687 F.2d 610 (2nd Cir. 1982), 900, United States v. LeRoy

Docket Nº:900, 1057, Dockets 81-1412, 81-1472.
Citation:687 F.2d 610
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kevin V. LeROY and John Hitchings, Jr., Defendants-Appellants.
Case Date:August 18, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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687 F.2d 610 (2nd Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin V. LeROY and John Hitchings, Jr., Defendants-Appellants.

Nos. 900, 1057, Dockets 81-1412, 81-1472.

United States Court of Appeals, Second Circuit

August 18, 1982

Argued May 26, 1982.

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[Copyrighted Material Omitted]

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Mervyn Hamburg, U. S. Dept. of Justice, Washington, D. C. (George H. Lowe, U. S. Atty., Kevin E. McCormick, Syracuse, N. Y., of counsel), for plaintiff-appellee.

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Eric M. Alderman, Syracuse, N. Y. (Emil M. Rossi, Alderman, Samuels, Jerry & Rossi, Syracuse, N. Y., of counsel), for defendant-appellant Kevin V. LeRoy.

Paul R. Shanahan, Syracuse, N. Y. (R. J. & P. R. Shanahan, Syracuse, N. Y., of counsel), for defendant-appellant John Hitchings, Jr.

Before LUMBARD, MOORE and OAKES, Circuit Judges.

LEONARD P. MOORE, Circuit Judge:

Kevin V. LeRoy and John Hitchings, Jr., appeal 1 from judgments of conviction entered in the United States District Court for the Northern District of New York, following a jury trial before the Honorable Lloyd F. MacMahon. LeRoy was convicted of one count of conspiracy to violate Section 1962(c) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d) (1976), and two counts of embezzlement of labor union funds, in violation of the Labor Management Reporting and Disclosure Act of 1959 ("Landrum-Griffin Act"), 29 U.S.C. § 501(c) (1976). Hitchings was convicted of two counts of making illegal payments to a labor union representative, in violation of 29 U.S.C. § 186(a) (1976) ("Taft-Hartley Act"), and two counts of perjury before the grand jury, in violation of 18 U.S.C. § 1623(a) (1976). Judge MacMahon sentenced LeRoy to three concurrent three-year terms of imprisonment and fined him $5,000. In addition, LeRoy was ordered by special jury verdict to forfeit his office in Local 214. Hitchings was sentenced to imprisonment for six months and fined $5,000 on each count, with the prison terms and fines to run concurrently. We find that the claims of error raised by Hitchings and LeRoy are without merit. Accordingly, we affirm the judgments of conviction.

This case stems from a comprehensive investigation by the Department of Justice into a pattern of racketeering activity on the part of representatives of Laborers International Union of North America, Local 214 ("Local 214"). Local 214 was the recognized union and the exclusive bargaining agent for laborers in the Oswego County, New York area. Evidence introduced before the grand jury and again at trial showed that union representatives had solicited kickbacks from area businessmen in the form of fictitious "travel" checks and payment for "no show" jobs.

Since the charges lodged against the two defendants, LeRoy and Hitchings, who have perfected appeals 2 are largely unrelated, we will discuss the evidence leading to each conviction separately. In fact, the only common denominator justifying a joint trial is that Local 214 and some of its members are involved.

LEROY

Kevin V. LeRoy served as vice-president of Local 214 from June 1, 1975 until May 30, 1978. During this period, he was placed on the payroll of several subcontractors and received compensation, although he performed no work for these companies.

In 1974, Timbello Enterprises ("Timbello"), a general contractor, hired union laborers to assist in the construction of a plant for the Miller Brewing Company in Oswego County. Co-defendant Ronald Scaccia, the union's business manager, assigned LeRoy throughout 1975 to the Timbello day labor crews as the job steward. Pursuant to an agreement with Timbello, LeRoy was permitted time off from the job to perform union business. Although Timbello officials

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consulted LeRoy on labor matters and he resolved the few labor disputes that arose, LeRoy was never observed performing physical labor. Nevertheless, he received "wages" from Timbello in the amount of $4,430.49. Raymond Garhartt, general superintendent of construction for Timbello, testified that LeRoy's retention on the payroll was to assure the company that there would be no serious labor disputes.

While LeRoy was on Timbello's payroll, he also received compensation from several other subcontractors involved in the plant's construction. He performed no work, however, for these subcontractors. On March 8 and 9, 1975, LeRoy was placed on the payroll of the Labarge Brothers Construction Company ("Labarge Brothers"), an excavation and pipe contractor, receiving "payroll" checks totalling $101.08. Irving J. Wood, an employee supervisor of Labarge Brothers, stated at trial that although LeRoy was hired to perform services for the company, he performed none. Similarly, from May 19, 1975 to January 20, 1976, LeRoy was on the payroll of the Gilbane Building Company, the managing contractor. In addition, from mid-June to mid-October, 1975, H. J. Benedict & Sons, a contractor involved in the installation of sewers and water lines at the construction site, placed LeRoy on its payroll and paid him a total of $1,230.42. Harry J. Benedict, owner of H. J. Benedict & Sons, testified that although he did not observe LeRoy performing any services for his company, he retained LeRoy on the payroll "to keep peace with the laborers."

In 1978, LeRoy was elected to the full-time position of the union's business manager. As business manager, LeRoy was responsible for assigning work to laborers, visiting job sites, and serving as chief negotiator on behalf of the union. He received a $38,000 annual salary and was reimbursed for expenses incurred while on union business. LeRoy also was authorized to charge the union for expenses associated with the operation of his private car in connection with union affairs.

In May, 1979, LeRoy made four purchases of gasoline from Fisher's Sunoco, a service station in Oswego County. The service station gave LeRoy four credit card receipts, totalling $63.25, for his purchases of gasoline. Fisher's Sunoco billed Local 214 directly, however, for the purchases. On June 4, 1979, the union paid Fisher's Sunoco $63.25. LeRoy, however, subsequently submitted the credit card receipts to Local 214 for reimbursement, and on June 19, 1979, he received a check made payable to himself, in the amount of $63.25, thus causing Local 214 to make a double payment for the gasoline.

On June 4, 1979, LeRoy brought his car for brake repairs to Barilla's AAA Service in Oswego County. Frank Barilla, the owner of the service station, charged LeRoy $250.27 for the repairs and issued an invoice in that amount. LeRoy paid for the work in cash and submitted the invoice to the union. Local 214 issued a check dated June 4, made payable to LeRoy, in the amount of $250.27.

On June 19, 1979, LeRoy obtained another check from Local 214's treasury, made payable to Barilla's AAA Service, in the amount of $212.24, to cover "car repairs and gas." LeRoy took the second check to the service station and informed the owner's wife, Lorraine Barilla, that it was issued to cover a payment that he had already made in cash. LeRoy requested Mrs. Barilla to cash the check and give him the proceeds so that he could be reimbursed for his cash outlay. Mrs. Barilla complied. Shortly thereafter, the Barillas searched their records for an invoice in the amount of $212.24 but were unable to locate one.

HITCHINGS

John Hitchings, Jr. managed Industrial Tank & Line Cleaning Company ("Industrial"), a contracting concern owned by Hitchings' father. Industrial was a non-union contractor and therefore was not required to make contributions to Local 214's pension and welfare funds when it hired union laborers. In May, 1979, Niagara Mohawk Power Corporation awarded Industrial a contract to clean an oil storage tank damaged by fire. Industrial commenced work

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on the tank in early August. Hitchings' work force consisted of his own men and several members of Local 214. Co-defendant Edward Cagnoli, a member of Local 214, was designated as the foreman for the project. Although Cagnoli never entered the storage tank to assist in the cleaning process, he received paychecks from Industrial totalling $469.73.

Cagnoli had also informed Lawrence Carr, another member of the union, about this job opportunity. Cagnoli told Carr that he would receive from Industrial a regular paycheck and a supplementary check for "travel expenses." Cagnoli directed Carr to endorse the second check and to turn it over to him. Members of Local 214 worked on the Industrial job for two pay periods, during which time Hitchings prepared a total of four checks in each of the laborers' names. Carr was given, however, only two of the checks; he never saw and did not endorse the other two that named him as payee.

Shortly after the cleaning project was completed, Ronald Scaccia, who at this time served as the local's full-time clerk, and Cagnoli visited the work site and spoke with Hitchings. 3 Hitchings announced that the work had been completed and that the laborers' wages would continue until the following evening. He then asked the two men, "Do you want those, ah, do you want those travels?" Scaccia replied affirmatively. Hitchings responded, "Let me give them to you."

Later in the conversation, Cagnoli asked Hitchings, "Will you have those checks?" Hitchings responded, "What, travel?" Cagnoli said, "Yeah, and mine." The "travel expense" checks that Cagnoli and Scaccia ultimately received from Hitchings totalled $938.41.

On January 10, 1980, Carr appeared before a grand jury investigating the activities of Local 214. Carr drove to the proceedings with Cagnoli who instructed him not to mention to the grand jury that he had worked on the storage tank cleaning project. After he was questioned by the grand jury, Carr advised Cagnoli that he had followed Cagnoli's directions. Cagnoli replied that Carr's denial was a mistake...

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