U.S. v. Traitz

Decision Date22 March 1989
Docket NumberNo. 88-1056,No. 88-1055,No. 88-1058,No. 88-1048,No. 88-1050,No. 88-1059,No. 88-1071,No. 88-1049,Nos. 88-1048,No. 88-1155,No. 88-1152,No. 88-1057,No. 88-1154,No. 88-1153,88-1048,88-1049,88-1050,88-1055,88-1056,88-1057,88-1058,88-1059,88-1071,88-1152,88-1153,88-1154,88-1155,s. 88-1048
Citation871 F.2d 368
Parties130 L.R.R.M. (BNA) 3035, 111 Lab.Cas. P 11,094, 27 Fed. R. Evid. Serv. 1311 UNITED STATES of America v. Stephen TRAITZ, Jr. Appeal of Stephen TRAITZ, Jr., Appellant inAppeal of Robert CROSLEY, Appellant inAppeal of Michael DALY, Appellant inAppeal of Michael MANGINI, Appellant inAppeal of Mark "Buddy" OSBORN, Appellant inAppeal of Stephen TRAITZ, III, Appellant inAppeal of Joseph TRAITZ, Appellant inAppeal of Richard SHOENBERGER, Appellant inAppeal of Robert MEDINA, Appellant inAppeal of Daniel J. CANNON, Appellant inAppeal of Ernest WILLIAMS, Appellant inAppeal of Edward HURST, Appellant inAppeal of James NUZZI, Appellant into 88-1050, 88-1055 to 88-1059, 88-1071 and 88-1152 to 88-1155.
CourtU.S. Court of Appeals — Third Circuit

Edward J. Daly, Law Offices of Edward J. Daly, Philadelphia, Pa., for appellant Michael Daly.

Thomas Bergstrom (argued), Philadelphia, Pa., for appellants Michael Mangini, Ernest Williams and Edward Hurst.

Steven A. Morley, Morley & Farber, Philadelphia, Pa., for appellant Mark "Buddy" Osborn.

Stephen Robert LaCheen, Anne M. Dixon, Stephen Robert LaCheen & Associates, Philadelphia, Pa., for appellants Stephen Traitz, III, Joseph Traitz and Richard Shoenberger.

Creed C. Black, Jr., (argued), Kathy Yourkowski, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellant Robert Medina.

Ronald F. Kidd (argued), Teresa N. Cavenagh, Duane, Morris & Heckscher, Philadelphia, Pa., for appellant Stephen Traitz, Jr.

Robert E. Madden, Philadelphia, Pa., for appellant Robert Crosley.

Jack A. Meyerson (argued), Philadelphia, Pa., for appellant Daniel J. Cannon.

Dennis H. Eisman (argued), Philadelphia, Pa., for appellant James Nuzzi.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Richard L. Scheff (argued), Asst. U.S. Atty., Chief, Corruption, Labor Section, Ronald K. Noble, Asst. U.S. Atty., for appellee U.S.

Before GIBBONS, Chief Judge, SEITZ, Circuit Judge, and FARNAN, District Judge. *


SEITZ, Circuit Judge.

On October 23, 1986, appellants Stephen Traitz, Jr. ("Traitz, Jr."), Edward P. Hurst ("Hurst"), Michael Mangini ("Mangini"), Robert Crosley ("Crosley"), Michael Daly ("Daly"), Daniel Cannon ("Cannon"), Mark Osborn ("Osborn"), Robert Medina ("Medina"), Ernest Williams ("Williams"), James Nuzzi ("Nuzzi"), Stephen Traitz, III ("Traitz, III"), Joseph Traitz ("Traitz"), Richard Schoenberger ("Schoenberger") and six other individuals were indicted. On June 18, 1987, the grand jury returned a sixty-six count superseding indictment which charged violations of the Racketeer Influenced Corrupt Organization Act ("RICO"), RICO conspiracy, mail fraud, solicitation of kickbacks to influence the operation of an employee benefit plan, embezzlement from an employee welfare plan, Hobbs Act extortion, collection of credit and claims by extortionate means, interstate travel in aid of racketeering and embezzlement of union funds in contravention of 18 U.S.C. Secs. 1962(c), 1962(d), 1341, 1954, 664, 201, 1951, 894, 1952 and 29 U.S.C. Sec. 501(c), respectively.

Appellants were tried and convicted on various counts of the superseding indictment and duly sentenced. This appeal followed.


The district court had jurisdiction based on alleged violations of federal criminal statutes. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982).


Due to the complex nature of this appeal we outline the structure of this opinion. After setting forth both a factual overview and, in a general way, the facts relating to the specific charges, those arguments that were raised in common by several appellants will be resolved. Thereafter, the contentions asserted by individual appellants that are unique to their circumstances will be determined.

On September 23, 1985, listening devices and the interception of communications in the Business Manager's Office and Business Agent's Meeting Room at the offices of the Roofers Union Local 30/30B were authorized. Electronic surveillance continued through February 26, 1986. The fruits of this surveillance and other material eventuated in the indictments and convictions here involved.


Appellants Medina and Traitz, Jr. were found guilty of mail fraud in violation of 18 U.S.C. Secs. 1341 and 1342. The facts concerning this charge are as follows. On June 21, 1985, Medina, while operating an automobile leased for him by the Roofers Union, was involved in a hit-and-run accident. After the accident, Medina took the vehicle to the outskirts of Philadelphia and set it on fire. Medina and Traitz, Jr. then, using the mails, reported to their insurance carrier that the car had been stolen resulting in a payment of $18,075.00 by the insurance company.


On October 16, 1985, Medina was arrested on Pennsylvania state charges for aggravated assault in connection with the motor vehicle accident of June 21, 1985. Thereafter, conversations were intercepted in which Traitz, Jr. said that he was going to "buy Medina out of trouble" and was going to get the "right" judge for the case. When Medina was released on his own recognizance, Traitz, Jr. acknowledged having "arranged" for Medina's release with the Bail Commissioner Margaret McCook. Later, Traitz, Jr. gave $300 to Philadelphia Police Officer John McCook, the husband of the Bail Commissioner, and said to John McCook, "give that [the $300] to your wife."

In addition, a conversation on November 11, 1985, among Traitz, Jr., Crosley, Hurst and Mangini, was intercepted in which the men were discussing giving "Christmas" envelopes, containing cash, to various public officials. This discussion was followed by several conversations in November in which Traitz, Jr. and other individuals created the procedure by which the "gifts" were to be made. In order to assure secrecy, the "gift" envelopes would not contain the names of the recipients but would bear a number of hash marks corresponding to the total number of hundreds of dollars contained in the envelope.

On December 6, 1985, Traitz, Jr. met with Tommy Brown. Traitz, Jr. gave Brown 21 envelopes and a list of names of the public officials to whom the envelopes were to be delivered, including how large a "gift" each person was to receive. On December 17, 1985, Brown reported to Traitz, Jr. that he had delivered 19 of the 21 envelopes; Brown returned the undelivered envelopes to Traitz, Jr. Other public officials traveled to the offices of the Roofers Union to collect the "gifts" intended for them. In addition, appellant Nuzzi traveled from Pennsylvania to New Jersey to deliver "gifts" to Sheriff William Simon of Camden, New Jersey and his Deputy, Norbert Zuchowski.


Evidence presented at trial established that Traitz, Jr. gave Bernard J. Dillon ("Dillon"), Area Director of the Occupational Safety and Health Administration (OSHA), money in return for various favors. Dillon engaged in inspections of non-union job sites in order to harass the non-union employers and assisted, at the request of Traitz, Jr., a retired Philadelphia Police Officer to fill out an employment application for OSHA containing false information.


Beginning in September, 1985, Local 30B contractors (also called "principals") were summoned to the offices of the Roofers Union. The purpose of the meetings was to institute a "new policy" and to "request" principals to pay fines for noncompliance with union rules. The new policy required principals to report at least 100 hours of work per month (the "100 hour plan"), thereby mandating a minimum union payment of $60, in contrast to the previous policy which did not contain a minimum reporting requirement. In addition, non-union contractors were summoned to the union offices to induce them to become union-contractors.

The meetings with the contractors were shown to be confrontational and intimidating in that the principals were often threatened and physically abused by union officials--typically the union business agents who were ex-amateur or ex-professional boxers.

1. Facial Sufficiency of the October 24, 1985 Order

The October 24, 1985 order (the "Order"), authorizing electronic surveillance of the Business Manager's Office and the Business Agents Meeting Room of the Roofers Union, was the second of five interception orders signed by the district judge then having responsibility for such matters. On appeal, there is no argument regarding the validity of the other four surveillance orders. The Order, however, was missing page three when it was signed by the district judge. Appellants claim that it was error for the district court to refuse to suppress the fruits of the electronic surveillance during the period when the Order was in effect.

The discrete question presented on appeal is whether the absence of page three and the information that would have been contained therein, renders the Order facially insufficient and therefore invalid under 18 U.S.C. Sec. 2518(10)(a)(ii) 1. Appellants contend that the Order was deficient in that the requirements of Sec. 2518(3)(c) and (d) as well as Sec. 2518(4)(d) were not satisfied requiring the suppression of the fruits of the Order. We will examine the merits of each of these contentions in turn.

a. Requirement that Sec. 2518(3) Findings be in Writing

Under 18 U.S.C. Sec. 2518(5) "[e]...

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