he would be willing to sign a written statement which the investigator of the Bureau would prepare. Fisher stated that he would not sign such statement until he had had his counsel review it. When the investigator was asked the purpose of the statement he replied, "Well, it might save you a trip to the Grand Jury." (Tr. p. 68).
Thereafter all of the reports and results of the investigation by the Labor Department investigators were sent to the Area Director of the Department of Labor, Richard Lally.
On or about November 20th or 21st the Area Director and one of the investigators appeared at the United States Attorney's Office for the purpose of a conference with that official. (Tr. pp. 123-4). The tenor of the conversation concerned the verification of the reports concerning payments made to Weber (Tr. p. 124) and the investigation in general.
Some days prior to December 20, 1961 Fisher, pursuant to a telephone call made by the United States Attorney, was directed to bring certain corporation records before the Grand Jury (Tr. p. 78); and on December 20, 1961 in response to a subpoena previously served on him, Fisher appeared before the Grand Jury and gave testimony concerning the relationship of Weber and one Anna M. Rocha with the aforementioned corporation and partnership. During the course of the preliminary remarks before the Grand Jury, Fisher was advised of his right to avail himself of the privilege of the Fifth Amendment. He was further advised that in the event he sought to invoke the provisions of the Fifth Amendment the matter would be presented before a Federal District Judge who would then decide whether Fisher had proper grounds for asserting the privilege. In addition to the above, Fisher was asked to sign a waiver of immunity which he refused to do.
Inquiry was made of Fisher before the Grand Jury concerning Weber's affiliation with the corporation and partnership, personal use of vehicles owned by Public and on other matters concerning receipt of things of value from Public and Jersey Equipment Co. It is interesting to note that Weber was never called or subpoenaed to appear before the Grand Jury. The only other witnesses to appear, according to the record before the Court, were Fisher and the investigators of the Labor Department who had conducted the preliminary investigation. On April 4, 1962 the indictment, the subject matter of this action, was filed with the Clerk of the Court naming both Fisher and Weber as defendants.
Count one of the indictment charges defendants, Fisher and Weber, with conspiracy against the United States to violate Section 186(b) of Title 29, United States Code, by permitting and assisting Weber to agree to receive and accept money and things of value from Public Constructors, Inc., and Jersey Equipment Co., in violation of 18 U.S.C.A. § 371.
The other substantive counts charge Fisher with violations of 29 U.S.C. § 186(a), (d), in that he did allegedly pay, deliver and agree to pay and deliver to a labor representative, to wit, Weber, things of value of Public Constructors, Inc., and Jersey Equipment Co., during certain periods of time. The charges set forth in the indictment are related to and directly flow from the transactions and matters concerning which Fisher testified to before the Grand Jury and the Legislative Committee.
Section 601 of the Act 29 U.S.C. § 521, gives the Secretary of Labor power to conduct investigations to determine violations of the L.M.R.D.A., with certain exception as to title I. This section gives the Secretary of Labor the power to grant immunity to persons appearing and giving evidence in response to a subpoena issued under the auspices of his department. The immunity statute utilized for the purpose is 15 U.S.C.A. §§ 49, 50, a provision of the Federal Trade Commission Act but herein made expressly applicable to Labor matters by the Congress.
Section 607 of the Act read in conjunction with Section 601 authorizes the Secretary to delegate certain of his powers to other Governmental Departments in order to avoid unnecessary expense and duplication of function among Governmental Agencies. To effectuate this intent, a Memorandum of Understanding between the Departments of Labor and Justice, dated February 16, 1960 has been executed, and provides in detail the division of the investigatory function to be allotted to each of the two departments. The types of criminal prosecutions are categorized and separated with certain crimes being reserved to the sole responsibility of the Secretary of Labor and other violations to be investigated by the Department of Justice through this delegation from the Secretary. Among these latter delegated crimes appear the substantive offenses with which Fisher is charged in the indictment forming the subject matter of this motion. See 25 Federal Register 39 (1960) (p. 1708).
This memorandum expressly provided that the Department of Justice was to proceed with such investigation by the authority of powers delegated from the Secretary of Labor which that official possessed under the enabling Act.
The powers of investigation so delegated by the Secretary of Labor to the Department of Justice could obviously not transcend the powers originally granted to the Secretary by Congress. The intent of the Legislature as gleaned from the Legislative history manifests their desire to grant the Secretary broad investigatory power along with substantial authority to delegate same to other Governmental Agencies in order to implement the Labor-Management protection policies enunciated in the purposes of the Act.
The Courts have passed upon the broad delegation of authority allotted under the Act and utilized in the Memorandum of Understanding and have upheld the validity of the underlying enabling legislation and the specific transfer of authority made pursuant thereto. Goldberg v. Battles, 196 F. Supp. 749, 755 (D.C. Pa. 1961), aff'd, 299 F.2d 937 (3rd Cir. 1961), cert. denied, 371 U.S. 817, 9 L. Ed. 2d 58, 83 S. Ct. 32 (1962). The Battles case expressly held:
"In summary the Court finds that the Secretary of Labor is authorized by § 601 of the Act to delegate his investigatory and subpoena functions; that he in fact did so delegate them to the Commissioner; that § 607 of the Act, read in conjunction with § 601, authorized the Commissioner to delegate his functions to the Department of Justice; and, that the Commissioner did in fact authorize the Department of Justice to conduct this investigation."
As stated previously the L.M.R.D.A. utilizes the immunity section of the Federal Trade Commission Act found in 15 U.S.C.A. § 49. That statute states:
" . . . But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it: Provided, That no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. Sept. 26, 1914, c. 311, § 9, 38 Stat. 722."