Andrew J. Harris v. United States

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Andrеw J. HARRIS, Appellant, v. UNITED STATES of America, Appellee.

No. 24303.

United States Court of Appeals Fifth Circuit.

Aug. 1, 1968.

Rehearing Denied Aug. 23, 1968.

400 F.2d 264

to the fact of his being authorized or unauthorized to do a particular act. To hold otherwise would be at least a partial victory of form over substance. The Supreme Court has observed that

“The legislative history makes clear that the basic purpose of § 301(a) [the application of which requires resort to § 301(c) herein in question] was not to limit, but to expand, the availability of forums for the enforcement of contracts made by labor organizations.”

Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 508, 509, 82 S.Ct. 519, 523, 7 L.Ed.2d 483.

In a reсent opinion the Supreme Court has analogized the labor union to the corporate entity and noted that Congress has recognized as much in enacting the provision in question, 29 U.S.C. § 185(c), аllowing suits against a labor union, as in the case of a corporate entity, “wherever it is doing business,”

Denver & Rio Grande W. R. R. Co. v. Brotherhood of R. R. Trainmen, 387 U.S. 556, 562, 563, 87 S.Ct. 1746, 1750, 18 L.Ed.2d 954. Though that case arose under the Railway Labor Act rather than the National Labor Relations Act, as is here involved, the Court labeled them parallel federal labor statutes and found support for its liberal construction of the former by assuming that “suits against unions covered by the National Labor Relations Act may be brought anywhere the responsible representatives of the union take concrete action * * *.”

Id. The emphasis is clearly on the conduct of the “responsible representative” and the actual fact of performing the functions ‍‌​​‌‌​​​‌​​‌‌​​​‌‌‌​​​‌‌​‌​‌‌​​‌​‌​‌‌​‌‌​​‌‌‌​​‌‍contemplated by the statutes rаther than the more abstract notion of what the union has specifically authorized him to do.

It seems elementary that venue-jurisdiction should depend on what a party is actually doing through its authorized representatives in a given area rather than on how it defines responsibilities, functions, etc. in its internal management. The parties across the table and the public in general are concerned with the actual impact of the presence of a union official and not with the definitions of his function as set out somewhere unbeknown to them. When thе union agent is engaged in representing or acting for employee members and reasonably appearing to have authority therefor, it seems inescapable that the subjеct statute brings his principal within the venue-jurisdiction of the United States district court where the prescribed conduct is occurring.

Affirmed.

Allen W. Lindsay, Milton, Fla., for appellant.

Clinton Ashmore, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Horace P. Rowley, III, Asst. U. S. Atty., New Orleans, La., for appellee.

Before JOHN R. BROWN, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge.

WISDOM, Circuit Judge:

Andrew J. Harris, defendant-appellant, was charged and convicted in the district court on three counts of unlawful sale and unlawful possession of nontaxpaid whiskey.

November 3, 1965, Walter McCullough, a Government informer, paid Harris $130 for twenty gallons of moonshine whiskey. According to their agreement, the whiskey was to be procured by another from yet another party and to be delivered by that fourth party to McCullough. November 21, 1965, McCullough and a Special Investigator of the Alсohol and Tobacco Tax Division of the Treasury paid Harris $163 for twenty-five gallons of moonshine whiskey, to be delivered by someone else. December 2, 1965, the Special Agent pаid Harris for thirty-one gallons of moonshine whiskey delivered to McCullough by Harris.

Harris alleges four grounds for error below: (1) that the district court failed to declare a mistrial for prejudicial aрpeal to the jury by the Government‘s counsel and witness; (2) that the district court failed to hold as a matter of law that the defense of entrapment was available to Harris under the facts of the case; (3) that the district court admitted as evidence against Harris a tape recording of a telephone conversation made without his knowledge or consent; and (4) that the district court failed to direct a verdict of acquittal for Harris and failed to enter a verdict of acquittal notwithstanding the verdict of the jury. There is no merit to these contentions. We affirm.

* * *

(1) On cross examination of McCullough, the following exchange took place:

Q. * * * When you first came you didn‘t see Mr. Henderson?

A. No sir. I had met him on a Saturday and I talked to him about some whiskey and somehow or other Mr. Harris he hеard about it and he said he was mad with me for talking to ‍‌​​‌‌​​​‌​​‌‌​​​‌‌‌​​​‌‌​‌​‌‌​​‌​‌​‌‌​‌‌​​‌‌‌​​‌‍those fellows about getting the whiskey from them, because they were working for him and said he was “too big for his britches anyhow and he was going to sеt him down.”

Q. This was two white men?

A. Yes sir. He said that him and another white man was at the head of this thing and the white man was the head of it and he was next to the white man.

On redirect, the United States Attorney returned to this subject:

Q. Didn‘t he [Harris] tell you that you could not trust a white person?

A. Yes sir.

Q. Called them “tallow faces?”

A. Yes sir.

Q. Told you never to deal with a white person?

A. Yes sir.

Harris argues that the Government insidiously injected the racial issue into this case to prejudice the jury against him as a Negro. We note that MсCullough, the informer, was also a Negro. Defendant‘s own attorney first raised the racial issue and then failed to object to the prosecution‘s questions.¹ Defense counsel again brought up the matter in examining Harris himself.² We hold that the district court did not err in failing to direct a mistrial.

(2) The district court charged the jury on entrapment, despite Harris‘s denial under examination that he hаd even committed any of the acts charged in the indictment. Under the law of this circuit, Harris was not entitled to this charge.

Once on the stand [the defendant] had a choice: deny the aсts constituting the offense or admit that he committed the acts but contend he was entrapped. Having elected to deny that he committed the acts charged he was not entitled to an instruction on entrapment.

McCarty v. United States, 5 Cir. 1967, 379 F.2d 285, 287.³

But, argues Harris, the arrangement between the Government and McCullough is ‍‌​​‌‌​​​‌​​‌‌​​​‌‌‌​​​‌‌​‌​‌‌​​‌​‌​‌‌​‌‌​​‌‌‌​​‌‍such a contingent fee arrangement as was contemplated and condemned in

Williamson v. United States, 5 Cir. 1962, 311 F.2d 441.

In

Williamson, this court held that when an informer is paid on a contingent basis, there must be some explanation for using such a system. The court went on to say that prior knowledge that the accused is сommitting the unlawful act might be a sufficient explanation.

Hill v. United States, 5 Cir. 1964, 328 F.2d 988, 989. Such prior knowledge was present in

Hill; it was present here, evidence of which was supplied in part by Harris himself.⁴ We find no error in the district court‘s failing to hold as a matter of law that Harris was entrapped. See also

Bullock v. United States, 5 Cir. 1967, 383 F.2d 545;

Sears v. United States, 5 Cir. 1965, 343 F.2d 139.

(3) The informer testified that on two occasions he called Harris on the telephone from the Alcohol and Tobacco Tаx Office in Pensacola, Florida, that they discussed the sale of whiskey, and that the informer agreed to purchase whiskey from Harris. Harris admitted that he received the phone calls but testified that the purchase of whiskey was not discussed on either occasion. At the close of the defendant‘s case, the Government offered, in rebuttal, tape recordings of thе phone conversations made by a Special Agent of the Office. The informer testified that he gave the Agent permission to record the calls. As to the method of recording, thе attorney for the Government merely stated that “they had the recording machine next to the telephone and they just picked this up.”

This case is clearly within this Court‘s holding in

Carnes v. United States, 5 Cir. 1961, 295 F.2d 598, cert denied,

369 U.S. 861, 82 S.Ct. 949, 8 L.Ed.2d 19: recorded conversations made with the consent of one party are admissible under 47 U.S.C. § 605.⁵ Accord:

United States v. McGuire, 2 Cir. 1967, 381 F.2d 306;

Scott v. United States, 5 Cir. 1966, 355 F.2d 799;

Hall v. United States, 5 Cir. 1962, 308 F.2d 266;

Ferguson v. United States, 10 Cir. 1962, 307 F.2d 787. And we have recently held that the Supreme Court‘s decision in

Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, does not affect this result.

Dryden v. United States, 5 Cir. 1968, 391 F.2d 214. Cf.

Dancy v. United States, 5 Cir. 1968, 390 F.2d 370;

Handsforth v. United States, 5 Cir. 1968, 390 F.2d 373;

Long v. United States, 5 Cir. 1967, 387 F.2d 377. The district court committed no error here.

(4) Finally, considering the testimony in the record of two Special Agents оf the Government and McCullough, we see no error in the district court‘s refusal to direct a verdict of acquittal either at the close of the Government‘s case, at the close оf the defendant‘s case, or after the verdict was rendered.

The judgment is affirmed.

JOHN R. BROWN, Chief Judge (concurring):

I concur fully in the court‘s action and all of the ‍‌​​‌‌​​​‌​​‌‌​​​‌‌‌​​​‌‌​‌​‌‌​​‌​‌​‌‌​‌‌​​‌‌‌​​‌‍opinion but in view of my recent recantation in

Moore v. United States, 5 Cir. 1968, 394 F.2d 818, of my acquiescence in

Williamson v. United States (Williamson II), 5 Cir. 1965, 340 F.2d 612, I renew and republicize my

Williamson I, 5 Cir. 1962, 311 F.2d 441, 445, opposition to these contingent fee arrangements.

Notes

1

Harris contends that no objection was made to the Government‘s questions or the witness‘s answers because “any objection by defendant or his attorney to the interjection of said racial issues could very well have further prejudiced defendant‘s civil rights in the premises. * * *” However that may be, at no time in the court below did Harris move to have any testimony or questions strickеn or for a mistrial even when such motions could have been made to the court out of the hearing of the jury.

2

Q. There was a remark that was made, did you make a derogatory remark аbout white people?
A. I don‘t see how I could, sir, when they have always took care of me all my life. I made a living off them all my life.
Q. Did you ever call them “chalk faces?” You heard thе testimony.
A. No, sir, I have not.

3

This case is not controlled by

Sears v. United States, 5 Cir. 1965, 343 F.2d 139, or

Henderson v. United States, 5 Cir. 1956, 237 F.2d 169, 61 A.L.R.2d 666, where the defendants were allowed to rely on entrapment with respect to certain overt acts but still to deny their guilt as to a conspiracy. Here proof that Harris did not commit the acts constituting the offenses charged “necessarily disproves that he was entrapped into doing the offense.”

McCarty v. United States, 5 Cir. 1967, 379 F.2d 285.

4

As to his past conduct and predisposition to commit the offenses charged, Harris testified:
Q. Have you been known as a bootlegger ‍‌​​‌‌​​​‌​​‌‌​​​‌‌‌​​​‌‌​‌​‌‌​​‌​‌​‌‌​‌‌​​‌‌‌​​‌‍locally in that area?
A. I have been known, sir, to know about whiskey, yes, sir.
Q. Do you think that might have been the reason they cоntacted you?
A. I believe, sir, that might be the reason. Yes, sir.

5

Section 605 of title 47 U.S.C. provides that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.” Cf.

Lee v. State of Florida, 1968, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166.

Case Details

Case Name: Andrew J. Harris v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 23, 1968

Citation: 400 F.2d 264

Docket Number: 24303_1

Court Abbreviation: 5th Cir.