U.S. v. Toney, 74--1281

• Decision Date: 16 December 1975
• Docket Number: No. 74--1281,74--1281
• Citation: 527 F.2d 716
• Parties: 78 Lab.Cas. P 11,186 UNITED STATES of America, Plaintiff-Appellee, v. Oscar TONEY, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 716

527 F.2d 716

78 Lab.Cas. P 11,186

UNITED STATES of America, Plaintiff-Appellee, v. Oscar TONEY, Jr., et al., Defendants-Appellants.

No. 74--1281.

United States Court of Appeals Sixth Circuit.

Submitted March 10, 1975.

Decided Dec. 16, 1975.

F. Randall Karfonta, William J. Richards, Detroit, Mich., for defendants-appellants.

Ralph B. Guy, Jr., U.S. Atty., Peter J. Kelley, Detroit, Mich., Henry E. Petersen, Asst. Atty. Gen., Crim. Div., Dept. of Justice, Lee J. Radek, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before CELEBREZZE and McCREE, Circuit Judges and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This is an appeal by appellants Oscar Toney, Ira Kiner, Samuel Pruett and Rosedell Kiner from judgments of conviction in the United States District Court for the Eastern District of Michigan, Southern Division, on various counts of a ten count indictment. These appellants and others were charged in certain counts of the indictment with violation of Section 186(b)(1), Title 29, U.S.C. and Section 2, Title 18, U.S.C. Appellants Samuel Pruett, Ira Kiner, Rosedell Kiner, Oscar Toney and other representatives of Local 124, United Construction and Trades International Union, were charged in Count one with conspiracy to violate Section 186(b)(1) U.S.C., Title 29 and Section 371, Title 18, U.S.C. Local 124 was indicted as a principal defendant under all counts of the indictment.

The statute in question, Section 186(b)(1), Title 29, U.S.C. provides,

'(That) it shall be unlawful for any person to request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.'

Subsection (a) provides that it shall be unlawful

'for any employer or association of employers * * * to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value * * * to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce * * $

A violation of the statute occurs when a person: (1) requests, demands, receives or accepts a thing of value, (2) from an employer, (3) to any labor organization, its officers, or employees, which represents, seeks to represent, or would admit to membership, any of the employees of such employer, (4) who are engaged in an industry affecting commerce. It was stipulated by the parties that the employers involved herein were engaged in an industry affecting commerce.

The appellants were tried under the indictment to the Court without a jury. In proceedings preliminary to the trial counts eight and nine were dismissed and the Union, Local 124, was dismissed upon motion of the government. Findings of guilt of appellants were made in counts one to seven and ten as will be hereinafter discussed.

Specifically, counsel for appellants, in his supplemental brief, challenges the sufficiency of the indictment. This question was not raised by motion either before or at the trial and the sufficiency of the indictment cannot now be questioned unless it wholly fails to state an offense and does not apprise the appellants of the offenses with which they are charged.

'An indictment will be construed liberally in favor of its sufficiency where objection to it is first made after verdict or judgment.'

United States v. Norman, 6 Cir., 391 F.2d 212, 213. See also Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861.

We consider that the indictment advises the appellants of the charges made against them with sufficient definiteness to enable them to prepare their defense. It is alleged in paragraph 11 of the indictment that Local 124,

'represented, sought to represent and would have admitted to membership the employees of the aforesaid employers named in paragraphs 1 through 10 of this count.'

Counsel for the Government made a similar statement in his opening statement. We find no merit to this claim.

The trial judge decided the case and announced his findings of guilt from the Bench without opinion. Upon remand by this Court a memorandum opinion and a finding of facts were submitted which are now before us on this review.

Appellants Sam Pruett and Ira Kiner were found guilty as charged in Count two. This count charges Pruett and Kiner with aiding and abetting Local 124, United Construction and Trades International Union, a labor organization which

'represented, sought to represent and would have admitted to membership the employees of the aforesaid employers' (Phillip Aisner, Phillip Aisner Electric Company, William Foster, Foster Construction Company) (Par. 11, Count one of indictment)

with violating Section 186(b)(1), Title 29 and Section 2, Title 18, U.S.C. by unlawfully, willfully and knowingly requesting, demanding, receiving and accepting and agreeing to receive and accept money from said employers in the amount of seven hundred fifty dollars.

There is substantial evidence to support the finding of facts of the trial judge on Count two. We agree with his factual conclusion:

'Defendant Pruett requested, and both Pruett and defendant Ira Kiner received and accepted payment from Foster on behalf of Local 124, a labor organization which sought to represent or would admit to membership the employees of Eisner.'

Similarly, Count three charges that Calvin Stubbs and Sam Pruett aided and abetted Local 124 in violating the sections of the statutes in question by receiving and accepting and agreeing to receive and accept money from Ramled-Smokler, Inc. The finding of facts and factual conclusion of the trial judge are substantially supported by the evidence and we agree with his conclusion that Sam Pruett is guilty on Count three. Calvin Stubbs did not appeal and his conviction is not before us.

In Count four Sam Pruett and Oscar Toney were found guilty of aiding and abetting Local 124 in violating the sections of the statutes in question by demanding and receiving and accepting and agreeing to receive and accept money from William J. Fischer and Fischer Roofing Company. The trial judge made no finding of facts with reference to the conviction of Oscar Toney on the theory that he was deceased and the question was moot as to him. We will hereinafter consider this conviction. The finding of facts are amply supported by the evidence as to the conviction of Sam Pruett.

Ira Kiner was found guilty in Count five of aiding and abetting Local 124 in violating the statutes by requesting, receiving and accepting and agreeing to receive and accept money from William Williams and the G.U.I. Construction Company. This conviction too, in accordance with the finding of facts of the trial judge, is substantially supported by the evidence.

Likewise Ira Kiner was found guilty of the charge in Count six by requesting, receiving and accepting, and agreeing to receive and accept money from Albert Smith and the Guarantee Plumbing Company. We agree with the finding of facts of the trial judge that the evidence supports the conviction.

In Count seven Ira Kiner and Ralph Jones were charged with aiding and abetting Local 124 in violating the statutes by requesting, receiving and accepting, and agreeing to accept and receive money from Wallace Gugler and Richwall Tile Company. Ralph Jones was found not guilty and we find that the finding of facts as to the guilt of Ira Kiner is supported by the evidence.

Counts eight and nine were dismissed as hereinbefore stated.

Count ten is similar to the previous counts of the indictment in that it charges Rosedell Kiner, Sam Pruett and Ralph Jones with aiding and abetting Local 124 in violating the statutes herein involved by requesting, receiving, and accepting and agreeing to receive and accept money from the Ohio Plate Glass Company. Rosedell Kiner and Sam Pruett were found guilty and Ralph Jones was found not guilty. We agree with the trial judge's factual conclusion.

'Defendants Samuel Pruett and Rosedell Kiner, representing Local 124, requested money from Ohio Plate Glass Inc., an employer, on behalf of Local 124, a labor organization which...