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UNITED STATES v. GREEN

August 24, 1956

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JACK GREEN AND GENERAL LABORERS' LOCAL NO. 397 OF GRANITE CITY, ILLINOIS, ETC., DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge.

The defendants, Jack Green and General Laborers' Local 397 of Granite City, Illinois, a Labor Union, etc., were indicted on nine counts. The first eight counts charged a violation of 18 U.S.C.A. § 1951, and the ninth count charged a conspiracy. 18 U.S.C.A. § 3731. The defendants were tried by a jury on three substantive counts and the conspiracy count. The Honorable J. Leroy Adair was the presiding trial judge. The jury found the defendants guilty on two counts, which charged in substance that the defendants attempted to extort from an employer engaged in repair work on an interstate waterway, his money, in the form of wages to be paid for imposed, unwanted, superfluous, and fictitious services. There was no charge that defendants were seeking personal gain but only to extort wages for "featherbedding".

The defendants filed a motion for acquittal before the verdict. The decision on it was reserved by Judge Adair. Rule 29(b) Federal Rules Criminal Procedure, 18 U.S.C.A. After the verdict the defendants filed a motion for new trial. Judge Adair heard arguments and denied these motions, but allowed a motion for each defendant in arrest of judgment by written order. D.C., 135 F. Supp. 162. The order was based upon lack of jurisdiction of the offense on two grounds,

    (1) The indictment did not charge facts to set
  forth a violation of Section 1951, and
    (2) If the act covered the activity alleged it was
  unconstitutional.

This portion of the order is set forth verbatim by the Supreme Court in United States v. Green, 350 U.S. 415, 76 S.Ct. 522. The government appealed directly to the Supreme Court by virtue of 18 U.S.C.A. § 3731.

The Supreme Court issued a mandate which in part stated:

    "[T]hat this cause be, and the same is hereby,
  remanded to the United States District Court for the
  Southern District of Illinois for proceedings in
  conformity with the opinion of this court."

At this stage of the proceedings this court was assigned to the case due to the death of Judge Adair.

The defendants insist that Rule 25 of Fed.Rules Crim.Proc. is applicable and that this court is duty bound to review the evidence and when the verdict is manifestly against the weight of the evidence grant a new trial. Rule 25 provides:

    "If by reason of absence from the district, death,
  sickness or other disability the judge before whom
  the defendant has been tried is unable to perform the
  duties to be performed by the court after a verdict
  or finding of guilt, any other judge regularly
  sitting in or assigned to the court may perform those
  duties; but if such other judge is satisfied that he
  cannot perform those duties because he did not
  preside at the trial or for any other reason, he may
  in his discretion grant a new trial."

The rule requires this court "to perform the duties to be performed by the court after a verdict". In the instant case the trial judge denied both a motion for new trial and for acquittal. After a reversal of the order allowing a motion in arrest of judgment the only duty to be performed is to pronounce sentence. If this court were to again consider these motions it would be acting as a court of review. Denial of a motion for new trial is within the discretion of the court. It is not reviewable where no error in ruling on evidence or in the charge to the jury is assigned. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 247, 60 S.Ct. 811, 84 L.Ed. 1129.

Counsel for defendants have quoted from the opinion of the Supreme Court in an attempt to establish that Judge Adair did not actually rule on the motions for new trial or for acquittal, but merely denied these motions "logically" to allow the motion in arrest of judgment. Of course, the Supreme Court could only pass upon the sufficiency of the indictment under 18 U.S.C.A. § 3731. Judge Adair entered an order, after hearing argument, unequivocally denying motion for new trial and motion for acquittal, and the Supreme Court recognized this in its opinion. At page 417 of 350 U.S., at page 524 of 76 S.Ct., the Supreme Court said:

    "Appellees each filed motions for acquittal or in
  the alternative for a new trial. These the trial
  court specifically denied. The opinion of the trial
  court, D.C., 135 F. Supp. 162, says nothing as to
  failure of evidence to support the allegations of the
  indictment, or as to trial errors. Instead the court
  relied upon the absence of criminality in the acts
  charged, and it was therefore logical for the trial
  court to deny acquittal and new trial. The court
  thought persuasive our recent cases which held union
  efforts to secure `made work' for their members were
  not unfair labor practices. From its view that
  extortion as defined in the Hobbs Act covers only the
  taking of property from another for the extortioner's
  personal advantage, the necessity to arrest the
  judgment followed. Rule 34, Fed.Rules Crim. Proc.,
  18 U.S.C.A.
    "We do not agree with that interpretation of the
  section. The Hobbs Act was passed after this Court
  had construed ยง 2 of the Federal Anti-Racketeering
  Act of 1934, 48 Stat. 979, in United States v. Local
  ...

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