United States v. Salvatore Annunziato
293 F.2d 373, 1961 U.S. App. LEXIS 3822, 48 L.R.R.M. (BNA) 2799 (1961)
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Rule of Law:
A declaration of a declarant's future intent, even if accompanied by a natural explanation of a recent past event motivating that intent, is admissible under the state-of-mind exception to the hearsay rule, provided the past event is recent, within the declarant's personal knowledge, and integrally included in the declaration of design. Furthermore, an employer who makes payments to a union representative in violation of 29 U.S.C.A. § 186(a) is considered a co-conspirator with the representative, making the employer's declarations admissible against the representative if made in furtherance of their joint criminal enterprise.
Facts:
- Terry Contracting Company, Inc. was constructing the Connecticut Turnpike in Bridgeport using materials from outside the state.
- Annunziato was the business agent for the International Union of Operating Engineers, whose members were working on the Terry construction site.
- Annunziato stated to Terry superintendent Van Dommellen and master mechanic Frattini that the job's contract regarding operating machines would be enforced "Right to the 'T.'"
- Harry Terker, president of Terry, gave general superintendent William Mayhew a small manila envelope containing $300 and instructed him to deliver it to the operating engineers' business agent in Bridgeport, explaining it was "for a commitment."
- Mayhew, accompanied by chief estimator Mr. Wolf, met Annunziato in the trailer office on the job site, where Annunziato declined introductions, stating "This ain't no social call," and accepted the envelope from Mayhew, placing it in his pocket.
- Ralph Cohen, Terry's comptroller, drew $300 in petty cash, which he put into an envelope and gave to Harry Terker, after Terker told him it was "For Mr. Mayhew’s use to pay somebody" on the Bridgeport job.
- Harry Terker informed his son, Richard Terker (Terry's secretary and treasurer), during a luncheon conversation that Annunziato had called him, requesting money for the Bridgeport project, and Harry had agreed to send some up to Connecticut.
Procedural Posture:
- Annunziato was indicted for two violations of 29 U.S.C.A. § 186(b) (receiving money from an employer) for alleged receipts of $300 and $50.
- The government filed an information charging Annunziato with the same offense as the second count of the indictment.
- Count 2 of the indictment was nolled (dropped) without objection from Annunziato.
- Count 1 of the indictment (concerning the $300 receipt) and the information were tried together before a jury.
- The jury returned a verdict of guilty on Count 1 and not guilty on the information.
- The trial court sentenced Annunziato to the maximum prison sentence of one year and imposed a fine of $2,500 plus costs.
- Annunziato appealed his conviction to the United States Court of Appeals for the Second Circuit.
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Issue:
Are an employer's out-of-court statements regarding a payment to a union representative, which include declarations of future intent and the recent past event motivating that intent, admissible against the union representative under either the state-of-mind exception to the hearsay rule or as declarations of a co-conspirator in a joint criminal enterprise under 29 U.S.C.A. § 186?
Opinions:
Majority - Friendly, Circuit Judge
Yes, Harry Terker's statements are admissible under both the state-of-mind exception to the hearsay rule and as declarations of a co-conspirator. The court first found Mayhew’s and Cohen’s testimony regarding Harry Terker’s statements admissible under the "res gestae" exception, as they were contemporaneous with independently admissible nonverbal acts (giving/drawing money) and shed light on them. More significantly, Richard Terker's account of his father's luncheon conversation, where Harry Terker stated he had received a call from Annunziato requesting money and he had agreed to send it, was admissible. This statement falls within the state-of-mind exception, as a declaration of Harry Terker's future plan to send money, despite including an explanation of the past event (Annunziato's call) that prompted it. The court reasoned that demanding too much "nicety" by excluding the motivating past event, especially when recent, within personal knowledge, and integrally linked to the declared design, would be impractical and contrary to good sense, citing Mutual Life Ins. Co. of New York v. Hillmon. The court distinguished Shepard v. United States by noting that Shepard involved a statement wholly of past fact, whereas Terker's statement primarily looked forward to his intention to send money. Additionally, Harry Terker's statements were admissible as declarations of a co-conspirator. The court determined that an employer making a payment to an employee representative, in violation of 29 U.S.C.A. § 186(a), is engaged in a criminal enterprise jointly with the recipient, thereby establishing Harry Terker as a co-conspirator with Annunziato. This interpretation arises from the dual purpose of § 186: to protect employers from extortion and to ensure honest representation for employees, indicating that both the payor and recipient are culpable parties, not just a protected class. Harry Terker's statement to his son was deemed "in furtherance" of the conspiracy, even under the Circuit's historic view against "merely narrative declarations," because it informed a key company official (his son, who was secretary-treasurer and later president) of the father's policy, which could be important for future issues or questions. The court also found any errors related to the Jencks Act or grand jury minutes to be harmless, as the unproduced reports would not have aided the defense and the grand jury testimony contained no inconsistencies.
Analysis:
This case significantly clarifies and broadens the application of the state-of-mind exception to the hearsay rule, allowing for the inclusion of recent, integrally related past events that motivate a declared future intent. It firmly establishes that in violations of 29 U.S.C.A. § 186, both the employer making the payment and the employee representative receiving it are considered participants in a joint criminal enterprise, allowing for the application of the co-conspirator hearsay exception. This interpretation strengthens the government's ability to prosecute such cases by facilitating the admission of out-of-court statements made by an employer against a union official, impacting future cases involving complex intent and conspiracy evidence.
