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United States v. Murphy

decided: March 10, 1967.


Friendly, Anderson, and Feinberg, Circuit Judges.

Author: Anderson


The appellants, Daniel Murphy and Albert Mendes, were respectively the financial secretary and business agent of a local union of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO. They were found guilty by a jury of having willfully violated § 302 of the Taft-Hartley Act*fn1 (29 U.S.C. § 186) by receiving payments*fn2 of money from four employers who were engaged in the business of fabricating and erecting iron and steel structures and whose employees were members of the local union. Both appeal from the judgments of conviction entered on the verdicts.

The points raised on appeal concern statements made by the prosecutor in his summation to the jury, which the appellants assert were inflammatory and prejudicial. We conclude that, although the remarks complained of were examples of a lack of the restraint which more competent prosecutors are careful to display, they were not so prejudicial as to call for a new trial, and we affirm.

The Government's case rested almost entirely upon the testimony of the four employers who told of making payments, totalling approximately $5000, to the appellants, as charged. On direct examination it was disclosed that they themselves, though ordinarily liable to prosecution under the statute, had been granted testimonial immunity by the Department of Labor. The accused took the stand and categorically denied ever receiving any payment from any of these four employers or any other employers. Neither side offered any substantial corroborating evidence.*fn3 The issue presented to the jury was largely one of the credibility of the four employers, on the one hand, and the two union officials on the other.

The appellants argue that in this posture of the case inflammatory statements by the prosecutor were likely to have very damaging consequences. They point to three instances in the course of the prosecutor's argument in which, they assert, he overstepped permissible bounds.

The first of these was when he said,

"Well, why were these union officials treated differently from the other people who got liquor? Or, to state the question another way, 'Why -- why were these so-called Christmas payments made?'

A Christmas payment is usually $5, a bottle of liquor, $10. These really weren't Christmas payments. They took the form of Christmas payments, but they were something else. Here we are talking about roughly $5,000 for a four-year period from four employers. And how many other employers did these union officials represent?"

It is the appellants' claim that the prosecutor was, in so saying, suggesting that the accused were engaged in a shakedown which involved many employers in addition to the four concerned in the case. Although it would have been better if the assistant district attorney had not rhetorically asked, "And how many other employers did these union officials represent?," when defense counsel objected, Judge Murphy, to confine the jury's attention and consideration to the specific offenses charged, promptly instructed the jury as follows:

"Gentlemen, the issue in this case is contained within the indictment that is charged. These men are accused of these 17-odd crimes here and that is our only problem: Are they guilty or not guilty of those charges, and nothing else."

This was sufficient to overcome any prejudice which may have stemmed from the prosecutor's questions. Compare United States v. Caruso, 358 F.2d 184, 186 (2 Cir. 1966); United States v. Stromberg, 268 F.2d 256, 271 (2 Cir. 1959); United States v. Courtney, 257 F.2d 944, 947 (2 Cir. 1958).

The second instance of which the appellants complain is another portion of the summation for the Government where, they say, the prosecutor charged the accused with the motive of extortion. What he said was,

"Why did these employers make these payments? That is the important question. Well, you have to understand the industry. And you heard it from all of the witnesses. Murphy admitted to it. Nash talked about it. Other witnesses talked about it. When you need men, you call up the union hall and the union hall sends these men to these various construction jobs. Now, it is quite obvious. You have some good workers in that union hall and there are some very bad ones. And if you look ...

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