Woxberg v. United States, 18805.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation329 F.2d 284
Docket NumberNo. 18805.,18805.
PartiesHomer L. WOXBERG, Sr., and Wayne Franklin Dykes, Appellants, v. UNITED STATES of America, Appellee.
Decision Date04 May 1964

Robert A. Neeb, Jr., Beverly Hills, Cal., for appellant Woxberg.

Cooper & Nelsen, and Grant B. Cooper, Los Angeles, Cal., for appellant Dykes.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief Criminal Section and Richard A. Murphy, Asst. U. S. Atty., Asst. Chief Criminal Section, Los Angeles, Cal., for appellee.

Before BARNES, MERRILL and KOELSCH, Circuit Judges.

BARNES, Circuit Judge:

Appellant Woxberg appeals his convictions on four counts of embezzlement and conversion of union funds, charged to be in violation of Section 501(c) of the Labor-Management Reporting and Disclosure Act of 1959 (Counts I, II, IX and X). Appellant Dykes appeals from his conviction on two counts (I and II).

Count I relates to the dissolution of a previously existing trust fund (sometimes known as a "severance fund") established by the executive board of a local union as a pension plan for its paid employees, amounting when it was dissolved to $35,178. Count II refers to a $220 payment made by the union for costs and expenses in the termination of said severance fund, including recordation fees and cost of an audit. Counts IX and X refer to $460.86 paid by the union for repairs to a Jeep automobile owned by Woxberg.

There were sixteen other counts on which one or more defendants were tried, but neither the other defendants, nor the other counts of which these defendants were acquitted, are here involved.

The union (Line Drivers Local 224 of the International Teamsters Union) came into existence in 1943 as a trusteeship, set up and controlled by the International Teamsters Union. In 1947 it operated as a local union, without trusteeship, under certain rules and regulations duly adopted. It elected a governing body of seven to an executive board. Four members of this board were the elected officers. Defendant Woxberg was the secretary-treasurer of the union (the highest officer locally); Dykes was president. This was a board with apparent autocratic power, but it apparently was what the union members wanted or, at least, settled for.

On February 28, 1954, the executive board adopted a resolution, calling for the creation of a pension fund for the paid officers and employees of the union, which included appellants.

The rules and regulations of the local did not require that minutes and resolutions of the executive board be brought to the attention of the entire membership, but such a procedure was regularly followed.

A motion to approve the creation of the pension fund was made at a general meeting; the motion was tabled until the next meeting. We quote what followed from appellants' brief:

"The minutes of the general membership meeting of February 28, 1954 reflect that appellant Woxberg explained in detail the purpose of the proposed pension plan for the officers and employees of the Local Union. In particular it was pointed out that the moneys placed in the pension fund would be in lieu of increase in wages for the paid union employees for the next ten years, except for inflationary periods. At the next general membership meeting on March 28, 1954, a motion was made, seconded and carried to table the pension plan for the paid employees indefinitely.
"Immediately thereafter, the officers of the Union began negotiations with the employers for the purpose of establishing a pension plan for the regular members of the Union, which pension plan was ultimately obtained. On March 27, 1955, while these negotiations for a pension plan for the rank and file were still in progress, the executive board, at its regular meeting of that date, passed the following resolution:
"`After some discussion involving pensions and severance pay for the officers and office manager, a motion was made and seconded to concur in the request of the secretary authorizing him to have an attorney draft the trust agreement covering severance pay for the paid officers and office manager and deposit the insurance refunds in the severance trust. Motion carried.\'
"At the general membership meeting of the same day, the minutes of the executive board meeting of that morning were read and approved.
"Prior to the executive board meeting of March 27th, appellant Woxberg as secretary-treasurer of the Union, had conferred with Richard Perkins, a lawyer, who was then a member of the firm of Bouchard and Perkins, as to whether or not such a fund could be established in accordance with the rules and regulations of Local No. 224. Mr. Perkins advised appellant Woxberg that such a fund could be legally established. Mr. Perkins then prepared the following `Agreement and Declaration of Trust, Severance Fund Line Drivers Local 224\'. This Trust Agreement, Exhibit 61, and E, consisted of 8 pages and provided in part as follows:
"`1. Purpose of Trust:
"`(a) The membership of Line Drivers Local No. 224, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter referred to as "Local 224" an unincorporated association, has by resolution duly adopted voted to make contributions to a severance fund to provide a measure of security for certain paid officers and employees of Local 224 and provide benefits for them similar to some of the benefits available to employees of numerous private employers under pension, retirement, profit-sharing, and stock bonus plans;
"`(b) Local 224 has directed that insurance refunds payable to it from time to time shall be contributed for the aforesaid purpose, together with such other monies as may be designated for that purpose in the future; and
"`(c) It is desired to establish definite and orderly procedures through the device of a trusteeship to carry out the aforesaid purpose.\'
"In addition thereto, there were the usual provisions covering such a trust including a designation of the requirements for becoming a beneficiary under the trust. On April 1, 1955, the Trust Agreement was signed and approved by all of the then beneficiaries, defendants Hester and Barnes, the office manager, Gladys Rang and appellants Woxberg and Dykes. The latter three signed in capacity as trustees.
"On April 3, 1955, at a special meeting of the executive board, the following motion was made and carried: `The secretary read the Severance Fund Trust Agreement. The motion was made and seconded the Severance Fund Trust Agreement be approved effective April 1. Motion Carried.\' While there was a special general membership meeting on April 3, 1955, the only matters that were discussed there concerned an anticipated strike.
"At the next regular general membership meeting, April 24, 1955, the minutes of the executive board and general membership meeting of March 27, 1955 were read and approved, and the minutes of the special executive board meeting of April 3, 1955 concerning the reference to the severance fund trust agreement was read and approved. No reference was made of any of these matters under the heading of new business.
"The resolution adopted by the executive board on March 27, 1955, not only authorized the drafting of the Trust Agreement, but also authorized the deposit of insurance refund checks in the trust fund account. Exhibit 44. Paragraph 1 (a) of the Trust Agreement Exhibit E, prepared pursuant to this authority, provided that the funds necessary to establish the trust were to come from certain insurance refund checks belonging to Local 224. The insurance refunds, ultimately deposited in the severance fund account, were annual rebates or refunds on the insurance premium paid by the Local Union through the Western Conference of Teamsters for a group life insurance policy. This policy covered each member of the rank and file of Local 224, as well as the rank and file members of the other local unions making up the Western Conference of Teamsters. The amount of the refund checks varies from year to year since they were based upon the experience of the entire group policy for each preceding year. Because the original insurance premiums were paid from dues collected from the rank and file members, there was never any question that the insurance refund checks originally were the property of Local 224.
"Beginning in 1955, the refund checks were deposited in an account at the California Bank under the name of `Severance Fund Line Drivers Union No. 224\'. Exhibit 1. The refund checks deposited in the severance fund account were as follows:
"(1) Exhibit 29, Check dated March 1, 1955 in amount of $8,143.43 payable to Line Drivers Local No. 224;
"(2) Exhibit 30, Check dated February 23, 1956 in the amount of $7,838.02 made payable to Line Drivers Local No. 224; "(3) Exhibit 31, Check dated March 7, 1957, in the amount of $8,149.40 payable to Line Drivers Local No. 224;
"(4) Exhibit 32, Check dated February 4, 1958, in the amount of $6,707.48 payable to Line Drivers Local No. 224.
"In each instance the refund check was endorsed for deposit in the `Severance Fund, Line Drivers Union Local 224\', and went directly into the severance fund account without passing through the regular Union account.
"On February 23, 1958, the executive board, having received a better offer from another insurance company which would effectuate a savings to the Local Union on insurance premiums for the same coverage, voted to change the company under which the rank and file group insurance policy was held. As a result there were no further refund checks paid to the Local Union. Thereafter the severance fund continued with the funds already on deposit and no further moneys of the Union were transferred to this account.
"The funds were invested almost entirely in second trust deeds and were supervised by one Larry McBride, a man thoroughly familiar with such investments. No question was raised at the
...

To continue reading

Request your trial
27 cases
  • United States v. Jones
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 24 Septiembre 1969
    ...1965); McMillian v. United States, 399 F.2d 478 (5 Cir. 1968); Whaley v. United States, 362 F.2d 938 (9 Cir. 1966); Woxberg v. United States, 329 F.2d 284 (9 Cir. 1964), cert. den. 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33. As the Fifth Circuit recently announced in Harper v. United States, ......
  • U.S. v. Andreen
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 26 Septiembre 1980
    ...See Colella v. United States, 360 F.2d 792 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); Woxberg v. United States, 329 F.2d 284 (9th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964). "Embezzlement" is such a term. It encompasses the fraudulen......
  • United States v. Silverman
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 1 Julio 1970
    ...there was an issue as to union benefit from the expenditure, but there can be no doubt that it was unauthorized. In Woxberg v. United States, 329 F.2d 284 (9th Cir. 1964), the court affirmed one conviction because the jury could have concluded the issues of union approval and fraudulent int......
  • U.S. v. Ford
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 19 Noviembre 1980
    ...in Andreen, the traditional terms of theft found in section 664 are to be given their accepted meaning. At 1241; see Woxberg v. United States, 329 F.2d 284 (9th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964); Colella v. United States, 360 F.2d 792 (1st Cir.), cert. den......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT