Petition — Kaye v. United States

Supreme Court brief1977

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Text

. Sapreme Court, U. S

M FILED {%

a ot ~y

Ocroser TERM 1976 MICHAEL RODAK, JR., CLERK

DAVID P. KAYE,

Petitioner,

vB.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

EDWARD J. CALIHAN, JR.

ANNA R. LAVIN,

53 W. Jackson Blvd.

Chicago, Illinois 60606

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

Opinion of the:Court bebow ...............2.-.c.cccccccceceecss.c-00s.- 1

na aes cseecodonibiieelddeiometins 2

Questions Presented for Review 22...0....0.0000..ccccceeeeeeeeee 2

Constitutional and Statutory Provisions Involved .... 3

a a aadsiea a casiabedioelaneuisieboade 7

I sd cuinrserabllmeied 8

Reasons for Granting the Writ 0.0.0.0... eee 10

eae ae sasdenonsausanaetiaien 22

Appendix:

A. Opinion of the United States Court of

Appeals for the Seventh Circuit in Cause |

No. 76-1814 dated: May 16, 1977 _... App. 1

B. Order denying Petition for Rehearing

LUI UR SII dsl ppceiciictdlcldesachncaiesiinininincia App. 22

AUTHORITIES CITED

Cases

BS 7, Ts I PI II cttccctenccenrvsssienesetnsncesocsenss 12

Ceataee VW. Gaemeeim, Gi TG. BE anccnnncvecsceccsccscccsassccceceess 14, 18

Dennis v. United States, 341 U.S. 494 0... PE 14, 16

Federal Communications Comm’n v. American Broad-

casting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699... 13

Keppel v. Tiffin Savings Bank, 197 U.S. 356, 25 S.Ct.

Oa Oe i alelaeealeleictaiiaeelietepiniiniie 13

Lambert v. California, 356 U.S. 225 .....00000. eee 14, 17

PAGE

McBoyle v. United States, 283 U.S. 25 : 13

Montana v. Kennedy, 366 U.S. 308 002... eee ceceecceeceeee 12

Russell v. United States, 369 U.S. 749 18, 22

Stirone v. United States, 361 U.S. 212 0... 18, 22

United States v. Campos-Serrano, 404 U.S. 239. ........ 13

United States v. Cruikshank, 92 U.S. 542 2... 22

United States v. Donovan, 339 F.2d 404 20.2... 21

United States v. Inciso, 292 F.2d 374 20. ceccececeeeee 14

United States v. Keegan, 331 F.2d 257, cert. den. 379

es SP snecictichiaversantsnitieniideteditchccebaintalipiipaidaidditiabanshinans 14, 15

U. S. v. Nu Phonics, E. Mich. 46 L.W. 2001 ....0.......... 17

United States v. Ryan, 2 Cir., 232 F.2d 481, on remand

NE TE Weeells SIE ceteeictineienniahtdangatniicaarptinnpians 15

United States v. Ryan, 350 U.S. 299 ww... 18, 21

United States v. Simmons, 96 U.S. 360 00000. 22

United States v. Universal C.IL.T. Credit Corp., 344

of Se fie Se & SS eee 13

Other Authorities

I Fe ee Ee ceniterictertininiepilianeimendigtnninenins 15

eS EOF scaptiencerneeecnsineniiininnigtensiinmniiidnrnnntins 15

ee ts 0 ED. senssninrinciticeretiinntsntcsinaniaeiienisneietaneiintontie 12

Se Te I SIRS etcericecipiicttianesharenensitlnasstientnsghtnminenis 11

OS A Tee ED | ein atinntettiseiniinttnetneriemctins 10

Te es PD Saciicieseemctniiccocssemnctccsins 12

See Ts RS FUN srcinbilciniecinensnsisisininelsltibitaricedojuabicanintnin 10

iii

PAGE

Title 18 U.S.C. § 1962(€) ..-.naa---ccccccccccccnvccseseeseeee 12, 14, 16, 18

an ae ane eae 17

Title 21 U.S.C. § S42( a) a aeecccccccccccccccccccusessssceccccceseccccee 15

rc steeetecceeerecles 15

Title 29 U.S.C. § 186 ooeecccccccccccsssssssesseeeeeee 10, 11, 14, 15, 16

eee 21

Title 29 U.S.C. § 186(b) cccccccsessssecccceccessseeeeeeeeee 10, 14, 16, 18

Title 29 U.S.C. § 186(1) (1) .ccccccccccccssscsccccccccsssvececccceseee 12, 21

Title 29 U.8.C. § 186(C) (1) aeaaeecccccccccnnncvvccceoossceccecccceoce 21

maaettiae .................. 15

Title 45 U.S.C. § S5Q(D) eee enanesccccccccnconcvceeoeececcoomnereeeees 15

Rule 7(a) of the Federal Rules of Criminal Procedure 12

Section 11(b)(4) of the Water Quality Improvement

SD | Gpcteteliddbaidaadinedpelibaldtecedclntasessteipietnerddtanstcenadatiweiassensiiineedooaninn 15

Section 402(c)(2) of the Drug Control Act 2000000000... 15

Section 1011 of the Drug Control Act -......0.0000222....... 15

Black’s Law Dictionary, Revised Fourth Edition ........ 10

Words and Phrases, Volume IV... 10

Fifth Amendment to United States Constitution —...... 10

Sixth Amendment to the United States Constitution . 22

Eighth Amendment to United States Constitution ... 14

+ rere | ig wenene

In the

Supreme Court of the United States

Ocroper Term 1976

No.

DAVID P. KAYE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

iiespondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

To: The Honorable, The Chief J ustice and Associate

Justices of the Supreme Court of the United States.

Petitioner, David Kaye, prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit.

Opinion Below

The opinion of the Court of Appeals is not yet officially

reported, but is printed in the Appendix to this Petition

(App. A, pp. 2-21).

Jurisdiction

The decision of the Court of Appeals was filed on May

16, 1977. Petitioner’s timely Petition for Rehearing and

suggestions for rehearing en banc were denied on July 8,

1977, a copy of which order is printed in the Appendix to

this Petition (App. B, p. 22). This Petition is filed

within 30 days of July 8, 1977. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

Questions Presented For Review

1. Whether the term ‘‘indictable’’ offense, when used

by the Congress, has any significance, or can it be in-

terpreted to mean any ‘‘offense’’ (misdemeanor or petty

offense) because, under Rule 7(a) of the Federal Rules of

Criminal Procedure, the prosecutor may, in his discretion,

proceed by indictment on any misdemeanor or petty of-

fense, though the Constitutional imperative under the

Fifth Amendment extends only to infamous and serious

crimes?

2. Whether the exercise of the option to the prosecutor

to proceed by indictment or information in the case of mis-

demeanors under Rule 7(a) deprived this defendant of

due process of law under the Fifth Amendment and of the

Fourteenth Amendment guarantee of equal protection of

the law, which is implicit in the Fifth Amendment guaran-

tee of due process?

3. Whether the ‘‘drastic increase’’ of penalties for

multiple misdemeanors under Title 18, U.S.C. §1962 re-

quires a re-examination of the established mens rea of

mere ‘‘reckless conduct’? to support convictions under

§186(b)? (Compare U.S. v. Nu-Phonics, E.D. Mich., 46

LW 2001)

8 ree

nny _ .

4. Whether this case which by indictment descends to

a particularization of the generic term ‘‘representation of

employees” to ‘‘part-time business agent’’ can tolerate

conviction on the basis of defendant’s being a ‘‘chief

steward’’ and be consistent with the Sixth Amendment

and with this Court’s rulings in Russell v. United States,

369 U.S. 749, 765, United States v. Cruikshank, 92 U.S. 542,

558 and United States v. Simmons, 96 U.S. 360, 362.

Constitutional and Statutory Provisions Involved

The Constitution of the United States:

AMENDMENT V—_

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 offence 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 deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

AMENDMENT VI—

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confront-

ed with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

AMENDMENT VITI—

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted.

Title 18 United States Code:

§ 1961.

As used in this chapter—

(1) ‘‘Racketeering activity’? means (A) any act

or threat involving murder, kidnaping, gambling, ar-

son, robbery, bribery, extortion, or dealing in narcotic

or other dangerous drugs, which is chargeable under

State law and punishable by imprisonment for more

than one year; (B) any act which is indictable under

any of the following provisions of title 18, United

States Code: Section 201 (relating to bribery), sec-

tion 224 (relating to sports bribery), sections 471, 472,

and 473 (relating to counterfeiting), section 659 (re-

lating to theft from interstate shipment) if the act

indictable under section 659 is felonious, section 664

(relating to embezzlement from pension and welfare

funds), sections 891-894 (relating to extortionate

credit transactions), section 1084 (relating to the

transmission of gambling information), section 1341

(relating to mail fraud), section 1343 (relating to wire

fraud), section 1503 (relating to obstruction of jus-

tice), section 1510 (relating to obstruction of criminal

investigations), section 1511 (relating to the obstruc-

tion of State or local law enforcement), section 1951

(relating to interference with commerce, robbery, or

extortion), section 1952 (relating to racketeering), sec-

tion 1953 (relating to interstate transportation of

wagering paraphernalia), section 1954 (relating to

unlawful welfare fund payments), section 1955 (re-

lating to the prohibition of illegal gambling busi-

nesses), sections 2314 and 2315 (relating to interstate

transportation of stolen property), sections 2421-24

(relating to white slave traffic), (C) any act which is

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indictable under title 29, United States Code, section

186 (dealing with restrictions on payments and loans

to labor organizations) or section 501(c) (relating to

embezzlement from union funds), or (D) any offense

involving bankruptcy fraud, fraud in the sale of se-

curities, or the felonious manufacture, importation,

receiving, concealment, buying, selling, or otherwise

dealing in narcotic or other dangerous drugs, punish-

able under any law of the United States; (Emphasis

supplied)

§ 1962.

by or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or in-

directly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or collec-

tion of unlawful debt.

§ 1963. Criminal penalties

(a) Whoever violates any provision of section 1962

of this chapter shall be fined not more than $25,000 or

imprisoned not more than twenty years, or both, and

shall forfeit to the United States (1) any interest he

has acquired or maintained in violation of section

1962, and (2) any interest in, security of, claim against,

or property or contractual right of any kind affording

u source of influence over, any enterprise which he

has established, operated, controlled, conducted, or

participated in the conduct of, in violation of section

1962.

Rule 7.

(a) Use of Indictment or Information. An offense

which may be punished by death shall be prosecuted by

indictment. An offense which may be punished by im-

prisonment for a term exceeding one year or at hard

labor shall be prosecuted by indictment or, if indict-

ment is waived, it may be prosecuted by information.

Any other offense may be prosecuted by indictment

or by information. An information may be filed with-

out leave of court.

Title 29 United States Code:

§ 186.

(a) It shall be unlawful for any employer or asso-

ciation of employers or any person who acts as a labor

relations expert, adviser, or consultant to an employer

or who acts in the interest of an employer to pay,

lend, or deliver, or agree to pay, lend, or deliver, any

money or other thing of value—

(1) to any representative of any of his em-

ployees who are employed in an industry affect-

ing commerce; or

(a) to any labor organization, or any officer

or employee thereof, which represents, seeks to

represent, or would admit to membership, any of

the employees of such employer who are em-

ployed in an industry affecting commerce; or

(3) to any employee or group or committee of

employees of such employer employed in an in-

dustry affecting commerce in excess of their nor-

mal compensation for the purpose of causing

such employee or group or committee directly or

indirectly to influence any other employees in the

exercise of the right to organize and bargain col-

lectively through representatives of their own

choosing; or

(4) to any officer or employee of a labor organi-

zation engaged in an industry affecting commerce

with intent to influence him in respect to any of

his actions, decisions, or duties as a representa-

tive of employees or as such officer or employee

of such labor organization.

oe mm -

(b) (1) It shall be unlawful for any person to re-

quest, demand, receive, or accept, or agree to receive

or accept, any payment, loan, or delivery of any money

or other thing of value prohibited by subsection (a)

of this section.

» @ e

plicable (1) in respect to any money or other thing

of value payable by an employer to any of his em-

ployees whose established duties include acting openly

for such employer in matters of labor relations or

personnel administration or to any representative of

his employees, or to any officer or employee of a labor

organization, who is also an employee or former e:n-

ployee of such employer, as compensation for, or by

reason of, his service as an employee of such em-

ployer; (2) with respect to the payment or delivery

(d) Any person who willfully violates any of the

provisions of this section shall, upon conviction there-

of, be guilty of a misdemeanor and be subject to a

fine of not more than $10,000 or to imprisonment for

not more than one year, or both.

Statement of The Case

David Kaye was convicted in a bench trial on a seventy-

four count indictment of violation of 28 U.S.C. § 186(b)

(1) and 18 U.S.C. § 1962(c). He was sentenced to the

custody of the Attorney General for two years on Count

1 which charged a violation of 18 U.S.C. § 1962(c). Peti-

tioner was also sentenced to three years: probation con-

secutive to the two year prison sentence for violation of

29 U.S.C. § 186(b)(1) on Counts 2 through 74. The com-

plained of acts occurred between October 28, 1969, to on

or about June 21, 1974.

The eighty-one page indictment has been analyzed

under the third of our proposed reasons for granting the

writ for which we here pray.

Statement of Facts

The Court of Appeals found the pertinent facts sub-

stantially as follows (App. 5-7).

Petitioner was a member of Local 714 of the Machinery,

Scrap Iron Metal and Steel Chauffeurs, Warehousemen,

Handlers, Helpers, Alloy Fabricators, Theatrical, Exposi-

tion, Convention and Trade Show Employees, Interna-

tional Brotherhood of Teamsters (hereinafter referred to

as Local 714). Local 714 was the exclusive bargaining

agent for temporary employees performing material

handling and other work at trade shows, expositions, con-

ventions and similar functions in the Chicago metropoli-

tan area.

Petitioner acted in several capacities for Local 714.

First, he served as part-time business agent for Local

714 since 1971. Petitioner received one hundred dollars

a week for this work.

Petitioner also acted as chief steward for the trade

shows. Service contractors contacted petitioner in his

capacity as chief steward to arrange for labor to perform

tasks in relation to the trade shows and expositions. The

position of chief steward did not receive compensation

from either Local 714 or the service contractor. The posi-

tion of chief steward was in no way connected to Peti-

tioner’s role as part-time business agent.

As chief steward, Petitioner selected union stewards

for the trade shows. Petitioner alone appointed the union

stewards. If the work was to be conducted on one floor,

one union steward would be appointed. If the work was

conducted on separate floors or in different geographical

locations, a union steward would be appointed for each

work area. The position of union steward was separate

from chief steward. The union steward was an employee

of the service contractor who was paid at an hourly rate

which was higher than the rest of the work crew. The

duties of the union steward included the following: pro-

tection of the jurisdiction of Local 714, handling payroll

matters, checking crews in in the morning and checking

crews out in the evening, investigating grievances, check-

ing job safety, ensuring that work is done smoothly, and

generally caring for the welfare of the men in the crew.

Testimony by service contractors indicated that the union

steward was expected to be physically at the job site.

Absence from the job site was permitted with the approval

of the employer as where the union steward was handling

union business.

It was proper for petitioner as chief steward to appoint

himself to act as union steward for a particular job. Peti-

tioner’s exercise of the right to appoint himself union

steward led to the charges in this case.

Reasons for Granting The Writ

This Court should issue its Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

on the following grounds;

1. In enacting the definition statute controlling RICO

offenses (18 U.S.C. § 1961 et seq.), the Congress described

multiple offenses as constituting ‘‘ Racketeering Offenses,’’

when two or more offenses constituted ‘‘any act which is

indictable’’ under twenty-some sections of the federal

criminal proscriptions. Only one such offense is a mis-

demeanor, Title 29 U.S.C. § 186. The decision of the Court

below excepts ‘‘indictable offenses’’ from their accepted

and historical meaning and it violates the policy of lenity.

Title 29 U.S.C. § 186(b) defines a misdemeanor. The

pertinent part of Title 18 U.S.C. § 1962, under which

Count I is brought looks to § 1961(1) for its definitions,

and defining statutes are conclusive. That section defines

‘‘racketeering activity’’ as an ‘‘act which is indictable’’

under various sections, including Section 186. There is

no proscribed activity defined in § 186 that is ‘‘indictable’’

as that term is used, and interpreted, under the Fifth

Amendment, Clause 1.

Black’s Law Dictionary, Revised Fourth Edition, de-

fines the word ‘‘indictable’’ as follows:

‘*Proper or necessary to be prosecuted by process of

indictment. Indictable offenses embrace common iaw

offenses or statutory offenses, the punishment for

which are infamous.’’

An infamous crime is a felony and not a misdemeanor.

In Words and Phrases, Volume IV, the heading ‘‘In-

dictable Offense’’ is found the following:

‘*Under constitution. Article I, Sections 18 to 25 pro-

viding that no person can for an indictable offense be

proceeded against criminally by information, except

in certain specific instances, misdemeanors were not

intended to be braced in the words ‘indictable of-

fense’. That phrase included felonies only. State v.

Berlin, 42 Missouri 574; State v. Cowan, 29 Missouri

330.”’

While the prosecutor contended that, at his option, a

misdemeanor could be initiated by indictment, the Trial

Court below recognized the irreconcilability :

‘‘The wording of Section 1961(c) is patently incon-

sistent. The Court concludes that either Congress

made a simple drafting error when it used the word

‘indictable’ or, alternatively, Congress did not intend

to punish any act proscribed by Section 186. Accord-

ing to the notes following Section 1961, it was the in-

tent of Congress that the provisions of the Organized

Crime Control Act of 1970 be liberally construed to

effectuate its remedial purpose. That being so, it is

clear to the Court that, of inclusion of Section 1961(c),.

Congress intended that those activities proscribed by

Section 186 to be punishable under Section 1962 ir-

respective of their designation as misdemeanors or

felonies.’’ (Doc. 15, pp. 2-3)

We submit that, while the Trial Court’s recognition of

patent inconsistency is admirable, generalities of intents

of liberal construction do not reconcile with the basic rule

of strict construction; nor with the prohibition against

striking inconsistent provisions in order to enforce one

or the other. The policy of lenity would require that § 186

be stricken from the statute (Title 18 U.S.C. § 1961) as

the inconsistency, since it is the only non-indictable offense

listed. It would also demand the recognition that the

Congress, in common sense, did not intend to raise a single

misdemeanor offense to felony proportions of the highest

order when two or more of those misdemeanors is charged.

The legacy of a free people would demand that when a

legislature defines such a felony, it take pains and studious

application to speak in unmistakable terms.

We submit that the more logical reading is that the

legislature made an error of inclusion. We do not believe

it can be attributed to the Congress that it intended to

make misdemeanors touching on Union affairs more grie-

vous than those touching on business, individual or even

government affairs.

The government contended below that surely the more

reasonable view of the term ‘‘indictable offense’’ is any

offense the prosecution of which may be commenced by

indictment. The fallacy of that contention is that any

offense, even a petty offense, may be commenced by in-

dictment. See Rule 7(a) of the Federal Rule of Criminal

Procedure providing that ‘‘[a]ny other [except felonies]

may be prosecuted by indictment or by information.’’ And

the Court of Appeals followed suit.

This reasoning has two major flaws in the scheme of

federal criminal and statutory law. First, it amends the

statute to strike the word ‘‘indictable’’ from it, contrary

to this court’s many decisions that Courts may not con-

strue away legislative requirements. Montana v. Kennedy,

366 U.S. 308, 314. Equally ‘‘it is for Congress, not this

Court, to rewrite the statute.’’ Blount v. Rizzi, 400 U.S.

410, 419.

Secondly, it gives to the executive prosecutor (through

his election to proceed by information or indictment in

misdemeanor offenses) to regulate whether Title 18 U.S.C.

§ 1962(c) has been violated, insofar as that statute predi-

cates its vitality on multiple misdemeanor offenses. In

other words, to our knowledge, this is the only criminal

1“This court does not find the language in § 1961(1)(c) to be

inconsistent since a misdemeanor as defined in 18 U.S.C. § 1(2)

can properly be prosecuted either by way of indictment or informa-

tion. See Fed.R.Crim.Pro. 7(a). Thus, an act committed in viola-

tion of § 186(b)(!) is ‘indictable’ as that word is used in § 1961

(1)(c).” (App. 8)

federal statute, which has as a predicate the acts of the

prosecutor, as opposed to the accused. We know of no

precedent for this. But on general tenets of statutory con-

struction, this law must, in these circumstances, fail. It

is the general rule that penal statutes are construed nar-

rowly to insure that no individual is convicted unless ‘‘a

fair warning [has first been] given to the world in lan-

guage the common world will understand, of what the law

intends to do if a certain line is passed.’’ McBoyle v.

United States, 283 U.S. 25, 27. But we understand that

maxim to mean that the perpetrator has passed that

line, and the line is of general application, not one con-

structed at the option of the prosecutor.

We also submit the decision in this case is in plain 2on-

flict with this Court’s decison in United States v. Campos-

Serrano, 404 U.S. 239.7

2“The Court of Appeals held that the limited, merely permissible,

re-entry function of the alien registration receipt card is sufficient

to make it a “document required for entry into the United States”

under § 1546. 430 F.2d, at 175. We cannot agree. It has long been

settled that “penal statutes are to be construed strictly,” Federal

Communications Comm'n v. American Broadcasting Co., 347 U.S.

284, 296, 74 S.Ct. 593, 601, 98 L.Ed. 699, and that one “is not to

be subjected to a penalty unless the words of the statute plainly im-

pose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25

S.Ct. 443, 445, 49 L.Ed. 790. “|W ]hen choice has to be made he-

tween two readings of what conduct Congress has made a crime, it

is appropriate, before we choose the harsher alternative, to require

that Congress should have spoken in language that is clear and

definite.” United States v. Universal C.I.T. Credit Corp., 344 U.S.

218, 221-222, 73 S.Ct. 227, 229, 97 L.Ed. 260. In § 1546, Congress

did speak in “clear and definite” language. But, taken literally and

given its plain and ordinary meaning, that language does not impose

a criminal penalty for possession of a counterfeited alien registration

receipt card. Alien registration receipt cards may be used for re-

entry by certain persons into the United States. They are not re-

quired for entry.” (404 U.S. at p. 297-8)

We submit certiorari should be granted to resolve the

application of this unusual—but far-reaching statute, of

admitted ambiguity operating now to this petitioner’s

prejudice.

2. Assuming arguendo this Court accepts the determi-

nation of the Court of Appeals that a misdemeanor is an

‘‘indictable offense’’ if the prosecutor elects to indict, the

concept that the necessary criminal intent of mere ‘‘reck-

less disregard’’ under the misdemeanor statute (Title 29

U.S.C. § 186(b)) cannot, in consonance with this Court’s

decisions in Dennis v. United States, 341 U.S. 494 and

cases cited therein, continue to be the standard when Title

18 U.S.C. § 1962(c) converts multiple violations of the

§ 186(b) proscription into a felony authorizing twenty-

years of imprisonment. This also raises an Eighth Amend-

ment question adverted to in the dissent in Lambert v.

California, 356 U.S. 225, 231 and this Court’s main deci-

sion in Coker v. Georgia, 97 S.Ct. 2861, 2865.

Though the Court below was alerted to the effect of Title |

18 U.S.C. § 1962(c)’s generating a multiple of misdemeanor

offenses into a felony of the highest order (20 year sanction

provided), the Court nonetheless found a ‘‘reckless disre-

gard’’ standard acceptable to sustain conviction. On such

a minimal standard, your petitioner now stands convicted

a felon, and faces a two-year sentence on the § 1962(c)

count. Restricting itself to the pattern of established cases

in the 7th Cireuit (United States v. Inciso, 292 F.2d 374

and United States v. Keegan, 331 F.2d 257, cert. den. 379

U.S. 828), the Court below concluded that ‘‘the Govern-

ment proved that defendant acted with a reckless disre-

gard for § 186’’ (App. 16-17). It disdained the question

of the conversion of multiple misdemeanors into a felony,

and whether more was required.*

The key sentence in the opinicn of the Seventh Circuit is

found on Page 14. It states as follows:

‘*For the following reasons, we believe that the gov-

ernment proved that the defendant acted with reckless

disregard for Section 186.’’

The Court defined reckless conduct in the context of a -

§ 186 violation in United States v. Keegan where the Court

held whether or not the defendant was reckless is subjec-

tive and difficult to prove. Reckless conduct, in this context

consists of two elements: Knowledge of the material facts

surrounding the prescribed conduct and knowledge that

this conduct is likely to be illegal. This ‘‘reckiess conduct’’

3 The government contended below that § 186 is a “grievous mis-

demeanor” because it carries a possible $10,000 fine. We pointed

out that many misdemeanors carry potentially large fines. See e.g.

Title 15 U.S.C. §1, $50,000; §2, $50,000; Title 21 U.S.C. §842(a),

$25,000; Title 26 U.S.C. §7203, $10,000; Title 45 U.S.C. §359(a)

or (b), $10,000; Section 402(c)(2) of the Drug Control Act,

$25,000; Section 1011 of same act, $25,000; Section 11(b) (4) of

the Water Quality Improvement Act. $10,000. More importantly, in

this context, United States v. Ryan, 2 Cir., 232 F.2d 481, on remand

from 350 U.S. 299 was articulate:

“As we have just construed it, it does indeed forbid gifts of

all kinds by employers to ‘representatives’, save as excepted, and

there can be no doubt, if it be so understood, it is altogether

clear. True, it then covers gifts, however trifling and in-

nocuous, but we can see no reason on that account to narrow

its scope. The penalties prescribed make it apparent that they

could not have been meant as sanctions for heinous offenses;

and Congress may well have wished to put a stop to the prac-

tice, even on occasions inconsiderable and harmless in them-

selves, rather than to make verbal distinctions that would be

troublesome in application.” (232 F.2d at 483) (Our emphasis)

therefore, is sufficient to convict the defendant Kaye of a

felony calling for imprisonment of 20 years and/or $25,000.

The basic charge under 186(b), Title 29 is of course a mir

demeanor. Stated in a very simple form the decision in

this case permits a defendant to accept wages for more

than one employer for two consecutive work weeks thus

forming a ‘‘pattern of unlawful conduct’’ thus subjecting

him not only to the 20 year felony charge, but also dire

civil consequences including loss of his position. A civil

action has been filed against David Kaye by the United

States in an effort to strip him of his opportunity to re-

main employed because of this conviction.

It should be noted that in the variety of cases noted in

footnote 3, and including this, none is a proscription dic-

tated by Title 18, except insofar as Title 18 U.S.C. §

1962(c) raises the multiple charges under Title 29 U.S.C.

§ 186 to such a status. Those statutes, including § 186,

are regulatory. But the ascendency of § 186, through the

implementation of Title 18 U.S.C. § 1962(c) raises this

incidence of multiple offenses against the regulatory stat-

ute into a different class, and contrary to this Court’s

direction, no heed was given the shift in class.

‘*A survey of Title 18 of the U.S. Code indicates that

the vast majority of the crimes designated by that

Title require, by express language, proof of the exis-

tence of a certain mental state, in words such as

‘*knowingly,’’ ‘‘maliciously,’’ ‘‘wilfully,” ‘‘with the

purpose of,’’ ‘‘with intent to,’’ or combinations or

permutations of these and synonymous terms. The

existence of a mens rea is the rule of, rather than the

exception to, the principles of Anglo-American crim-

inal jurisprudence. See American Communications

Ass’n v. Douds, 1950, 339 U.S. 382, 411, 70 S.Ct. 674,

690, 94 L.Ed. 925.”’

Dennis v. United States, 341 U.S. 494, 500.

The drastic increase in criminal penalties for Anti-Trust

violations under the Sherman Act has caused the Courts

to recognize that a standard of proof theretofore securely

settled must be re-evaluated in order to bring the mens rea

into an atmosphere commensurate with the increased penal-

ties. U.S. v. Nu Phonics, E. Mich. 46 L.W. 2001. The need

for re-evaluation here is more pressing, since the crimes

here evaluated are not tinged, as are Sherman Act viola-

tions, with a general public interest. Significantly in the

Sherman Act violations the allowable penalty has been

increased, of course, to a felony but that allowable penalty

is only tripled, whereas, in this instance for as little as a

double violation the penalty has been increased 20 fold.

Further significantly, in the Sherman Act the allowable

fine or collateral consequence has been only doubled for a

person, whereas, in this case the allowable penalty contem-

plates not only fine but divestiture of the means of making

a livelihood. See 18 U.S.C. § 1964.‘

Mr. Justice Frankfurter speaking for 3 of 4 dissenting

in Lambert v. California, and supporting the view tend-

ing to uphold conviction, nonetheless recognized that the

question involved here would raise several serious Consti-

tutional issues:

‘Then, too, a cruelly disproportionate relation be-

tween what the law requires and the sanction for its

disobedience may constitute a violation of the Eighth

Amendment as a cruel and unusual punishment, and,

in respect to the States, even offend the Due Process

Clause of the Fourteenth Amendment.’’

Lambert v. California, 355 U.S. 225, 231.

‘A separate civil action for the purpose of forever barring this

petitioner from being employed in union-related industry except as

a rank-and-file laborer because of this conviction pends.

See also this Court’s recent decision in Coker v. Georgia,

97 S.Ct. 2861, 2865.

This significant question—involving the great number

of United States citizens involved in the organized labor

force—should, we submit, compel this Court to issue its

writ.

3. Even though this Court has recognized that Title 29

U.S.C. § 186(b) defined the class to be affected in generic

terms (See United States v. Ryan, 350 U.S. 299, 302), and

the indictment did accordingly descend to specifics in the

73 charges under § 186(b) [and by incorporation into the

Title 18 U.S.C. § 1962(c) charge], conviction nonetheless

rests here on any activity within the generic description as

opposed to the specific in direct conflict with this Court’s

rulings in Russell v. United States, 369 U.S. 749, 765 and

Stirone v. United States, 361 U.S. 212.

We think the basis for urging this Court grant certiorari

on this element is most concisely demonstrated by the

record itself. The defendant was charged in 74 counts,

counts 2 through 74 reading precisely the same except for

time and amounts of money (all minor). They read that he

‘‘being a representative of employees employed in an

industry affecting commerce and an employee of a

labor organization, as that term is used in Title 29,

United States Code, Section 186(a)(2), that is, a part-

time Business Agent of Local 714, International

Brotherhood of Teamsters, did unlawfully, willfully

and knowingly accept and receive money... .’’ (Our

emphasis).

The allegations of these counts are included severally or

inclusively in paragraphs 11, 12, 14, 15 through 17 of

Count One (the Title 18 U.S.C. § 1962(c) count).

So far as this issue herein concerned, it is more lucid

to simply state what the Court of Appeals said:

‘*8.... Defendant appears to argue that the indict-

ment alleges only representative status based upon

his position as part-time business agent of Local 714.

Defendant asserts that ‘‘part-time Business Agent’’

limits ‘‘representatives of employees’’.

‘*We find this argument to be without merit. The

indictment did not define defendant’s status as a rep-

resentative of employees in terms of his position as

part-time business agent.

‘‘The Government contends that defendant was

shown to be both a representative of employees and

an employee of Local 714. The Government asserts

that defendant was shown to be a representative of

employees due to the nature of his role as union stew-

ard. The Government also argues that defendant’s

part-time position as business agent was adequate

proof of his status as an employee of Local 714.

‘‘For the following reasons, we agree with the Gov-

ernment.

‘*First, evidence at trial demonstrated that defendant

was a representative of employees due to his activity

as union steward. The union steward represented the

union in any jurisdictional problem occurring on the

job, investigated grievances, ensured that job condi-

tions were safe, checked in the men in the morning

and checked the men out at night, ensured that union

dues were paid up by checking union cards, and gen-

erally looked out for the welfare of the men. The

record also indicated that service contractors expected

that the union steward would be physically present

at the job site unless excused to perform union duties.

We believe that these activities qualified defendant as

a representative of employees. See United States v.

Ryan, 350 U.S. 299 (1956) ; Brennan v. United States,

240 F.2d 253 (8th Cir. 1957), cert. denied, 353 U.S. 931;

Mechanical Cont. Ass’n. of Philadelphia v. Local Union

420, 265 F.2d 607 (3rd Cir. 1959); Korholz v. United

States, 269 F.2¢ 897 (10th Cir. 1959), cert. denied, 361

U.S. 929. We c\so note that defendant on August 17,

1976, was given an opportunity to raise questions con-

cerning proposed findings of fact by the district judge.

Defendant in the district court did not question the

validity of the following finding of fact adopted by the

lower court:

‘*4. That David Kaye acted as a representa-

tive of those employees of Service Contractors

named in the indictment who were members of

Teamster Local 714 in matters of wages, hours

and conditions of employment;

‘*We also find that defendant’s position as part-

time business agent for Local 714 with a weekly salary

of $100.00 supports a finding that defendant was an

employee of a labor organization within the meaning

of § 186(a)(2). ‘‘Section 186 has the clear purpose

of declaring unlawful all payments or valuable gifts

or loans made by an employer to an officer, employee,

or representative of a labor organization which repre-

sents employees working for that employer.’’ United

States v. Fisher, 387 F.2d 165, 169 (2nd Cir. 1967),

cert. denied, 390 U.S. 953.

a * s

‘‘Congress in 1959 foreclosed this argument when

it passed Section 186 to cover ‘‘any officer or em-

ployee” of a labor organization. Fisher, 387 F.2d

at 168.

‘‘Thus although defendant’s position as part-time

business agent did not relate to representation of

employees and did not carry the power to sell out the

union or enter into sweetheart contracts, defendant

was nonetheless an employee covered by § 186. We

again note that defendant did not challenge below the

—- —

— rr

district court’s finding of fact that defendant was an

employee of Local 714.

‘*We find to be without merit defendant’s contention

that Fisher requires a showing both that defendant

was acting as a business agent when engaged in illegal

conduct and that defendant was performing officer

duties and functions. The court in Fisher only stated

that even a person not formally an officer could fall

within the broad definition of officer.’’ (App. 12-16)

Thus, it is the decision of the Seventh Circuit that though

your petitioner was charged with violations of § 186(b) (1)

in his ‘‘part-time business agent’’ capacity, he did

not, in fact, accept money in that capacity. He was convict-

ed, on the contrary, of accepting money in his capacity as

union steward on several jobs to which he appointed him-

self in his other capacity as chief steward.°

The Court in United States v. Ryan, 350 U.S. 299, made

it eminently clear that Congress intended the word ‘‘rep-

resentative’’ in § 186(a) to be a comprehensive as opposed

to a restrictive term. In other words, ‘‘representative’’

is a generic term, as was clearly recognized in the Seventh

Cireuit’s own holding in United States v. Donovan, 339 F.

2d 404, 407-8.

We respectfully submit that the elementary principle of

criminal pleading is that where the definition of an offense

employs generic terms, it must descend to particulars, as

5 The Government argued that the exemption under Title 29,

U.S.C. §186(c)(1) was not applicable to this Petitioner on just

this basis:

“First, the Government argues that defendant was not paid

for services rendered as an employee [part-time business agent]

since he was paid for services as a union steward... .” (App.

18)

this one did. But the particular must be proved, not any-

thing that is within the ambit of the generic term. Other-

wise, the conviction violates the Sixth Amendment. It

violates this Court’s ruling in Russell v. United States, 369

U.S. 749, 765.

We find it impossible to distinguish the Sixth Amend-

ment violation here from that noticed by this Court in

Stirone v. United States, 361 U.S. 212, 215-219.

We also find it impossible on a common-sense reading of

the indictment to rationalize that ‘‘part-time business

agent’’ modified only that part of the indictment describing

petitioner as an employee of the union local, but does not

modify the term ‘‘representative’’. But, if that reasoning

has validity, then the generic term ‘‘representative’’ has

been used without specification, as proscribed by this

Court’s landmark decisions in United States v. Cruik-

shank, 92 U.S. 542, 558 and United States v. Simmons, 96

U.S. 360, 362.

CONCLUSION

Wherefore, for the above and foregoing reasons, it is

respectfully prayed that this Court issue its Writ of

Certiorari to the United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

Epwarp J. CaLrHan, JR.

Anna R, Lavin

Attorneys for the Petitioner —

David P. Kaye

APPENDIX

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 76-1814

UNITED STATES OF AMERICA,

Plaintiff -A ppellee,

DAVID KAYE,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 74 CR 882—Alfred Y. Kirkland, Judge.

ArGuED Fepsruary 8, 1977—Dectpep May 16, 1977

Before Baver and Woop, Circuit Judges, and SHarp*,

District Judge.

Woon, Circuit Judge. Defendant-appellant David Kaye

(hereinafter referred to as defendant) was convicted

* The Honorable Allen Sharp, United States District Court for

the Northern District of Indiana, is sitting by designation.

App. 2 App. 3

in a bench trial on a seventy-four count indictment § 1962(c).2 Defendant was sentenced to the custody of the

129 U.S.C. § 186 provides in part:

(a) It shall be unlawful for any employer or association of

employers or any person who acts as a labor relations expert,

adviser, or consultant to an employer or who acts in the in-

terest of an employer to pay, lend, or deliver, or agree to pay,

lend, or deliver, any money or other thing of value—

(1) to any representative of any of his employees who

are employed in an industry affecting commerce; or

(2) to any labor organization, or any officer or em-

ployee thereof, which represents, seeks to represent, or

would admit to membership, any of the emplovees of such

employer who are employed in an industry affecting com-

merce ; or

(3) to any employee or group or committee of em-

ployees of such employer employed in an industry affecting

commerce in excess of their normal compensation for the

purpose of causing such employee or group or committee

directly or indirectly to influence any other employees in

the exercise of the right to organize and bargain collective-

ly through representatives of their own choosing ; or

(4) to any officer or employee of a labor organization

engaged in an industry affecting commerce with intent to

influence him in respect to any of his actions, decisions, or

duties as a representative of employees or as such officer

or employee of such labor organization.

(b)(1) It shall be unlawful for any person to request, de-

mand, receive, or accept, or agree to receive or accept, any pay-

ment, loan, or delivery of any money or other thing of value

prohibited by subsection (a) of this section.

(1) in respect to any money or other thing of value payable

by an employer to any of his employees whose established

duties include acting openly for such employer in matters of

labor relations or personnel administration or to any repre-

sentative of his employees, or to any officer or employee of a

(footnote continued)

of violation of 28 U.S.C. § 186(b)(1)* and 18 U.S.C. Attorney General for two years on Count 1 which charged

a violation of 18 U.S.C. § 1962(c). Defendant was also

sentenced to three years probation consecutive to the two

year prison sentence for violation of 29 U.S.C. § 186(b) (1)

on Counts 2 through 74. The complained of acts occurred

between October 28, 1969, to on or about June 21, 1974.

(footnote continue?)

labor organization, who is also an employee or former em-

ployee of such employer, as compensation for, or by reason of,

(d) Any person who willfully violates any of the provisions

of this section shall, upon conviction thereof, be guilty of a mis-

demeanor and be subject to a fine of not more than $10,000

or to imprisonment for not more than one year, or both.

218 U.S.C. § 1962(c) provides:

associated with any enterprise engaged in, or the activities of |

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such enter-

prise’s affairs through a pattern of racketeering activity or col-

lection of unlawful del.’.

18 U.S.C. § 1961 serves as the definitional section for § 1962(c).

The relevant portions of § 1961 are as follows:

As used in this chapter—

(1) “Racketeering activity” means (A) any act or threat

involving murder, kidnaping, gambling, arson, robbery, bribery,

extortion, or dealing in narcotic or other dangerous drugs,

which is chargeable under State law and punishable by im-

prisonment for more than one year; (B) any act which is in-

dictable under any of the following provisions of title 18, United

States Code: Section 201 (relating to bribery), section 224

(relating to sports bribery), Sections 471, 472, and 473 (re-

lating to counterfeiting), section 659 (relating to theft from in-

terstate shipment) if the act indictable under section 659 is

felonious, section 664 (relating to embezzlement from pension

and welfare funds), sections 891-894 (relating to extortionate

(footnote continued)

App. 4

Defendant raises for our consideration the following

questions on appeal: 1) whether 29 U.S.C. § 186(b) (1) is

an ‘‘indictable offense’’ so as to quulify as racketeering

activity within the meaning of 18 U.S.C. § 1961; 2) wheth-

(footnote continued)

credit transactions), section 1084 (relating to the transmission

of gambling information), section 1341 (relating to mail fraud),

section 1343 (relating to wire fraud), section 1503 (relating to

obstruction of justice), section 1510 (relating to obstruction of

criminal investigations), section 1511 (relating to the obstruc-

tion of State or local law enforcement), section 1951 (relating

to interference with commerce, robbery, or extortion), section

1952 (relating to racketeering), section 1953 (relating to inter-

state transportation of wagering paraphernalia), section 1954

(relating to the prohibition of illegal gambling businesses), sec-

tions 2314 and 2315 (relating to interstate transportation of

stolen property), sections 2421-24 (relating to white slave

traffic), (C) any act which is indictable under title 29, United

States Code, section 186 (dealing with restrictions on payments

and loans to labor organizations) or section 501(c) (relating

to embezzlement from union funds), or (D) any offense in-

volving bankruptcy fraud, fraud in the sale of securities, or the

felonious manufacture, importation, receiving, concealment, buy-

ing, selling, or otherwise dealing in narcotic or other dangerous

drugs, punishable under any law of the United States;

* * *

(4) “enterprise” includes any individual, partnership, cor-

poration, association, or other legal entity, and any union or

group of individuals associated in fact although not a legal

entity ;

(5) “pattern of racketeering activity” requires at least two

acts of racketeering activity, one of which occurred after the

effective date of this chapter and the last of which occurred with-

in ten years (excluding any period of imprisonment) after the

commission of a prior act of racketeering activity ;

x * *

erences cn en aren mg Cite ete enibthte: ote

App. 5

er the Government proved that defendant was involved in

a ‘*pattern of racketeering activity’’ as that term is defined

in 18 U.S.C. § 1961(5); 3) whether defendant acted ‘‘in

the conduct of’’ the union’s affairs when he committed the

acts for which he was convicted; 4) whether defendant

was 4 representative of employees or an employee of Local

714; 5) whether defendant acted with the requisite intent;

and 6) whether defendant’s conduct falls within an excep-

tion pursuant to § 186(c)(1).

For the following reasons, we affirm the lower court’s

decision.

Briefly, the facts are as follows.

Defendant was a member of Local 715 of the Machinery,

Scrap Iron Metal and Steel Chauffeurs, Warehousemen,

Handlers, Helpers, Alloy Fabricators, Theatrical, Exposi-

tion, Convention and Trade Show Employees, Inter-.

national Brotherhood of Teamsters (hereinafter referred

to as Local 714). Local 714 was the exclusive bargaining

agent for temporary employees performing material han-

dling and other work at trade shows, expositions, conven-

tions and similar functions in the Chicago metropolitan

area.

Defendant acted in several capacities for Local 714.

First, defendant served as part-time business agent for

Local 714 since 1971. Defendant received one hundred

dollars a week for this work.

Defendant also acted as chief steward for the trade

shows. Service contractors* contacted defendant in his

8 Service contractors provided labor to exhibitors in Chicago trade

shows and expositions. Each service contractor operated under

a collective bargaining contract with Local 714 which required the

service contractor to obtain temporary employees from Local 714.

App. 6

capacity as chief steward to arrange for labor to perform

tasks in relation to the trade shows and expositions. The

position of chief steward did not receive compensation

from either Local 714 or the service contractor. The posi-

tion of chief steward was in no way connected to defen-

dant’s role as part-time business agent.

As chief steward, defendant selected union stewards for

the trade shows. Defendant alone appointed the union

stewards. If the work was to be conducted on one floor,

one union steward would be appointed. If the work was

conducted on separate floors or in different geographical

locations, a union steward would be appointed for each

work area. The position of union steward was separate

from chief steward. The union steward was an employee

of the service contractor who was paid at an hourly rate

which was higher than the rest of the work crew.‘ The

duties of the union steward included the following: pro-

tection of the jurisdiction of Local 714, handling payroll

matters, checking crews in in the morning and checking

crews out in the evening, investigating grievances, checking

job safety, ensuring that work is done smoothly, and gen-

erally caring for the welfare of the men in the crew. Testi-

mony by service contractors indicated that the union stew-

ard was expected to be physically at the job site. Absence

from the job site was permitted with the approval of the

employer as where the union steward was handling union

business.

It was proper for defendant as chief steward to appoint

himself to act as union steward for a particular job. De-

fendant’s exercise of the right to appoint himself union

*The evidence indicates that the hourly wage received by the

union steward was from $.50 to $1.00 higher per hour than that re-

ceived by the rest of the crew.

WiRerisiein 0 o~

App.7

steward led to the charges in this case. Generally stated,

defendant was charged with accepting money from the

service contractors for services as a union steward when

defendant did not in fact provide such service. More spe-

cifically, defendant was charged in Counts 4 through 11

with placing himself on the payroll of service contractors

as a union steward for trade shows held in Chicago when

defendant was in fact absent from Chicago. In addition,

defendant was also charged with being carried on more

than one payroll as union steward for the same hours on

the same day when the jobs were in different geographic

locations or on more than one floor in a building.

1) Section 186(b)(1) as an ‘‘indictable’’ offense.

Defendant argues that 29 U.S.C. § 186(b)(1) cannot be

the basis for a violation of 18 U.S.C. § 1962(c) since viola-

tion of § 186(b)(1) is a misdemeanor. Section 1962(c)

proscribes one form of racketeering activity. Section 1961

(1)(c) defines racketeering activity as:

any act which is indictable under Title 29, United

States Code, section 186 (dealing with restrictions

on payments and loans to labor organizations) .. .

Defendant argues that misdemeanors were not intended

to be within the scope of the meaning of ‘‘indictable’’.

Thus, defendant contends that the legislature erroneously

included § 186 as a form of racketeering activity and that

§ 186 should be stricken from the statute.

The district court agreed with defendant that the lan-

guage in § 1961(1)(c) is inconsistent but rejected defen-

dant’s contention that § 186 should be stricken from § 1961

(1)(c). The lower court held:

The wording of Section 1961(c) is patently incon-

sistent. The Court concludes that either Congress

App. 8

made a simple drafting error when it used the word

‘‘indictable’’ or, alternatively, Congress did not in-

tend to punish any act proscribed by Section 186.

According to the notes following Section 1961, it was

the intent of Congress that the provisions of the Or-

ganized Crime Control Act of 1970 be liberally con-

strued to effectuate its remedial purpose. That being

so, it is clear to the Court that, by inclusion of Section

1961(c), Congress intended those activities proscribed

by Section 186 to be punishable under Section 1962

irrespective of their designation as misdemeanors or

felonies.

This court does not find the language in § 1961(1)(c) to

be consistent since a misdemeanor as defined in 18 U.S.C.

§ 1(2)* can properly be prosecuted either by way of in-

dictment or information. See Fed.R.Crim.Pro. 7(a).*° Thus,

518 U.S.C. § 1 provides:

Notwithstanding any Act of Congress to the contrary:

(1) Any offense punishable by death or imprisonment for

a term exceeding one year is a felony.

(2) Any other offense is a misdemeanor.

(3) Any misdemeanor, the penalty for which does not ex-

ceed imprisonment for a period of six months or a fine of not

more than $500, or both, is a petty offense.

6 Federal Rule of Criminal Procedure 7(a) provides:

(a) Use of Indictment or Information. An offense which

may be punished by death shall be prosecuted by indictment.

An offense which may be punished by imprisonment for a term

exceeding one year or at hard labor shall be prosecuted by in-

dictment or, if indictment is waived, it may be prosecuted by

information. Any other offense may be prosecuted by indict-

ment or by information. An information may be filed without

leave of court.

Apo. 9

an act committed in violation of § 186(b)(1) is ‘‘indict-

able’’ as that word is used in § 1961(1)(c). There is no

basis either in the legislative history of § 1961(1(c) and

§ 186(b)(1) or in the statutory procedure authorizing use

of an indictment for misdemeanor to support defendant’s

assertion that Congress erroneously included § 186 as a

form of racketeering activity.’

2) ‘Pattern of racketeering activity’’.

Defendant was charged with engaging in a ‘‘pattern of

racketeering activity” in violation of 18 U.S.C. § 1962(c).

Section 1961(5) defines pattern of racketeering activity:

(5) ‘‘pattern of racketeering activity’’ requires at

least two acts of racketeering activity, one of which

occurred after the effective date of this chapter and

the last of which occurred within ten years (excluding

any period of imprisonment) after the commission of

a prior act of racketeering activity;

Defendant relies on the definition of the term ‘‘pattern’’

found in United States v. White, 386 F.Supp. 882 (E.D.

Wis. 1974), to support his argument that the Government

failed to prove a ‘‘pattern of racketeering activity.’’ The

7 Defendant relied on United States v. Universal C.I.T. Credit

Corporation, 344 U.S. 218, 221-2 (1952), for the proposition that

when a choice has to be made between two readings of a criminal

statute, the broader alternative should not be chosen unless clear

legislative intent supports such a choice. We need not employ that

canon of construction in the present case since the statutory language

which is here under examination is susceptible to “a commonsensical

meaning.” 344 U.S. at 221.

This court also notes that Congress expressly stated that the pro-

visions of 18 U.S.C. 1961 et seq. should be liberally construed to

effectuate its remedial purpose. United States Code Congressional

and Administrative News, 91st Cong., 2nd Sess., P.L. 452 section

904, p. 4036.

App. 10

Government agrees with defendant that United States v.

White, supra, accurately sets forth the necessary relation-

ship for proof of a ‘‘pattern of racketeering activity.’’ The

Government further asserts that defendant was shown to

have engaged in acts which constitute a pattern of racke-

teering activity.

Judge Gordon in United States v. White, 386 F.Supp.

at 883-4, examined the meaning of the term ‘‘pattern’’:

I conclude that the defendant’s position is without

merit. In common usage, the term ‘‘pattern’’ is ap-

plied to a combination of qualities or acts forming a

consistent or characteristic arrangement. Use of the

term ‘‘pattern’’ in connection with two racketeering

acts committed by the same person suggests that the

two must have a greater interrelationship than simply

commission by a common perpetrator. The acts alleged

in count I are part of a particular continuing criminal

activity.

In my judgment, there is implicit in the statutory

definition of ‘‘pattern of racketeering activity’’ a re-

quirement that the government must prove such an

interrelatedness beyond a reasonable doubt in order

to obtain a conviction under § 1962(c). No claim is

made that only organized crime figures commit the

various crimes which are designated at § 1961 as

‘‘racketeering activity.’’ Absent a showing of a

‘‘pnattern’’ or interrelatedness of such activity,

§ 1962(c) could be used against the isolated acts of

an independent criminal; such was not the intended

target of the challenged statute.

See also United States v. Campanale, 518 F.2d 352, 363

n. 32 (9th Cir. 1975), cert. denied, 423 U.S. 1050.

App. 11

We find that defendant was shown to have engaged in

continuous and related criminal activity over the four and

one-half year period covered by his indictment.

3) Conduct of Union Officers.

Defendant asserts that if his actions were illegal, he

was acting in the conduct of his own affairs and not in

the conduct of Local 714’s affairs. Defendant points to

argument by counsel for the Government which indicated

that both the service contractors and Local 714 were in-

jured by defendant’s conduct. Defendant contends that he

should have been charged as an ‘‘enterprise’’ in his in-

dividual capacity.

Paragraph 11 of Count one which charged violation of

§ 1962(c) stated in part:

. . . defendant herein, being an employee of and as-

sociated with Local 714, an enterprise engaged in and -

the activities of which affect interstate commerce, un-

lawfully and knowingly conduct and participate, direct-

ly and indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity. .. .

The language in Count one tracks the statutory language

of § 1962(c), which makes it unlawful for any person to

conduct or participate in the conduct of an enterprise’s

affairs through a ‘‘pattern of racketeering activity’’. ‘‘En-

terprise’’ is defined in § 1961(5).

The evidence demonstrated that defendant was conduct-

ing or participating in the affairs of Local 714 when he

committed the acts for which he was charged. Defen-

dant as chief steward conducted Local 714’s affairs in ap-

pointing himself as union steward, and accepting payments

as union steward from union contractors for services which

were not rendered. Thus, defendant’s argument is with-

out merit.

App. 12

4) Representative of employees or an employee of Local

714,

Violation of § 186(b)(1) can be proven in the present

ease if payments were made to any representative of

employees, § 186(a)(1), or to any labor organization, of-

ficer, or employee of a labor organization, § 186(a) (2).

Defendant alleges that the Government failed to prove

that defendant was a representative of employees of

Local 714. First, defendant contends that proof that he

was part-time business agent does not show representa-

tive status since his function as part-time business agent

was in no way connected to his activity as chief steward

or union steward. In addition, defendant also argues that

his role as union steward did not constitute a representa-

tive status since the collective bargaining agreement pro-

vided that the union steward represented employees only

if union representatives are not available.®

The Government contends that defendant was shown to

be both a representative of employees and an employee

of Local 714. The Government asserts that defendant was

8 Counts 2 through 74 of this indictment allege in substantially

the same language as follows:

“being a representative of employees employed in an industry

affecting commerce and an employee of a labor organization, as

that term is used in Title 29, United States Code, Section

186(a)(2), that is, a part-time Business Agent of Local 714,

International Brotherhood of Teamsters, did... .

Defendant appears to argue that the indictment alleges only repre-

sentative status based upon his position as part-time business agent

of Local 714. Defendant asserts that “part-time Business Agent”

limits “representatives of employees”.

We find this argument to be without merit. The indictment did

not define defendant's status as a representative of employees in

terms of his position as part-time business agent.

App. 13

shown to be a representative of employees due to the

nature of his role as union steward. The Government

also argues that defendant’s part-time position as business

agent was adequate proof of his status as an employee of

Local 714.

For the following reasons, we agree with the Govern-

ment.

First, evidence at trial demonstrated that defendant

was a representative of employees due to his activity as

union steward. The union steward represented the union

in any jurisdictional problem occurring on the job, in-

vestigated grievances, ensured that job conditions were

safe, check in the men in the morning and checked the

men out at night, ensured that union dues were paid up

by checking union cards, and generally looked out for

the welfare of the men. The record also indicated that

service contractors expected that the union steward would

be physically present at the job site unless excused to

perform union duties. We believe that these activities

qualified defendant as a representative of employees.’ See

United States v. Ryan, 350 U.S. 299 (1956); Brennan v.

United States, 240 F.2d 253 (8th Cir. 1957), cert. denied,

353 U.S. 931; Mechanical Cont. Ass’n. of Philadelphia v.

Local Union 420, 265 F.2d 607 (8rd Cir. 1959); Korholz

v. United States, 269 F.2d 897 (10th Cir. 1959), cert. denied,

® Although the collective bargaining contract between the service

contractors and Local 714 is not part of the record on appeal, it

appears that section 5 of the collective bargaining contract provided

that the union steward was to be elected by the employees and would

represent employees when union represntatives were not available.

The record indicates, however, that defendant as chief steward chose

union stewards. Nonetheless, the collective bargaining contract re-

flects that the union steward acted as a representative of employees.

App. 14

361 U.S. 929. We also note that defendant on August 17,

1976, was given an opportunity to raise questions concern-

ing proposed findings of fact by the district judge. De-

fendant in the district court did not question the validity

of the following finding of fact adopted by the lower court:

4. That David Kaye acted as a representative of

those employees of Service Contractors named in the

indictment who were members of Teamster Local 714

in matters of wages, hours and conditions of employ-

ment;

We also find that defendant’s position as part-time busi-

ness agent for Local 714 with a weekly salary of $100.00

supports a finding that defendant was an employee of a

labor organization within the meaning of § 186(a) (2). ‘‘Sec-

tion 186 has the clear purpose of declaring unlawful all pay-

ments or valuable gifts or loans made by an employer to an

officer, employee, or representative of a labor organization

which represents employees working for that employer.”’

United States v. Fisher, 387 F.2d 165, 169 (2nd Cir. 1967),

cert. denied, 390 U.S. 953.

In Fisher, supra, the defendant who was an officer of

the union contended that he was not an officer within the

meaning of § 186(b) since he had no power to sell out

the union or enter into sweetheart contracts. The defen-

dant in Fisher asserted also that he did not hear or pre-

sent employee grievances or negotiate on behalf of em-

ployees with the employer. The court in rejeccing this

argument stated:

Congress in 1959 foreclosed this argument when it

passed Section 186 to cover ‘‘any officer or employee’’

of a labor organization. Fisher, 387 F.2d at 168.

Ex...

App. 15

Thus, although defendant’s position as part-time busi-

ness agent did not relate to representation of employees

and did not carry the power to sell out the union or enter

into sweetheart contracts, defendant was nonetheless an

employee covered by § 186.°° We again note that defen-

dant did not challenge below the district court’s finding

of fact that defendant was an employee of Local 714.

We find to be without merit defendant’s contention that

Fisher requires a showing both that defendant was acting

as a business agent when engaged in illegal conduct and

1° Legislative history also supports the proposition that the receipt

of payments by any employee of a union without more constitutes

a violation of § 186:

Section 111: Amends section 302(a), (b), and (c) of the

Labor Management Relations Act, 1947, as amended, primarily

for the purpose of clarifying an ambiguity which presently exists.

Under present law it is illegal for an employer to pay or deliver

anything of value to a representative of his employees. The

amendments contained in this section would remove anv doubt

that all forms of bribery and extortion which might escape the

provisions of existing law would be prohibited under pain of

criminal penalties for conviction thereof. The intent of these

amendments to section 302(a) and (b) is to forbid any payment

or bribe by an employer of anyone who acts in the interest of an

employer whether technically an agent or not and to forbid the

receipt of any such bribe by any person, whether an individual.

an officer or employee of a labor organization or a committee

representing employees. Payment to and receipt of such pay-

mciits by any union officer or employee having the intent of in-

fluencing such officer or employee in respect to any of his actions.

decisions, or duties as a representative of employees or as such

union officer or employee would also be made a criminal offense.

(Emphasis Added)

United States Code Congressional and Administrative News, 86th

Cong., Ist Sess., P.L. 86-257, p. 2360.

App. 16

that defendant was performing officer duties and functions.

The court in Fisher only stated that even a person not

formally an officer could fall within the broad definition of

officer.

5) Willfulness.

The defendant claims that the Government failed to

prove that he acted willfully as is required by § 186(d).

This court in United States v. Incisio, 292 F.2d 374, 380

(7th Cir, 1961), stated:

We hold that the term ‘‘willfully violates’’ in Section

186(d) contemplates proof of an awareness of the.

restrictions of that section or a reckless disregard for

that section.

Defendant asserts that the Government did not prove

either awareness of the restrictions of § 186 or a reckless

disregard for that section.

For the following reasons, we believe that the Govern-

ment proved that defendant acted with a reckless disre-

gard for § 186.

This court further defined reckless conduct in the con-

text of a § 186 violation in United States v. Keegan, 331

F.2d 257, 262 (7th Cir. 1964), cert. denied, 379 U.S. 828.

The court there stated:

Whether or not defendant was reckless is subjec-

tive and difficult of proof. Reckless conduct, in this

context, consists of two elements: knowledge of the

material facts surrounding the proscribed conduct

and knowledge that this conduct is likely to be il-

legal. See Hall, General Principles of Criminal Law

120 (2d ed. 1960).

Pa wow

App. 17

The first element, knowledge of the facts, is to be

determined by the subjective method, i.e., whether

defendant has actual knowledge. The second ele-

ment, while requiring subjective knowledge, may be

proved by the objective method, i.e., whether a reason-

able man would be aware that such conduct would like-

ly be illegal. Hall, op. cit. supra 120, 155, 165.

The court in Keegan in approving an instruction which

gave only the first element of reckless conduct stated:

Instructing the jury as to the first element of

‘‘reckless’’ and withholding from it the second ele-

ment was done in United States v. Alaimno (D.C.M.D.

Pa.), 191 F.Supp. 625 (1961) aff’d 3 Cir., 297 F.2d 604,

cert. denied, 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784,

as follows:

‘*A person who is a representative of employees

employed in an industry affecting commerce may

be held to have wilfully violated § 186(b) upon a

showing that he received or accepted money from

the employer of such employee (or from the agent

of such employer) with knowledge (1) that he was

receiving or accepting money, and (2) that the

person who was giving him the money was an

employer of employees (or the agent of such

employer) that he represented.’’ Id. 181 F.Supp.

at 627.

We hold that the jury was properly instructed on

the term ‘‘willfully violates.’’

331 F.2d at 262.

In the present case, we have no doubt that defendant

received money with knowledge that the funds were com-

ing from employers (service contractors) of employees

App. 18

whom he represented. In addition, the second element was

also satisfied since a reasonable man would be aware of

possible illegality in serving on multiple payrolls for the

same time period where the jobs were on different floors or

in different geographical locations or accepting payment

for work while out of town.

6) Exception under § 186(c)(1).

Defendant offers two theories to support his assertion

that he falls within the exception of § 186(c)(1). First,

defendant argues that he acted openly for the service

contractors in ‘‘matters of labor relations or personnel

administration.’’ Defendant also contends that the money

received by him was compensation for employee services.

The Government, on the other hand, contends that

§ 186(c)(1) is not applicable to this case. First, the Gov-

ernment argues that defendant was not paid for services

rendercd as an employee since he was paid for services as

a union steward by multiple employers in separate loca-

tions for the same time periods. Since all of the employers

stated that the union steward’s physical presence was ex-

pected unless permission was given to be absent, the

Government asserts that defendant could not have earned

money received from the service contractors. The Govern-

ment relies on United States v. Motzell, 199 F.Supp. 192

(N.J. 1961), to support its position. In Motzell, the court

considered the propriety of simultaneously working for

multiple employers and concluded that such activity would

not fall within § 186(c)(1):™

It is true that there ave instances where a man can

with all propriety be engaged in two separate employ-

11 The court in Motzell, however, found defendant to be innocent

because he had not acted willfully.

ee a eee Me See ee ee

App. 19

ments at the one and the same time. The practice is,

unfortunately, increasing due to our economy, where

to make ends meet men have more than one employ-

ment. But these secondary employments are so-called

after hour or week-end jobs, not performed at the one

and the same time that the employee is performing

work for the other employer.

It is, likewise, true that in this particular instance

Cherbonnier was working for more than one company

or client. But there is a great difference. Cherbonnier

was being paid by his clients while Motzell, represent-

ing the employee members of the Union, was being

paid by the Company employer.

If this practice (ie., working for two employers)

would be approved as not contravening the statute,

where, along the line would it stop? Some would argue

that one could indulge in such activities for two com-

panies, some would say five, some would say ten. It

is this Court’s opinion that such a practice could and

would constitute a form of extortion by a union upon

a company or companies that the Act is designed to

forbid. The Court, therefore, concludes that the ac-

tions of the defendant, Motzell, as pertains to the sec-

ond count, were proscribed by the Act and we, there-

fore, come to the question of whether such actions were

wilful.

Secondly, the Government also asserts that the defendant

did not act openly for service contractors in matters of

labor relations or personnel administration. The Govern-

ment claims that the evidence showed that union stewards

acted on behalf of the union and employees and not on be-

half of the service contractors.

App. 20

This court agrees with the Government that § 186(c) (1)

cannot properly be invoked in this case, First, as we

have already indicated, the union steward acted on behalf

of Local 714 and employees of the service contractors.

The union steward protected union jurisdiction, investi-

gated grievances, ensured that job conditions were safe,

checked union cards to ensure that dues were paid up, and

generally looked out for the welfare of the men. Thus, al-

though the employer may have benefited from the per-

formance of these functions by the union steward, the

union steward did not act on behalf of the employer in

matters of labor relations or personnel administration. In

addition, we do not believe that the evidence showed that

defendant received compensation by reason of his services

as an employee. On the contrary, the Government properly

pointed out that physical presence was repeatedly referred

to as a requisite to performance of the role as union stew-

ard. We do not find that defendant who was out of town

or was acting as union steward for multiple jobs in sep-

arate locations received ‘‘compensation for, or by reason

of, his service as an employee.’’ *

12 Our conclusion that compensation received by defendant was not

legitimate wages is supported in part by the following legislative

history to § 186 which condemns union employees and representa-

tives who act to further self-interest or personal profit:

For centuries the law has forbidden any person in a position

of trust to hold interests or enter into transactions in which

self-interest may conflict with complete loyalty to those whom

they serve. Such a person may not deal with himself, or ac-

quire adverse interests, or make any personal profit as a result of

his position. The same principle has long been applied to trus-

tees, to agents, and to bank directors. It is equally applicable

to union officers and employees. The ethical practices code of

(footnote continued)

ee .

App. 21

CONCLUSION

For the foregoing reasons, the judgment of the district

court is hereby affirmed.

A true copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

(footnote continued)

the American Federation of Labor and Congress of Industrial

Organizations states—

It is too plain for extended discussion that a basic ethical

principle in the conduct of union affairs is that no responsi-

ble trade union official should have a personal financial in-

terest which conflicts with the full performance of his

fiduciary duties as a workers’ representative.

After the McClellan committee hearings no one can dispute

the simple fact that although the vast majority of union officials

are honest and conscientious men, a small number have ignored

this basic standard of conduct. No one would deny that the con-

duct is wrong. The wrongs should not be ignored by the Fed-

eral Government. The national labor policy is founded upon

collective bargaining through strong and vigorous unions. Play-

ing both sides of the street, using union office for personal

financial advantage, undercover deals, and other conflicts of

interest corrupt, and thereby undermine and weaken the labor

movement. The Congress should check the abuses in order to

foster the national labor policy. The Government which vests

in labor unions the power to act as exclusive bargaining repre-

sentative must make sure that the power is used for the benefit

of workers and not for personal profit.

United States Code Congressional and Administrative News, 86th

Cong., Ist Sess., P.L. 86-257, pp. 2330-31.

App. 22

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Lllinois 60604

July 8, 1977.

Before

Hon. Witxt1am J. Bauer, Circuit Judge

Hon. Haruincton Woop, Jr., Circuit Judge

Hon. ALLEN SuHarp*, District Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 76-1814 vs,

DAVID KAYE,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Lllinois,

Eastern Division.

No. 74 CR 882

Aurrep Y. Kirxuanp, Judge

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by defendant-appellant, no judge in active service

has requested a vote thereon, and all of the judges on the

original panel have voted to deny a rehearing. Accord-

ingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

* Honorable Allen Sharp, Judge, United States District Court

for the Northern District of Indiana, is sitting by designation.

ee ee

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