484 F.2d 1289 (3rd Cir. 1973), 72-2173, United States v. Pecora

Docket Nº:72-2173.
Citation:484 F.2d 1289
Party Name:UNITED STATES of America, Appellant, v. Thomas J. PECORA, Appellee.
Case Date:August 31, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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484 F.2d 1289 (3rd Cir. 1973)

UNITED STATES of America, Appellant,


Thomas J. PECORA, Appellee.

No. 72-2173.

United States Court of Appeals, Third Circuit.

Aug. 31, 1973

Argued June 11, 1973.

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Richard L. Thornburgh, Sidney Glazer, Kenneth A. Bravo, Asst. Attys., U. S. Dept. of Justice, Pittsburgh, Pa., for appellant.

Robert E. Wayman, Wayman, Irvin, Trushel & McAuley, Pittsburgh, Pa., for appellee.

Before GIBBONS, ROSENN and HUNTER, Circuit Judges.


JAMES HUNTER, III, Circuit Judge:

Thomas J. Pecora was indicted under § 186(b) of the Labor-Management Relations Act which makes it an offense for an employee representative to receive from an employer "any payment, loan, or delivery of any money or other thing of value." 1 After a prehearing conference, the government and appellee entered into a stipulation as to the facts upon which the indictment was returned. This stipulation was attached to a motion to dismiss the indictment filed by appellee. The district court, 351 F.Supp. 164, granted appellee's motion, and the government has appealed. We must consider two questions: (1) Whether the government has the right to appeal the dismissal of the indictments under 18 U.S.C. § 3731; and (2)

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if it does, whether the district court was correct in its dismissal.

Appellee Thomas J. Pecora was the business manager of Local 1058, Construction and General Laborers and Materials Handlers. In July, 1968 the Thomas Pecora Testimonial Dinner Committee was formed to honor appellee for his involvement in the labor movement. Tickets to the dinner cost fifty dollars per couple and advertisements in a souvenir program cost three hundred dollars per page. Appellee was not a member of the committee nor did the stipulation state he instigated the planning.

The committee's efforts were fruitful. It sold $44,400.00 worth of tickets and advertising. Employers who employed some members of Local 1058 purchased $25,450.00 worth of tickets and advertising.

At the dinner, appellee received a new car worth $5,324.96, a color television set worth $448.00, a plaque, a citation from the International Union, and a 30-year pin. Following the dinner, after $11,871.72 was deducted to cover expenses, appellee received the balance of the proceeds: $26,755.32 in cash. It was the receipt of this cash and the gifts which the government claims violated § 186(b).

The district court decided that the stipulated facts did not constitute a violation of § 186 and dismissed the indictment. The court reasoned that the government had not alleged any facts which showed any direct involvement of appellee in the solicitation of contributions from the employers. 2 The court determined that a corrupt purpose had to be shown for an indictment to be valid under § 186 and that "the mere receipt of money" was not sufficient. The government challenges that interpretation.


* * *

Before we reach that issue, we must decide whether the government has the right to appeal the district court's order.


In 1971, 18 U.S.C. § 3731 was amended 3 to read, in pertinent part, as follows:

"§ 3731. Appeal by United States

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court, dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.


* * *

"The provisions of this section shall be liberally construed to effectuate its purposes."

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This amendment replaced a statute described by the Supreme Court as "a failure . . . an awkward and ancient Act." United States v. Sisson, 399 U.S. 267, 307, 308, 90 S.Ct. 2117, 2139, 26 L.Ed.2d 608 (1970). 4 Under the old statute, it is most probable that the government would not have been able to appeal the decision of the district court for the Supreme Court had stated in United States v. Brewster, 408 U.S. 501, 506, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) about the "old" § 3731:

"Under United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available. See United States v. Findley, 439 F.2d 970 (CA1 1971)."

As amended, however, Section 3731 provides that the government may appeal from an order or decision dismissing an indictment except where the double jeopardy clause prohibits it. United States v. Sisson, supra, 399 U.S. at 306, 307, note 61, 90 S.Ct. 2117. Because of the amendment of Section 3731, it would appear that the statement in Brewster is no longer an accurate statement of the law. The First Circuit, for example, in United States v. Findley, 439 F.2d 970, 973 (1st Cir. 1971) (cited with approval by the Supreme Court in Brewster), conceded that the defendant had not been formally placed in jeopardy when a district court judge considered a motion to dismiss an indictment based on stipulated

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facts before a jury has been impaneled.

We have a similar situation before us and we agree with the conclusion of the First Circuit that jeopardy has not...

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