United States v. Vincent J. Ricciardi, United States of America v. Stanley M. Unger

357 F.2d 91
CourtCourt of Appeals for the Second Circuit
DecidedMay 16, 1966
Docket30015_1
StatusPublished
Cited by54 cases

This text of 357 F.2d 91 (United States v. Vincent J. Ricciardi, United States of America v. Stanley M. Unger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vincent J. Ricciardi, United States of America v. Stanley M. Unger, 357 F.2d 91 (2d Cir. 1966).

Opinions

MOORE, Circuit Judge:

In 1964 Vincent J. Ricciardi and Stanley M. Unger, Vice-President and Secretary-Treasurer, respectively, of Local 32-E of the Building Service Employees International Union, both were indicted under 29 U.S.C. § 186 for knowingly demanding and receiving money from employers of whose employees Ricciardi and Unger were representatives. During the years in question, Local 32-E had approximately 8,000 members, most of them building superintendents of apartment houses in Bronx and Westchester Counties, New York, but some of them employed in various country clubs in the area, at race tracks, in a department store, and in an amusement park. Unger worked primarily for Local 32-E itself; Ricciardi was in charge of Council 7, a subdivision of Local 32-E representing employees in ¡=imall apartment buildings, generally with 30 or less apartments. The employers who made the payments which were the subject of the indictments [94]*94against Ricciardi and Unger were owners of apartment houses in the Bronx.

After trial before Judge Weinfeld, the jury found Ricciardi guilty on fifteen counts. He was sentenced to one year on each of the first fourteen, the sentences to be served concurrently, and was given a suspended sentence of one year on the fifteenth count. After trial before Judge Murphy, the jury found Unger guilty on three counts. He was sentenced to one year on each count, the sentences to be served concurrently.

Ricciardi and Unger were tried separately. In the appeals before us, Ric-ciardi challenges only the existence of jurisdiction under the statute; Unger challenges not only the existence of jurisdiction but also the indictment, the trial court’s construction of the substantive provisions of the statute, and the sufficiency of the evidence under the substantive provisions of the statute.

I. Jurisdiction Under the Statute.

The indictments against both Ricciardi and Unger were phrased in terms of subsections (b) (1) and (a) (1) of 29 U.S.C. § 186. Read together, the two subsections make it unlawful “to request, demand, receive, or accept * * any payment, loan, or delivery of any money or other thing of value,” 29 U.S.C. § 186(b) (1), from an employer “to any representative of any of his employees who are employed in an industry affecting commerce * * 29 U.S.C. § 186 (a) (1). The jurisdictional test for the cases against both appellants is therefore: are any of the employees of the employers who made the payments “employed in an industry affecting commerce”? 29 U.S.C. § 142(1) defines “industry affecting commerce” as “any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce”; and “commerce” in turn is defined by 29 U.S.C. § 152(6) to mean “trade * * * among the several States * * *."

Although in both cases now before us the jurisdictional question was submitted to the jury, the question of what activities constitute an “industry affecting commerce” under 29 U.S.C. § 186 has almost always been regarded as a question of law for the court to decide, leaving to the jury only the determination of what activities the defendant had in fact engaged in. United States v. Gibas, 300 F.2d 836, 839 (7th Cir.), cert. denied, 371 U.S. 817, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962); United States v. Pecora, 173 F.Supp. 764 (W.D.Pa.1958), aff’d, 267 F.2d 512 (3d Cir. 1959); see United States v. Donovan, 339 F.2d 404, 410 (7th Cir. 1964). The same allocation of function between court and jury has also been made under the similar Hobbs Act, 18 U.S.C. § 1951, which proscribes the obstruction of commerce by robbery or extortion. United States v. Green, 246 F.2d 155, 160-161 (7th Cir.), cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957); United States v. Lowe, 234 F.2d 919, 922 (3d Cir.), cert. denied, 352 U.S. 838, 77 S.Ct. 59, 1 L.Ed.2d 56 (1956); United States v. Varlack, 225 F.2d 665, 670, 672 (2d Cir. 1955); Hulahan v. United States, 214 F.2d 441, 445-446 (8th Cir.), cert. denied, 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675 (1954); Nick v. United States, 122 F.2d 660, 673, 138 A.L.R. 791 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941).

A. Ricciardi.

Ricciardi maintains, not that the submission to the jury of the jurisdictional question was prejudicial to him, but that improper standards were used to resolve the question and that there was insufficient evidence to support a finding that the employees worked in an “industry affecting commerce.”

Ricciardi claims in particular that a charge should have been given to the effect that the exclusive handling by the New York State Labor Board of labor disputes in multiple dwellings was evidence that the operation of such buildings did not affect interstate commerce. We [95]*95disagree and hold that the trial judge was under no obligation to tell the jury to consider what the New York Board thought its jurisdiction was, in determining whether the operation of the buildings “affects commerce.”

Nor did the trial judge err in instructing the jury that it could consider that the industry in question included all apartment houses in the Bronx with 30 or less apartments, whether or not they had contracts with Council 7 of Local 32-E. The general statutory definition in 29 U.S.C. § 142 (1) makes clear that an industry may be one “affecting commerce” if a labor dispute in the industry would tend to burden commerce. To apply this jurisdictional test, the relevant industry must first be determined. 29 U.S.C. § 186(a) (1) and (b) (1) prohibit payment and the receipt of payment from an employer “to any representative of any of his employees who are employed in an industry affecting commerce.” To confine the term “industry” to the business activities of the employers who made the allegedly unlawful payments, or to the business activities of employers whose employees were represented by the recipients of such payments from employers, would be contrary to the broad connotations of the term “industry.” Instead, the relevant industry for the purposes of 29 U.S.C.

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357 F.2d 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vincent-j-ricciardi-united-states-of-america-v-stanley-ca2-1966.