United States v. Inciso, 13058.

• Decision Date: 17 August 1961
• Docket Number: No. 13058.,13058.
• Citation: 292 F.2d 374
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angelo INCISO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

292 F.2d 374 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. Angelo INCISO, Defendant-Appellant.

No. 13058.

United States Court of Appeals Seventh Circuit.

June 30, 1961.

Rehearing Denied August 17, 1961.

George F. Callaghan, Chicago, Ill., Melvin F. Wingersky, Marion, Ill., for appellant.

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

Before HASTINGS, Chief Judge, SCHNACKENBERG and CASTLE, Circuit Judges.

HASTINGS, Chief Judge.

Defendant Angelo Inciso was charged in a 22-count indictment with the violation of Section 302(b) of the Labor Management Relations Act of 1947, 61 Stat. 157, 29 U.S.C.A. § 186(b) and 18 U.S. C.A. § 2(b).

Following an extended trial by jury and a verdict of guilty on all counts as charged in the indictment, defendant was adjudged to be guilty and sentence was imposed by the trial court. From this judgment defendant has appealed.

The errors relied on for reversal arise out of adverse rulings on various defense motions, rulings on evidence and instructions. The sufficiency of the evidence to prove the allegations of the indictment is not contested.

The relevant portions of the statutes above referred to are as follows:

Section 186(b) and (d), Title 29, U.S. C.A., reads:

"(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."

"(d) Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdeameanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both."

Section 2(b), Title 18, U.S.C.A., reads:

"§ 2. Principals

* * * * * *

"(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. As amended Oct. 31, 1951, c. 655, § 17b, 65 Stat. 717."

Count I of the indictment is typical of each one of the twenty-two counts returned October 23, 1956 and reads:

"1. That at all times hereinafter mentioned, United Industrial Workers of America, Amalgamated Local 286, (hereinafter referred to as Amalgamated Local 286) a labor organization maintaining its offices in Chicago, Illinois, was a representative of employees who were engaged in an industry affecting interstate commerce.

"2. That at all times hereinafter mentioned, Angelo Inciso, the defendant herein, was an officer and official of Amalgamated Local 286.

"3. That from on or about March 16, 1956, to and including on or about October 15, 1956, and periodically throughout such period of time at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, Angelo Inciso, defendant herein, did unlawfully, wilfully and knowingly cause Amalgamated Local 286 to receive and accept from Wisconsin Can Company, 5437 South Massasoit Avenue, Chicago, Illinois, an employer of said employees, engaged in an industry affecting commerce, a sum of money aggregating $2,390.80, more or less; in violation of Section 186(b), Title 29, United States Code."

Save for varying dates of alleged violations, different employers named in each count and various stated sums of money, the remaining twenty-one counts are otherwise unchanged throughout the indictment. As a part of its caption the indictment cites Title 18, U.S.C.A. § 2, supra.

The total amount of money defendant is charged in the twenty-two counts with causing Local 286 to receive and accept from the various employers, in violation of the statutes involved, is $420,267.76, as particularly set out in the table below.¹

In substance, considering the evidence in the light most favorable to the Government, the record demonstrates that the following factual situation could have been found by the jury beyond a reasonable doubt. The twenty-two employers were industries engaged in interstate commerce; their employees were members of and represented by Local 286; negotiations were conducted with defendant and others on behalf of Local 286 and contracts resulted therefrom; they made periodic payments to Local 286 consisting of dues and insurance payments at the direction of defendant; and they kept records showing the breakdown of the payments to Local 286 into the two categories of insurance and dues.

There was evidence that defendant was the "boss" of Local 286 and exercised complete domination and control over it; he was in complete control over all negotiations with the employers; and he directed or controlled the arrangements leading to the payment by the employers of monthly dues of $3 per employee and additional monthly payments of from $5.15 to $6.15 per employee for insurance.

There was evidence that Local 286 recorded the receipt of such payments by the employers allocating a certain amount for dues and other amounts for insurance; these funds were placed in its general account and were not placed in a health and welfare trust fund; thereafter, it purchased insurance with such funds, except that it retained in its treasury the sum of $1, plus certain interest on the remainder, of each of such monthly insurance payments by the employers and did not purchase insurance with such retained amounts.

There was evidence that in late 1950 or early 1951 defendant had prepared an agreement concerning a proposed trust fund to be set up between the employers of members of Local 286 and Local 286 for health and welfare benefits, and this was the only way health and welfare payments could be made or received without violating the Taft-Hartley Act, but defendant abandoned such a plan.

I.

By proper and timely motions defendant unsuccessfully challenged the validity of the indictment in the trial court.

He asserts that the indictment is fatally defective because it fails to charge him as a "representative" under Section 186(b), supra, claiming that only "representatives" are inhibited thereunder. He contends that the indictment should have directly alleged such a representative capacity on defendant's part as to constitute an offense by him under the Act; else it falls short of the requirement of Section 2(b), supra, that the act caused to be done must be one "which if directly performed by him or another would be an offense against the United States."

Defendant further charges invalidity on the grounds that the indictment is vague, indefinite and uncertain; that it furnishes him with no information upon which he could predicate his defense; that such deficiencies amount to a violation of his constitutional rights under the Sixth Amendment; and that it runs afoul of the requirements of Rule 7, Federal Rules of Criminal Procedure, Title 18, U.S.C.A.²

It is agreed that the indictment does not charge defendant with receiving the money directly or with being a representative of the employees. Neither does it charge the various employers with a violation of the Act. The indictment here simply alleges in each count that defendant willfully and knowingly caused a representative of employees, Local 286, to receive money from the named employer of said employees engaged in an industry affecting commerce, in violation of law.

The Supreme Court in United States v. Ryan, 1956, 350 U.S. 299, 301, 76 S.Ct. 400, 402, 100 L.Ed. 335, in defining the word "representative" as used in Section 186(b), supra, said:

"The LMRA provides that the term `representative\' shall have `the same meaning as when used in the National Labor Relations Act as amended by this Act.\' § 501(3). The pertinent definition appears in § 2(4) of the NLRA: `The term "representatives" includes any individual or labor organization.\' 49 Stat. 449, 450, 29 U.S.C. §§ 151, 152(4)." (Emphasis added.)

The holding in Ryan has made it clear that it is a crime for a representative of employees, including labor organizations, to receive unlawful funds from employers. In the instant case, defendant by causing the crime to be committed by the union caused a crime to be committed by another as set forth in 18 U.S.C.A. § 2(b), as amended in 1951, and is punishable as a principal. Defendant is not charged as an aider and abettor under the preceding subsection, § 2(a). Thus, we find that defendant is clearly charged with causing the commission of an offense which would be and is a crime if directly performed by another, i. e., Local 286.

The reviser's notes on this subsection (b) of Section 2, Title 18, supra, are pertinent to this consideration:

"Section 2(b) is added to permit the deletion from many sections throughout the revision of such phrases as `causes or procures.\'

"The section as revised makes clear the legislative intent to punish as a principal not only one who directly commits an offense and one who `aids, abets, counsels, commands, induces or procures\' another to commit an offense, but also anyone who causes the doing of an act which if done by him directly would render him guilty of an offense against the United States.

"It removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense.

"This accords with the following decisions: Rothenburg Ruthenberg v. United States, 1918, 38 S.Ct. 18 168, 245 U.S. 480, 62 L.Ed. 414, and United States v. Hodorowicz, C.C.A.Ill.1939, 105 F.2d 218, certiorari denied 60 S.Ct. 108, 308 U.S. 584, 84 L.Ed. 489. United States v. Giles, 1937, 57 S.Ct. 340, 300 U.S. 41, 81 L.Ed. 493, rehearing denied 57 S.Ct. 505, 300 U.S. 687, 81 L.Ed. 888. 80th Congress House Report No. 304."

The courts have uniformly construed the word "ca...