# Petition — Lachance v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1604%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 961 ## Text 7% 80-1706 "Tre > APR 18 \981 In The ! ALEXANDER L. STEVAS, CLERK Supreme Court of the United Stave October Term, 1980 Docket No. ........ eer DOUGLAS LaCHANCE, \ Petitioner, Vi UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOHN J. TIGUE, JR. Counsel of Record for Petitioner Douglas LaChance 80 Pine Street New York, New York 10005 (212) 422-4030 Of Counsel KOSTELANETZ & RITHOLZ PETER J. DRISCOLL ELLIOT SILVERMAN PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. ; Petitioner prays that a writ of certiorari issue to review a decision of the United States Court of Appeals for the Second Circuit entered on February 12, 1981. Questions Presented 1. Did the court below err in holding that the Taft-Hartley Act, 29 U.S.C. §186(b), is an absolute criminal prohibition against any union official acquiring an ownership interest in a business which does not, but theoretically could, employ union members? 2. Did the court below err in affirming convictions of tax evasion based on a factual theory of venue which was prejudicially at variance with the legally insufficient theory on which the case had been initiated, tried and submitted to the jury? ey. 3.. Did the court below err in upholding the cross-examination of the defendant as to the prior unrelated criminal convictions of his alleged associates? 4. Did the court below err in affirming convictions under the Taft- Hartley Act on a legally insufficient theory of venue? 5. Did the court below err in upholding a sentence which was based in part on Mr. LaChance's alleged post- trial refusal to cooperate with the Government in reliance on his constitutional privilege against self-incrimination? aRe , <=" 4 & TABLE OF CONTENTS Table of Authorities . Opinion: Below... 6k 08s PUSLOGLSCLOR 6 ks G8 ee Constitutional Provisions. . . Statutory Provisions . Statement of the case Reasons for ee eneene the Wr it . e . ” . e ° ° . 7 ° CUE SION gg reer ar Gig ty ig oe TABLE OF AUTHORITIES Cases Arroyo v. United States, ge U. - WA9 (igeee ee ke ; Chiarella V5 ere States, ib. 222 (1980)... Dunn v. United States, 442 Doc AUG CAMPER a once Ingram v. United States, 360 . 672 (1959). e e . - e o Rewis v. United States, 401 OY Mees BOW SASEEP a es a Ses 16 42 Roberts v. United States, 445, U.s, 952 Cisse). > os Salerno v. United States, 610 F.2d 419 (8th Cir. 1979). Spies v. United States, 317 ~ 492 (1943) ree United States v. Black Cloud, 0 er Se (1979). 9 a ue Ss Ole iss os United States v. Carman, 577 : th cir. 1978). . United States v. Chestnut, (2d Cir. 1976) cert. ‘denied, 429 U.S. 829 BE tS Peppa te OR Boe ‘ : United States v. Crawford, 438 : th Cir. I971). United States v. DeDominicus, ; 7. (2d Uiz. 1964) gk ah cals, i United States v. Gosser, 339 th Cir.) , cave. denied, 382 U.S. 819 (1964). United States v. Granello, 365 d Cir. cert. denied, 386 U.S. 949 (1967) : United States v. Johnson, 323 OM BE oe ite bar we esuttl whi 28 25 26 32, 34-35 30 30 26 38 7. United States v. Labarbera, 7 Beets Cir. 1978) er ee ee Unted States if Lippi, 190 upp. Sey. i United States v. Miesch, 370 : d Cir. 1966) . United States v. Ochoa, 609 ; th Cir. 1980). . United States v. Overton, 470 d Cir. 1972), cert. denied, 411 U.S. ah (1973). oe. he eee . ‘ United States v. penne 313 f th Cir. 1963). United States v. Roth, 333 (2d Cir. 1964), cert. denied, 380 U.S. 942 (1966) y ae United States v. Vi Eo, 435 5th r.), cert. denied, 403 U.S. 508 (19071) P United States v. Walden, 464 4th Cir “Fe cert. denied, 409 U.S 867 (1972) ; ; Statutes 29: U.S.C. §7201.. , Seow Ge $406. koe es SS SF Sane eee ee ef phi ae 19 32 34 18 36, 37 20-21 32-34 39-40 27 16-22, 38 17-18 29 U.S.C. §504 . Federal Rules of Criminal Procedure, Rule 18 .. Miscellaneous Senate Report No. 187, 89th Cong., lst Sess. (1959) . ‘ ( House Report No. 741 89th Cong., lst Sess. 5 3p eee eee ‘ fee 8 19 38 17,22 17 hacegtin. . 4 Opinion Below The unpublished opinion and order of the United States Court of Appeals for the Second Circuit is printed in Appendix A hereto. Jurisdiction The judgment of the United States Court of Appeals was entered on February 12, 1981. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1254(1). Constitutional Provisions Amendment V "No person *** hat! 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; ***" Amendment VI "In all criminal prosecutions, the accused shall enjoy the right to a ate speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been ies tie aed: which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; eek" Statutory Provisions The following statutory provisions are involved herein: 29 U.S.C. §186, printed in Appendix B hereto; 26 U.S.C. §7201, printed in Appendix C hereto; and Rule 18, Federal Rules of Criminal | Procedure, printed in Appendix D hereto. Statement of the Case Petitioner Douglas LaChance was charged on February 20, 1980, in an indictment filed in the United States District Court for the Southern District ae of New York. The 136-count indictment charged Mr. LaChance, then president of the Newspapers and Mail Deliverers' Union ("NMDU"), with 64 counts of extortion of money, by means of fear of economic harm, from certain wholesale newspaper delivery companies ("the wholesalers") in violation of 18 U.§.C. §1951 (the Hobbs Act), 64 counts of receiving this money in violation of 29 U.S.C. §186(b) (The Taft-Hartley Act), four counts of receiving funds from Russ Trucking Company in violation of 29 U.S.C. §186(b), one count of conducting the affairs of the NMDU through a pattern of racketeering by means of the Taft-Hartley and Hobbs Act charges in violation of 18 U.S.C. §1962 (the R.1.C.0. statute), and three counts of -9- *% willfully failing to report these funds on his 1976, 1977 and 1978 federal income tax returns in violation of 26 U.S.C. §7201. The trial of these charges commenced on May 1, 1980. The District Court entered a judgment of acquittal at the close of the Government's case on twelve counts. On May 15, 1980, the jury returned a verdict of guilty on all counts submitted to them and a special verdict of forfeiture of Mr. LaChance's union office pursuant to 18 U.S.C. §1963. On June 26, 1980, the District Court sentenced Mr. LaChance to a total of twelve years and four months imprisonment and imposed fines totalling $100,000. The District Court ordered immediate atts “Ew execution of the verdict of forfeiture, and stayed the fine and impri3onment pending appeal, The evidence at trial involved allegations of payments to Mr. LaChance by wholesale newspaper dealers, each of which was the subject of parallel Hobbs Act and Taft-Hartley Act charges, The direct evidence on each of the wholesaler counts connecting the alleged demand or payment to Mr. LaChance consisted, at best, of no more than the virtually uncorroborated testimony of a single witness, generally a middleman employed by the wholesalers. Mr. LaChance took the stand and denied receiving or demanding any of the payments. The Government also offered evidence, unrelated to the other charges, regarding payments by Russ Trucking, which were eile the subject only of Taft-Hartley counts. Russ Trucking is a small, historically non-union trucking company that nightly delivers the El Diario newspaper froma . Connecticut printing plant to Manhattan where NMDU employees of the El Diario distribute it. The day-to-day management of Russ Trucking was done by an accountant, with aid and advice from Leon Braunstein, a consultant to several of the wholesalers, and th alleged principal middleman for the wholesaler payments. The Government introduced some evidence indicating that Mr. LaChance owned the company, ond took this position in summation. The accountant testified that he drew various checks to two alleged no- show employees and checks to cash at Mr. LaChance's direction, and gave these checks or cash generated from the checks -]2- ae “ to Mr. LaChance at Mr. LaChance's home on Long Island. The proceeds of all of these checks were alleged in the tax evasion counts to be unreported income and in Counts 130 through 133 as having been received in violation of 29 U.S.C. §186 in that the NMDU "could and would" admit Russ Trucking employees to membership.* The evidence relating only to the Russ Trucking counts (and to the tax evasion counts insofar as the Russ Trucking payments are included in those counts) included a tape recorded con- versaticn admitted over strong defense objecttion, allegations of association with convicted criminals, involvement in corporate skimming, participation *There was no evidence that the NMDU ever tried to organize Russ Trucking or that any of. the employees applied for or would be eligible Sor NMDU membership. | There was no evidence that the NMDU | represents or would represent the ; employees of any independent truckers. “4 -13- a in other crimes, use of no-show employees, falsification of books and records, con- cealment of ownership interests and other matters which the Government argued on summation showed Mr. LaChance's lack of credibility when he denied receiving the alleged payments which are the subjects of all of the other counts of the indictment. Accordingly, it is respectfully submitted that if this Court determines that the convictions on the Russ Trucking and tax evasion counts were improper, Mr. LaChance is entitled to a new trial on all remaining counts. ‘On February 12, 1981, the United States Court of Appeals for the Second Circuit reversed the convictions on a three Taft-Hartley counts on the grounds that no basis for venue in the Southern District of New York was established, The Court of Appeals affirmed the convictions -14- on all other counts, and remanded the case for resentencing to reflect the | reversal of the three counts. On March 4, 1981, the District Court resentenced Mr. LaChance to twelve years imprisonment and a fine totalling $98,500, and ordered him to surrender on March 30, 1981. Mr. LaChance surrendered as ordered and is currently serving his sentence at the United States correctional institution at Danbury, Connecticut .* *The United States District Court for the Southern District of New York exercised jurisdiction in this case pursuant to 18 U.S.C. §3231. The jurisdiction of the United States Court of Appeals for the Second Circuit was invoked pursuant to 28 U.S.C. §1291. aS ays 4 PP et ads ; ae Ma 4 he } REASONS FOR GRANTING THE WRIT I. The Court of Appeals, in holding that 29 U.S.C. §186 is an absolute prohibition against any union official acquiring an ownership interest in a business which does not, but theoretically could, employ union members, rendered a decision interpreting the Taft- Hartley Act in conflict with the statute's language, history and purpose. The Court of Appeals’ holding on. the "Russ Trucking" counts that the Taft-Hartley Act, 29 U.S.C. §186(b), is an absolute prohibition against any union official acquiring an ownership interest in a business which does not, but theoretically could, employ union members raises an important question as to the limitations which Congress intended to and did impose upon the right to contract of every union official and employer in this nation. The Court of Appeals' holding totally ignores Congress’ -16- express statement when amending and supplementing the Taft-Hartley Act in the Labor-Management Reporting and Disclosure Act of 1959 that a labor official's ownership interests in non- union employers which the union is not actively seeking to organize need not even be disclosed under 29 U.S.C. §432 “because they are not matters of public concern", Sen. Rep. No. 187, 89th Cong., lst Sess, (1959), reprinted in 2 U.S. Code Cong. & Ad. News 2318, 2331 (1959). See also H. Rep. No. 741 (1959), reprinted in id., 2424 at 2433. 4 The facts in the present case demonstrate the harsh result of the Second Circuit's incorrect interpretation of section 186. Mr, LaChance was convicted on Counts 130-133 on the theory that sometime after he was elected president of the 4000-member NMDU, he became a oe "| ie concealed owner of and then received funds from a historically non-union corporation, Russ Trucking Company, which had three to four employees, who because of the nature of Russ Trucking's business and its geographical location allegedly could have been represented by the NMDU. Neither the NMDU nor the Russ Trucking employees made any attempt to unionize the company. There was no allegation at trial that Russ Trucking was a sham, or that it was being used as a conduit for prohibited funds from some other employer. See United States v. Overton, 470 F.2d 761 (2d Cir. 1972), cert.denied, 411 U.S. 909 (1973). This alleged ownership interest is not required to be disclosed under 29 U.S.C. §432 since the NMDU was not actively seeking to. unionize Russ Trucking. It is impossible that Congress intended for someone to become a convicted criminal and barred *-18- from all union activities for over five years (29 U.S.C. §504) for an act which Congress did not believe presented a sufficiently serious conflict of interest to even require public disclosure. In the only known reported analogous case where the Government previously contended that the receipts of a dividend by a bona fide shareholder-union official was a criminal violation of section 186, the District Court held that the section "was intended to reach only certain forms of bribery and extortion and was not designed to be a sweeping regulation or prohibition of all forms of conflict of interest." United States v. Lippi, 190 F. Supp. 604 (D.Del. 1961). As the legislative history indicates, Lippi is clearly incorrect: section 186 is not an absolute prohibition. The purpose of Section 186 was to prevent bribing of labor representatives, .°19- extortion of employers and abuse of welfare funds. Arroyo v. United States, 359 U.S. 419, 425-26 (1959). The statute was made as broad as possible to prevent abuse, United States v. Roth, 333 F.2d 450 (2nd Cir. 1964), cert.denied, 380 U.S. 942 (1966), by prohibiting the passing of “something of value", 29 U.S.C. §186(a), from employer to representative without the necessity of proof that bribery or extortion was intended. This does not, however, mean that every transfer of funds between employer and representative is prohibited. There could be no question, for example, that section 186 would prevent a employer from paying funds to a representative to satisfy a judgment the representative obtained against the employer for injury sustained due to the employer's negligence in a car accident. As Roth suggests, the "something of yalue”" must be a thing -20- potentially capable of the abuses to be guarded against. 333 F.2d at 454. Where as here, the transfers of funds arose out of right unrelated to the employer-representative relationship, nothing of value within the terms of the Act existed. Since a corporation owner is entitled to withdraw excess profits from the corporation, the funds that pass to him in this manner are his as a matter of right and are not "something of value" in the nature of a potential bribe or extortion payment. Any doubt that Congress intended section 186 to cover the present case, characterized by the Court of Appeals as a "conflict of interest", [See Appendix at A8-A9, infra] is removed by Congress's express statements when amending the Taft-Hartly Act in 1959: Se "Embezzlement, bribery, extortion and similar offenses are made Federal crimes by the committee bill. There are three reasons for relying upon the milder sanction of Tepostise an sclosure to e nate improper conflicts of interest; (1) The searchlight of g publicity is a strong deterrent. This is a new and treacherous field for legislation. Apart from a few narrow statutes there are no general laws imposing criminal penalties upon those who enter into conflicts of interest in breach of fiduciary duties, Before adopting extreme measures it is wise to see whether milder sanctions are sufficient. Sen. Rep. No. 187, supra in 2 U.S. Code Cong. & Ad. News 2332-33(1959) (emphasis added). . The decision of the Court of Appeals is thus at war the language, history and purpose of the Taft-Hartley Act, and should be reversed. =22- 2S ae If, , The Court of Appeals, in conflict with appliable decisions of this Court and of other Court of Appeals, upheld venue on the tax evasion counts on a factval theory which was prejudicially at variance with the legall insufficient theory on ~ the case had been initiated, tried and submitted to the jury. Since it was undisputed that Mr. LaChance's tax returns were not prepared, signed or filed in the Southern District of New York, the only allegation in the tax evasion counts of the indictment which could arguably serve as a basis for venue in the Southern District was that Mr. LaChance "received cash payments" in that district. Before and during trial, the Government's theory, adopted by the trial court, was that the mere “demanding, and receiving of large amounts of cash payments in the Southern District" which were later not reported -23- lide it on the defendant's tax returns "established the jurisdictional nexus". The Court of Appeals, in direct contravention of this Court's holding in Dunn v. United States, 442 U.S. 100 (1979), affirmed Mr. LaChance's conviction on these counts on the basis of the Government's theory, argued for the first time on appeal, that "affirmative acts of evasion" had been committed in the Southern District of New York, in that Mr. LaChance took care to ensure that cash was used in making the payments and that Mr. LaChance kept no records. Dunn v. United States, 442 U.S. 100, 106 (1979) held that when a criminal case is initiated, tried and submitted to the jury on one factual theory, it "offends the most basic notions of due process" to uphold the conviction on 2b aS % another theory which was neither charged in the indictment nor submitted to the jury. Accord, Chiarella v. United States, 445 U.S. 222, 236-37 & n.21 (1980); Rewis v. United States, 401 U.S. 808, 814 (1971); United States v. Carman, 577 F.2d 556, 565 (9th Cir. 1978). If the factual theory relied upon at trial was insufficient as a matter of law, reversal of the conviction is required even if "the same result would likely obtain on retrial". Dunn v. United States, supra, 442 U.S. at 107. Here, the theory of venue argued by the Government at trial, that venue is proper in a tax evasion prosecution in any district where the defendant merely received income in cash, is plainly incorrect, Retail businesses receive income in cash every day, but no violation of the tax laws is committed unless some 225< step is taken to conceal the income and a tax return is prepared which omits such income. Venue is proper only “when the defendant's actions [in the district] have progressed to the point where a court can confidently conclude that a crime has been committed." United States v. Chestnut, 533 F.2d 40, 47 (2d Cir, 1976), cert. denied, 429 U.S. 829 (1977). The mere receipt of income is not a violation of the tax laws. United States v. Granello, 365 F.2d 990, 994 (2d Cir. 1966), cert. denied, 386 U.S. 949 (1967). Even if the theory accepted by the Court of Appeals, that venue is proper in any district where the defendant committed an affirmative act of evasion, were legally sufficient, Mr. LaChance was clearly prejudiced by the failure to present this issue to the jury. Spies =26< *% v. United States, 317 U.S. 492, 499 (1943) held that 26 U.S.C. §7201 requires a wilful and positive attempt to evade or defeat a federally imposed tax which must be proven by "conduct, the likely effect of which would be to mislead or to conceal" if a motive to evade taxes played any part in such conduct, The existence of a tax evasion motive is a jury question. Id. at 500. Here, the jury might well have found that other alleged violations of law were the sole motive for any concealment. See Ingram v. United States, 360 U.S. 672, 679 (1959). Likewise, a substantial question existed as to whether the alleged acts of concealment occurred in the Southern District of New York or indeed, if they io OF *% occurred at all.* Failure to place this issue before the grand jury thus requires reversal. United States v. Black Cloud, 590 F.2d 270 (8th Cir. 1979) ,** ¥fThere was no evidence of any steps taken by LaChance to assure that the alleged payments were in cash. No support in the record for this allegation was cited by either the Government or the Court of Appeals. Further, since LaChance lived in the Eastern District of New York, any alleged failure to keep records arguably occurred there, Moreover, records concerning some of the alleged payments, allegedly created in the Southern District at LaChance's direction and with his assistance, were introduced in evidence at trial as Government exhibits. **The jury was not instructed on venue as to tax evasion. The jury was instructed that the crime of tax evasion required an affirmative act of evasion; but the only affirmative act mentioned in this regard in the instructions was the filing of a false tax return. Acts of concealment were referred to in the instructions only as possible circumstantial evidence of wilfulness. The jury was not instructed, however, that such acts could be considered for venue purposes under any circumstances. -28- 7% IT!l. The Court of Appeals rendered a decision upholding the cross- examination of Mr. LaChance as to prior convictions of his alleged associates, in conflict with applicable decisions of other Courts of Appeals. Mr. LaChance, who did not put his character in issue, was cross-examined concerning his knowledge of the prior unrelated convictions of Matthew Troy, a personal friend and well-known local politician, for tax evasion and grand larceny, of a Charlie DeLutro, a/k/a Charlie West, who was briefly mentioned in a tape recording as someone with whom Mr. LaChance was going to meet on an issue unrelated to the case, for extortion, and of Peter DiPalermo, an acquaintance, for narcotics, counterfeiting and "numerous" instances of tax evasion. None of these men were co-defendants or alleged unindicted co-conspirators, Defense counsel's -29- objections were sustained only as to the Troy question.* The cross-examination concerning associates’ convictions for serious offenses, including some of the precise offenses with which Mr. LaChance was charged, violated his substantial rights by putting before the jury insinuations that Mr. LaChance had a general criminal | propensity because he associated with convicted felons. Any attempt at "guilt by association" is, of course, impermissible. United States v. DeDominicus, 332 F.2d 207 (2d Cir. 1964); United States v. Gosser, 339 F.2d 102, 112 (6th Cir.), cert. denied, 382 U.S. 819 (1964) (same). ¥Despite the trial court's sustaining of the defendant's repeated objections, the prosecutor asked 21 separate questions regarding Mr. Troy. -30- The Court of Appeals, agreeing that these questions were "ill-advised in view of the risk of prejudice to the defendant" [A4 infra], , nevertheless upheld the trial court's refusal to grant a mistrial on the ground that these questions were permissible to rebut Mr. LaChance's general theory of defense which the Court of Appeals characterized as claims that Mr. LaChance always acted in the best interest of the union and avoided even the appearance of impropriety. This holding violates the settled law that evidence of criminal acts of associates only is permissible, when character is not in issue, to prove an element of the Government's case or to contradict a specific factual state- alin ment made by the defendant in his direct testimony. United States v. Labarbera, 581 F.2d 107, 109 (5th Cir. 1978); United States v. Vigo, 435 F.2d 1347, 1350 (5th Cir.), cert. denied, 403 U.S. 908 (1971); United States v. Crawford, 438 F.2d 441, 444-45 (8th Cir. 1971); United States v. Miesch, 370 F.2d 768, 773 (3rd Cir. 1966)(to rebut entrapment defense by showing pred- isposition). Mr. LaChance's direct testimony concerning what the Second Circuit characterized as avoiding the appearance of impropriety in his associations was only that: (1) he denied ever meeting alone with one alleged middleman in contradiction to that person's testimony and (2) that he made it a practice never to meet alone with two of the seven employers involved in the case. He + 32- ae 2 freely admitted meeting alone with the principal alleged middleman. Likewise, Mr. LaChance's direct testimony concerning what the Second Circuit characterized as his "best interest of the union" defense [A4 infra], was only that (1) he never missed a union meeting (2) he was a trustee of the union pension and welfare fund and (3) that he twice rejected bribe offers by the principal alleged middleman. The questions concerning Mr. LaChance's alleged associates could not serve as contradictions of any of these statements. The Court of Appeals' holding directly contradicts the holdings of the Fifth and Eighth Circuits. In United States v. Vigo, 435 F.2d 1347 (5th Cir.), cert. denied, 403 U.S. 908 (1971), defendant testified that she knew nothing about narcotics and knew no one who had w Ste dealings in narcotics with co-defendant. Cross-examination establishing that her husband was convicted of a narcotics offense and was a friend of co-defendant (but not involved with narcotics dealings with co-defendant) was held reversable error since the highly prejudicial cross-examination did not relate to the "precise point" as to which defendant testified on direct. Id. at 351. In United States v. Ochoa, 609 F.2d 198, 204-206 (5th Cir. 1980), the court held that defendant, who had both offerred character evidence and denied complicity in drug transactions, had not opened the door to testimony as to her brother's convictions for importing drugs. In United States v. Crawford, 438 F.2d 441 (8th Cir. 1971), defendant testified that he never handled narcotics. Cross- examination as to his knowledge of -34- certain associates’ drug addiction and drug convictions was "far broader" than the direct testimony and required reversal for unfairly connecting him "in the eyes of the jury with an entire group of undesirables", id. at 446, precisely what the prosecution did to Mr. LaChance. See also United States v. Labarbera, 581 F.2d 107 (Sth Cir. 1978) (reversal required ou: teiatedasibla attempt to taint defendant's character through guilt by association with question as to son's arrest for similar but unrelated offense). If the cross-examination in Ochoa, Vigo and Crawford went impermissibly beyond fair rebuttal to the defendant's direct testimony, the same standard requires reversal in Mr. LaChance's case. The Court of Appeals’ conclusion that "the questions did not impermissibly contribute to the verdict" [A4 infra] is not supportable. The credibility of Mr, -35- *% LaChance was crucial to this case, "and any error which reflected upon or tended to impeach the credibility of the defendant may not be said to be insubstantial”. United States v. Pennix, 313 F.2d 524, 531 (4th Cir. 1963).* The Court of Appeals‘ found no prejudice because the jury already had evidence that two alleged conspirators in the instant charges had been convicted (by plea agreement) for their part in the alleged scheme. The difference in jury impact due to relevance and degree is clear. What Mr. LaChance complains of is evidence concerning unrelated prior convictions of persons he allegedly voluntarily chose as personal associates. ¥0n the basis of this cross-examination, counsel for the government argued in gummation that there “is a convicted hoodlum that this man [Mr. LaChance] is associating with." ~%6- The Court of Appeals also found this cross-examination to be harmless since it "constituted a small fraction of the cross examination of the defendant" [A4 infra] and in light of the other evidence at trial. But clearly the Government did not consider its evidence so strong that it did not to have to resort to trying to show guilt by association. When, in the prosecution of a defendant, counsel for the government indulges in unfair and improper cross-examination, the only purpose of which is to degrade the defendant and to prejudice the jury against him, the government, upon appeal, will not ordinarily be heard to say that the methods which were used did not have the effect which they were obviously intended to have. United States v. Pennix, supra, quoting Salerno v. United States, 61 F.2d 419, ° 424 (8th Cir. 1932). a3$7< *% IV. The Court of Appeals affirmed convictions on numerous counts on a legally insufficient theory of venue, in violation of Mr. LaChance's constitutional rights. Mr. LaChance's constitutional right to be tried in the district where the offenses were allegedly committed was violated by numerous counts of the indictment involving alleged violations of the Taft-Hartley Act, 29 U.S.C. §186(b). U.S. Const., Amend. VI; Rule 18, F.R.Cr.P.; United States v. Johnson, 323 U.S. 273, 276 (1944). In the district court and on appeal, Mr. LaChance challenged the sufficiency of the evidence of venue as to Counts 27, 38-41, 79-81, 107, 114-16, 122, 127- 29, and 130-33. The Court of Appeals reversed the convictions on Counts 127- 29, and affirmed the convictions on all other counts on the basis of reasoning which is unsupported by the record and -38- ssiapials nial RAY ’% ae eS i. At _ insufficient as a matter of law. For example, as to Count 107, alleging that Feldman, an employer, made a payment in 1979 to Mr. LaChance through Braunstein, an alleged middleman, the Court of Appeals held that “the jury could reasonably infer from th[e] evidence that the payment in question, though delivered in the Eastern District [of New York], originated from conduct occurring in the Southern District" [A8 infra]. The "conduct" which the Court of Appeals refers to is a reference in the record to a conversation between Braunstein and Feldman in 1959, twenty years before the payment in question and many years before Mr. LaChance ever became involved with the union. The reasoning of the Court of Appeals is similar as to all of the other challenged counts. [See A5-8, infra]. Surely, -39- *-% 3 ta odes this can be no basis for venue as to Mr. LaChance. If a principal-may not be tried in the place where his accessory acted, United States v. Walden, 464 F.2d 1015, 1019-20 (4th Cir.), cert. denied, 409 U.S. 867 (1972), surely a principal may not be tried in a place where his accessory allegedly committed a similar crime twenty years earlier. Vv. The Court of Appeals erred in beara a sentence which was enhanced in part on account of Mr. LaChance's reliance on his constitutional rights, in violation of an applicable decision of this Court. The Government asked the District Court to enhance Mr. LaChance' sentence on account of his alleged refusal to cooperate with the Government after trial. Mr. LaChance objected to the District Court's consideration of this factor, since his refusal was based on -40- . his assertion in good faith of his constitutional privilege against self incrimination and thus could not be the basis for drawing any adverse inference. See Roberts v. United States, 445 U.S. 552, 559-61 (1980). The District Court, in imposing a sentence exceeding twelve years imprisonment plus fines totalling $100,000, stated that certain factors urged by the Government were not being relied on, but did not exclude reliance on Mr. LaChance's alleged failure to cooperate. Since reliance on this factor would violate Mr. LaChance's constitutional rights and contravene a recent decision of this Court, the sentence should be vacated; at the very least, a remand to clarify the record is necessary. CONCLUSION For the reasons above stated, the petition for a writ of certiorari should be granted. : Respectfully submitted, JOHN J. TIGUE, JR. Attorney for Petitioner Douglas LaChance 80 Pine Street | New York, New York 10005 Es (212) 422-4030 a. ; ee Of Counsel Kostelanetz & Ritholz Peter J. Driscoll Elliot Silverman *% APPENDIX A UNITED STATES COURT OF APPEALS ' FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Court- house in the City of New York, on the 12th day of February one thousand nine hundred and eighty-one. Present: HONORABLE J. EDWARD LUMBARD HONORABLE JAMES L. OAKES, HONORABLE JON O. NEWMAN, Circuit Judges. UNITED STATES OF AMERICA, Plaintiff-Appellee, -Ve- DOUGLAS LaCHANCE, Defendant-Appellant. Derensant Spar) ene Douglas LaChance, former President of the Newspaper and Mail Deliverers Union (NMDU), appeals from a judgment of the District Court for the Southern District New York (Milton Pollack, yogee) convicting him after a jury trial of 58 counts of extorting | labor 2 dog ea violation of 18 U.S.C. §1951 (the Hobbs Act), 62 counts of receiving unlawful labor payments in violation of 29 U.S.C. §186 (the Taft- Neat ae Hartley Act) one count of conducting the affairs of NMDU through a pattern of racketeering in violation of 18 U.S.C. § 1962 (the RICO Act), and 3 counts of tax evasion in violation of 26 U.S.C. §7201. We affirm in part and reverse in part. 1. The motion to suppress the tape recording of the conversation between La Chance and DiPalermo was properly denied. The officers’ transcript of the conversation and the affidavit submitted in support of the application for an amendment of the eavesdropping warrant disclosed probable cause to believe that the conversation concerned loansharking in violation of New York's usury laws. The claim that the supporting affidavit was rendered deliberately or recklessly false by inaccuracies in the accompanyingy transcript did not entitle the defendant to relief under Franks v. Delaware, 438 U.S. 154 (1978). A presumption of validity attached to supporting affidavits. Id. at l17l. After listening to the recording, Judge Pollack found that the officers’ transcript was reasonably accurate. Based on our own comparision of the tape and the transcript we cannot say that this finding was clearly erroneous. Accordingly, suppression on this ground was not required. See United States v. Barnes, 604 F,2d T21I : cir. 1979), cert. denied, 100 S.Ct. 1833 (1980). The claim that the affidavit was false and misleading in its allegation of compliance with minimization standards is without merit. The materials submitted to the District Court reflected a reasonable effort to intercept onl narcotics-related conversations intel ving one of the individuals named in the pate 7% warrant. DiPalermo was so named. The words that were interpreted by the monitoring officer as evidence of usury were spoken only moments after the interception began. DiPalermo had been overheard discussing usury only days earlier. To continue the interception of this non- innocent conversation for an additional seven minutes after these words were spoken was not unreasonable, and reasonableness is all that the statute demands. See United States v. Manfredi, 488 F.2d 588, r. 1973), cert.denied, 417 U.S. 936 (1974). 2. Admission of the tape recording was well within the scope of the District Court's discretion, A tape recording should be excluded for inaudibility only when the “unintelligible portions are so substantial as to render the recording as a whole untrustworthy." United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973). Schitdise, the inaudibility of a part of a tape recording goes to weight, not admissibility. United States v. Provenzano, 615 F.2d 37, 40 n.4 (2d Cir.), cert. denied, 100 S.Ct. 2921 (1980). Judge Pollack was able to "hear reasonably clearly the matters set forth in the again Uf and he concluded that it was "certainly sufficiently intelligible . .. that a jury listenting to (it) could reach a fair conclusion as to what the subject matter was." After listening to the | tape, we agree. We note, moreover, that the jurors were given the Government - and defense-prepared transcirpts of the recording and were instructed to make their own findings of what the recording contained. Admission of the recording was py ts Ee - *% i Reals s. ) proper in every respect. See United States v. Carson, 464 F.2d 424, 436-37 (2d Cir.), cert. denied, 409 U.S. 949 (1972). 3. The cross-examination of LaChance concerning his knowledge of the criminal records of Troy, DiPalermo, and West was ill-advised in view of thr risk of prejudice to the defendant, but the prosecutor's questions did not warrant a mistrial and are not cause for reversal. The questions objected to were at least arguably permissible to rebut LaChances' claims that he always had acted in the best interests of NMDU and had strived in his associations to avoid even the appearance of impropriety. Accordingly, there is no basis for reversal on the ground that the questions were "purely inflammatory" and were asked in bad faith. The claim that the jury could have convicted soley because the questions may have disclosed a general criminal propensity is meritless. The questions concerned the defendant's knowledge of the criminal records of others, not his own criminal record. The jury already knew that LaChance associated with at least two persons (Braunstein and O'Hearn) who had been convicted of making unlawful labor payments. Seven other individuals testified that they also made unlawful payments to LaChance. Viewing the prosecutor's Sande pane which constituted a small raction of the cross-examination of the defendant, in light of the entire record developed during the course of the two- week trial, we are convinced that the questions did not impermissibly contribute to the verdict, ~A4- =e 7% 4. The evidence of venue on the tax counts, viewed in a light most favorable to the Government, was sufficient to permit the jury to find that LaChance committed an affirmative act of tax evasion in the Southern District. The evidence showed that LaChance received cash payments in the Southern District that he failed to report on his federal tax return. Care was taken to ensure that the payments were in cash, and no records of the payments were kept by LaChance. See United States v. Spies, 317 U.S. 492, 499 (1943). 5. The evidence of venue on the Taft-Hartley counts was at least marginally sufficient as to all but the counts involving the Weinberg acquisition payments. a. The evidence as to the Russ Trucking payments (counts 130-33) showed that the cash that was demanded and received by LaChance was obtained at his direction from a Manhattan bank. The jury could infer from this evidence that in each instance the violation of §186(b) began or continued in the Southern District within the meaning of 18 U.S.C. §3237, b. The evidence as to the Weinberg layoff payment in October 1976 (count 127) showed that this was merely another "usual payment of $3,000 per man” that Weinberg previously had delivered to LaChance through Braunstein. See App, 1072, 1102-03, 1114-15, 1161. “The evidence further showed that Braunstein conducted his affairs from his office in the Southern District. See App, 814-15, 921-22, 953. -A5- *% We think the jury reasonably could infer from these circumstances that the payment in question was part of an vnleerul course of conduct that began or continued in the Southern District. c. The evidence as to the Weinberg acquisition payments of December 1977 (count 127), February 1978 (count 128), and July 1978 (count 129) was insufficient to permit a finding of venue in the Southern District. So far as we can tell, there was no evidence that payments of this nature had been made in the past to LaChance at the urging of Braunstein. It appears that the payments were first suggested to Weinberg by Alvino in Weinberg's office in the Eastern District, pursuant to conversations between Alvino and LaChance at an unspecified location, and delivered by Alvino to LaChance in the Eastern District, App. 1074-83, 1168. The convictions on these counts must be reversed. d. The evidence as to the Gelfand labor-peace payments (counts 38-41) was marginally sufficient to permit a finding of venue in the Southern District. Gelfand testified that Braunstein was the intermediary between the wholesalers and NMDU, App. 1008; that he consulted Braunstein gp. his problems with NMDU, App. 1009, particularly during the wholesalers' cht Ti 3 in the Southern District, App. 1008, 1009-10; and that Braunstein had told him that he would have to make payments to the Union, App. 1010-11, The evidence showed that Braunstein told other wholesalers that a “laundry list" of payments had to be made to the Union, -A6- vay App. 301. Braunstein collected labor- peace payments from the other wholesalers. Finally, Gelfand testified that he made the payments in question to LaChance pursuant to Braunstein's suggestion. App. 1016. There was no direct evidence as to where this conversation occurred, but we think the jury reasonably could infer from the totality of the circumstances that Braunstein either made this particular suggestion in the Southern District or that Gelfand's practice of making labor peace-payments had its origins in conduct ocurring in that District. Accordingly, we conclude that although the payments in question were delivered in New Jersey, a sufficient basis was shown to infer that the payments were solicitated in the Southern District, e. The evidence as to the Gelfand Christmans payments of 1976-78 (counts 78-91) and the Gelfand election payments of 1976-78 (counts 114-16) was essentially the same as the evidence concerning the labor-peace payments, and we conclude, by the same reasoning applicable to those payments, that the evidence was marginally sufficient to support a finding of venue in the Southern District on these counts as well. Braunstein collected Christmas and election payments every year from the other wholesalers who also relied on Braunstein to avoid and resolve problems with the leadership of NMDU. See App, 826-30. These payments appear to have been part of the "laundry list" of payments that Braunstein discussed with all the wholesalers, including Gelfand, at the meetings in the Southern District. See App. at 301, 1008-11. Thus even thought eave the payments were delivered in New Jersey, we think the jury could reasonably conclude that the payments were part of an unlawful course of conduct that began or continued in the Southern District. f. The evidence as to the Feldman election payment of May 1979 showed that when Feldman joined the suburban Wholesaler's Association, Braunstein informed him that he would have to make payments for "certain things." App. 633-34. Thereafter, Feldman delivered election payments to Braunstein either in the latter's office or in a Howard Johnson's in the Bronx. App. at 637-39. We think the jury could reasonably infer from this evidence that the payment in question, though delivered in the Eastern District, originated from conduct occurring in the Southern District. *%\ g. The evidence as to the Feldman contract payment of May 1979 (count 122) showed that after Feldman was informed by Braunstein of the payoff scheme, he made payments to Braunstein in connection with the negotiation of every subsequent collective bargaining agreement. App. 633-34. Here again, we conclude that the : payment in question, though delivered in the Eastern District, could be viewed by $ the jury as part of a course of conduct that began or continued in the Southern District. 5. The convictions on the Russ Trucking counts are supported by sufficient evidence, and the jury instructions as to these counts were proper. There was ample evidence that the Russ Trucking drivers would or could become members of NMDU but for LaChance's conflict of -A8- *% a i : yoo Del interest. NMDU represents employees engaged in the handling and delivery of newspapers in a territory that included Connecticut, the location of Russ Trucking, and the Russ Trucking drivers do this very type of work. The 1974 agreement between NMDU and El Diario could not reasonably be interpreted to preclude unionization of Russ Trucking's employees. the fact that the charge conformed to the literal terms of the absolute statutory prohibition against payments by any employer to an officer of a union that would admit to membership the employer's employees is no cause for holding that the charge was erroneous. The meaning of the statute is clear. Moreover, the scope of the prohibition conveyed by the plain terms of the statute did not require a qualifying instruction that the statute would not apply to LaChance if he owned Russ Trucking. The literal terms of the statute make no exception for firms in which a union official may have an ownership interest, and Congress wanted the statute to have the broadest possible scope in order to protect employees. See United States v. Roth, 333 F.2d 450, 453 (2d Cir. 1964), cert.denied, 380 U.S. 942 (1965); United States v. Annunziato, 293 F.2d 373, 379 (2d Cir.), cert.denied, 368 U.S. 919 (1961). The jury could reasonably find that the Russ Trucking payments were detrimental to the interests of the firm's employees. Such abuse of union power, which the statute was intended to prevent, is not beyond the reach of the statute merely because the payee may have an ownership interest in the payor. See “A9- v oo United States v. Overton, 470 F.2d 761 ts ), cert.denied, 411 U.S. 909 (1973). 6. The claim that the convictions on the Hobbs Act counts must be reversed for lack of evidence of reasonable rear is without merit. The jury was properly instructed that to prove a Hobbs Act violation the Government had to show that the wholesalers made the payments out of a reasonable fear of economic injury. See United States v. Daley, 564 F.2d 645, 650 x r. ), cert.denied, 435 U.S. 933 (1978). The issue of each wholesaler's state of mind was peculiarly within the province of the jury. See United States v. Sears, 544 F.2d 585 (2d Cir. Moreover, the evidence as to each of the disputed counts was clearly sufficient. Klinghoffer testified that Braunstein told him that he would have to make payments in connection with the contract with NMDU, App. 382, and Klinghoffer also testified from experience that union problems could be "very costly," App. 379. The claim that he made the payments just to be "friendly" does not accurately reflect his testimony. He stated that it was good business to be friendly with union officials, App. 426, in order to avoid “very costly" problems. The absence of testimony by Passaic executives did not preclude a jury finding that the Passaic payments were delivered to LaChance through Braunstein out of a reasonable ‘fear of economic injury. Braunstein's testimony and that of the other wholesalers amply supported a finding that all the executives who made payments to LaChance through Braunstein did so to avoid retaliation. -A10- *% Nicol's testimony showed that Metropolitan made the payments on Braunstein's "laundry list" to avoid "bad trouble." App. 301- 04. The claim that the strike payments were not made out of a reasonable fear is frivolous. Braunstein believed that unless the payments were made, the wholesalers would not be "permitted" to handle the interim papers. App. 839. The testimony of the other wholesalers showed that they shared his belief that the payments were absolutely required. See App. 186-87, 639-40, 1085, 1027-08. 7. The claim that the sentence was improper under United States v. Hendrix, 505 F.2d 1233 (2d Cir. 1974), cert.denied, 423 U.S. 897 (1975), is without merit in light of United States v. Grayson, 438 U.S. 41, 52 (1978), which permits a court to weight the defendant's perceived perjury as a facter in determining an appropriate sentence. For the foregoing reasons, we reverse the convictions on counts 127, 128, and 129, affirm the judgment in all> other respects, and remand for resentencing in light of the reversal of the convictions on counts 127, 128, and 129. The mandate shall issue forthwith. LS fy Edward Lumbard {s/ “eo James L. Oakes /s/ Hon. Jon O. Namaian Circuit Judges. 1. The effective aggregate sentence on all counts was imprisonment of 12 years, four months, and a fine of $100,000. The sentence on each of counts 127, 128, and 129 was two months' imprisonment and fine of $500. Two-month sentences on all 62 of the Taft-Hartley counts, including these three counts, were to run consecutively to each other for a total, on those counts,of 10 years, four months. This total term is to run concurrently with the ten-year term imposed on the RICO count. Two-year’ sentences on the three tax counts were to run concurrently with each other but consecutively to the sentences on all other counts. All fines were cumulative. Therefore, reversal of the convictions on three of the Taft- Hartley counts will presumably result in a reduction of six months in the aggregate sentence on the Taft-Hartley counts to a total of nine years and ten months; however, this will presumably result in only -.a four-month reduction in the aggregate sentence on all counts, since the two years on. the tax will still result in a total aggregate sentence of 12 years. Reversal of conviction on the three Taft- Hartley counts will gree reduce the aggregate fines by $1,500 to a total of $98,500. In entering a revised judgment, the District Court may wish to consider revising Part C, covering the Taft- Hartley counts, to make clear that counts 64, 67, 75, 77, and 78 were dismissed; absence of that notation after the reference in the judgment to counts "62 through 81" appears to make the total of Taft-Hartley counts greater by five than the true number. -Al2- Yo ~ APPENDIX B 29 U.S.C. §186. Restrictions on financial transactions Payment or lending, etc., of money by employer or agent. to employees, repre- sentatives, or labor organizations (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 interest or 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 employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce; or (3) to any employee or group or committee of employees of such employer employed in an industry affecting commerce in excess of their normal compensation for the purpose of causing such employee pat ps or committee directly or ndirectly to influence any other employees in the exercise of the -Al3- ‘% right to organize and becgets collectively 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, decisiors, or duties as a representative of employees or as such officer or employee of such labor organization, Request, demand, etc., for money or other thing of value (b) (1) It shall be unlawful for any person to request’, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other Coane of value prohibited by subsection (a) of this section. (2) It shall be unlawful for any labor organization, or for any person acting as an officer, agent, representative, or employee of such labor organization, to demand or accept from the operator of any motor vehicle (as definded in part II of the Interstate Commerce Act) employed in the transportation of property in commerce, or the pings of any such operator, any money or other thing of value payable to such organization or to an officer, agent, representative or employee thereof as a fee or charge for the unloading, or in connection th the unloading, of the cargo or such vehicle: Provided, That nothing in this paragraph shall be construed to make unlawful any payment by an employer to any of his employees as compensation for their services as employees. “~Al4- °% 5 Eee (c) The provisions of this section shall not be applicable (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 si ea 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 employee of such employer, as compensation for, or by reason, of, his service as an employee of such employer; (2) with respect to the payment or delivery of any money or other thing of value in satisfaction of a judgment of any court or a decisign or award of an arbitrator or impartial chairman or in compromise, adjustment, settlement, or release of any claim, complaint, grievance, or dispute in the absence of fraud or duress; (3) with respect to the sale or purchase of an article or comodity at the ee market price in the regular course o business; (4) with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner; (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents -Al5- cite eee ae. jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such — provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its ‘ principal office, and shall also contain : provisions for an annual audit of the trust fund, a statement of the results - of which shall be available for inspection ~Al6- ts poe % by interested persons at the Pate ipes office of the trust fund and at suc other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities; (6) with respect to money or other thing of value paid by any employer to a trust fund established by such representative for the purpcse of pooled vacation, holiday, severance or similar benefits, or defraying costs of apprenticeship or other training programs: Provided, That the requirements of clause (B) of the proviso to clause (5) of this subsection shall apply to such trust funds; (7) with respect to money or other thing of value paid by any employer to a pooled or individual trust fund established by such representative for the purpose of (A) scholarships for the benefit of employees, their families, and dependents for study at educational institutions, or (B) child care centers for preschool and school age dependents of employees: Provided, That no labor organization or employer shall be required to bargain on the establishment of any such trust fund, and refusal to do so shall not constitute an unfair labor practice: Provided further, That the requirements of clause (B) of the proviso to clause (5) of this subsection shall apply to such trust funds; or (8) with respect to money or any other thing of value paid by any employer to a trust fund established by such representative -Al7- eee a for the purpose of defraying the costs * of legal services for employees, and their families, and dependents for counsel or plan of their choice: Provided, That the requirements of clause (8B) of the proviso to clause (5) of this subsection shall apply to such trust funds: Provided further, That no such legal service shall be . furnished: (A) to initiate any proceeding directed (i) against any such employer or its officiers or agents except in workman's compensation cases, or (ii) against such labor organization, or its parent or subordinate bodies, or their officers or agents, or (iii) against any other employer or labor organization, or their officers or agents, in any matter arising under subchapter II of this chapter or this chapter; and (B) in any proceeding where a labor organization would be prohibited from defraying the costs of legal services by the provisions of the Labor-Management Reporting and Disclosure Act of 1959. eee _ Penalty for violations (d) Any person who willfully violates > -any of the provisions of this section - shall, upon conviction thereof, be j guilty of a misdemeanor and be subject to a fine of not more thant $10,000 or to imprisonment for not more than one - year, or both. Jurisdiction of courts “ (e) The district courts of the United - $tates and the United States courts of . Territories and possessions shall have | jurisdiction, for cause shown, and -~A18-~- “a ~ subject to the provisions of section 381 of Title 28 (relating to notice to opposite party) to restrian violations of this section, without regard to the provisions of chapter 6 of this title. Effective date of provisions (f) This section shall not apply to any contract in force on June 23, 1947 until the expiration of such contract, or until July 1, 1948, whichever first occurs. Contributions to trust funds (g) Compliance with the restrictions contained in subsection (c)(5)(B) of this section upon contributions to trust funds, otherwise lawful, shall not be applicable to contributions to such trust funds established by collective agreement prior to January 1, 1946, nor shall subsection (c)(5)(A) of this section be construed as prohibiting contributions to such trust funds if prior to January 1, 1947, such funds contained provisions for pooled vacation benefits. APPENDIX C 26 U.S.C. §7201 Attempt to evade or defeat tax Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall, in addition to other penalties provided by law, be guilty of -Al19- sat “a vl a felony and, upon conviction thereof, — shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution. APPENDIX D Rule 18, Federal Rules of Criminal Procedure. Place of Prosecution and Trial Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in ich the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses, -A20- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1604%3A1. Public record. Not legal advice.