United States v. Phillip Masiello and Francis Lester Stickel

235 F.2d 279

• Court: Court of Appeals for the Second Circuit
• Decided: October 22, 1956
• Docket: 19-3985
• Status: Published

Opinions

CLARK, Chief Judge.

Defendants appeal from a judgment upon a jury verdict convicting them of conspiracy to affect interstate commerce by extortion in violation of the Anti-Racketeering Act, 18 U.S.C. § 1951, and sentencing them to five years in prison. Masiello was a business agent, and Stickel the Secretary and Treasurer, of Local No. 445 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL. The members of this local union were employees of milk haulers, who were engaged in transporting milk received from the farms of six neighboring states to the New York metropolitan area. Since these milk haulers were dependent for the uninterrupted progress’ of their operations upon the receipt pf a union contract and upon continuing union good will, they were vulnerable to threats of a work stoppage, made even more portentous because of the perishable nature of their product.

Masiello and Stickel were indicted on a single count of conspiracy, and no evidence implicating other persons was introduced at the trial. Hence, as the jury was told, the government had to prove the guilt of both defendants, or the case against both failed. The evidence that Masiello committed substantive acts of extortion is abundant, as defendants conceded; but they contend that the evidence tending to incriminate Stickel is too tenuous to support the jury’s verdict, and that hence both convictions must be reversed. See Turinetti v. United States, 8 Cir., 2 F.2d 15. We cannot agree, for we think that a study of all the evidence reveals a pattern of events from which an intelligent, jury could rationally and as a matter of common sense undoubtedly would find! Stickel an active participant in this continuing and profitable conspiracy.

By 1949 Stickel was in control of teamster Local No. 445. Although the-union had a number of committees, the-record indicates that Stickel was ini charge of executing collective bargaining contracts with over-the-road milk, haulers, members of the Dairy Transport Association, Inc. (DTA). Stickel! announced when the contracts would be-signed, where, and under what circumstances. He was in a position to exert, control over the haulers by the use of crippling strikes against their operations. His was the authority and power-necessary to enforce a successful scheme-of extortion.

In identical letters, dated May 27,. 1949, and sent to the haulers, Stickel. stated that an agreement had already-been reached between the DTA and Local No. 445. He enclosed copies of the-uniform contract and instructed the-haulers to come to the union office om June 1 to sign the contract. The letters,, signed personally by Stickel as a union, officer, ended with the warning that he-“expect [ed]” the recipient to “sign for-us” and “clear up the issues which are-holding up completion of our negotiations.”¹ Although there was evidence that some negotiating had taken place in the spring, there was no evidence that at the time the letters were sent any negotiations lay uncompleted or any issues remained to be cleared up unless it be the claimed payoff to Masiello and Stick-■el, as asserted by the government.

Four hauler-witnesses testified that Masiello communicated with them at va-xious times before the meeting of June 1 and demanded that they make payments of sums in cash in amounts of ei.ther $300’ or $500 as the price of reeeiv-ing the contract. On the appointed day the haulers — those testifying and oth•ers — appeared at the union office and were called one by one into a room about 10 x 20 feet in size wherein Stickel was seated behind a table with the contracts piled in front of him. Masiello was also present in the room and, according to some of the witnesses, was seated at the table with Stickel. As one witness put it, the two men were “within handshaking distance” of each other. After Stickel and the hauler had signed the agreement, the hauler either handed a plain white envelope containing the requested cash to Masiello or placed the envelope on the table where the men were seated. Although according to this testimony Stickel did not actively participate in the transfer of cash or take overt notice of it, there was no effort made to conceal the transfer from him.

After the meeting of June 1 Masiel1° visited one of the participating haulers and told him that a mistake had been made in the amount of money he had handed over in the envelope. This hauler then paid over more cash. Similarly another hauler paid $500 more that year.

In the following three years similar conferences between Masiello and the haulers were followed by the receipt of a union contract by the haulers and the receipt of cash by Masiello. One employer, Turco, paid $2,000 in 1950, $2,-500 in 1951, and another $2,500 in 1952. In early 1953, when he temporarily fell behind in his 1952 payments, he was exhorted to hasten his payments by Masi-ello, who complained that Stickel was anxious to receive the money,

Another hauler, Gilnack, received the letter of May, 1949, but failed to appear at the meeting of June 1. ' Shortly thereafter a strike of his milk hauling operations began and he hurried to the union headquarters, where Stickel presented him with a contract to sign. Masiello was not then present; but a few weeks later he told Gilnack that Stickel was “impatient” for his money, and Gilnack paid about $750 over a period of several months.

Late in 1949 or early in 1950 Stickel and Masiello visited Gilnack’s garage and instructed him to hire an additional employee,- one Richard Winters. Gil-nack refused on the ground that he needed no further employees; and as a result his operations were struck for four or five days. Then Masiello advised Gil-nack to hire one Pizzo, a labor relations counselor, to “straighten the thing out.” Later in the presence of Stickel and Masiello, Pizzo told Gilnack that he would have to hire Winters as a shop steward, a union-designated position.

At this time the subject of retroactive pay for Gilnack’s employees arose. Pizzo told Gilnack in the presence of both Stickel and Masiello that he would haveto pay $1,-200 in “retroactive pay.” Masiello later at different times and places collected this sum from Gilnack' in cash installments. The evidence did not show that any of it ever reached Gil-nack’s employees, and the inference remained strong that it was of a piece with the other payments made Masiello. Additionally and in a manner similar , to that of other employers, Gilnack made further payments of about $750 a year to Masiello in 1950, 1951, and 1952.

Paul F. Hillman, another hauler, in 1949 received a demand from Masiello for $500 as the price of the new contract; and when he received Stickel’s letter of May 27 there was “no question” in his mind what its final sentence meant. Still he refused to report for the payoff, and his milk hauling operations were struck at 3:00 a. m. Faced with business disaster unless he got the milk rolling, Hillman reported to Stick-el to sign the contract • and was then taken downstairs by Masiello, who demanded the money. Feeling “over a barrel” Hillman consented and some time later paid $250 in cash and also an additional sum later in the year. He made other substantial extortion payments in subsequent years.

In 1953 there was a meeting between Stickel and Masiello and Hillman to discuss the transfer of certain union drivers from another local to Local No. 445: In discussing the comments of another union official about such a transfer, Stickel said that this official wanted $10,000 for the transfer of certain Hill-man employees; Stickel observed that the official was “crazy asking anything like that.”

Then Masiello and Stickel offered their help to Hillman in effecting the necessary transfer. Stickel told Hill-man that he (Stickel) “knew everything that Masiello knew.” Masiello, in turn, advised Hillman that he (Masiello) “knew everything that Stickel knew.” After lunch Masiello took Hillman from the hotel' dining room, -where they had been sitting, to the lobby, where he demanded $125 per man for the transfer. As a result of the conversation Hillman paid Masiello $500.

Ip the summer of 1953 after certain of the haulers had complained to the International Union, a telegram was sent to Stickel ordering him to cease negotiations on all milk contracts. After this the. conspiracy terminated and no further payments were made.

In December, 1953, Thomas L. Hickey, a vice president of the International Union, took over control of Local No. 445 as a trustee and informed Stickel that the officials of the local union were suspected of running it for their own benefit. Then Masiello told Hickey in the presence of Stickel that he (Masiello) would take the “rap” if Hickey would “lay off Stickel.” Later Stickel approached Hickey with the suggestion that he go along with the “deal” offered by Masiello. Elaborating, Stickel specified that Masiello would “take the rap” if Hickey would “lay off Stickel” and “let Stickel go free.”

The question presented is whether or not on the basis of all the evidence, of which the above is a summary of the more important elements, it was proper to submit the case for the determination °f the ^ The defense offered no evi_ dence and the _ defendants did not take the stand. ^ This is the sole issue. If a jury question was present, it was properly submitted to the jury under a charge which carefully stated the requirements of burden of proof m criminal cases and to which no exception is made-

Defendants suggest that all of the government’s evidence is consistent with an hypothesis (1) that Stickel was ignorant of Masiello’s activities or (2) that Stickel, though not ignorant, was benevolently indifferent, took no active part, and received none of the spoils. But for all practical purposes they must rely entirely on the first hypot esis and its asserted strength For even if the jury accepted the latter alternative it could, and indeed, rationally s ou , n e e en an s gui y. There are times, of course, when a , , . , . sophisticated bystander may rely on his . . ,, own indifference as innocence; but that can hardly apply to a powerful union leader whose coercive force is amply attested and is actually the foundation for the illegal acts charged. If such a one knows and permits the use of the threat of his power to extort payments from the employers, he has made himself a conspirator, whether he shares in the illicit proceeds or not. So the only threat wielded by Masi-ello was the notorious power of Stickel to withhold a union contract or to call a crippling strike of hauling operations. For Stickel to issue calls for the signing of contracts and to order strikes for “non-cooperation,” knowing that Masi-ello was using these manifestations of power to extract monéy from the haulers, would be to make himself an active participant in Masiello’s scheme.

Further, as a practical matter Stick-d could hardly have been mcrely benevolently indifferent to activities of Masi-ello of which he was aware> Thug gtiekel was an important official of the unjon. and both bjs own and the unj0n’s repUtati0n were being severely damaged by Masiello-s activity. The jury was not likely to find that he would allow g0 cos-yy activities to continue merely for the illegal benefit of a subordinate. It is moreover obvious that Masiello’s statements and actions would prove highly incriminating to Stickel. Stiek-el, as an innocent man, would not permit himself to be thus incriminated; or so the jury might rationally and naturally hold.

We return then to the first alternative, nameiy) that Stickel was ignorant of what Masie]]o was doinff. But the contrary conclusion regts upon compelling inferences from the testimony, and there .g nQ evidence whatsoever to challenge it. mi . , , , , „ , The view asserted by defendants presup- .... poses a naivete dazzling-m its innocence, TTT1 , „ , „.. . , , . - What, for example, was Stickel to think ]?he“ employers deposited envelopes on the table at which he was slttln» or handed envelopes to Masiello after receiying their contracts ? What, for examPle> did Stickel, the Treasurer of the l°cal union, think happened to the $1,200 in retroactive pay which Gilnack, with Stickel standing by, was ordered to pay his employees? Moreover, we must not make the mistake of isolating each incident and thus separately denigrating it. Actually all the evidence was a mosaic, each bit making its own contribution, and all building up to a compelling whole as first the court and second the jury should actually view it.² Thus we should riot overlook such matters as the patness with which the strikes were called by Stickel when Masiello’s demands remained unsatisfied (as in the incidents testified to by Gilnack and Hillman), the completeness with which Stickel identified himself with Masiello and all Masiello’s knowledge to the haulers such as Hillman, the revealing conversation with Hillman as to the transfer of Hillman drivers to the local union and the proper bonus therefor,- and finally the thoroughly consistent request to International Vice President Hickey to let Masiello take the rap and allow him to go free. To rule as a matter of law that all this was not evidence for the jury of Stickel’s guilty knowledge is to depart from the grounds of rational common sense. In the practical affairs of life we know that sophisticated executives of powerful groups are not so oblivious of money passing before their eyes. Nick v. United States, 8 Cir., 122 F.2d 660, 670, 138 A.L.R. 791, certiorari denied 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550, rehearing denied 314 U.S. 715, 62 S.Ct. 411, 86 L.Ed. 570, 316 U.S. 710, 62 S.Ct. 1103, 86 L.Ed. 1776.

Defendants complain that there was not yet more evidence of joint or integrated action. But, as disclosed by the testimony, these were shrewd individuals and a part of the success of their conspiracy was the careful compartmentalizing of the activities of each. Of course, the conspirators tried to keep their separate roles distinct, with Stick-el speaking only in subtle generalities and exercising the powers that enforced compliance, while Masiello made the specific demands and collected the cash. But Masiello certainly made no effort to conceal his alliance with Stickel from the truckers. In fact he did just the opposite; he advertised it and did so continuously for its four-year duration. It passes credulity, of course, that Stick-el alone never heard of it. It is obvious from the testimony of the haulers that they believed at the time of the shakedowns that the two men were working together. Knowing this and the many incidents where their activities so neatly dovetailed to the detriment of their victims, the idea that Stickel remained blissfully ignorant throughout is not to be credited. The jury by its speedy verdict in this long case showed its quick reaction to a common-sense result. Judges should not be more naive than others, including jurors. Notwithstanding the heavy burdens resting upon the prosecution because of the obvious difficulties of procuring testimony from participants and victims, and Stickel’s shrewdness in avoiding many open mistakes, we find the case as disclosed quite ample to support conviction.

In reaching the conclusion that the judge committed no error in sending the case to the jury, we have not cited or stressed the well-established rule here that the test for the judge to' apply in determining what rational inferences of fact a jury may be permitted to draw from the testimony is-the same in civil and criminal cases³ because we view the prosecution’s case as sufficiently strong to justify the result, whatever nuances of doctrines are applied. But since the rule has been misunderstood and not properly stated,⁴ it seems proper to state again that if the jury is to be allowed its historic function as finders of fact — as now stressed by the Supreme Court in many cases, such as Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608— and if it is to be accredited its own proper responsibility as an important agency of law administration, it must also be permitted to make such inferences or deductions from the known data as are common sense under the circum-. stances. And such basic facts will not vary from civil to criminal cases; the mute testimony as to speed and position of an automobile as disclosed by the tire treads when the brakes are suddenly applied will not tell one story as to what actually happened in a criminal prosecution for manslaughter and another for damages for personal injury or wrongful death. To attempt some subtle distinction is to confuse this comparatively simple problem with the question of the proper charge to the jury and the differing standards there applicable in civil and criminal -cases.⁵ Both aspects — the judge’s preliminary decision as to the facts and his later charge to the jury — having been carefully attended to below, the resulting just convictions must therefore be

Affirmed.

1 . “International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America

■“Affiliated with the American Federation of Labor

“(Vignette)

"“Lester Stickel “Secretary-Treasurer

Local Union No. 445

“2 Post Street

“Yonkers 5, N.Y.

“Telephones:

YOnkers 8-3640 — YOnkers 3-7997 May 27, 1949

'“Gentlemen:

“On the 2nd day of February 1949 an agreement was reached by and between the Dairy Transport Association, Inc. of Middletown, N. Y. and our Union. A contract was drawn up and a stipulation was •attached thereto setting forth the agreement as it was settled and also in the stipulation is the following:

“It has been agreed that the Employers coming under the jurisdiction of the above named Local Union who are members of the Dairy Transport Association will sign a separate but uniform contract as attached hereto.

“The Contract and Stipulation was signed by the Union and the parties representing the Association, namely, Mr. Marcus and Mr. Nye. We have been trying to clear up the issue of a signed contract for sometime with the Haulers, members of your Association.

“The matter of a signed contract was brought to the attention of our Executive Board and they acted upon the matter in the following manner and ruled that— there must be a signed contract covering the individual haulers of the milk without further delay. The actions of the Executive Board was approved of by the membership so therefore we are arranging to have our Representatives at our Middletown office, located at 32 James Street, on Wednesday, June 1st, 1949 at 1 P. M. with a contract to cover your operation which we expect you will sign for us and clear up the issues which are holding up completion of our negotiations.

“Thank you.

“Very truly yours,

“Lester Stickel,

“Secretary & Treasurer,

“Local Union No. 445.

“Lester Stickel/lm “ceiu;153” .

2 . This general pattern is one of the features sharply distinguishing this case from United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, heavily relied ou by the defendants. The issue there was different, being the admissibility of evidence discovered by illegal arrest and search and seizure. The accused there was seated in the right front seat of an automobile where the driver passed eoun-terfeit gasoline ration coupons to a government informer in the back seat, who later identified the driver only as the guilty party. Further differences are indicated by the following extract, 332 U.S. at page- 593, 68 S.Ct. at page 228:

“An inference of participation in conspiracy does not seem to be sustained by the facts peculiar to this case. The argument that one who ‘accompanies a criminal to a crime rendezvous’ cannot be assumed to be a bystander, forceful enough in some circumstances, is farfetched when the meeting is not secretive or in a suspicious hide-out but in broad daylight, in plain sight of passers-by, in a public street of a large city, and where 'the alleged substantive crime is one which does not necessarily involve any act visibly criminal. If Di Re bad witnessed the passing of papers from hand to hand, it would not follow that he knew they were ration coupons, and if he saw that they were ration coupons, it would not follow that he would know them to be counterfeit. Indeed it appeared at the trial to require an expert to establish that fact. Presumptions of guilt are not lightly to be indulged from mere meetings.”

3 . United States v. Valenti, 2 Cir., 134 F. 2d 362, 364, and United States v. Castro, 2 Cir., 228 F.2d 807, may be taken as representative of a long line of cases.

4 . Compare the concurring opinion in United States v. Castro, 2 Cir., 228 F.2d 807, 808, which states that a man may be put to death even though the trial judge and the upper court “are sure that no reasonable men would believe that his guilt lias been thus proved,” i. e., “beyond a reasonable doubt” — and thus turns the rule inside out at the expense of its meaning.

5 . The opposite or contrasting rule here prayed for is made none too clear; it seems to bo that the judge in deciding what inferences of fact are rational and permissible from the testimony must somehow charge himself witli the ultimate admonition given the jury of finding a crime proven beyond a reasonable doubt so that normally rational inferences, as in the example from the tire marks, become irrational in criminal cases. In this contention Dean Wigmore’s commonsense comment on various attempts to embroider the reasonable doubt charge is pertinent: “In practice, these detailed amplifications of the doctrine have usually degenerated into a mere tool for counsel who desire to entrap an unwary judge into forgetfulness of some obscure precedent, or to save a cause for a new trial by quibbling, on appeal, over the verbal propriety of a form of words uttered or declined to be uttered by the judge. The effort to perpetuate and develop these elaborate unserviceable definitions is a useless one, and serves to-day chiefly to aid the purposes of the tactician. It should be abandoned:” 9 Wigmore on Evidence § 2497 (3d Ed. 1940). It seems even less constructive to force the judge to apply this wholly indeterminate yardstick to himself in deciding the preliminary and otherwise clear-cut question as to what inferences of fact are permissible on the evidence. Such a requirement would add nothing of either justice or trial convenience to the judicial process, but would promote confusion and yield at best only a vague, though undoubtedly vigorous, claim of error against the trial judge.