United States v. McKeever
| Decision Date | 10 November 1959 |
| Docket Number | Docket 25492.,No. 327,327 |
| Citation | 271 F.2d 669 |
| Parties | UNITED STATES of America, Appellee, v. Thomas McKEEVER and Lawrence Morrison, Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry A. Lowenberg, New York City, for appellants.
Otis Pratt Pearsall, Asst. U. S. Atty., Southern Dist. of New York, New York City (S. Hazard Gillespie, Jr., U. S. Atty., and George I. Gordon, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
Thomas McKeever and Lawrence M. Morrison appeal from sentences of five years imprisonment, with five additional years on probation, following their convictions for conspiracy and extortion in violation of the Anti-Racketeering Act, 18 U.S.C.A. § 1951. The indictment charged a conspiracy to obstruct the movement of goods in interstate and foreign commerce by means of extortion, together with forty-two counts of extortion, on all of which both defendants were convicted.
The appellants raise three questions on this appeal: first, whether the grand jury testimony of certain government witnesses should have been turned over to the defendants; second, whether certain F.B.I. reports of interviews with government witnesses should have been made available pursuant to 18 U.S.C. § 3500; and third, whether the trial judge should have permitted the jury to hear a tape recording of a conversation between a principal government witness, Jack Ball, and the defendant McKeever, which recording was offered during Ball's cross-examination, first to refresh his recollection, and later to impeach him.
We find error in the trial judge's refusal to make available certain portions of the grand jury testimony of the government witnesses Thomas McGinn and Jack Ball and as that error was substantial we reverse the convictions. We also find error in the failure of the trial court to conduct voir dire examination of government agents preliminary to determining whether some of their reports of conversations with government witnesses should have been made available to the defense pursuant to 18 U.S.C. § 3500.
We briefly summarize the evidence, all of which was adduced by the government, as the defense called no witnesses.
In June of 1955 James J. Ball & Sons, Inc., an export packing company at 32 Moore Street, New York City, entered into a contract with Local 205 of the Independent Longshoremen's Association with respect to their warehouse workers and coopers. The company's steamship pier workers were already organized in I. L. A. Local 1171. Under the new contract the wages of the Local 205 employees were approximately doubled and the union on its part agreed that it would make every effort to organize employees of Ball company's competitors. The union representatives in these negotiations were the defendants McKeever and Morrison.
In June 1955 the Ball company's quotation on a large job for the Marion Shipping Co. was accepted and it became important to make sure through McKeever and Morrison that the men would be available for the job and that the pay rates for the Local 205 employees, which were still lower than the 1171 wages, would apply with respect to work to be done by the Local 205 men on the piers, rather than the higher 1171 rates. Jack Ball and Fred Ford, president of James J. Ball & Sons, Inc., had several discussions with McKeever and Morrison about the pay rates, but McKeever and Morrison were adamant in insisting that the higher 1171 rates would have to be paid to all employees working on the piers.
At a lunch conference at the Meurat Club, Jack Ball said to the two union men "Leave us alone and get off our back and go out and organize some of our competitors instead of bothering us." Either McKeever or Morrison replied "That takes money."
A few days after the Meurat Club meeting, Jack Ball talked to McKeever and Morrison in front of 32 Moore Street. They wanted to know why no money was there for them and Ball asked what was expected. According to Ball's testimony at the trial, McKeever, and Morrison then requested $300 a week. When Ball indicated that the demand was impossible and would put the company out of business, McKeever and Morrison finally agreed to accept $100 a week. Ball testified that he agreed to this because of fear of a work stoppage. Ford in his testimony also stated that this fear was the reason for the payments. In addition, George Ball, Jack's brother, testified that Jack spoke to him at about this time and said that he would have to pay off the union because he was afraid.
Following the agreement to pay $100, McKeever and Morrison, or one of them, came to the company office each Friday and were given $100 in cash. On the first Friday, which was September 9, 1955, no receipt of any kind was given, but after Ball requested some receipt, McKeever and Morrison furnished freight bills each week, all of approximately $100. The exhibits included three such bills from the P. M. Transfer Co. and three bills from the Roberts Motor Freight Co. According to the testimony of the 205 shop steward, McGinn, he and Morrison removed the remaining freight bills from the company files some time in the fall of 1956. At no time did P. M. Transfer Co. or Roberts Motor Freight Co. perform any trucking services for the Ball company. John Masiello, who operated the P. M. Transfer Co., testified that McKeever, who was a friend of his, secured some trucking receipt blanks from him on a pretext.
Altogether there were forty-two payments of $100; Jack Ball himself made ten or fifteen such payments and he testified that three such payments were made by Ford. McGinn testified that on six to nine occasions he delivered the money. Still other payments were made by William Weilberg, the bookkeeper until February 1956, and thereafter by Meyer Wisotski, who succeeded him. On two occasions Wisotski gave the money to a messenger after McKeever had telephoned him that some one would pick it up.
After his arrest by the F.B.I., Morrison stated that he had never received any payment from the company or anyone connected with it, other than payments for union dues or initiation fees, and he specifically denied receiving $100 weekly during the period in question. Despite Morrison's statement, as the trial progressed, the defense strategy centered not upon denying the payments but upon establishing that they were made voluntarily to finance the union's efforts to organize competitors rather than out of fear of a work stoppage, as the government claimed. Indeed, in their summations, both defense counsel as much as conceded that the $100 weekly payments had been made and argued that they had been made for the purpose of organizing the company's competitors.
During the cross-examination of each government witness the defense asked for the production of the grand jury testimony of that witness. Upon each occasion the trial judge thereupon read the grand jury testimony of the witness1 and except for most of the testimony of Irving Altman he declined each request. We have therefore examined the grand jury testimony of Jack Ball, Thomas McGinn, Meyer Wisotski, Fred Ford and Irving Altman. We conclude that the trial judge was in error in not making available certain portions of the testimony of Jack Ball and Thomas McGinn.2
The propriety of disclosing any testimony given before the grand jury rests upon Rule 6(e) of the Federal Rules of Criminal Procedure, 18 U.S.C. and derives from the time-honored and well-established principle that whatever happens before the grand jury should be kept secret unless and until the court is of the opinion that there is no longer a good reason for secrecy. United States v. Procter & Gamble Co., 1958, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077. In this Circuit the procedure whereby grand jury testimony may be made available to the defense is well established. After a government witness has testified on direct examination, if there appears to be some basis for supposing that his grand jury testimony may be at variance with his trial testimony, the defense may ask the trial judge to examine the witness' grand jury testimony. If the trial judge finds any material discrepancy between the trial testimony and the grand jury testimony, such part of the minutes is made available to the defendant. United States v. Spangelet, 2 Cir., 1958, 258 F.2d 338.
Jack Ball was the only witness who testified to the talk at which McKeever and Morrison demanded money and finally agreed to accept $100 a week. It was Ball's testimony at trial that the defendants had first asked for $300 a week and that after he remonstrated with them and told them that this was crazy they finally agreed to $100. Before the grand jury Ball was asked these questions and gave these answers:
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