Petition — Kelley v. United States

Supreme Court, J. S.

oma FUL EF VD,

1977

| MICHAEL RODAK, J

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

FRED D. KELLEY and PAUL P. MENZ,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

IRL B. BARIS

721 Olive Street

St. Louis, Missouri 63101

Attorney for Petitioners

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

eS oa

|

a

INDEX

Page

Opinions Below ... 2... ccc cc cect cece eee ecccees l

OE ee cc eh aeedehs 62a Cees be bons oe nee es 2

og a rer 2

Constitutional Provisions, Statutes and Rules Involved .. 3

Oe Pe re ere Pe re eT rere 7

Reasons for Granting the Writ ..............--40555 14

SGD och bb Onto sneee wen oneeda es 14

II. Misapplication of Federal Rules of Evidence .... 20

A. Other threats and acts—Rule 404(b) ....... 20

B. Absent witness’ grand jury testimony—Rule 804 25

I. Two counts and semtences .... 1.2... 2c ccceene 26

GE,» -o'n's db dds adhe b Wenn nbenaseee veureaene 28

Appendix A—Opinion of Court of Appeals, dated Decem-

ff S Peerrrrrvrierr tee eee oe A-1

Appendix B—Judgment of Court of Appeals, dated De-

ees S. Gs O oa ve eecdcnevivscaskesant A-10

Appendix C—Judgment of Court of Appeals, dated De-

Ce Ws A EE So bcec cused eounsesvncéctseas A-11

Appendix D—Order of Court of Appeals, dated January

24, 1977, modifying opinion and denying rehearing . . .A-12

Table of Cases Cited

Bell v. United States, 349 U.S. 81, 83-84 (1955) ....... 28

Blockburger v. United States, 284 U.S. 299, 304 (1931) 27

Dunlop v. Bachowski, 421 U.S. 560 (1975) .... 2, 18, 19, 20

Fennelly v. Local 971, 400 F. Supp. 375 (D. Mass. 1975) 19

Iannell v. United States, 420 U.S. 777 (1975) ........ 27

Prince v. United States, 352 U.S. 322 (1957) .......... 28

Trbovich v. United Mine Workers, 404 U.S. 528 (1972) . 19

United States v. Burke, 470 F. 2d 432 (D.C. Cir. 1972) . 24

United States v. Calvert, 523 F. 2d 895, 905-908 (8th

Cir. 1975), cert. denied, 424 U.S. 911 (1976) ..... 22, 23

United States v. Clemons, 503 F.2d 486, 488-491 (8th

rr oe i tt ah a tae 23

United States v. Dickens, 417 F. 2d 958, 959-960 (8th

Se as Ci eied Ginn bas biae obs Odes Sass 21

United States v. McIntire, 461 F. 2d 1092 (Sth Cir. 1972) 24

Wakaksan v. United States, 367 F. 2d 639, 645 (8th Cir.

1966), cert. denied, 386 U.S. 994 (1967) ....... a ae

Miscellaneous Cited

EE Eg Re ee ea 17, 27

a ICSE a Ne enon na 9 -*

EEA EE Se nn nn eam 3, 6, 20, 22, 23, 24, 25

a eS a a etoile mb 3, 6, 25, 26

Title 18, United States Code, Section 371 ...... 7, 8, 26, 27

SR ee ee ak ro 2

29 U.S.C. §§ 411(a)(1) and

area a aa 2, 4, 8, 14, 15, 16, 17, 18, 19, 20

ee ee we eee keus 18

Le AEN eS ay Ean ee 19

ee ee Oe cn ee 18

ee es PE nw sce eda 2, 7, 8, 14, 15, 17, 19, 26, 27, 28

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

FRED D. KELLEY and PAUL P: MENZ,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT GF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Fred D. Kelley and Paul P. Menz, your petitioners, respect-

fully pray that a writ of certiorari be issued to review the judg-

ments of the United States Court of Appeals for the Eighth

Circuit entered in the above entitled cause on December 3,

1976.

OPINIONS BELOW

This cause was decided by a panel of the United States Court

of Appeals for the Eighth Circuit on December 3, 1976, in an

opinion which has not yet been officially feported. The opinion

is reproduced as Appendix A hereto.

On January 24, 1977, the Court of Appeals modified the

opinion, by deleting a paragraph thereof, and denied petition-

_~

ers’ petition for rehearing and suggestion of appropriateness of

rehearing in banc. (See Appendix D.) No opinion was written,

except as to the deletion of the paragraph of the original opin-

ion, and the order has not been officially reported.

JURISDICTION

The judgments of the United States Court of Appeals were

entered on December 3, 1976. (See Appendix B and C.) A

timely petition for rehearing and suggestion of appropriateness

of rehearing in banc was denied on January 24, 1977. (See

Appendix D.)

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

I

Whether in a prosecution under 29 U.S.C. § 530 for intimi-

dating union members in the exercise of their rights, the govern-

ment failed to make a submissible case, in that:

A. The alleged victims of the intimidation had terminated

participation in any activities protected by 29 U.S.C. §§ 411

(a)(1) and 411(a)(2) prior to the alleged assault upon them,

including the question of whether the possibility of a chilling

effect on future activities provides an unconstitutionally vague

standard of violation of 29 U.S.C. § 530.

B. Under Dunlop v. Bachowski, 421 U.S. 560 (1975),

the alleged victims inad no right to contest an election of union

officers by circulation of a petition, and therefore they were not

acting under the protection of 29 U.S.C. §§ 411(a)(1) and

411(a)(2).

Il

Whether the District Court and the Court of Appeals have

misapplied the Federal Rules of Evidence, in the following re-

spects:

A. Whether evidence of other prior threats and acts of

misconduct by the alleged victims should have been admitted

when offered by the defense under Rule 404(b), including the

question of whether the word “person” in Rule 404( b) means

only the “accused” or has the same meaning of the “accused”,

a “victim”, and any “witness” as in Rule 404(a).

B. Whether grand jury testimony of an admittedly unavail-

able witness should have been admitted when offered by the

defense under Rule 804.

Ill

Whether petitioners were properly tried, convicted and sen-

tenced to consecutive terms for a conspiracy count and a sub-

stantive count involving the same facts.

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES OF COURT INVOLVED

Constitution of the United States

Fifth Amendment

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offense to

—

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.

Statutes of the United States

Title 29, United States Code

§ 411. Bill of rights; constitution and bylaws of labor organi-

zations

(a)(1) Equal rights.—Every member of a labor organization

shall have equal rights and privileges within such organization

to nominate candidates, to vote in elections or referendums of

the labor organization, to attend membership meetings, and to

participate in the deliberations and voting upon the business of

such meetings, subject to reasonable rules and regulations in

such organization’s constitution and bylaws.

(2) Freedom of speech and assembly.—Every member of any

labor organization shall have the right to meet and assemble

freely with other members; and to express any views, arguments,

or opinions; and to express at meetings of the labor organiza-

tion his views, upon candidates in an election of the labor

organization or upon any business properly before the meeting,

subject to the organization's established and reasonable rules per-

taining to the conduct of meetings: Provided, That nothing

herein shall be construed to impair the right of a labor organiza-

tion to adopt and enforce reasonable rules as to the responsibility

of every member toward the organization as an institution and

to his refraining from conduct that would interfere with its per-

formance of its legal or contractual obligations.

§ 483. Application of other laws; existing rights and remedies;

exclusiveness of remedy for challenging election

No labor organization shall be required by law to conduct

elections of officers with greater frequency or in a different form

or manner than is required by its own constitution or bylaws,

except as otherwise provided by this subchapter. Existing rights

and remedies to enforce the constitution and bylaws of a labor

organization with respect to elections prior to the conduct

thereof shall not be affected by the provisions of this subchapter.

The remedy provided by this subchapter for challenging an elec-

tion already conducted shall be exclusive.

§ 530. Deprivation of rights by violence; penalty

It shall be unlawful for any person through the use of force or

violence, or threat of the use of force or violence, to restrain,

coerce, or intimidate, or attempt to restrain, coerce, or intimidate

any member of a labor organization for the purpose of interfer-

ing with or preventing the exercise of any right to which he is

entitled under the provisions of this chapter. Any person who

willfully violates this section shall be fined not more than $1,000

or imprisoned for not more than one year, or both.

Federal Rules of Evidence

Rule 404. Character Evidence Not Admissible to Prove Con-

duct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person's

character or a trait of his character is not admissible for the

purpose of proving that he acted in conformity therewith on a

particular occasion, except:

—

(1) Character of accused. Evidence of a pertinent trait

of his character offered by an accused, or by the prosecu-

tion to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of

character of the victim of the crime offered by an accused or

by the prosecution to rebut the same, or evidence of a

character trait of peacefulness of the victim offered by the

prosecution in a homicide case to rebut evidence that the

victim was the first aggressor;

(3) Character of witness. Evidence of the character of a

witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show that he acted in conformity therewith.

It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. :

Rule 804. Hearsay Exceptions; Declarant Unavailable >

(a) Definition of unavailability. “Unavailability as a witness”

includes situations in which the declarant—

(1) is exempted by ruling of the court on the ground of

privilege from testifying concerning the subject matter of

his statement; or

(2) persists in refusing to testify concerning the subject

matter of his statement despite an order of the court to do

so; or

(3) testifies to a lack of memory of the subject matter

of his statement; or

unt iam

(4) is unable to be present or to testify at the hearing

because of death or then existing physical or mental illness

or infirmity; or

(5) is absent from the hearing and the proponent of his

statement has been unable to procure his attendance (or in

the case of a hearsay exception under subdivision (b)(2),

(3), or (4), his attendance or testimony) by process or other

reasonable means.

A declarant is not unavailable as a witness if his exemption, re-

fusal, claim of lack of memory, inability, or absence is due to

the procurement or wrongdoing of the proponent of his state-

ment for the purpose of preventing the witness from attending or

testifying.

(b) Hearsay exceptions. The following are not excluded by

the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at

another hearing of the same or a different proceeding, or in

a deposition taken in compliance with law in the course of

the same or another proceeding, if the party against whom

the testimony is now offered, or, in a civil action or proceed-

ing, a predecessor in interest, had an opportunity and simi-

lar motive to develop the testimony by direct, cross, or re-

direct examination.

STATEMENT

Petitioners Fred D. Kelley and Paul P. Menz were convicted

on Counts I and II of a three-count indictment (R. 1-4) alleging

- misdemeanor violations of Title 18, United States Code, Section

371 and Title 29, United States Code, Section 530. Petitioners

were tried jointly with two other defendants, John Cason and

Robert Worthy, who were acquitted on the two counts against

—

each of them. Petitioners filed separate notices of appeal (R.

28-29), but the appeals were consolidated. They filed a joint .

brief in the Court of Appeals, which issued a single opinion

disposing of their appeals. (See Appendix A.)

The indictment (R.1-4) filed on November 25, 1975, was in

three counts. The first count was a misdemeanor conspiracy

count under 18 U.S.C. § 371 and charged petitioners Kelley and

Menz and co-defendants Worthy and Cason with conspiring

through the use or threat of use of force and violence “to re-

strain, coerce, and intimidate, and attempt to restrain, coerce

and intimidate members of a labor organization, for the purpose

of interfering with and preventing the exercise of rights to which

they are entitled under the provisions of Section 411(a)(1) and

411(a)(2), Title 29, United States Code, in violation of Title 29,

United States Code, Section 530.” It was alleged that petitioners

were Officials of the International Laborers Union of North

America, Local 282, AFL-CIO, hereinafter in this petition re-

ferred to as Local 282, and that they engaged in activities to

interfere with rights of union members to meet and distribute a

petition. The four overt acts alleged in Count I related to spe-

cific events on October 23 and October 24, 1975, which were

the same events involved in Counts II and III of the indictment.

Petitioners Kelley and Menz were convicted on this Count:

Worthy and Cason were acquitted.

Count II of the indictment charged Kelley, Menz and Cason

with a substantive misdemeanor violation of 29 U.S.C. § 530

on October 23, 1975, by interfering with the rights of union

members Joe Sachse and Owen Innis. The specific rights al-

legedly abridged were “the rights to meet and assemble freely

with other members of Local 282, and to express views, argu-

ments, and opinions.” Petitioners Kelley and Menz were con-

victed on this Count, and Cason was acquitted.

Count III was identical to Count II except that the defendants

were Kelley, Menz and Worthy, the date was October 24, 1975,

a

and the union member allegedly intimidated was Edward Brant.

All defendants, including petitioners, were acquitted on this

Count.

A jury trial commenced against all four defendants on Feb-

ruary 2, 1976. It lasted for five days, and the jury returned

its verdict on February 6, 1976 (R. 22-25, Tr. 703-705).

The government's evidence came from witnesses to the inci-

dents of October 23' and October 24, 1975.* Some of these

witnesses were recalled by the defendants for additional evi-

dence.* There were other defense witnesses concerning the

events of October 234 and October 24,* as well as character

witnesses for petitioners.* Each defendant testified.

The evidence tended to show that petitioners Kelley and Menz

were the president and secretary-treasurer of Local 282, which

operated in a twelve-county area around Cape Girardeau, Mis-

souri. They had served in office for 17 years and were last re-

elected on May 3, 1974 (Tr. 580, 628-629). Sometime in the

summer of 1975, there had been dissatisfaction among some

members of Local 282 (Tr. 11, 100), and after some preliminary

meetings, these members decided to circulate a petition com-

plaining about the last election of petitioners (Govt. Exh. 1,

Tr. 10-16, 298-299, 403-411, 418-423, 425-432).

1 Sachse, Innis, Dover, McGuire, Sides, Yarbro, Reynolds, and

Perryman. In addition, witness Seib identified statements made by

the defendants, and he and witnesses Briner, Corby, Jackman, and

Miller testified concerning a gun and bullets. This testimony related

to substantive Count II.

2 Brant, McCall, Harper, Stricklin, and Tomlin. This testimony

related to substantive Count III.

’ Jackman, Brant, and Stricklin.

4 Pearce.

* Riley, Lancaster, Dougherty, Shaffer, Dwight Kelley, and

Kitchen.

6 Pearce, McLain, Harris, Wood, and Ebaugh.

—

In the early morning of October 23, 1975 (see Count IJ),

Sachse and Innis, together with Dallas Dover who was not then

a member of Local 282, came to the sewage disposal plant job

site in Cape Girardeau, where some members of Local 282

were working. They went down into a deep excavation to dis-

cuss their petition and hopefully to secure signatures on it (Tr.

16-17, 51, 101-107, 153-155, 172-175). They did not wear

hard hats or report to the construction office, as required by a

large sign (Deft. Exh. A, Tr. 44, 46, 130-131, 165-166, 180-

181).

While the three men were talking to Local 282 members, de-

fendant Cason, who was acting steward (Tr. 553), asked the

men what they were doing and then called Kelley, who was

President and Business Representative of Local 282. He told

Kelley that the men were circulating a petition. Kelley and

Menz, who was Secretary-Treasurer and Business Manager of

Local 282, proceeded to the job site in Menz’s red and white

Cadillac. In the meantime, the three mer had completed. their

discussions with Local 282 members on the job, and they were

leaving in the Innis truck just as Kelley and Menz arrived (Tr.

17-19, 107-110, 155-160, 175-177, 553-560). At this point,

there is a conflict in the testimony as to the events which then

followed.

Prosecution witnesses testified that as the truck was leaving,

Kelley threw a baseball bat at it. The truck then proceeded

out of the job site area and went to a service station in Cape

Girardeau. While the truck was at the station, the Menz car

passed by, and Kelley fired three pistol shots at the Innis truck

(Tr. 19-25, 111-117, 191-196, 212-214, 223-228, 233-237),

A spent bullet was found at the service station lot (Govt. Exh.

2, Tr. 249-252). There was a discrepancy among the various

witnesses as to whether there were one, two or three persons

in the Menz car (Tr. 90-91, 116, 195, 226, 236).

The defense version of these events was that as the Innis

truck came abreast of the Menz car at the sewage disposal plant

— ir

job site, Sachse was seated at the window on the passenger side

and fired a pistol in the direction of the Menz car, the bullet

passing over the heads of Kelley, Menz and Cason. (Sachse

denied the shooting, although he, Innis and Dover admitted

having a shotgun in the truck (Tr. 25, 27-30, 47-49, 61, 73-

74, 103, 117, 135, 143, 144-147, 164, 169-170).) At that

point Kelley grabbed a baseball bat which had been in the Menz

car and threw it at the truck. When Kelley, Menz and Cason

left the job site, they did not pass by the service station and did

not fire any shots at the Innis truck. Instead they took the

road behind the station and went to East Cape, Illinois, where

they decided to go back to Cape Girardeau and make a com-

plaint to the prosecuting attorney about the shot which was

fired at them by Sachse (Tr. 506-511, 560-566, 588-599, 630-

639). The defendants suggested that the shots may have come

from a red and white Lincoln owned by Jim Bollinger, an asso-

ciate of the dissident members of Local 282 (Tr. 77, 231, 244-

245).

Jackman testified that the night before this incident he had

received a call from Menz who then came to the Jackman

house. Jackman sat in the Menz car and they had a pleasant

conversation about Jackman’s intention to run against Menz

at the 1977 election. While seated in the Menz car, Jackman

noticed what he believed to be a .38 caliber pistol (Tr. 299-

302). (Menz testified that it was a flashlight (Tr. 586-588).)

The implication of Jackman’s testimony was that this may have

been the gun used the next day, for the slug found at the service

station could have been a .38 (Tr. 280-283, 295-296). Shortly

after the alleged shooting in Cape Girardeau, there whas a phone

call to the Noranda Aluminum job site in New Madrid, Mis-

souri, about the incident. Jackman, Brant and several other

members of the dissident faction of the union left the Noranda

job during working hours and met all day with other dissidents

and with a representative of the National Labor Relations Board

(Tr. 337-340, 406-408, 419-420, 428-429, 434-435, 459-463).

— »

On the following day, October 24 (see Count III), Menz and

Kelley drove to the Noranda site with several other men including

Worthy (Tr. 324-325, 360-363, 370-371, 377-378, 390, 493-

494, 602). The men were brought for protection and also to

put to work in the event the laborers who left the day before had

not returned and had to be replaced (Tr. 444-445, 500, 535,

599-602, 641-642). Menz learned that Jackman, who was gen-

eral foreman and steward, was still not on the job, and, pursu-

ant to his authority under the collective bargaining agreement

(Tr. 457-458, 605), he appointed a new general foreman and

a new steward (Tr. 463-465, 477, 603-606). He then re-

quested to see Brant, a foreman (Tr. 323), because he wanted

to inform him of the changes (Tr. 606-607).

When Brant arrived, there was a brief discussion, Brant claim-

ing that Menz said the illegal petition had to stop. Defense wit-

nesses denied that there was any reference to the petition (Tr.

609, 645-646). Then Worthy began to threaten Brant, but

the problem soon dissolved when one or two of the men with

Kelley and Menz stepped between them. Prosecution witnesses

testified that at this point Kelley made a threatening gesture to-

ward Brant as if he had a pistol in his pocket, and one witness

claimed to have seen the butt of a pistol (Tr. 328-336, 363-

367, 372-374, 378-384, 391-396). Defense witnesses denied

that there was a gun or any threats by Kelley (Tr. 436-440,

442, 446-451, 465-466, 477-481, 495-498, 500-503, 537-

540, 607-613, 643, 645-649). All defendants were acquitted

on Count III (R. 22-24, Tr. 704-705).

At the close of all the evidence, the Court overruled petition-

ers’ motion for judgment of acquittal (R. 16, Tr. 670). The

cause was submitted to the jury after argument (Tr. 670) and

the Court’s charge to the jury (Tr. 670-699), to which peti-

.tioners made certain objections (R. 17-21, Tr. 699-703).

As previously indicated, the jury returned verdicts (R. 22-

25, Tr. 703-705) finding petitioners guilty of conspiracy and

=

intimidation of Sachse and Innis at the sewage treatment plant

on October 23 (Counts I and II), and acquitted petitioners of

intimidation of Brant at the Noranda job on October 24 (Count

Ill). The jury also acquitted Cason of conspiracy and intimida-

tion as to the sewage treatment plant (Counts I and II), and ac-

quitted Worthy of conspiracy and intimidation as to the Noranda

job (Counts I and II]. Thus, the jury acquitted all defendants

of any charges related to the Noranda job, except possibly inso-

far as they were included in the conspiracy convictions of peti-

tioners.

On February 23, 1976, petitioners were each sentenced to

the maximum term of one year confinement on each count, the

sentences to run consecutively for a total of two years (R. 26-27,

Tr. 707-710).

Each petitioner duly filed a notice of appeal to the United

States Court of Appeals for the Eighth Circuit (R. 28-29), and

remained free on bond pending appeal (Tr. 710). The appeals

were consolidated, and on December 3, 1976, a panel of the

Court of Appeals filed an opinion (Appendix A) affirming the

convictions. Petitioners’ timely petition for rehearing and sug-

gestion of appropriateness of rehearing in banc was denied on

January 24, 1977, but the Court of Appeals modified the opin-

ion by deleting one paragraph thereof. (See Appendix D.)

The Court of Appeals declined to stay its mandate, and on

February 8, 1977, Mr. Justice Blackmun in No. A-648 denied

petitioners’ application to this Court for a stay of the mandate.

Petitioners are presently confined at the Federal Correctional

Institution at E] Reno, Oklahoma, which they entered on Febru-

ary 11, 1977, pursuant to their convictions.

This joint petition for a writ of certiorari seeks to review the

judgment of the Court of Appeals affirming petitioners’ con-

victions.

"ve

REASONS FOR GRANTING THE WRIT

I

Submissible Case

Title 29, United States Code, Section 530, the criminal mis-

demeanor statute under which petitioners’ prosecution arose, has

been seldom invoked—and never in any reported case of facts

similar to those in this case. The importance of this petition for

certiorari is that, if this prosecution is sanctioned, the floodgates

will be opened to inundate federal courts with matters which

should be cognizable only in local courts.

Although the conduct of petitioners, if government witnesses

are believed, may have been a violation of state or local laws,

this case should not have been tried in the federal court or sub-

mitted to the jury herein. The prosecution failed to make a sub-

missible case of a violation of Section 530, or of a conspiracy to

violate that section, for two reasons:

A. Sachse and Innis, the union members allegedly in-

timidated, were not at the time of the incidents in evidence

exercising any rights granted to them by 29 U.S.C. §§ 411(a)

(1) or 411(a)(2); by that time they had terminated their pro-

tected activities; and

B. In any event, their activities in seeking a new election

were not within the appropriate framework of remedies available

to contest an election and therefore were not rights granted

by 29 U.S.C. §§ 411(a)(1) or 411(a)(2).

A

Count II of the indictment charged that petitioners and Cason

“did knowingly, willfully, and unlawfully, through the use of

force and violence, and through threats of the use of force and

violence, restrain, coerce and intimidate and attempt to restrain,

coerce, and intimidate Joe Sachse and Owen Innis, members

of Local 282, for the purpose of interfering with and preventing

the exercise of their rights to which they are entitled under the

provisions of Sections 411(a)(1) and 41 1(a)(2), Title 29, United

States Code, that is, the rights to meet and assemble freely with

other members of Local 282, and to express views, arguments,

and opinions.” This was alleged to be a violation of 29 U.S.C.

§ 530.

Section 530 does not cover every assault or threat or in-

timidation; it must be against a union member and only with

reference to a right which that union member possesses under

Chapter 11 of Title 29, United States Code. In the instant case

there was no dispute that Sachse and Innis were members of the

union, but there was an issue as to whether they were exercising

a Chapter 11 right of which they were deprived. The indictment

specifically referred to rights under §§ 411(a)(1) and 411(a)(2),

but limited it to “the rights to meet and assemble freely with

other members of Local 282, and to express views, arguments,

and opinions”—the language of § 41 1(a)(2).

As previously noted, there are very few reported cases of

prosecutions under § 530, and none with facts analogous to the

case here. It would seem that the dearth of authority is a result

of the refusal to invoke this federal law in factual situations

which are more appropriate in state or local jurisdictions.

We believe that a strict construction of this federal criminal

statute necessitated an acquittal of petitioners. There was ab-

solutely no evidence that Sachse or Innis were prevented from

meeting or assembling with other union members or expressing

their views, arguments and opinions. In fact, the evidence was

quite to the contrary, for there was no dispute that Sachse and

Innis (and their non-member cohort Dover) had full opportunity

— oe

to meet and assemble and talk with the laborers on the sewage

disposal plant job.‘

Not only was there no evidence that Sachse and Innis had

been interfered with in talking to the union members on the

job, but their testimony clearly showed that they had completed

their activities without interference and were leaving the job

site when the first altercation with the baseball bat took place;

they were three-quarters of a mile to a mile away fromthe job

site and from any other union members when the alleged shoot-

ing took place at the service station (Tr. 23, 64).

Sachse testified that nobody interfered with him in getting

three signatures on his petition or in talking to a fourth man

who declined to sign (Tr. 49-50), and he did not see anybody

interfering with Innis (Tr. 53). He acknowledged that they

had decided to leave and were in the process of leaving when

they first saw petitioners, and that they had “completed the

business” that they had come there for (Tr. 53-54).

Innis testified that they were leaving because they “had no

further business there” (Tr. 109), and that nobody interfered

with his talking to the men or getting signatures (Tr. 131). Dover

corroborated that they had completed all of the work of getting

signatures before they even saw petitioners (Tr. 166).

Thus, at the time of the alleged activities of petitioners,

Sachse and Innis were not engaged in the exercise of any of the

rights to which they were entitled under § 411; they were not

interfered with or prevented from exercising any such rights.

‘ As a matter of fact, according to safety standards and common

sense, they should not have been there without company permission

and without hard hats (see Deft. Exh. A, Tr. 180). Their inter-

ference with union employees who were working (Tr. 166) could

have jeopardized the labor-management contract between Local 282

and the employer. Compare the proviso of 29 U.S.C. § 411(a)(2)

which specifically does not give the right to interfere with contractual

obligations of the union.

—_—

If they had a right to solicit signatures to their petition, they

had already completed their activities and were leaving. Any

assault on them after that time could only have been a state

or local offense—not a violation of 29 U.S.C. § 530.

But the opinion of the Court of Appeals rejected this argu-

ment by alluding to a possible future intimidatory effect, and

concluded that “the chilling effect of the incidents in evidence

upon Sachse’s and Innis’ subsequent exercise of their right to

meet and assemble, or to express views and opinions, is clear.”

The Court of Appeals was indulging in speculation, because

there was absolutely no evidence of an effect upon future con-

duct of Sachse, Innis, or anyone else.

A more serious deficiency, of constitutional magnitude, be-

comes apparent when the rationale of the opinion below is

analyzed in the light of Fifth Amendment requirements. To

permit a charge in such vague terms as the indictment herein,

under a statute as vague as § 411(a)(2), to be sustained by

speculation of a potential chilling effect of indefinite future

conduct is contrary to the Due Process Clause. The “chilling

effect” on legitimate activities of a union officer is a greater

danger under the interpretation of the Court of Appeals.

We respectfully suggest that certiorari should be granted to

review this unconstitutional application of this vague and, until

now, seldom-interpreted statute.

B

The meetings of union members around the dissident leader-

ship of Jackman and Bollinger were aimed in one direction—to

get a new election of officers. See, for example, the testimony

of Jackman (Tr. 299, 301, 305, 403-406). That the sole con-

cern of the dissident members was to secure a new election is

—

obvious from the petition which Sachse, Innis and Dover were

circulating on October 23 at the sewage disposal plant. A read-

ing of that petition (Govt. Exh. 1) shows that it contained ac-

cusations against the conduct of the previous election in May,

1974 (compare with 29 U.S.C. § 481), and implicit in the peti-

tion was a suggestion that a new election should be held. Sachse

and Innis both testified that the purpose of the petition was to

try to obtain a new election (Tr. 41-43, 125-126).

But under the decision of this Court in Dunlop v. Bachowski,

421 U.S. 560 (1975), no new election could be obtained in the

manner sought by Sachse and Innis; therefore their activities

would not have been protected under § 411(a)(2), and there

could not be any basis for prosecution under § 530." Dunlop

holds that remedies for obtaining new elections are provided by

the Labor-Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U.S.C. § 401 et seq., and unless the provisions

of the Act are complied with, no other method may be used for

obtaining a review of the election. Thus, as pointed out in Dun-

lop, 29 U.S.C. § 483 provides that the “remedy provided by this

subchapter for challenging an election already conducted shall

be exclusive.” And, as said in Dunlop:

“Provisions concerning the conduct of the election itself,

however, may be enforced only according to the post-

election procedures specified in 29 U.S.C. § 482. Section

483 is thus not a prohibition against judicial review but

simply underscores the exclusivity of the § 482 procedures

in post-election cases.”

From a reading of the Dunlop case, it is obvious that individuals

may not employ other means to contest an election, except as

provided in LMRDA. Indeed, the Court of Appeals herein

recognized “that the effort to obtain a new election by petition

was foredoomed.”

* Note that § 411(a)(2) specifically guarantees the right to ex-

press views on election matters, but only “at meetings” of the union.

— wo

Therefore, when Sachse and Innis were soliciting for a new

election, they were not engaged in protected activity under

§ 411(a)(2). Unless they were exercising rights which they

were given in § 411(a)(2), petitioners could not be prosecuted

under § 530. As pointed out in Section A, the application of

a strict construction to §§ 411(a)(2) and 530 must lead to the

conclusion that their testimony may have been sufficient to gen-

erate a state or local prosecution, but not federal.

Dunlop cited other cases to support the ruling that the remedy

provided by LMRDA is exclusive. Note particularly the lan-

guage quoted from Trbovich v. United Mine Workers, 404 U.S.

528 (1972):

“ . . Congress intended to prevent members from pressing

claims not thought meritorious by the Secretary, and from

litigating in forums or at times different from those chosen

by the Secretary.” (404 U.S. at 536).

“. . . The statute gives the individual union members

certain rights against their union and ‘the Secretary of

Labor in effect becomes the union member’s lawyer’ for

purposes of enforcing those rights . . .” (408 U.S. at 538-

539)

Thus, this Court has recognized that union members have

certain rights, but those rights are granted strictly according to

the statute. Dunlop and the cases relied upon make clear that a

member does not have a statutorily protected right to contest

an election in a manner other than as set out in the exclusive

remedy provided by the statute. The attempt to use some other

unprotected type of remedy could not be a basis for complaint

of a criminal violation under § 530.

Compare Fennelly v. Local 971, 400 F. Supp. 375 (D. Mass.

1975), where the Court recognized the exclusivity of the elec-

tion contest remedy in 29 U.S.C. § 482. In addition, the Court

—_—

rejected the argument that it had jurisdiction under the “Bill

of Rights” of 29 U.S.C. § 411(a)(1).

The Court of Appeals has disregarded the effect of this Court’s

decision in Dunlop v. Bachowski; we respectfully suggest that

certiorari should be granted to review this conflict.

Ii

Misapplication of Federal Rules of Evidence

The new Federal Rules of Evidence have already generated

much comment and litigation. Two of these Rules have been

interpreted in this case in a manner contrary to the spirit as well

as the language of the Rules, and we respectfully suggest that

this departure from the Rules of Evidence should be reviewed

by this Court.

A. Other threats and acts—Rule 404(b)

As to the incident at the Cape Girardeau sewage disposal

plant (Count II and part of Count I), the government’s evidence

was that petitioners were the aggressors and made a shooting

assault upon Sachse and Innis. Defense evidence was that

Sachse fired the first and only shot, and that the only violent act

of petitioners was a retaliatory throwing of a baseball bat by

Kelley immediately after Sachse had fired a weapon at Menz

and Kelley. Thus, contrary to the suggestion at fn. 6 of the

opinion belew, there was a crucial factual dispute as to who

was the aggressor on October 23, 1975.

The motive and intent of Sachse, Innis and their associates

were certainly relevant to this issue, and to prove their motive

and intent, the defendants attempted to cross-examine the gov-

ernment witnesses as to acts of misconduct and threats directed

to petitioners and other loyal members of Local 282. The issue

—

was raised prior to cross-examination of the government’s first

witness, Sachse (Tr. 37-40). The prosecutor objected in ad-

vance to cross-examination concerning an assault by Sachse

on a Mr. Penney, a member of Local 282, who was beaten

because of his association with petitioners. According to de-

fendants’ offer of proof, Mr. Penney was told that his beating “is

what all of the Kelley-Menz crowd is going to get” (Tr. 38). The

defense also predicted evidence of other threats and assaults by

Sachse, aimed at discrediting Kelley and Menz, and of threats

to Kelley, Menz, and members of their families. Sachse was

also present when threats were made to another close associate

of Kelley and Menz (Tr. 38). When an effort was made to de-

velop the facts of this latter incident on further cross-examina-

tion of Sachse; by attempting to show that he and Jackman were

present at a time before the October 23 events when their cohort

Bollinger told a loyal supporter of Mr. Kelley that “he would

take over Local 282 and get the Kelleys if he had a badge and

a gun and immunity,” the Court sustained all objections to the

questions, apparently because the defendants were not present

(Tr. 92-94). The cross-examination of Innis was also restricted

concerning his participation in efforts to replace Kelley and

Menz, and his harassment of the wife of a loyal union member

(Tr. 149-150).

Sachse and Innis were crucial government witnesses against

the defendants concerning the October 23 incident at the Cape

Girardeau sewage disposal plant. They were named as the

alleged victims of the intimidation charged in Counts I and II.

“A searching and wide ranging cross-examination” was required

and should have been permitted in order to attack their credi-

bility and veracity and to show their motives and intent in

accusing the defendants. United States v. Dickens, 417 F. 2d

958, 959-960 (8th Cir. 1969).

When the issue of other acts and threats first came up before

the cross-examination of Sachse (Tr. 38), defense counsel di-

—_

rected the Court’s attention to Rule 404(b) of the Federal Rules

of Evidence. In addition, the defendants cited United States v.

Calvert, 523 F. 2d 895, 905-908 (8th Cir. 1975), cert. denied,

424 U.S. 911 (1976), where evidence of other acts and un-

charged crimes of the defendant were held to be admissible on

the authority of Rule 404(b), which “is consistent with the

common law and with the decisions of this Circuit.” But the

District Court refused to follow Calvert in the mistaken belief

that it was distinguishable because the Calvert case involved

accusations against the defendant and here it involved a wit-

ness. The Court made the following comment (Tr. 39):

“Against the defendant to show motive, but this is a different

deal, that is, witness.”®

The trial Court’s reasoning was erroneous, for Rule 404(b)

refers to “a person” and not just the defendant or an accused.

Note that Rule 404(a) also uses the word “person”, and then

the various subsections of Rule 404(2) indicate that “a person”

includes the “accused”, a “victim” or a plain “witness”. ~Ob-

viously, the trial Court's restriction here of Rule 404(b) was

much too limited.

The Court of Appeals in its original opinion (Appendix A)

rejected petitioners’ interpretation of Rule 404(b) in a manner

consistent with Rule 404(a), and stated that “it is clear that Rule

404(b) must be confined to efforts to introduce evidence of

‘other crimes’ of the accused.” This language was, however,

deleted from the opinion in the ruling on the petition for re-

hearing (Appendix D)—but there is no doubt in reading what

remains of the opinion that the Court of Appeals has adhered to

its erroneous interpretation of Rule 404(b). (See the paragraph

preceding the one stricken where the Court of Appeals em-

* The Court had earlier permitted evidence of other alleged

threats by Kelley, over objection of all defendants (Tr. 27-28).

~~

phasized the words “as the accused”.)'” It is inconceivable that

the drafters of the Federal Rules of Evidence intended that Rule

404(a) meant “person” to include all three, but that Rule

404(b) meant “person” to jnclude only “the accused”.

The Calvert opinion should be read for its extensive analysis

of the application of the rules of admissibility of evidence of

other acts of misconduct to show motive, intent, preparation

and plan. See also United States v. Clemons, 503 F.2d 486,

488-491 (8th Cir. 1974), decided before the adoption of Rule

404(b) but cited in the opinion herein, which laid down the

following criteria for admissibility of evidence of other crimes

to show “motive, intent, preconceived plan,” etc. (l.c. 489):

“Before any such evidence is admitted, however, it must

be shown that (1) an issue on which other crime evidence

may be received is raised; (2) that the proffered evidence

is relevant to that issue; (3) that the evidence is clear and

convincing; and (4) that the probative worth outweighs

the probable prejudicial impact."!

Certainly in the instant case there was such an issue, for the

jury had to decide whether the defendants or Sachse and Innis

were the aggressors and provokers of the disturbance which oc-

curred. In this respect, cases involving homicides and assaults

and the crucial issues of self-defense and determination of who

10 That same paragraph of the opinion commences with the state-

ment that the doctrine of Rule 404(b) “has been traditionally one of

exclusion,” but the report of the House Committee on the Judiciary,

93-650, November 15, 1973, commented about the changes in the

Rule to its present form that “this formulation properly placed

greater emphasis on admissibility . . .”

11 The trial Court here made no findings as to the last two guide-

lines of the Calvert and Clemons tests, that is, the’ sufficiency of the

proof and the probative value compared to danger of prejudice.

Instead the Court abdicated its responsibility by taking the position

that evidence of this nature is not admissible as to a witness, but just

against a defendant. As previously indicated, Rule 404(b) makes

no such distinction.

— vn

was the aggressor are relevant. See, for example, United States

v. McIntire, 461 F. 2d 1092 (Sth Cir. 1972), and United States

v. Burke, 470 F. 2d 432 (D.C. Cir. 1972). Compare Wakak-

san v. United States, 367 F. 2d 639, 645 (8th Cir. 1966), cert.

denied, 386 U.S. 994 (1967).

The events sought to be introduced related to acts or threat-

ened acts of violence by the alleged victims Sachse and Innis

and their cohorts which occurred during the tims that they

were meeting and attempting to discredit the leadership and

membership of Local 282. Evidence of threats and assaults by

Sachse, Innis and Bollinger would have proved a course of action

that had obviously been agreed upon by them and their associ-

ates at the numerous meetings of the dissident faction. The de-

fense that the dissident group was engaged in a conspiracy of

their own was fully explained to the trial Court (Tr. 306).

At the end of its discussion on this issue involving Rule 404

(b), the Court of Appeals affirmed the trial Court by application

of the doctrine that there was no “clear showing of abuse of

discretion.” Although Rule 404(b) does use the word “may”

as to admissibility of other crimes evidence, we suggest that the

Court of Appeals has misconstrued the standards governing the

exercise of discretion. See the notes of the Advisory Committee

on the Proposed Rules. It is not just a question of what evidence

may already be in the case—instead the discretionary factors

relate to prejudice, confusion, waste of time, etc. See also the

report of the Senate Committee on the Judiciary, 93-1277,

October 11, 1974.

The evidence of the prior acts of misconduct by the alleged

victims herein was admissible to show their motive and intent

in making the accusations against petitioners. It was relevant

also on the issue of who was the aggressor and who assaulted

whom. The exclusion of the evidence certainly was erroneous

on the trial Court’s theory and cannot be justified on any theory

adopted by the Court of Appeals.

— ee

The danger of the opinion below is not only in its adverse

effect upon these petitioners, but also in its restrictive interpre-

tation of Rule 404(b) and the consequent effect upon other

trials in which relevant evidence pertaining to acts by a victim

or any witness will be excluded. We respectfully suggest that

such an emasculation of Rule 404(b) should be reviewed by

this Court.

B. Absent witness’ grand jury testimony—Rule 804

Brenda Williamson was a secretary of Alberici-Fruin-Colnon

who was on the premises at the Noranda job site on October

24, 1975. She had appeared before the grand jury during its

investigation of this matter and was questioned by government

counsel. She was served by defendants with a subpoena for

trial, but could not attend because she had just been released

from the hospital after having suffered a cerebral hemorrhage.

The government stipulated that she was unavailable as a witness

(Tr. 470-471).

Defendants sought to use portions of her grand jury testimony

(page 2—page 6, line 5, and page 6, line 24—-page 7, line 6 of

Court’s Exh. 1), but the trial Court refused to permit it for the

reason that it was not relevant (Tr. 472). Later the trial Court

said her testimony would be misleading (Tr. 473-474). We be-

lieve the trial Court’s action was clearly erroneous on either

ground stated, and that the transcript was admissible under Rule

804 of the Federal Rules of Evidence.

The absence of Miss Williamson met the test of Rule 804(a)

(4) because she was then “unable to be present or to testify at

the hearing because of . . . then existing physical . . . illness or

infirmity.” The government so stipulated (Tr. 471). Under these

circumstances, her testimony was admissible under Rule 804

(b)(1).

—_—

The Court of Appeals, without even referring to the clear

language of Rule 804, rejected her testimony as irrelevant be-

cause not related to the events of the day before. Her testimony

was certainly relevant to the issues being tried, because she

said that she saw Kelley in the office and was positive that she

did not see a weapon on him. There was other evidence in the

case concerning weapons, and her testimony that she did not

see a gun in Kelley’s possession on October 24 was just as

relevant as the testimony of witness Stricklin that he saw a

gun in Kelley’s possession on October 24 (Tr. 382-384), and the

implication in the testimony of numerous other witnesses that

he had a gun on that date (Tr. 334-336, 364-366, 372-374,

392-395).. It was just as relevant, time-wise, as the testimony

of witness Jackman that on October 22 he saw a gun in the

possession of defendant Menz (Tr. 299-302). If Jackman could

testify that there was a gun one day prior to the incident, then

certainly Ms. Williamson’s testimony as to the lack of a gun

one day afterward was equally relevant. The jury should have

been allowed to consider such testimony and give it whatever

weight they desired.

The Court of Appeals ignored the clear command of Rule

804 as to the admissibility of Ms. Williamson’s grand jury testi-

mony. We respectfully suggest that certiorari should be granted

to give effect to this Rule.

III

Two Counts and Sentences

Petitioners were convicted on Counts I and II of the indict-

ment (R. 1-4). Count I charged conspiracy under 18 U.S.C.

§ 371 to violate 29 U.S.C. § 530, and Count II charged a

substantive violation. of 29 U.S.C. § 530. The allegations of

the indictment and the proof left no doubt that the conspiracy

— pa

to violate 29 U.S.C. § 530 as charged in Count I was no differ-

ent in any material respect from the substantive charge of

Count II, and therefore the Fifth Amendment provision against

double jeopardy voids the conspiracy charge.

In Blockburger v. United States, 284 U.S. 299, 304 (1931),

this Court said: ;

“The applicable rule is that where the same act or trans-

action constitutes a violation of two distinct statutory pro-

visions, the test to be applied to determine whether there

are two offenses or only one is whether each provision re-

quires proof of a fact which the other does not.”

The instant case falls squarely within this rule, for the record

clearly shows that the government relied upon the very same

evidence to prove the substantive violation and to establish the

conspiracy. There was no difference in the proof of the two

counts, and the same activities of petitioners gave rise to criminal

liability under both 18 U.S.C. § 371 and 29 U.S.C. § 530. The

government therefore should have been required to elect be-

tween the counts. (Prior to trial, the defendants jointly moved

to dismiss the indictment or alternatively to require the govern-

ment to elect on Fifth Amendment double jeopardy and Eighth

Amendment cruel and unusual punishment grounds; the mo-

tions were denied. )

Although the instant case is not the type contemplated in the

formulation of Wharton’s Rule (for the reason that concerted

criminal activity is not required for a violation of 29 U.S.C.

§ 530), nevertheless what this Court said of Wharton’s Rule in

lannelli v. United States, 420 U.S. 777 (1975), should apply

here:

“Thus, absent legislative intent to the contrary, the Rule

Supports a presumption that the two merge when the sub-

stantive offense is proven.”

aaa acacia aaa a a ta hs

ee

There certainly could not have been any legislative intent that

each participant in a completed misdemeanor offense (§ 530)

should get double punishment via a conspiracy charge, espe-

cially where the proof is identical. See also Bell v. United States,

349 U.S. 81, 83-84 (1955), and Prince v. United States, 352

U.S. 322 (1957). Therefore the Court should not have im-

posed consecutive maximum sentences of imprisonment on each

count (R. 26-27, Tr. 710).

This Court is certainly aware of the many cases in all courts,

including this Court, wherein prisoners complain of violations

pertaining to multiple counts and consecutive sentences. We re-

spectfully suggest that it would be appropriate for this Court

now to establish guidelines for use of conspiracy charges and

for consecutive sentences. This case presents such an oppor-

tunity.

APPENDIX

CONCLUSION

For these reasons, it is respectfully submitted that this petition

for a writ of certiorari should be granted.

a

Respectfully submitted,

IRL B. BARIS

721 Olive Street

St. Louis, Missouri 63101

Attorney for Petitioners |

———

ee

—

APPENDIX A

Opinion

United States Court of Appeals

For the Eighth Circuit

No. 76-1208

and

No. 76-1209

United States of America, )

Appellee, Appeal from _ the

United States Dis-

> trict Court for the

Eastern District of

Fred D. Kelley and Paul P. Menz, '

Missouri.

Appellants.

Submitted: September 13, 1976

Filed: December 3, 1976

Before Gibson, Chief Judge, Stephenson, Circuit Judge and

Markey,* Chief Judge.

Markey, Chief Judge, U. S. Court of Customs and Patent Ap-

peals.

These are separate, « solidated appeals by Fred D. Kelley

and Paul P. Menz, each found (a), guilty of conspiracy, under

18 U.S.C. § 371 “to restrain, coerce, and intimidate, and at-

tempt to restrain, coerce and intimidate members of a labor or-

ganization, for the purpose of interfering with and preventing

the exercise of rights to which they are entitled under the pro-

visions of Sections 411(a)(1) and 411(a)(2), Title 29, United

* Howard T. Markey, Chief Judge, United States Court of Cus-

toms and Patent Appeals, sitting by designation.

— !

States Code, in violation of Title 29, United States Code, Sec-

tion 530,” and (b), guilty of a substantive violation of 29 U.S.C.

§ 530 in interfering with the rights of union members Sachse

and Innis “to meet and assemble freely with other members of

Local 282, and to express views, arguments, and opinions.” We

affirm.

Background

Kelley and Menz were president and secretary-treasurer of

Local 282 of the International Laborers Union of North Amer-

ica, AFL-CIO, for 17 years, having last been elected in May,

1974. Dissatisfied union members began circulating a petition

complaining about that election. On October 23, 1975, Sachse,

Innis, and Dallas Dover (not then a member of Local 282) came

to a job-site where Local 282 members were working to dis-

cuss and seek signatures on the petition. Kelley and Menz,

on learning of these activities, proceeded to the job-site in

Menz’s red and white Cadillac, arriving as Sachse, Innis and

Dover were leaving the site in Innis’ truck.

- Prosecution witnesses testified that Kelley threw a baseball

bat at Innis’ truck; that, when the truck stopped at a service

station, Kelley fired three shots at it; and that a spent bullet

was found at the service station.

Defense witnesses testified that Sachse fired a pistol at the

Menz car as it passed the truck on arrival at the job-site (Sachse

admitted having a shotgun in the truck but denied shooting any

gun); that Kelley threw the bat in retaliation for the shooting;

that Kelley and Menz did not pass the service station or fire

any shots at the truck; that the shots may have come from a

red and white Lincoln, owned by another dissident member of

Local 282.

A witness said he’d seen what he thought was 2 .38 caliber

pistol in Menz’ car the night before the foregoing incidents.

— we

There was testimony that the gas station bullet may have been

.38 caliber. Menz said the witness had seen a flashlight, not a

gun, in his car.

After a jury verdict Of guilty on the two counts above de-

scribed, and of acquittal on a third count, Kelley and Menz

were each sentenced to one year confinement on each count,

the sentences to run consecutively. Appellants have remained

free on bond pending appeal.’

The issues are whether the district court erred in (1) sub-

mitting the cause to the jury under Title 29, United States Code,

§§ 530, 411(a)(1)(2); (2) excluding cross-examination of Sachse

and Innis respecting threats against Kelley, Menz and other

union members; (3) excluding grand jury testimony of Brenda

Williamson; and (4) refusing to require election between Counts

I and II, and imposing consecutive sentences on Counts I and II.

Opinion

Regarding submission to the jury, Kelley and Menz argue

that no violation of or conspiracy to violate Section 530 of

Title 29, United States Code was shown because:

(a) Sachse and Innis had terminated their protected activi-

ties under 29 U.S.C. § 411(a)(1) or § 411(a)(2) when

the incidents in evidence occurred; and

(b) The activities of Sachse and Innis were not among the

proper remedies available to contest an election and

thus were not protected under § 411(a)(1) or § 411

(a)(2).

The argument borders the frivolous. The exercise of a right

may be frustrated as much by retaliation as by prevention or

interruption. It is obvious that acts of violence immediately

! Two alleged co-conspirators were acquitted of all charges.

—~

following or otherwise directly relating to an activity stultify the

ensuing repetition of that activity by an intimidated victim and

by others as well. The chilling effect of the incidents in evi-

dence upon Sachse’s and Innis’ subsequent exercise of their right

to meet and assemble, or to express views and opinions, is clear.

The activities surrounding the effort to obtain signatures on a

petition for a new election are clearly protected ander 29 U.S.C.

§ 530. 29 U.S.C. § 411(a)(2) specifically cites the right “to

meet and assemble freely with other members” and “to express

any views, arguments or opinions.”*

That the effort to obtain a new election by petition was fore-

doomed (see, Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct.

1851, 44 L.Ed.2d 377 (1975), holding that 29 U.S.C. § 482

exclusively governs post-election procedures) does not render

even that effort an unprotected activity. It can hardly be said

that the statutory provision against intimidation and coercion of

union members is limited to protection of activities likely to

prove legally effective. That Kelley and Menz may have wasted

their efforts against an activity doomed to eventual legal failure

cannot change the coercive effect of those efforts upon the rights

of Sachse and Innis to meet and assemble and to express views

and opinions. Limitation of union members’ rights to those

activities likely to achieve legal success would defeat the con-

gressional intent expressed in the Labor Management Reporting

Disclosure Act of 1959, as amended, of which 29 U.S.C. § 530

and § 411(a) (2) are provisions.

On the second issue, we think the district court properly ex-

cluded evidence, proffered during cross-examination and in-

tended to show that Sachse and Innis directed threats and vio-

2 Citing the recognition in §411(a)(2) of a union’s right to en-

force reasonable rules against interference with its performance of

contract obligations, Kelley and Menz say that Sachse and Innis

failed to wear hard hats on the job site. Nothing of record, however,

indicates that Sachse or Innis interfered in any manner with the

union’s performance of its obligations.

cell

— <

lence toward them, and toward other loyal union members, as

inadmissible under Federal Rules of Evidence 607, 608 and 609.

Kelley and Menz first argue that Rule 404(b)* of the Federal

Rules of Evidence provides for admissibility of other crimes,

wrongs, or acts of the victim of a crime to show the victim’s

motive and intent in bringing criminal charges against the ac-

cused. Because Rule 404(a)* of the Federal Rules of Evidence

includes within “persons” the accused, the victim, or a witness,

it is contended that the term “person” in Rule 404(b) must be

so construed. A second argument is that an issue on which

“other crimes” evidence may be received was whether Sachse

and Innis were the aggressors at Cape Girardeau on October

23, 1975. Thirdly, it is claimed that the “other crimes” evidence

should have been admitted as part of a wide ranging cross-

examination designed to attack the credibility and veracity of

Sachse and Innis.

% Fed. Rules Evid. Rule 404(b), 28 U.S.C. (hereinafter Rule

404(b)) provides:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show that he acted in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, prepara-

tion, plan, knowledge, identity, or absence of mistake or ac-

cident.

4 Fed. Rules Evid. Rule 404(a), 28 U.S.C. provides as follows:

Evidence of a person’s character or a trait of his character is

not admissible for the purpose of proving that he acted in con-

formity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of

his character offered by an accused, or by the prosecution to

rebut the same;

(2) Character of victim. Evidence of a pertinent trait of

character of the victim of the crime offered by an accused, or by

the prosecution to rebut the same, or evidence of a character

trait of peacefulness of the victim offered by the prosecution in

a homicide case to rebut evidence that the victim was the first

aggressor;

(3) Character of witness. Evidence of the character of a

witness, as provided in rules 607, 608, and 609.

—_

The relevance of “other crimes” evidence to the motive or

intent of a person in certain circumstances has long been recog-

nized.* The general rule has been stated:

The rule is that the prosecution may not introduce evi-

dence of other criminal acts of the accused unless the evi-

dence is substantially relevant for some other purpose than

to show a probability that he committed the crime on trial

because he is a man of criminal character. McCormick on

Evidence, § 190 at 447 (2d ed. 1972) (emphasis added;

footnote omitted).

Thus the rule has been traditionally one of exclusion, per-

mitting evidence of other crimes, wrongs, or acts of a person

only under limited circumstances, to show the motive and in-

tent of that person as the accused in a prosecution for a related

offense. This court has recently observed that the statement of

the “other crimes” rule contained in Rule 404(b) “is consistent

with the common law and with the decisions of this Circuit.”

United States v. Calvert, 523 F.2d 895, 906 (8th Cir. 1975),

cert. denied, —U.S.—, 96 S.Ct. 1106, —L.Ed.2d— (1976).

' *It is clear that Rule 404 (b) must be confined to efforts |

to introduce evidence of “other crimes” of the accused. Adop-

tion of the interpretation of Rule 404(b) urged by Kelley and

Menz would convert that rule into one of inclusion and would

render Rule 404(a)(2) and (3) nullities. Moreover, the subjec-

tion of victims and witnesses to attacks upon their characters, in

cross-examination designed to show merely their motive in

charging or testifying against the accused, would have a serious

chilling effect upon the responsibility anJ willingness of victims

|and witnesses to testify.

* This paragraph was deleted by order of the Court of Appeals

on January 24, 1977. See Appendix D.

* See, e.g., State v. Raper, 141 Mo. 327, 42 S.W. 935 (1897);

Kempe v. United States, 151 F.2d 680 (8th Cir. 1945).

—* -

Nor was there an issue on which the proffered evidence was

receivable. As this court observed in United States v. Clemons,

503 F.2d 486, 489 (8th Cir. 1974):

Whether an issue has been raised for purposes of receiving

evidence of other crimes depends upon both the eleménts

of the offense charged and the nature of the defense pre-

sented (footnotes omitted ).

The proffered evidence concerned events well prior to those

at Cape Girardeau and was clearly unrelated to the elements of

the offense charged. Kelley and Menz presented no defense of

justification or excuse, such as self-defense. The issue of who

might have been the aggressor was therefore not before the

court.®

The attempted cross-examination finds no justification as a

permissible attack on the veracity and credibility of the wit-

nesses. Cross-examination concerning “other crimes” is not re-

lated to the witness’ propensity for truthfulness or untruthfulness

and its limitation is within the sound discretion of the trial

judge. See, United States v. Alberti, 470 F.2d 878, 882 (2nd

Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.

2d 311 (1973). Determination that the proffered evidence was

irrelevant, and therefore inadmissible, will not be disturbed ab-

sent a clear showing of abuse of discretion. Cotton v. United

States, 361 F.2d 673, 676 (8th Cir. 1966); United States v.

Skillman, 442 F.2d 542, 551-2 (8th Cir.), cert. denied 404

U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971); United States v.

Campanile, 516 F.2d 288, 292 (2nd Cir. 1975). The proffered

cross-examination was not only irrelevant but unnecessary for

the purposes alleged. The jury had sufficient information con-

cerning the power struggle within Local 282 to make “a dis-

criminating appraisal of the witnesses’ motives and bias.” United

6 The numerous cases involving claims of self-defense and cited

in the brief of Kelley and Menz are thus irrelevant.

—_—*

States v. Baker, 494 F.2d 1262, 1267 (6th Cir. 1974). The

fact that Sachse and Innis had been fired upon was attested to

by independent and disinterested witnesses and provided fully

adequate motivation for charging and testifying against Kelley

and Menz. The district court committed no error in foreclosing

cross-examination into alleged threats and violent acts of Sachse

and Innis.

Consideration of the third issue raised on appeal convinces

us that neither error nor abuse of discretion occurred in the ex-

clusion of the grand jury testimony of Brenda Williamson, who

was unavailable as a witness at trial. That testimony was irrele-

vant and thus inadmissible. Ms. Williamson was employed as a

secretary for Alberici-Fruin-Colnon in Morriston, Missouri at

the main building on the Noranda job-site. Her testimony re-

lated solely to events transpiring on October 24, 1975, the day

after the attack on Sachse and Innis on which the present charges

were based. Contrary to the urging of Kelley and Menz, Ms.

Williamson’s statement that she did not see a weapon on Kelley's

person on October 24th cannot be considered relevant to any

question of whether Kelley possessed a gun on October 23rd.

Similarly, we find no merit in the argument that Ms. Williamson’s

having seen other men with Kelley and Menz on October 24th

could have effected the jury’s determination of the conspiracy

count on which Kelley and Menz were convicted.

Kelley and Menz rely on the Fifth Amendment provision

against double jeopardy in contending that the district court

should have required election between conspiracy Count I and

substantive Count II. That reliance is misplaced. Whether a

substantive offense and a conspiracy to commit it are separate

and distinct depends upon whether one requires proof of an

essential element which the other does not. Blockburger v.

United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L.Ed.

306, 309 (1932). The essence of conspiracy is the agreement

to commit the crime. /anelli v. United States, 420 U.S. 770,

—_—

777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616, 622 (1975). Thus

proof of an agreement was required for conviction on the con-

spiracy Count I in the present case. No such proof was required

for conviction on the substantive Count II. Section 530, Title

29, United States Code states that “any person” who commits

the acts there prohibited violates the statute.‘ There was no

error in refusing to require election between Count I and Count

II.

We find no error in the imposition of consecutive maximum

sentences on Counts I and II. Separate, cumulative sentences

may be imposed for conspiracy to commit an offense and for its

actual commission. /anelli v. United States, supra at 777-78;

United States v. Calvert, supra at 914; United States v. Bertucci,

333 F.2d 292 (3rd Cir.), cert. denied, 379 U.S. 839, 85 S.Ct.

75, 13 L.Ed.2d 45 (1964).

The judgment below is affirmed.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit

* United States v. Schaefer, 510 F.2d 1307 (8th Cir. 1975),

cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975)

is cited by Kelley and Menz. In that case defendants were convicted

of conspiracy to gamble and of gambling (18 U.S.C. §1955). This

court reversed the conspiracy conviction as comprehending nothing

more than the agreement which defendants necessarily entered in

performing the substantive crime. One cannot gamble alone.

—A-10 —

APPENDIX B

Judgment

United States Court of Appeals

For the Eighth Circuit

No. 76-1208 )

United States of America, Appea! from the

Appellee, | United States Dis-

vs. > trict Court for the

Eastern District of

Fred D. Kelley, Missouri

Appellant. 7

This cause came on to be heard on the original designated

record of the United States District Court for the Eastern Dis-

trict of Missouri and briefs of the respective parties and was

argued by counsel.

On Consideration Whereof, it is now here ordered and ad-

judged by this Court that the judgment and sentence of the said

District Court in this cause be and the same is hereby affirmed.

December 3, 1976

— A-ll —

APPENDIX C

Judgment

United States Court of Appeals

For the Eighth Circuit

No. 76-1209 ‘

United States of America, Appeal from the

Appellee, United States Dis-

vs. trict Court for the

Eastern District of

Paul P. Menz, Missouri

Appellant. |

This cause came on to be heard on the original designated

record of the United States District Court for the Eastern Dis-

trict of Missouri and briefs of the respective parties and was

argued by counsel.

On Consideration Whereof, it is now here ordered and ad-

judged by this Court that the judgment and sentence of the said

District Court in this cause be and the same is hereby affirmed.

December 3, 1976

— A-12—

APPENDIX D

Order

United States Court of Appeals

For the Eighth Circuit

September Term, 1976

No. 76-1208

United States of America,

vs.

Fred D. Kelley,

No. 76-1209

United States of America,

vs.

Paul P. Menz,

)™~

Appellee,

Appeals from the

United States Dis-

Appellant. trict Court for the

Eastern District of

Missouri

Appellee,

Appellant. )

The second full paragraph on page 7 of the slip opinion filed

by this Court on December 3, 1976, and reading:

“It is clear that Rule 404(b) must be confined to efforts

to introduce evidence of “other crimes” of the accused.

Adoption of the interpretation of Rule 404(b) urged by

Kelley and Menz would convert that rule into one of in-

clusion and would render Rule 404(a) (2) and (3) nulli-

ties. Moreover, the subjection of victims and witnesses to

— A-13 —

attacks upon their characters, in cross-examination de-

signed to show merely their motive in charging or testify-

ing against the accused, would have a serious chilling effect

upon the responsibility and willingness of victims and wit-

nesses to testify.”

is hereby ordered deleted.

Having made the indicated deletion, it is further ordered

that petition for rehearing en banc filed by counsel for appel-

lants and, being fully advised in the premises, it is ordered that

the petition for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

January 24, 1977