United States v. Gibas

• Citation: 300 F.2d 836
• Decision Date: 17 April 1962
• Docket Number: No. 13313.,13313.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Joseph GIBAS, Donald Dowd Fulton and Michael Emmett Byrne, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

300 F.2d 836 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Joseph GIBAS, Donald Dowd Fulton and Michael Emmett Byrne, Defendants-Appellants.

No. 13313.

United States Court of Appeals Seventh Circuit.

March 19, 1962.

Rehearing Denied April 17, 1962.

Richard E. Gorman, Chicago, Ill., for appellants.

James P. O'Brien, U. S. Atty., Chicago, Ill., Raymond K. Berg, Chicago, Ill., John Peter Lulinski, John J. Quan, Robert F. Monaghan, Asst. U. S. Attys., of counsel, for appellee.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Ernest Joseph Gibas, Donald Dowd Fulton and Michael Emmett Byrne, defendants-appellants, were charged in a multiple count indictment with conspiracy¹ to violate 29 U.S.C.A. § 186(b)² and charged with substantive violations of that section.

The first count of the indictment charged, in substance, a conspiracy between Gibas, business manager and financial secretary-treasurer of Machinery Movers, Riggers and Machinery Erectors, Local Union 136, Fulton and Byrne, business representatives of the Local, Michael Roy Tagney, its president until his death, and others whose names are unknown, to unlawfully receive and accept, and to unlawfully agree to receive and accept, money from contractors employing members of Local 136 in an industry affecting commerce. Each of the substantive counts identified the contractor-employer, alleged the interstate character of his business and that certain of his employees were members of Local 136; alleged the defendant named therein was a representative and official of Local 136 and on a specified date received and accepted a specific sum of money from the contractor-employer in violation of § 186(b).

The case was tried to a jury. All three defendants were convicted on the first count charging conspiracy. The defendant Gibas was found guilty and convicted on thirty-four of the substantive counts, Fulton was convicted on the six substantive counts in which he was named, and Byrne was convicted on the one substantive count naming him. Gibas was sentenced to imprisonment for a total of six years and the payment of fines totalling $8000.00; Fulton to imprisonment for one year and the payment of fines totalling $3000.00; and Byrne was sentenced to imprisonment for one year and the payment of a fine of $1000.00. All three defendants appealed.

The contested issues presented by defendants' appeal are:

(1) Did the District Court commit reversible error in instructions given or in the refusal to give instructions tendered by defendants?

(2) Did prejudicial newspaper publicity during the trial deprive defendants of a trial by an impartial jury?

(3) Was there sufficient proof of interstate commerce; and, with respect to certain of the counts, of employment of members of Local 136 by the particular contractor; and of Byrne's participation in the conspiracy and receipt of a payment?

We have carefully reviewed the record but we do not deem it necessary to disposition of the issues and consideration of the contentions made by defendants that we undertake to summarize the evidence as it bears on each defendant or in connection with the many transactions involved. Pertinent facts, in so far as the general picture reflected by the record is concerned, include the following. The various contractor-employers are engaged in the machinery moving business. They do not maintain large staffs but rely on Local 136's hiring hall to furnish them with such additional employees or riggers as are needed for the movement, dismantling or erection of machinery in connection with a particular job or contract. Members of Local 136, represented by defendants, are supplied for this purpose but sometimes if members are not available to fill a request non-members, who have registered at the hiring hall, are supplied. Activities of the contractor-employers named in counts under which convictions resulted concerned, in each instance, the pick-up of machinery in Illinois for delivery to locations outside of Illinois, and the pick-up and delivery in Illinois of machinery shipped to Illinois from other places. The percentage of the total business of each which involved such interstate aspects varied but in one instance was estimated to be eighty per cent of the total, in another sixty to eighty percent, and in the others from five to twenty-five percent.

The defendants contend that the District Court erred in instructing the jury that there was no evidence presented indicating that any of the payments made by any employer came within the exceptions to § 186(b).³ Not only was no proper objection made to the instruction but from our examination of the record references relied upon by the defendants in this connection we are in complete agreement with the trial judge that there was no evidence which required the submission of that question to the jury. The government's witnesses, in testifying to statements made by a defendant, in some instances repeated the label the defendant had used to characterize a payment — such as "fine", "commission" or "payment for an interest" of the union representative in the contractor's business. But there was no testimony or other evidence of any probative value to indicate that any of the payments so described fell within any of the exceptions. And, with respect to the payments referred to as "dues" it was admitted by the witness that no written assignment of the employee authorizing such payments existed. We perceive no error in the court's instructions pertaining to the matter of exceptions to the prohibition of § 186(b). It was within the province of the court to so comment on the evidence (Quercia v. United States, 289 U.S. 466, 469-470, 53 S.Ct. 698, 77 L.Ed. 1321) and, on the facts here involved, to submit these irrelevant issues to the jury was wholly unnecessary and could have been confusing.

The testimony of the contractor-employers was sufficient to establish that the members of Local 136 working for them were employed in an industry affecting interstate commerce. United States v. Pecora, 3 Cir., 267 F.2d 512; Cone Bros. Contracting Company v. Bricklayers, Masons, etc., 5 Cir., 263 F.2d 297; United States v. Floyd, 7 Cir., 228 F.2d 913. And, the trial court did not err in instructing the jury that:

"If you believe the testimony of the Government\'s witnesses concerning the pick-up of machinery in Illinois for delivery to locations outside of Illinois, and the pick-up and delivery in Illinois of machinery that was shipped to Illinois from places outside of Illinois, the employees of said employers were engaged in an industry affecting commerce".

The defendants' contentions that the court erred in giving this instruction and rejecting a tendered instruction on the subject are without merit.

Defendants urge that the District Court committed reversible error in refusing an instruction tendered by defendants to the effect that the government was required to prove that the receipt of the payments by the defendants...