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United States v. Dilapi

decided: June 9, 1981.

UNITED STATES OF AMERICA, APPELLEE,
v.
ANTHONY DILAPI AND BENJAMIN LADMER, DEFENDANTS-APPELLANTS .



Appeal from a judgment of the District Court for the Eastern District of New York (Henry Bramwell, Judge), convicting appellants of obstruction of justice and conspiracy in connection with the filing of a representation petition with the National Labor Relations Board. Affirmed.

Before Feinberg, Chief Judge, Newman, Circuit Judge, and Mishler,*fn* District Judge.

Author: Newman

Appellants Anthony DiLapi and Benjamin Ladmer were convicted by jury trial in the Eastern District of New York (Henry Bramwell, Judge) for obstruction of justice and conspiracy to commit that offense, 18 U.S.C. ยงยง 1505 and 371 (1976), in connection with the filing of a representation petition with the National Labor Relations Board (NLRB). Appellants raise several challenges on appeal including claims that the verdict may not have been unanimous and that the Sixth Amendment was violated by an instruction to DiLapi not to consult with counsel during a trial recess in the course of his testimony. Concluding that none of the claims warrants reversal, we affirm the convictions.

I.

In 1978, Matthew Eason, a union organizer and president of Local 20408 of the United Warehouse Industrial and Affiliated Trades Employees Union, filed a representation petition with the NLRB for certification as the collective bargaining agent for the employees of two employment agencies, GS Temporary Service, Inc. and GS Supply Associates, Inc. (hereafter collectively "GS"). GS provided employees for Interstate Dress Carriers, Inc. ("Interstate"). GS was apparently formed at Interstate's request after Interstate had entered into a collective bargaining agreement with the International Ladies Garment Workers Union (ILGWU) at the end of 1976. At that time, approximately three-quarters of Interstate's employees at its Jersey City facility were transferred to the payroll of GS. Since GS provided these employees to Interstate as "temporary help," they were no longer covered by the union contract with Interstate.

Soon after Eason filed his petition to have Local 20408 represent the GS employees, he received several telephone messages from appellant DiLapi, an organizer for Local 522 of the International Brotherhood of Teamsters. Eason eventually agreed to meet DiLapi to discuss the GS petition at Eason's office on April 12, 1978. The core of the trial concerned this and various other meetings between Eason and appellants at which appellants allegedly attempted to induce Eason to withdraw the petition by means of threats, bribes, and an offer of ILGWU membership for GS employees to be designated by Eason.

Just before the April 12 meeting, co-defendant David Bergner, an attorney whose office was on the same floor as Eason's office, approached Eason and told him that the persons Eason was about to meet were "nasty boys," affiliated with organized crime, who "would think nothing of handing (Eason his) head" if he did not cooperate. After Bergner left, DiLapi arrived with appellant Ladmer, co-defendant Stephen Kingston, president of DiLapi's Local, and a fourth, unidentified individual. Ladmer, an officer of the International Production, Service and Sales Employees Union, had met Eason in 1977 in connection with the withdrawal of a different NLRB petition involving the A. R. Winarick Company. The president of Ladmer's union, co-defendant Robert Rau, had, at DiLapi's request, asked Ladmer to introduce DiLapi to Eason.

After the introductions, at DiLapi's request the others withdrew, and DiLapi then offered Eason $1,000 to withdraw the GS petition and threatened him with harm if he would not do so. Eason told DiLapi he would have to think about it, and the meeting ended. Ladmer returned and, outside of DiLapi's presence, offered Eason $300 as a payment for the way he had cooperated with Ladmer in their prior dealing involving the Winarick petition. After the meeting, Eason contacted various law enforcement and government agencies and was put in touch with the Federal Bureau of Investigation (FBI). Eason agreed to continue to meet with DiLapi and record all subsequent conversations. The tapes of those conversations were entered into evidence at the trial.

In the first taped conversation, a meeting on April 20 between Eason and DiLapi, DiLapi repeated an offer made earlier to admit 10 GS employees, designated by Eason, into Local 102 of the ILGWU, and mentioned that he did not want to "press" Eason. As no further meetings were planned, Eason spoke to an FBI agent and was advised to arrange another meeting. Eason then contacted Ladmer and asked Ladmer to serve as his "intermediary" in arranging another meeting with DiLapi. In that conversation, which Eason recorded, Ladmer agreed to set up a meeting for April 24 in Ladmer's office.

At the April 24 meeting, which was recorded, Eason, Ladmer, and DiLapi discussed how much money Eason would receive for withdrawing the petition. Eason was told not to mention any figures aloud but to write them down on a piece of paper, as DiLapi was apparently concerned that Ladmer's office might be bugged by the FBI. At one point Ladmer indicated on the paper that the amount would be $3,500. DiLapi stated that if Eason did not cooperate, GS would simply go out of business and regroup under another name, and as a result, the current GS employees would not be rehired.

A few days later Interstate transferred its Jersey City employees to Manhattan, an action calculated to undermine Eason's organizing efforts because his petition only covered Jersey City workers. The following day, Eason met with Interstate's vice-president, Sidney Lieberman, and in a recorded conversation, Lieberman indicated his awareness of the prior approaches by DiLapi and increased the offer to $5,000. He then paid Eason $2,000 "front money" and agreed to place 10 men of Eason's choosing into ILGWU Local 102, in exchange for withdrawal of the petition. Interstate and Lieberman, along with ILGWU Local 102 and its manager, Sidney Gerstein, were also charged as co-defendants in this case.

All of the defendants testified at the trial, attempting to offer a theory to contradict the Government's contention that the defendants corruptly sought to induce the petition's withdrawal at the request of the employer Interstate. Defendants maintained that DiLapi's union, Local 522, wanted to organize the GS workers, and that they were merely offering to compensate Eason's union for actual expenses incurred in its organizing efforts if it withdrew in favor of Local 522.

The indictment alleged in the substantive count (Count One) that both appellants and others endeavored to influence, obstruct, and impede the administration of the law under which the GS representation proceeding was being conducted by the NLRB. Count One alleged that the obstruction of justice was accomplished by several acts offering and paying Eason a sum of money, offering membership in Local 102 to persons designated by Eason, and threatening Eason with physical harm, economic injury, and the employees' loss of employment if he did not withdraw the GS petition. The District Judge's instructions made clear that a request to withdraw a representation petition would be a crime only if it were made corruptly or by threats of force, and that the endeavor would be corrupt if, through payment of money to Eason or admission of persons into Local 102, the endeavor sought to prevent employees from organizing or to preserve a system of kickbacks. By their verdicts of guilty against appellants,*fn1 the jurors rejected the defense claim that reimbursement of expenses had been legitimately offered, and accepted the Government's contention that threats or corrupt means had been used in an attempt to force withdrawal of the GS petition.

II.

Trial Court ...


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