United States v. Alsup, 15252.

• Decision Date: 04 April 1955
• Docket Number: No. 15252.,15252.
• Citation: 219 F.2d 72
• Parties: UNITED STATES of America, Appellant, v. Scottie Alton ALSUP, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

219 F.2d 72 (1955)

UNITED STATES of America, Appellant, v. Scottie Alton ALSUP, Appellee.

No. 15252.

United States Court of Appeals, Fifth Circuit.

January 28, 1955.

Writ of Certiorari Denied April 4, 1955.

Leo Meltzer, Atty., Dept. of Justice, Warren Olney, III, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Richard T. Watson, Asst. U. S. Atty., Jackson, Miss., for appellant.

R. W. Thompson, Jr., Gulfport. Miss., Wm. C. Taylor, Mobile, Ala., for appellee.

Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.

Writ of Certiorari Denied April 4, 1955. See 75 S.Ct. 572.

DAWKINS, District Judge.

Appellee was indicted in four counts for violation of the so-called Kickback Act, 18 U.S.C.A. § 874.¹ Count one of the indictment charged that appellee:

"* * * did then and there knowingly, wilfully, unlawfully, feloniously and fraudulently, induce and cause Joe Hancock, by means of intimidation of procuring dismissal from employment, to give up a part of the compensation to which said Joe Hancock was entitled as an employee of Ewin Engineering Company, at Kesler Air Force Base, in the Southern Division of the Southern District of Mississippi, said employee Joe Hancock being then and there employed in the construction of public work financed in whole by funds of the United States of America, said Ewin Engineering Company have (sic) agreed previously with defendant that it would employ only members of International Association of Structural, Bridge and Ornamental Iron Workers Union, Local 600, American Federation of Labor, of Mobile, Alabama, and such other employees as the Union or defendant, its representative, might approve, said defendant thereby causing the said Joe Hancock to give up and pay over to defendant the sum of $2.00 per day for a period of approximately forty working days, or more, from his said compensation, in violation of Section 874, Title 18, United States Code, * * *"

Counts two, three and four charged the same offense with respect to three other named employees.

On motion of appellee, the trial court dismissed the indictment on the authority of United States v. Carbone, 327 U.S. 633, 66 S.Ct. 734, 90 L.Ed. 904, saying:

"As disclosed by the decision of that Court the evil intended to be covered and curtailed was the conduct of some of the employers or subemployers in indecently and immorally demanding and receiving part of the wages intended for the employees. In that case some of the union officials were indicted, just as one of the union officials here is indicted, for demanding kickbacks and the Supreme Court held that such an act was not covered by the statute, and that the law was not intended to affect legitimate union activity."

In the Carbone case the indictment charged in detail that the accused union officials were collecting from the employees weekly contributions toward initiation fees in the union, pursuant to union rules, and in furtherance of an agreement between the union and employer whereby the latter agreed to employ only those persons who were members of or approved by the union. According to the majority of the Supreme Court, the trial judge in that case construed the indictment to set up a factual situation which only described a legitimate union device for collecting lawful dues or fees. The Supreme Court was bound by the construction of the trial court by the provisions of the statute under which the direct appeal in that case was taken;² and the majority, by reference to Congressional Reports, held that the statute did not extend to lawful activity by labor unions and their officials. It is true, as appellee contends, that there is language in the opinion from which it might be concluded that the Supreme Court exempted union officials from the coverage of the Act, whatever might be their conduct. However, the remarks were made in connection with excerpts from Congressional...