United States v. Carbone, Cr. No. 16568.

• Decision Date: 01 August 1945
• Docket Number: Cr. No. 16568.
• Parties: UNITED STATES v. CARBONE et al.
• Court: U.S. District Court — District of Massachusetts

61 F. Supp. 882

UNITED STATES v. CARBONE et al.

Cr. No. 16568.

District Court, D. Massachusetts.

August 1, 1945.

Edmund J. Brandon, U. S. Atty., and Edward D. Hassan, Asst. U. S. Atty., both of Boston, Mass., and Amos W. W. Woodcock, Sp. Asst. to Atty. Gen., for plaintiff.

William M. Quade, of Gardner, Mass., for defendants Carbone, Stropparo, and Huhtaniemi.

Michael Carchia and Walter F. Levis, both of Boston, Mass., for defendant Di Nunno.

SWEENEY, District Judge.

This is an indictment for conspiracy to violate Section 1 of the so-called "Kickback" Act.¹ 48 Stat. 948, 40 U.S.C.A., § 276b. To this indictment the defendants have filed motions to dismiss on the ground that the indictment does not state an offense cognizable in law. Another indictment was returned against these defendants over a year ago, and demurrers and motions to quash were sustained and allowed. United States v. Carbone et al., D.C., 56 F.Supp. 343.

At the time the alleged conspiracy occurred three of the defendants were officers of Local 39 of the International Hod Carriers' Building and Common Laborers' Union of America. The fourth defendant was employed by Local 39.

The indictment charges that, during the period of the alleged conspiracy, Coleman Bros., Inc., and John Bowen, Inc., were engaged in the construction of various public buildings for the United States at Fort Devens, Massachusetts, on a cost plus fixed fee contract, the contractors to furnish the materials, equipment and labor for the job; the defendants, by virtue of their positions in Local 39, made an agreement with the contractors under which the contractors undertook to employ as laborers on the job only those who were approved by the defendants, and to discharge any of those thus employed at the request of the defendants; the defendants approved to the contractors only members of the Union or such persons as paid to the defendants the sum of five dollars; the continued approval of the defendants was conditioned upon the payment of five dollars per week until the full amount of the initiation fee into Local 39 and the International Union had been paid; the defendants threatened to procure the discharge of any workers who failed to make the required payments; the defendants knew and intended that the workers would make the payments out of compensation earned.

In United States v. Laudani, 320 U.S. 543, 64 S.Ct. 315, 316, 88 L.Ed. 300, 149 A. L.R. 492, a foreman, who had been vested by his employer with power to hire and discharge workers, was held to be indictable under Section 1 of the Kickback Act. In the course of the opinion the Court indicated the guides to be used in the interpretation of this section. Limitations were placed upon the broad scope of the literal meaning of "Whoever" in the statutory text. The essential element which would bring a defendant within the operation of Section 1 was inferred to be an allegation that he had been "vested by the employer with power to fix and terminate the employer-employee status." The position of the foreman in the Laudani case in this regard...