United States v. Murphy
Citation | 374 F.2d 651 |
Decision Date | 10 March 1967 |
Docket Number | Docket 30907.,No. 331,331 |
Parties | UNITED STATES of America, Appellee, v. Daniel MURPHY and Albert Mendes, Appellants. |
Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John S. Allee, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., and Michael W. Mitchell, Asst. U. S. Atty., Southern Dist. of New York, on the brief), for appellee.
Jacob W. Heller, New York City (Heller & Dretzin and Moses L. Kove, New York City, on the brief), for appellants.
Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.
ANDERSON, Circuit Jude:
The appellants, Daniel Murphy and Albert Mendes, were respectively the financial secretary and business agent of a local union of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO. They were found guilty by a jury of having willfully violated § 302 of the Taft-Hartley Act1 (29 U.S.C. § 186) by receiving payments2 of money from four employers who were engaged in the business of fabricating and erecting iron and and steel structures and whose employees were members of the local union. Both appeal from the judgments of conviction entered on the verdicts.
The points raised on appeal concern statements made by the prosecutor in his summation to the jury, which the appellants assert were inflammatory and prejudicial. We conclude that, although the remarks complained of were examples of a lack of the restraint which more competent prosecutors are careful to display, they were not so prejudicial as to call for a new trial, and we affirm.
The Government's case rested almost entirely upon the testimony of the four employers who told of making payments, totalling approximately $5000, to the appellants, as charged. On direct examination it was disclosed that they themselves, though ordinarily liable to prosecution under the statute, had been granted testimonial immunity by the Department of Labor. The accused took the stand and categorically denied ever receiving any payment from any of these four employers or any other employers. Neither side offered any substantial corroborating evidence.3 The issue presented to the jury was largely one of the credibility of the four employers, on the one hand, and the two union officials on the other.
The appellants argue that in this posture of the case inflammatory statements by the prosecutor were likely to have very damaging consequences. They point to three instances in the course of the prosecutor's argument in which, they assert, he overstepped permissible bounds.
It is the appellants' claim that the prosecutor was, in so saying, suggesting that the accused were engaged in a shakedown which involved many employers in addition to the four concerned in the case. Although it would have been better if the assistant district attorney had not rhetorically asked, "And how many other employers did these union officials represent?," when defense counsel objected, Judge Murphy, to confine the jury's attention and consideration to the specific offenses charged, promptly instructed the jury as follows:
This was sufficient to overcome any prejudice which may have stemmed from the prosecutor's questions. Compare United States v. Caruso, 358 F.2d 184, 186 (2 Cir. 1966); United States v. Stromberg, 268 F.2d 256, 271 (2 Cir. 1959); United States v. Courtney, 257 F.2d 944, 947 (2 Cir. 1958).
Appellants contend that these remarks were improper because (a) the Government is not allowed to show motive where it is not an element of the offense, and (b) the prosecutor's argument about motive was not based on any evidence in the record.
The first objection is incorrect as a matter of law; the Government may prove motive as circumstantial evidence that an offense was in fact committed even where such proof might incidentally show the commission of another offense. United States v. Houlihan, 332 F.2d 8, 14-15 (2 Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964); United States v. Johnson, 254 F.2d 175 (2 Cir.), appeal dismissed, 357 U.S. 933, 78 S.Ct. 1378, 2 L.Ed.2d 1369 (1958); cf., 1 Wigmore, Evidence (3d ed. 1940) § 118. The objection that the prosecutor's remarks about motive were unsupported by anything in the record is not fully sustainable. There was testimony about the mechanics of obtaining workers through the union hiring hall controlled by appellants; and common sense, which the jury is supposed to exercise, would say that it was more than likely that there were both good and poor workers. From these facts the prosecutor urged the jury to draw a somewhat tenuous inference; but it was not reversible error — particularly where it went only to motive and not directly to the...
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