U.S. v. Gruttadauro

• Decision Date: 24 June 1987
• Docket Number: 86-1874,Nos. 86-1722,s. 86-1722
• Citation: 818 F.2d 1323
• Parties: 106 Lab.Cas. P 12,434, 22 Fed. R. Evid. Serv. 1665 UNITED STATES of America, Plaintiff-Appellee, v. Salvatore GRUTTADAURO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1323

818 F.2d 1323

106 Lab.Cas. P 12,434, 22 Fed. R. Evid. Serv. 1665

UNITED STATES of America, Plaintiff-Appellee, v. Salvatore GRUTTADAURO, Defendant-Appellant.

Nos. 86-1722, 86-1874.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1987.

Decided May 7, 1987.

As Amended on Denial of Rehearing and Rehearing En Banc June 24, 1987.

Michael B. Nash, Nash & Nash, Chicago, Ill., for defendant-appellant.

Louis M. Fischer, Appellate Section Criminal Div., Washington, D.C., for plaintiff-appellee.

Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

Salvatore Gruttadauro, a union business agent, was found guilty by a jury on four counts of wilfully receiving money from an employer in violation of 29 U.S.C. Sec. 186(b)(1) and (d) (1982). ¹ On appeal, Gruttadauro raises several objections to his conviction. Gruttadauro argues that: there was insufficient evidence for a conviction, the trial court's jury instructions were deficient, and the court erred in admitting, under Federal Rule of Evidence 404(b), evidence of his prior bad acts. Although we believe that Gruttadauro's 404(b) claim has merit, we conclude that the admission of this evidence was merely harmless error. We reject his other claims, and affirm his conviction.

I.

Gruttadauro was the business agent for Local 1 of the Laborers' International Union of North America, AFLCIO. His position entailed going to job sites to organize laborers. While at job sites, he would collect initiation fees and quarterly dues. In exchange for dues payments, Gruttadauro dispensed union membership cards.

The incidents giving rise to the indictment involve Gruttadauro and William Hach, president and sole stockholder of William Hach & Associates, Inc. Hach's company specializes in concrete restoration work. Hach testified that beginning in the fall of 1977, representatives of various unions began putting pressure on him to employ union workers. Hach testified that he wanted to avoid unionization of his employees, and wanted the unions to "get off [his] back."

In July 1981, Hach was contacted by a union that wanted to unionize his employees. Hach wanted to tell this union that his employees were already unionized. Consequently, Hach sought Gruttadauro's help, and paid Gruttadauro for five union cards. By acquiring the cards, Hach could keep his employees on the job, and avoid unionization of his employees. The employees named on the cards did not authorize the payment or provide the money for the "dues," and were not members of the union.

A similar scenario was repeated several more times, in the spring, summer, and fall of 1982. Each time Hach was asked, by other unions, to produce union cards at job sites. Hach would then contact Gruttadauro and pay him for union cards. These last three incidents, along with the July, 1981 transaction, led to his indictment for wilfully receiving money from an employer in violation of 29 U.S.C. Secs. 186(b)(1) and (d) (1982). ²

Gruttadauro's defense, based principally on cross-examination of Hach, and Hach's assistant, Joyce, was that he was fooled by Hach into believing that a collective bargaining agreement between Local 1 and Hach's company existed.

The record reflects, however, that Hach consistently rejected Gruttadauro's requests that he sign a collective bargaining agreement. Moreover, Gruttadauro never even gave Hach a copy of an agreement. Next to the union card numbers that allegedly were assigned to Hach's employees were the names of unknown persons.

The jury apparently rejected Gruttadauro's defense. He was found guilty of violating 29 U.S.C. Secs. 186(b)(1) and (d). The district court sentenced him to two years probation and levied a $22,000 fine. Gruttadauro timely appealed his conviction.

II.

Gruttadauro makes several challenges to the court's jury instructions. We believe that none of these challenges has merit.

Gruttadauro first challenges the failure of the district court to instruct the jury about the legality of "pre-hire" agreements. The court did not inform the jury of 29 U.S.C. Sec. 158(f), which expressly permits collective bargaining agreements in the construction industry even if there is no showing that a union has obtained majority support from the employees. The government's case was that Hach's employees had decided not to join a union, so that Gruttadauro's acceptance of money from Hach violated Sec. 186. Gruttadauro argues that the omission of a Sec. 158(f) charge deprived him of a fair trial, because had the jury known of pre-hire agreements, it would have concluded that one existed here.

Gruttadauro did not object to the failure to give such an instruction at trial. See Fed.R.Crim.P. 30. Because he did not object, we analyze Gruttadauro's claim on appeal under the stringent plain error standard. See United States v. Douglas, 818 F.2d 1317, 1320, (7th Cir.1987). We conclude that the failure to give this instruction probably had no impact on the jury's finding that the defendant was guilty, United States v. Windfelder, 790 F.2d 576, 583 (7th Cir.1986), and, therefore, was not plain error.

Furthermore, we note that Gruttadauro's trial defense was that he had been misled by Hach, and not that a pre-hire agreement existed. A defendant is entitled to his or her theory of defense only if the defendant has put forth the defense at trial. Douglas, at 1321. Because Gruttadauro did not rely on the existence of a pre-hire agreement as a defense, it was not error for the judge not to give the instruction.

Gruttadauro also argues that the district court erred in failing to instruct the jury in the court's instructions--as opposed to in the theory of defense instructions--that an oral collective bargaining agreement is valid. Gruttadauro argues that had the jury been instructed that as a matter of law oral collective bargaining agreements are valid, it would not have found him guilty. We do not believe that the district court committed error. Although the district court might have considered putting the instruction in the law section of the instructions, the failure to do so was not error. The court's instructions, taken as a whole, adequately instructed the jury as to the legality of oral collective bargaining agreements. See United States v. O'Malley, 796 F.2d 891, 897 (7th Cir.1986) (citations omitted).

Gruttadauro also challenges the district court's failure to instruct the jury on 29 U.S.C. Sec. 186(c)(4), the dues checkoff provision, which allows a union officer to receive dues from an employer as long as there is written authorization from each employee for the deduction and payments. The district court instructed the jury that "payments from an employer to a union are illegal with some exceptions that do not apply here."

The record shows that no evidence was presented as to the existence of a dues checkoff. Therefore, Gruttadauro was not entitled to have this instruction go to the jury. See United States v. Keegan, 331 F.2d 257, 264-65 (7th Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 57, 13 L.Ed.2d 37 (1964) (instruction on Sec. 186(c) exceptions properly withheld when no supporting evidence in record); see also Douglas, at 1321. ³

III.

Gruttadauro also challenges the admission of other crimes evidence that was admitted pursuant to Federal Rule of Evidence 404(b). ⁴ We believe that Gruttadauro is correct that the evidence of prior bad acts was wrongly admitted. However, in light of the overwhelming evidence in the record against Gruttadauro, we conclude that this admission was harmless error.

The other crimes evidence that is challenged consists of two other alleged contacts between Hach and Gruttadauro that were similar to the acts contained in the indictment. In October of 1977, Hach's company was doing restoration work at Marina City. The business agent of another local union came to the site and asked to see the employees' union cards. Hach contacted Gruttadauro for help. Hach paid Gruttadauro the union initiation fee for four employees, and in exchange Gruttadauro gave Hach four union cards. Gruttadauro sold Hach these cards even though Hach told the defendant he would not sign a collective bargaining agreement at that time.

Gruttadauro and Hach had no further contact for several years. During this interim, no Local 1 official visited Hach's job sites, and no Hach employee paid union dues. In the spring of 1981, Hach was again asked by other locals to employ union workers. Hach sought out Gruttadauro's help, and once again Gruttadauro sold union cards to Hach, even though Hach refused to sign an agreement. The government asserts that this evidence proves Gruttadauro's intent. The district court admitted it as being "relevant."

We use a four-part test, for crimes that do not require specific intent, to analyze whether the trial court correctly admitted evidence of a defendant's prior misconduct under Federal Rules of Evidence 403 and 404(b).

Admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue (i.e., such that 'the consequential fact may be inferred from the proffered evidence,' 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404 at 404-49 (1982)), (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

United States v. Liefer, 778 F.2d 1236, 1242 (7th Cir.1985) (quoting United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984)). We conclude that, because the first prong of the Shackleford test was not met, the evidence of prior misconduct should not have been admitted.

Evidence of prior bad acts is admissible to prove intent if intent...