Appellant's argument is based on language in the Supreme Court's decision in Pipefitters v. United States.¹⁰ That decision held that not all political contributions by labor organizations are prohibited by § 610, but only those derived from funds which "were actually or effectively required for employment or union membership."¹¹ This additional element of the offense in Pipefitters was found by the Supreme Court not in the express language of the statute, but rather in the legislative history of the enactment. The opinion reversed the convictions because the "jury instructions failed to require proof of this essential element for conviction . . ."¹² Appellant argues that in Boyle's case, as in Pipefitters, the jury was not instructed and did not find that the contributions came from an "involuntary" source.

We believe, however, that appellant misconstrues the import of the language relied on in Pipefitters. The Court there repeatedly emphasized that its discussion dealt with a separate, segregated fund in which there was "strict segregation of its monies from union dues and assessments."¹³ The Pipefitters fund was composed of contributions by union members that were not required for membership and which at least superficially did not appear to have been the product of a coercion. "Strict segregation," combined with the appearance that the funds were not coerced from union members, raised a presumption that the money contributed was derived from a "voluntary" source. Logically, when the union has taken the precautions necessary to make it appear that the funds were given voluntarily for use in political campaigns, the burden should be on the Government to prove the contrary.

In Boyle's case, though, contributions were made from funds derived from the general UMW treasury, which was composed predominantly of dues, assessments and other "involuntary" funds. The UMW made no effort to segregate dues and assessments from funds that might be legally contributed to political campaigns.

The legislative history of § 610 reveals Congress' primary concern that funds from a general union treasury not be available for federal political campaigns.¹⁴ The Court in Pipefitters explicitly interpreted the section as being designed to prohibit expenditures from the "general union treasury."¹⁵

The clear intent of § 610, as evinced in the legislative history and interpreted by the Supreme Court, is to permit expenditures from separate, segregated funds if the contributions to it were, in truth, voluntary, and to prohibit expenditures from a union's general treasury.¹⁶ If the Government proves that the source of the funds directed to a political contribution is the general union treasury, derived in part from dues and assessments, this is all that need be established on the question of voluntary or involuntary contributions.

This interpretation is the only one consistent with the policies underlying § 610. Appellant's contention, stripped of legalisms, is that the Government must show in all circumstances that the contributions could not have come from a "voluntary" source. Since the funds expended...