United States v. Green, 11887

• Decision Date: 13 August 1957
• Docket Number: 11888.,No. 11887,11887
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack GREEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. GENERAL LABORERS' LOCAL 397 OF GRANITE CITY, ILLINOIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

246 F.2d 155 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Jack GREEN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. GENERAL LABORERS' LOCAL 397 OF GRANITE CITY, ILLINOIS, Defendant-Appellant.

Nos. 11887, 11888.

United States Court of Appeals Seventh Circuit.

July 9, 1957.

Rehearing Denied August 13, 1957.

A. M. Fitzgerald, Springfield, Ill., Schaefer O'Neill, Alton, Ill., W. P. Roberts, Springfield, Ill., for appellants.

John B. Stoddart, Jr., U. S. Atty., Marks Alexander, Asst. U. S. Atty., Springfield, Ill., John M. Daugherty, Asst. U. S. Atty., Springfield, Ill., for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Defendants, General Laborers' Local Union No. 397 (hereinafter referred to as the "Local Union") and Jack Green, were convicted on two counts of an indictment charging violations of the Anti-Racketeering Act sometimes referred to as the Hobbs Act. 18 U.S.C. § 1951. The provisions of the statute are, inter alia:

"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

"(b) * * *

"(2) The term `extortion\' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

"(3) The term `commerce\' means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. * * *"

The counts charged that, on two separate occasions, each of defendants unlawfully and willfully obstructed, delayed and attempted to obstruct, delay and affect commerce by means of extortion, in that they attempted to obtain from two employers money in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers commonly known as "swampers" and to accomplish their objectives by wrongful use of actual and threatened force, violence and fear. Subsequent to conviction, the trial court arrested the judgment because it was of the opinion that the indictment did not state an offense under the Act. On appeal by the government to the Supreme Court, pursuant to the provisions of 18 U.S.C. § 3731, the Court, considering only the question of sufficiency of the indictment, reversed, United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494, holding that the extortion provision of the Act plainly prohibits conduct wherein a union and its representatives, through the use of threats of force, violence and fear, attempt to obtain money from an employer in the form of wages for fictitious, unwanted services, even though the money is not sought for the immediate benefit of the parties indicted.

On this appeal, defendants contend, primarily, that the evidence is insufficient to sustain the verdict. Specifically it is argued that the evidence does not support the conclusion that there were threats of violence or that defendants intended to commit the crime charged. In addition, it is urged that the record does not disclose that "commerce" was affected, and, finally, that reversible error was committed by the court in failing to give certain instructions.

In determining whether there was a sufficient evidentiary foundation to support the verdict, it is elementary that we must view the record in the light most favorable to the government and grant the latter the benefit of all inferences which reasonably may be drawn therefrom. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Hulahan v. United States, 8 Cir., 214 F.2d 441, 442. And, it is not our function to weigh the evidence or to inquire into the credibility of the witnesses.

The pertinent facts follow. Defendant Local Union, with headquarters in Granite City, Illinois, is an affiliate of the International Hod Carriers' Building and Common Laborers' Union of America, whose constitution, as well as that of the Local Union, provides that members of other local unions within the jurisdictional limits of defendant Local Union are required to cooperate with its policies. As a result the Local Union had jurisdiction and control, not only over its own members, but also over members of other locals throughout Madison County, Illinois; consequently, in addition to its own 150 to 170 members, it represented approximately 1100 members of other locals. Defendant Green, at the time of the occurrences in evidence, was the business representative of the Local Union.

Each of two contractors, Arthur W. Terry, Jr., of St. Louis, Missouri, and Ralph W. Wright, Jr., of St. Clair County, Illinois, had contracted with the United States Army Corps of Engineers to furnish bulldozers and tractor-scraper units, with operators, for the purpose of repairing a flood control levee located adjacent to the Chain of Rocks Canal, which had been built in order to overcome certain navigational difficulties in the Mississippi River.

Wright began performance of his contract in October, 1952 and, with normal interruptions due to adverse weather conditions, continued until March 26, 1953. Terry began his work March 1, 1953, and, with minimum interruptions, proceeded practically continuously until March 26th. On March 23rd, Green visited Wright's work site and inquired of the operator of one of the machines, "where his laborer was." Green was informed that no "swamper" had been employed. The purpose of the inquiry was to determine whether "swampers", whose primary duty is said to be to scout ahead of the bulldozers and warn of approaching pitfalls, were employed. Thereafter, on March 26th, five unidentified men approached the same operator and ordered him to park his unit; as a result, work ceased. That evening Wright proceeded to the office of the Local Union in an effort to determine the nature and extent of the controversy. He conversed with Green and, at the trial, testified as follows:

"A. Well, I asked him what the trouble was; and he said we needed a man out there with that `cat\' and scoop. And I told him that we done a lot of maintenance work for the Government and we never did have one before, and I didn\'t see no need for him being out there, and if I had to have one out there, I would move the `cat\' and scraper out.

"Q. What did he say? A. Well, he said that is the thing to do.

"Q. Did you move your equipment out? A. Yes, sir."

On March 26, 1953, the same day the Wright incident occurred, Terry had a bulldozer and a tractor-scoop unit in operation on the levee. He, too, hired no common laborer. Apparently, at approximately the time of the appearance of the men at the Wright working-place, 6 men arrived at the Terry location and asked the operators to stop working, as there was a dispute which they would like to have settled, namely, the failure to employ "swampers." The workers acceded to the demands, and work was not resumed by Terry until April 13, 1953.

A short time prior to April 13th, Terry, having been directed by the engineering corps to resume performance of his contract, decided to comply. In order to protect himself and his men from further disturbance, two bodyguards were hired. The day before work was resumed Terry informed the sheriff of the sensitive situation. On the morning of April 13th, Terry and the bodyguards, proceeded to the levee, where operations were resumed in the presence of a deputy sheriff. Terry telephoned Green that he was resuming work without a common laborer. Terry's testimony regarding the conversation was as follows:

"The Witness: I identified myself. He said, `This is Jack Green speaking.\' I identified myself, and I said, `Jack, we are going to start this job out here this morning and we can\'t — I can\'t afford to put a laborer on each one of these tractors.\' He says, `Well, you put a laborer on them if you are going to start them.\'

"By Mr. Alexander: Q. What was that? A. He said, `You will put a laborer on each one of

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