Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 CR 731, Ann C. Williams, Judge.
Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
FLAUM, Circuit Judge. Salvatore Gruttadauro, a union business agent, was found guilty by a jury on four counts of wilfully receiving money from an employer in violation of 29 U.S.C. § 186(b)(1) and (d) (1982).*fn1 On appeal, Gruttadauro raises several objections to his conviction. Gruttadauro argues that: there was insufficient evidence for a conviction, the trial court's jury instructions were deficient, and the court erred in admitting, under Federal Rule of Evidence 404(b), evidence of his prior bad acts. Although we believe that Gruttadauro's 404(b) claim has merit, we conclude that the admission of this evidence was merely harmless error. We reject his other claims, and affirm his conviction.
Gruttadauro was the business agent for Local 1 of the Laborers' International Union of North America, AFL-CIO. His position entailed going to job sites to organize laborers. While at job sites, he would collect initiation fees and quarterly dues. In exchange for dues payments, Gruttadauro dispensed union membership cards.
The incidents giving rise to the indictment involve Gruttadauro and William Hach, president and sole stockholder of William Hach & Associates, Inc. Hach's company specializes in concrete restoration work. Hach testified that beginning in the fall of 1977, representatives of various unions began putting pressure on him to employ union workers. Hach testified that he wanted to avoid unionization of his employees, and wanted the unions to "get off [his] back."
In July 1981, Hach was contacted by a union that wanted to unionize his employees. Hach wanted to tell this union that his employees were already unionized. Consequently, Hach sought Gruttadauro's help, and paid Gruttadauro for five union cards. By acquiring the cards, Hach could keep his employees on the job, and avoid unionization of his employees. The employees named on the cards did not authorize the payment or provide the money for the "dues," and were not members of the union.
A similar scenario was repeated several more times, in the spring, summer, and fall of 1982. Each time Hach was asked, by other unions, to produce union cards at job sites. Hach would then contact Gruttadauro and pay him for union cards. These last three incidents, along with the July, 1981 transaction, led to his indictment for wilfully receiving money for an employer in violation of 29 U.S.C. §§ 186(b)(1) and (d) (1982).*fn2
Gruttadauro's defense, based principally on cross-examination of Hach, and Hach's assistant, Joyce, was that he was fooled by Hach into believing that a collective bargaining agreement between Local 1 and Hach's company existed.
The record reflects, however, that Hach consistently rejected Gruttadauro's requests that he sign a collective bargaining agreement. Moreover, Gruttadauro never even gave Hach a copy of an agreement. None of Hach's employees whose names appear on the union cards were listed in the unions' books. In fact, next to the union card numbers that allegedly were assigned to Hach's employees were the names of unknown persons.
The jury apparently rejected Gruttadauro's defense. He was found guilty of violating 29 U.S.C. §§ 186(b)(1) and (d). The district court sentenced him to two years probation and levied a $22,000 fine. Gruttadauro timely appealed his conviction.
Gruttadauro makes several challenges to the court's jury instructions. We believe that none of these challenges has merit.
Gruttadauro first challenges the failure of the district court to instruct the jury about the legality of "pre-hire" agreements. The court did not inform the jury of 29 U.S.C. § 158(f), which expressly permits collective bargaining agreements in the construction industry even if there is no showing that a union has obtained majority support from the employees. The government's case was that Hach's employees had decided not to join a union, so that Gruttadauro's acceptance of money from Hach violated § 186. Gruttadauro argues that the omission of a § ...