The trial of this seemingly simple criminal case, involving an alleged violation of 29 U.S.C.A. § 186(b), which at the time made it unlawful “for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other •thing of value,” has raised a host of problems, to the proper solution of which the Government’s seven page brief, filed, in violation of our Rule 15(a), 28 U.S.C.A. on the eve of the argument, has rendered' almost no assistance.
In 1957 the Terry Contracting Company, Inc., a New York City concern, was- *375 engaged in constructing the Connecticut Turnpike in Bridgeport, using materials from outside the state. Annunziato was business agent for the International Union of Operating Engineers, members of which were engaged in work on the site. The indictment alleged two violations of 29 U.S.C.A. § 186(b) by Annunziato— the receipt of $300 on or about July 3, 1957, and the receipt of $50 on or about December 24, 1957. Prior to trial the Government filed an information charging him with the same offense stated in the second count; without objection on his part, Count 2 of the indictment was nolled and Count 1 and the information were tried together. The jury brought in a verdict of guilty on the former, of not guilty on the latter. The court gave Annunziato the maximum prison sentence, one year, and imposed a fine of $2,500 plus costs of prosecution, 29 U.S.C.A. § 186(d).
The Government’s proof on Count 1 was presented primarily through five employees of the Terry company, hereafter Terry, whose testimony can be summarized as follows:
(1) Walter Haas was timekeeper on the Bridgeport job, identified as Job No. 719, during June and July, 1957. He worked in a trailer, with a small office at one end, the other end open, and a door between. He first saw Annunziato on an occasion when the latter said “in a very loud voice” to Van Dommellen, the Terry superintendent, and to Frattini (later identified as the master mechanic), that “The job was to be covered — the letter of the contract was to be covered by regarding the handling of all the operating machines whereby the operating local was under their jurisdiction,” and that the contract would be enforced “Bight to the ‘T.’ ” A week or two later Annunziato appeared in the trailer and asked whether Mayhew, Terry’s general superintendent who was located in New York, was on the job site. Haas said Mayhew was not but was expected. Mayhew arrived in the office with a Mr. Wolf, chief estimator, also from New York. When Haas saw Annunziato approaching, he left the office. He saw and heard Mayhew attempt to introduce Wolf; Annunziato declined the proffer, saying “This ain’t no social call,” whereupon Wolf also left the office. Haas then saw Annunziato pick up a small manila envelope from a table in the office.
(2) Arthur Van Dommellen, field sn perintendent of the Bridgeport job, recalled that late in June or early in July, 1957, Annunziato came into the trailer office and asked if someone from New York was there to see him. Van Dommellen answered “There’s nobody here now, but I expect Mr. Mayhew later.” Later Annunziato returned; Van Dommellen met him outside the trailer and told him Mayhew and Wolf were in the office if Annunziato wanted to see them. He did.
(3) William (“Bill”) Mayheio was in general charge of all Terry construction projects. In June, 1957, the president of Terry was Harry Terker, deceased at the time of the trial. Mayhew was permitted to testify over objection that in the summer of 1957, on a day before he was scheduled to make a trip to New Haven, Harry Terker gave him a small manila envelope to deliver to the business agent for the operating engineers at Bridgeport. Mayhew asked the purpose; Harry Terker replied “It’s for a commitment that I have made.” When Mayhew demurred, Terker said, “Well, I have made the commitment, and I would like to keep up with it, and I would like you to do it, to take it with you, since you are going to New Haven.” Arriving at Bridgeport, Mayhew and Wolf entered the trailer office. Annunziato came in and identified himself; Mayhew sought to introduce him to Wolf and proposed going out for a cup of coffee. Annunziato “said that he had not come for a social call; he was not interested in going for coffee.” Mayhew handed the small envelope to Annunziato, who put it in his pocket. The envelope was about half an inch thick and flexible.
(4) Ralph Cohen was comptroller of Terry. He identified a Cash Voucher dated June 28,1957, for $300, bearing the *376 name “B. Mayhew” at the top and reading “Job #719, Sundries.” It also bore the legend “Receipt of above is hereby acknowledged,” with Cohen’s initials. If in fact Cohen had given the money to Mayhew, he would have made Mayhew sign the receipt; instead Cohen had put it in an envelope and given it to Harry Terker. Cohen was allowed to testify, over objection, that Harry Terker had told him to draw the petty cash “For Mr. Mayhew’s use to pay somebody” on the job.
(5) Richard Terker, son of Harry Terker, had been secretary and treasurer of Terry; after his father’s death he became president. He was allowed, over objection, to testify to a luncheon conversation with his father late in June or early in July, 1957. The father informed the son “that he had received a call from Mr. Annunziato” and “that he had been requested by Mr. Annunziato for some money on the particular project in question, the Bridgeport Harbor Bridge. I asked him what he intended to do, and he had agreed to send some up to Connecticut for him.” Cross-examination developed that the sum of money mentioned was ?250.
Annunziato’s Appearance Before the Grand Jury.
Appellant’s first ground of appeal requires a statement of the proceedings prior to the indictment. Annunziato was summoned before a grand jury, first on September 16 and 17, 1959, and again on May 25,1960. He claims that on neither occasion was he advised of his right to remain silent under the Fifth Amendment; and contends the indictment should therefore be quashed. We find it unnecessary to consider the legal issue, see United States v. Scully, 2 Cir., 1955,
Voir Dire of the Panel.
Moving to the trial, appellant criticizes the court’s refusal, on the
voir dire
of the panel, to put a question, requested by him, whether any of the panel were members of or contributors to any organization having law enforcement as its object. He relies on Beatty v. United States, 6 Cir., 1928,
Hearsay Objections.
Our statement of the evidence has surely presaged another and more serious set of attacks — alleged violations of the hearsay rule. Appellant asserts this with respect to Mayhew’s testimony that Harry Terker asked him to take the money to Bridgeport in order to keep a commitment that Terker had made to *377 Annunziato, to Cohen’s testimony that Harry Terker told him to draw $300 “For Mr. Mayhew’s use to pay somebody” on the Bridgeport job, and, most importantly', to Richard Terker’s account of his luncheon talk with his father.
We need not tarry long over the first two statements. These fall so clearly within Professor Morgan’s sixth class, “Cases in which the utterance is contemporaneous with a nonverbal act, independently admissible, relating to that act and throwing some light upon it,” A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 236 (1922), see Beaver v. Taylor, 1863,
Richard Terker’s account seems to have been admitted on the basis that his father’s luncheon statement was a declaration of a co-conspirator; the Government now seeks to sustain admissibility both on that ground and as a declaration of the father’s intention. We think it was admissible on both grounds.
If the manila envelope had popped out of Harry Terker’s wallet as he was settling the luncheon check and Harry had told Richard “This is money I’m sending up to Annunziato,” admissibility would clearly follow from the combination, logically unassailable although practically debatable, of two principles, “that the existence of a
design
or
plan to do
a specific act is relevant to show that the act was probably done as planned” and that the plan or design may be evidenced, under an exception to the hearsay rule, “by the
person’s own statements
as to its existence.” 6 Wigmore, Evidence (3d ed.), pp. 79-80; Mutual Life Ins. Co. of New York v. Hillmon, 1892,
We do not think such nicety is demanded either by good sense or by authority. State v. Farnam, 1916,
The alternative ground for admissibility is as a statement by a co-conspirator. Appellant properly makes no point that the indictment did not charge a conspiracy; it is enough if evidence, other than that whose admissibility is under challenge, disclosed one. St. Clair v. United States, 1894,
It is quite true that mere yielding to the commission of a crime against one’s self does not render a
complying
person a co-conspirator. Thus a woman who simply consents to be transported across a state line for the purpose of engaging in sexual intercourse is not a co-conspirator to violate the Mann Act, 18 U.S.C. § 2421 et seq., Gebardi v. United States, 1932,
Determining which of these lines of authority is the more relevant here requires some analysis of the purpose of 29 U.S.C.A. § 186. This came into the statutes as § 302 of the Taft-Hartley Act of 1947, 61 Stat. 136, 157. Section 302 (a) made it “unlawful for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce.” Section 302(b), previously quoted, made it similarly unlawful “for any representative of any employees” to “receive or accept” from an employer. Section 302(c) is an elaborate series of exceptions, including carefully circumscribed ones with respect to welfare funds. These provisions existed only in very sketchy form in the Hartley bill passed by the House of Representatives, 80th Cong. 1st Sess., H.R. 3020, § 8 (a) (2) (B) and (C); the Senate removed the provisions from § 8, elaborated them, and imposed criminal sanctions, § 302(d), as well as opening the federal courts to civil suits to restrain their violation, § 302(e). Most of the discussion centered around welfare funds. Senator Ball, a majority member of the Labor Committee, declared the purpose to be that these should be “used actually for the specified benefits to the employees of the employers who contribute to them and that they shall not degenerate into bribes,” 93 Cong.Rec. 4805; Senator Taft, speaking to § 302 (a), said “That is, it may be said, in a case of extortion or a case where the union representative is shaking down the employer.” 93 Cong.Rec. 4876.
Decisions have recognized that § 302 (a) and (b) have this dual purpose — of protecting employers against extortion and of insuring honest representation to employees. Judge Learned Hand said, dissenting in United States v. Ryan, 2 Cir., 1955,
We think it follows that an employer who makes or agrees to make a payment to an employee representative forbidden by § 302(b) is engaged in a criminal enterprise jointly with the recipient. He is not simply and solely a member of the class whom the statute aims to protect; he is likewise a member of a class whose activities the statute aims to curb. The same act which constitutes an offense by the employee under § 302(b) is also one by the employer under § 302(a) — indeed, “An employer might be guilty under subsection (a) if he paid money to a representative of employees even though the latter had no intention of accepting.” Arroyo v. United States,
That, however, is not the end of the problem. For although establishing the foregoing affords an added ground for the admissibility of Harry Terker’s declarations to Mayhew and Cohen, both plainly in “furtherance” of the conspiracy, it may not with respect to Harry’s declaration to Richard, whose .immediate role was that of an auditor, not an actor. In Van Riper v. United States, 2 Cir., 1926,
To round out this discussion we add there was ample evidence, other than Harry’s statement to Richard, to show the common plan; the judge needed only
*381
enough “to decide whether, if the jury chose to believe the witnesses,” Harry Terker and Annunziato were engaged in one, United States v. Pugliese, supra,
Jencks Act and Grand Jury Minutes.
This case furnishes further proof, if any were needed, of the prophetic truth of Mr. Justice Frankfurter’s observation concerning 18 U.S.C. § 3500, “The possible permutations of fact and circumstances are myriad.” Palermo v. United States, 1959,
(1) The witness Haas has been twice interviewed by the Government, on September 24, 1958, and shortly before the trial in the fall of 1960. On the latter occasion he signed a three page statement, which was delivered to the defense. It is unquestioned that at his first interview he did not sign or otherwise adopt or approve any statement; the controversy is whether an Interview Report dictated by F.B.I. Special Agent Clemente on September 25, 1958, the day after the interview, and forwarded under date of September 29, came within § 3500(e) (2).
The Interview Report, of slightly more than three single-spaced typewritten pages and some 800 words, was turned over to the judge, who permitted defense counsel to examine Haas in regard to it in the absence of the jury. Haas testified that at the September 24 interview the F.B.I. agent made notes; that the interview “possibly” lasted about three hours; and that on his 1960 interview he was not shown either the notes made in September, 1958, or the Interview Report, although the agents had “certain papers in front of them” to which they referred. Defense counsel made no request for the calling of Agent Clemente. The judge announced he would adhere to a ruling, made prior to the detailed examination of Haas, that, under the Palermo decision, the Interview Report need not be produced.
Examination of the Interview Report in the light of the testimony does not leave us with a clear conviction whether or not the report came within § 3500(e) (2), see United States v. McKeever, 2 Cir., 1959,
Whether the Campbell decision means that, under circumstances such as here presented, the judge was required to ascertain the availability of the F.B.I. agent and require his production if available, even though, in contrast to Campbell,
(2) Richard Terker testified he was first interviewed by the F.B.I. in the fall of 1958. The interview lasted “About two, two and a half hours,” the agents made longhand notes, and Richard looked at them at the end of the interrogation. To the question whether the notes were accurate and correct, he answered “I would imagine so, yes.” When defense counsel asked for production of the notes, the prosecutor responded, “I have no notes, your Honor, by the term ‘longhand notes’ as alluded to in this testimony. We do have, as has been developed in the testimony of other witnesses, the F.B.I. memorandum of the interview.” Defense counsel then gave “notice * * * to produce the longhand notes that were taken on questioning the witness, and the witness read over and consented to”; the judge noted the prosecutor’s statement “that no such notes are in his possession.” There followed a conference at the bench, as to the content of which the transcript does not inform us.
Terker’s testimony created at least a prima facie case that the longhand notes were “a written statement *
*
* otherwise adopted or approved by him” within § 3500(e) (1). Hence, if defendant had sought the memorandum of the interview mentioned by the prosecutor, he should have been given it for use as secondary evidence of the contents of the destroyed notes, see United States v. Thomas, 2 Cir., 1960,
(3) Richard Terker had testified briefly before the grand jury on May
*383
25, 1960. At defendant’s request the judge examined the minutes of this testimony for possible inconsistencies, in accordance with the procedure directed in United States v. Spangelet, 2 Cir., 1958,
Affirmed.
Notes
. Professor Morgan may overstate this slightly when he says “that to draw the inference that Walters went with Hillmon required an assumption that he had made an arrangement with Hillmon” before Walters wrote the letter.
. The nigh impossibility of disentangling statements of plan from reasons underlying them, and the artificiality of any attempt to do so, are well illustrated by some of the decedent Whittall’s statements held admissible on the issue of paternity in the celebrated case of Lloyd v. Powell Duffryn Steam Coal Co., [1914] A.C. 733, 734. Among the statements were “that Alice Lloyd had told him some things that troubled him very much but that it didn’t matter because he would marry her soon enough,” and that “he was afraid Miss Lloyd was in trouble— it was a case of getting married.” Whit-tail’s declarations of design were admitted not, as in the Hillmon case, to prove a future act, which, indeed, Whittall admittedly never performed, but to establish a past occurrence inferably motivating the design. Perhaps, as shown in Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 210-212 (1948), their lordships’ judgments are not very luminous, but at least no one suggested that Whit-tall’s statements must be split down the middle so as to exclude what Alice had told him and admit only the rest.
. At least this explains the results under the Mann Act, in statutory rape, and, as we assume, in extortion; it would scarcely seem to do so with respect to adultery. However, as to that, “It is well known that the public policy of the several States differs as to criminal liability for adultery, and where a legislature has made plain its intent upon that question, prosecutors should not be permitted to circumvent that decision.” May v. United States, 1949,
. We do not think it necessary to decide whether if Annunziato and Harry Torker had been the only persons here involved, the “Wharton rule” would have prevented prosecution for conspiracy, see Note, Developments — Conspiracy, 72 Harv.L. Rev. 920, 953-956 (1959), or, if it would, whether that would make the declaration of one participant inadmissible against another. We cannot see why the latter should be so; the basis of admissibility is a joint enterprise, whether technically a “conspiracy” or not, see American Daw Institute, Model Code of Evidence, Rule 508(b). In any event the Wharton rule would not be applicable here, since at least two persons other than the payor and the receiver, namely, Mayhew and Cohen, knowingly participated in the criminal enterprise.
. In the light of this ruling by the Supreme Court, we have no occasion to consider whether there is a sufficient basis for distinguishing, as regards 28 U.S.C. § 2111, error in the denial of a statement producible under the Jencks Act from error in a failure of the judge to read the minutes of grand jury testimony of a government witness and to make available to the defense any portions containing inconsistencies, or the different views as to the latter that have been expressed by judges of this Court, see United States v. Giampa, 2 Cir., 1961, 290 F.2d
83
and United States v. Hernandez (on petition for rehearing), 2 Cir., 1961,