United States v. Donovan, 14410.

• Decision Date: 04 January 1965
• Docket Number: No. 14410.,14410.
• Citation: 339 F.2d 404
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Edward J. DONOVAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

339 F.2d 404 (1964)

UNITED STATES of America, Plaintiff-Appellee v. Edward J. DONOVAN, Defendant-Appellant.

No. 14410.

United States Court of Appeals Seventh Circuit.

November 3, 1964.

Rehearings Denied January 4, 1965.

George F. Callaghan, Joseph M. Jacobs, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., David Philip Schippers, Jr., Chicago, Ill., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Edward J. Donovan, defendant-appellant, prosecutes this appeal from his conviction, following a jury trial in the District Court, on a multiple count¹ indictment for violation of 29 U.S.C.A. § 186(b).

Counts 2 through 47 concern payments of money alleged to have been received and accepted by the defendant during each of the calendar months of the year 1958, and in March 1959, from United Film Carriers, Inc.² The period covered by such counts antedates the September 14, 1959, amendment of Section 186. In so far as pertinent to the issues presented by this appeal, these counts charge³ in substance that during all of the period involved United was an unincorporated association of named persons and firms engaged in the motion picture film delivery business, an industry affecting commerce; United was the agent of said named employers; both United and its member employers employed members of Local 755,⁴ a labor organization; and that the defendant was an official of Local 755 and a representative of the employees employed by United and its member employers.

Counts 48 through 73 concern similar payments alleged to have been received and accepted by the defendant on dates in 1959 and 1960, which are subsequent to the 1959 amendment to Section 186, and incorporate by reference pertinent paragraphs of Count 1 but omit the allegation that United was the agent of the named employers. Count 74 differs from Counts 48 through 73 only in that a subsequent 1960 date, and receipt and acceptance of an automobile rather than a payment of money, are alleged.

The defendant was sentenced to imprisonment for a period of one year on each of Counts 2 through 47, said sentences to run concurrently; to imprisonment for one year on each of Counts 48 through 73, said sentences to run concurrently with each other and consecutively to the sentence imposed on Counts 2 through 47; and to imprisonment for one year and a fine of $5,000 on Count 74, the sentence of imprisonment to run consecutively to the sentence imposed on Counts 48 through 73.

The defendant predicates his request for reversal of the judgment order of conviction and sentence upon contentions which include his assertion the trial court committed reversible error in denying his motions assailing the indictment as not, in any of its counts, charging a crime; the insufficiency of the evidence to support a conviction on any count, including that arising from failure of the government to overcome the application of the employment exception contained in § 186(c); the charges sought to be proved constituted, in any event, but one offense rather than seventy-three; failure to properly restrict the scope of the re-direct examination of a government witness; error in the giving and refusal to give instructions; and prejudicial misconduct of the prosecutor in the course of his argument in summation. Some of these contentions present more than one facet and encompass subsidiary arguments advanced in support thereof. We elect to limit this opinion to a detailed discussion of only those factors and arguments which after deliberate consideration we have found to merit expository analysis and to require comment.

The statutory provision upon which Counts 2 through 47, which counts encompass only pre-September 1959 status and conduct, are grounded provided that:

"(b) It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value."

The section of the statute (29 U.S. C.A. § 186) of which the above quoted prohibition was a part was amended September 14, 1959, so as to provide in pertinent part as follows:

"(a) It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, advisor, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value —

"(1) to any representative of any of his employees who are employed in an industry affecting commerce; or

"(2) 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; or

"(3) to any employee or group or committee of employees of such employer employed in an industry affecting commerce in excess of their normal compensation for the purpose of causing such employee or group or committee directly or indirectly to influence any other employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing; or

"(4) to any officer or employee of a labor organization engaged in an industry affecting commerce with intent to influence him in respect to any of his actions, decisions, or duties as a representative of employees or as such officer or employee of such labor organization.

"(b) (1) 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."

The amendment, for the first time, expressly brought an "association of employers", as such, within the ban of the activities denied employers. The amendment, among other things, had the effect of measuring the prohibitions of paragraph (b) by reference to the conduct proscribed by paragraph (a) as applied to one who was the solicitor or recipient of the forbidden payment, loan, etc. In view of the dates alleged therein, Counts 48 through 74 of the indictment must find their basis in the provisions of the statute as so amended.

We perceive no merit to defendant's contention that the express inclusion of "associations of employers", as such, by the 1959 amendment demonstrates the failure of Counts 2 through 47 to charge a crime — such counts relating as they do, to pre-September 1959 conduct — and that the convictions thereunder are invalid as being ex post facto. In Counts 2 through 47 it is alleged United was an association of employers but it is additionally alleged it was the agent of such member employers and also an employer of Local 755 members in its own right. And, the term "employer" as used in § 186(b) prior to its amendment was defined (29 U.S. C.A. § 152(2)) as including "any person acting as an agent of an employer, directly or indirectly, * * *".

Defendant's supplemental motion to dismiss the indictment which was denied, assailed Counts 48 through 74 as violative of the Sixth Amendment for failure to apprise the defendant of the nature and cause of the accusation against him. In its brief the government recognizes that the amended § 186, upon which Counts 48 through 74 are grounded, in its "subsection (a) lists several specific classes that are for-bidden to pay, lend or deliver any money or thing of value to any of the individuals, organizations or classes listed in subdivisions (1), (2), (3) and (4) under the circumstances contained therein" and that "significantly, all of the subdivisions are separated by the disjunctive conjunction `or'". Furthermore, this series of counts charge the defendant was both an "official of Local 755" and a "representative of the employees" employed by United and by United's member employers. Amended § 186(a) delineates four distinct courses of conduct each of which is declared unlawful and constitutes an offense when engaged in by any of the specific classes against whom the section's prohibitions are directed. The prohibitions of § 186(b), as amended, are directed against one who solicits or is the recipient of the conduct proscribed to others by § 186(a). Apart from the possible interpretation that Counts 48 through 74 may be taken to charge the defendant with being the recipient in connection with conduct proscribed to United and its member employers by subsection (3) of § 186(a) it is apparent the defendant is unable to determine from the language of these counts whether he is being charged as a union official with being the recipient with reference to conduct violative of subsection (2), or of subsection (4); or being charged as a representative of employees with being the recipient with reference to conduct violative of subsection (1). It is readily apparent that this series of counts does not apprise the defendant with reasonable certainty of the accusation against him.

It is an elementary principle of criminal pleading that where the definition of an offense employs generic terms it is not sufficient to charge the offense in such generic terms but the indictment must state the species — it must descend to particulars. Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L. Ed.2d 240. The basis upon which this principle rests — the necessity that the indictment inform the accused with reasonable certainty of the specific offense with which he is charged — is, in our opinion, equally applicable where the statute, as it here does, proscribes different types of conduct in the disjunctive. In this connection the observation made in Ackley v. United States, 8 Cir., 200 F. 217, 221, is apposite. It was there stated:

"To recite that the defendant did the one thing or another makes the indictment bad for uncertainty."

It is clear...