United States v. Fischetti, 71-1175.

• Decision Date: 16 November 1971
• Docket Number: No. 71-1175.,71-1175.
• Citation: 450 F.2d 34
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph John FISCHETTI and Donald F. Gillette, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 34 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph John FISCHETTI and Donald F. Gillette, Defendants-Appellants.

No. 71-1175.

United States Court of Appeals, Fifth Circuit.

October 27, 1971.

Rehearing Denied November 16, 1971.

COPYRIGHT MATERIAL OMITTED

John F. Rudy, II, Thomas A. Wadden, Jr., Washington, D. C., for Gillette.

Frank Ragano, Raymond E. La Porte, Ragano & La Porte, Miami, Fla., for Fischetti.

Robert W. Rust U. S. Atty., Miami, Fla., Sidney M. Glazer, U. S. Dept. of Justice, Roger A. Pauley, Atty., Appellate Section, Shirley Baccus-Lobel, Criminal

Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

A jury convicted the appellants on a two count violation of 29 U.S.C.A. § 186(b) (1) and one count of conspiracy to violate § 186.¹ Appellants urge on appeal that the trial court erred in permitting the indictment to be substantially amended, in admitting prejudicial and hearsay evidence, and in its instructions to the jury on conspiracy. We affirm the conspiracy conviction and reverse the conviction on the two substantive counts.

The convictions rested largely upon the testimony of the witness Bellows. He was in the construction business, and, apparently experiencing some labor problems in May, 1968, entered into an agreement with the Miami Building and Trades Council obligating himself to use union labor after he completed his current building project. In January, 1969, he began to seek union bids for his next job, and finding them exorbitant, he hired non-union trades in violation of his agreement with the Council. In anticipation of a dispute with the Council he contacted appellant Fischetti and requested his assistance.

Several days later, at Fischetti's request, Bellows came to Fischetti's home and met with him and appellant Gillette, a business agent of Teamsters Local 769 and a delegate from that local to the Miami Building and Trades Council. Gillette offered to obtain the Council's copy of the Bellows agreement and return it to Bellows for $18,000. Bellows left saying he would think it over. A few days later Fischetti called Bellows and asked him to come to his home. Bellows there met Fischetti and Gillette again and accepted their offer to obtain the agreement in exchange for $12,000 and to retain Fischetti at $150 per week as a labor consultant for the duration of the construction project.

The next day, February 14, 1969, Fischetti came to Bellows' office and gave him the Council's copy of the agreement. They drove to a bank together where Bellows cashed a check and gave Fischetti $12,000. Fischetti also received twenty-six weekly $150 payments terminating on August 21, 1969.

In October, 1969, Bellows was served with a subpoena to testify before the grand jury. He was then visited by Fischetti who told him to take the Fifth Amendment if called upon to testify. Bellows testified after a grant of immunity.

At trial Bellows' copy of the agreement was introduced in evidence, but the Council's copy could not be located in its files. Evidence was also introduced to the effect that delegates to the Council had access to the file which contained such agreements.

Gillette testified that while he did meet with Bellows and Fischetti, when Bellows explained his problem concerning the agreement he refused to help. He testified further that he met again with Bellows at Fischetti's home and reiterated to Bellows that he could not be of any assistance. Fischetti did not testify.

Gillette also introduced evidence through other witnesses to the effect that he had no real authority or duties within the Council. Other union and council officials testified that they had never seen the completed Bellows agreement although a blank copy had been left with Bellows for him to sign pending some advice from his lawyer.

The appellants were indicted on May 13, 1970. Count 1 of the indictment charged that Fischetti and Gillette conspired together and with Bellows to violate 29 U.S.C.A. § 186. Counts 2, 3 and 4 charged the appellants with violations of 29 U.S.C.A. § 186(b) (1) and 18 U.S. C.A. § 2.² Count 5 charged Fischetti with obstructing justice.

Prior to trial Count 5 was severed from the indictment. On the day before trial the Government filed an information superseding substantive counts 2, 3 and 4 of the indictment. The offenses charged in the information were essentially the same as those charged in the indictment except that the words "unlawfully, willfully and knowingly", omitted in the indictment, were added to each count in the information. Counts 2, 3 and 4 of the indictment were dismissed and the Government's motion to consolidate count 1 of the indictment with the information was granted. The appellants were then arraigned and pled to the consolidated indictment-information but objected to the addition of the words "unlawfully, willfully and knowingly" insisting that the amendment constituted a substantial change and that they were not prepared to defend against it. The trial court refused a continuance, vacated the order granting leave to file the information, and instead permitted the original indictment to be amended to include the words "unlawfully, willfully and knowingly" in each substantive count.

The appellants were found guilty of counts 1, 3 and 4 but not guilty of count 2 of the amended original indictment.

Because we find merit in the assertion of error with respect to the amendment of the indictment we will discuss it first and then proceed with the complaint of prejudice to the appellants because of Bellows' testimony concerning the Fifth Amendment incident and finally appellants' attack on the conspiracy instruction.

The Amendment of the Indictment

Appellants contend that the amendment to the indictment effected a substantial change in the nature of the offenses charged, the authorization of which exceeds the trial court's power to allow an amendment to an indictment except in matters of form. We agree.

An indictment is required to set forth the elements of the offense sought to be charged, United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92; United States v. Auerbach, 5 Cir. 1969, 420 F.2d 921, 923, cert. denied, 1970, 399 U.S. 905, 90 S.Ct. 2195, 26 L.Ed.2d 560; Fed.R. Crim.P. 7(c), in order to sufficiently apprise the defendant of the charge he must be prepared to meet and to prevent him from being charged with the same crime in the future. If, therefore, an amendment goes to an essential element of the crime, it is a substantial change and cannot be made except by resubmission to the grand jury, Russell v. United States, 1962, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240.

When the original indictment was returned in this case, the substantive counts did not allege that the appellants had "willfully" violated the statute. Willfulness is specifically set out in the statute sub judice. It is thus an essential element of the offense and such statutory requirement cannot be ignored. United States v. Salliey, 4 Cir. 1966, 360 F.2d 699, 701. Cf. Standard Oil Co. of Texas v. United States, 5 Cir. 1962, 307 F.2d 120; Pullen v. United States, 5 Cir. 1947, 164 F.2d 756 (en banc). It must be alleged and proven in order to obtain a conviction. United States v. Inciso, 7 Cir. 1961, 292 F.2d 374, 380, cert. denied, 1961, 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135; United States v. Motzell, D.N.J.1961, 199 F. Supp. 192. It is clear that the amendment here was impermissible.³

The Government contends that even though willfulness was a necessary element and not alleged in the original indictment, it was implied. It argues that the original indictment was sufficient in this respect and that the amendment did not substantially alter the indictment. We disagree. This essential element cannot be implied from a reasonable reading of the language of the indictment. See United States v. Beard, 3 Cir. 1969, 414 F.2d 1014; Walker v. United States, 5 Cir. 1965, 342 F.2d 22, cert. denied, 1965, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97. See also United States v. Coleman, 5 Cir. 1971, 449 F.2d 772.

The Government further asserts that because the substantive counts charged misdemeanors, it could have originally proceeded by information against the appellants. With leave of court an amendment to an information is permissible. Thus, it argues, that the amendments to the indictment were also proper. While it is true that the crimes alleged in counts 2, 3 and 4 are misdemeanors, the Government chose to present the case to the grand jury and secure an indictment. Having so elected, it is bound by the principles governing indictments. United States v. Lippi, D.Del.1961, 193 F.Supp. 441, 443.⁴ We therefore reverse the convictions of both appellants on counts 3 and 4.

Sufficiency of the Conspiracy Count

Appellants attacked the sufficiency of the conspiracy count for the first time on oral argument. First, they contended that the conspiracy count was insufficient because it made reference only to the number of the statute they were alleged to have conspired to violate. They argue that 29 U.S.C.A. § 186 contains several prohibitions, and therefore, they should have been apprised of exactly which provision of the statute they were charged with having conspired to violate. Since this point was not preserved at trial, and is not a jurisdictional defect, see, e. g., Walker v. United States, supra, 342 F.2d at 26, the asserted error is not properly before this Court. United States v. Trollinger, 5 Cir. 1969, 415 F.2d 527, 528; United States v. Ellington, 5 Cir. 1969, 406 F.2d 348; Fed.R.Crim.P. 12(b) (2); Wright, Federal Practice and Procedure § 193 (1969).

Secondly, appellants contended that the conspiracy count alleged the object of the conspiracy in the same language which was used in the substantive counts, and, since the latter are defective because of the...