Taylor v. United States

• Decision Date: 21 June 1963
• Docket Number: No. 18301.,18301.
• Parties: Henry TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

320 F.2d 843 (1963)

Henry TAYLOR, Appellant, v. UNITED STATES of America, Appellee.

No. 18301.

United States Court of Appeals Ninth Circuit.

June 21, 1963.

COPYRIGHT MATERIAL OMITTED

Gill, Doi, Shim, Maito & McClung, and David C. McClung, Honolulu, Hawaii, for appellant.

Herman T. F. Lum, U. S. Atty., and T. S. Goo, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.

Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

Henry Taylor was tried under a twenty-three-count amended information charging violations of section 501(c) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501(c). The labor organization in question is the American Guild of Variety Artists (Guild). During the indicated period Taylor was manager of the Hawaiian branch of that organization.¹

The jury returned a verdict of guilty on each of the counts except the third. A judgment of conviction and sentences were thereupon entered, from which Taylor appeals.

Section 501(c) makes it a crime for an officer or employee of a labor organization to embezzle, steal or unlawfully and wilfully abstract or convert to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of such organization. The section provides that one who violates that statute shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

Taylor contends that because the heavy penalty provision of this statute is applicable to all violations thereof without regard to the amount embezzled, stolen, abstracted or converted, the statute violates the Due Process Clause of the Fifth Amendment.² Appellant calls attention to other criminal statutes, dealing with embezzlement, stealing and purloining of money or other property, in which a lesser penalty is prescribed where the money or the value of the property is less than $100.³ Appellant argues that this difference in penalty provisions works an impermissible discrimination against persons employed by labor organizations when compared with the treatment handed out to embezzlers and the like employed by other than a labor organization falling within the purview of the statute.

In support of this proposition appellant relies primarily on Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, in which Oklahoma's Habitual Criminal Sterilization Act was held to offend the equal protection clause of the Fourteenth Amendment.⁴ The Fourteenth Amendment applies to state, not federal action. The Fifth Amendment, here invoked, applies to federal action, and while it contains a due process clause, it does not contain an equal protection clause. Detroit Bank v. United States, 317 U.S. 329, 337, 63 S.Ct. 297, 87 L.Ed. 304.

However, although due process and equal protection are not always interchangeable phrases, discriminatory federal action may be so unjustifiable as to be violative of Fifth Amendment due process. The test, insofar as federal action is concerned, is whether the alleged discriminatory feature is reasonably related to any proper governmental objective. See Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884; Boylan v. United States, 9 Cir., 310 F.2d 493, 500.

But having posed the precise constitutional question which appellant seeks to present, we must hold, on our own motion, that it is not a question which may be determined on this appeal.

Constitutional questions are not entertained in federal court in advance of the strictest necessity.⁵ Under this principle a constitutional attack upon a statute will not be entertained at the instance of one who fails to show that he is injured by the statute's operation. Rescue Army v. Municipal Court, 331 U.S. 549, 569, 67 S.Ct. 1409, 91 L.Ed. 1666.

Appellant has failed to show that he is injured by the failure of section 501(c) to contain a provision prescribing a lesser penalty where the amount involved is not more than one hundred dollars. On the first count Taylor was sentenced to prison for a term of three years, no fine being imposed. Since the amount of money involved in that count was $138, a provision in the statute under which he was convicted (section 501(c)), setting a lesser penalty where not more than one hundred dollars is involved, would have been of no benefit to him on that count. This is also true of his like sentences under counts II, XI and XII, where the amounts involved were, respectively, $186, $279 and $279. The sentences under counts II, XI and XII run concurrently with each other and with the sentence under count I.

The amount involved in each of the remaining counts under which convictions were obtained was less than one hundred dollars. As to each the same three-year sentence, without fine, was imposed, these sentences to run concurrently with each other and with the sentence imposed under count I.

Assuming, therefore, that a lesser sentence should have been available to appellant on each of the latter counts in order to comport with Fifth Amendment due process, he has nevertheless not been prejudiced. He must in any event serve the concurrent three-year sentences imposed under counts I, II, XI and XII. The like sentences on the remaining counts, being the same and likewise concurrent, have added nothing to appellant's penalty. This, of course, assumes that some one of the convictions obtained under counts I, II, XI and XII is otherwise valid. For the reasons stated later in this opinion we hold that the convictions under at least counts I, II and XI are otherwise valid.

Appellant argues, however, that where a statute is challenged as denying due process of law, it must be tested on its face without regard to the circumstances of a particular case. In so arguing, appellant relies on United States v. DeCadena, D.C.N.D.Cal., 105 F.Supp. 202, 204.⁶

This is ordinarily the case where, as in DeCadena, the constitutional question is whether the statute is void for vagueness, for then the problem is whether the statute itself gives notice. See Jordan v. DeGeorge, 341 U.S. 223, 230, 71 S.Ct. 703, 95 L.Ed. 886.⁷

But no such consideration is involved where the constitutional challenge is predicated upon an asserted discriminatory feature in the penalty part of the statute unless such feature is of a kind which could prejudice all who are sentenced under the act. As indicated above, that is not the case here. Many statutes may be constitutional as applied under one set of circumstances and unconstitutional as applied under another; the question in such a case is whether the statute is constitutional as applied.⁸

If a statute carries a discriminatory penalty provision but, under the circumstances of a particular case, it is clearly demonstrable that a defendant has not been prejudiced, the statute is not unconstitutional as applied to him. This being the position in which appellant finds himself, it is of no concern to him whether section 501(c) carries a discriminatory penalty. Therefore we do not decide the constitutional question.

Appellant next argues that the verdict is not supported by substantial evidence.

The twenty-two counts under which Taylor was convicted cumulatively charge that on various dates between June 20, 1960 and June 26, 1961, while he was an employee of the Guild, a labor organization, he embezzled, stole or unlawfully and wilfully abstracted or converted to his own use moneys of the Guild in amounts ranging from $25 to $279.

The proof consisted of oral testimony, exhibits and stipulations as to certain facts. Under this proof the jury could have found that Taylor was appointed Hawaiian branch manager of the Guild on May 20, 1960; that upon his appointment he was told that all moneys collected by him for the Guild on any given day should be deposited by the close of the next business day in the Guild account at the Bishop National Bank in Honolulu; that he was specifically instructed not to cash any such checks; that according to further instructions, he was to maintain certain books and records for the Guild in connection with the receipt of initiation fees and dues from present or prospective members.

There was also sufficient evidence to warrant a jury finding that between June 20, 1960 and June 26, 1961, Taylor received checks made out to the Guild in varying amounts ranging from $25 to $279, each identified in a separate count as amplified by a bill of particulars;⁹ that these checks were made and delivered in payment of initiation fees and dues by present and prospective members of the Guild; that Taylor, contrary to his instructions, failed to deposit the checks to the account of the Guild but endorsed them and received cash therefor; that he withheld the amounts of cash specified in each count on which he was convicted; and that Taylor did not record, in any of the books and records of the Guild, the receipts so withheld. With specific reference to counts I, II and XI, each involving more than one hundred dollars, the evidence was sufficient to establish the facts stated above.¹⁰

Appellant argues further, however, that these facts are not sufficient to convict. It is his position that there must also be as to each count, but was not, direct evidence showing that: (1) Taylor's dealings with the money constituted an abstraction or conversion or embezzlement of the money to his own use or the use of another; and (2) the abstraction, conversion or embezzlement was done unlawfully and wilfully with intent to deprive the Guild of the money. Direct evidence in proof of these elements is always required, appellant argues, but especially so in view of Taylor's testimony demonstrating his innocent intent.

It was Taylor's testimony that he cashed the checks instead of depositing them so that it would be easier to make an adjustment in the event the check "bounced," or in the event the fee was paid for the initiation of a foreign entertainer, and the applicant did not come to the Islands. He...