United States v. Dibrizzi

Decision Date26 April 1968
Docket NumberDocket 31405.,No. 170,170
PartiesUNITED STATES of America, Appellee, v. Alex DIBRIZZI, Appellant.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Elkan Abramowitz, Robert G. Morvillo, Otto G. Obermaier, Asst. U.S. Attys., Robert M. Morgenthau, U.S. Atty., for appellee.

Aaron Jaffe, Eugene Feldman, New York City, for appellant.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

WATERMAN, Circuit Judge:

Appellant seeks reversal of a judgment of conviction entered on April 21, 1967 in the United States District Court for the Southern District of New York after a trial before Weinfeld, J., and a jury. He was convicted of having embezzled and abstracted money between 1961 and 1965 in violation of 29 U.S.C. § 501(c)1 from a labor organization, the Atlantic Coast District, a separate and financially independent subdivision of the International Longshoremen's Association, AFL-CIO, of which he was then General Vice President.

The indictment contained three counts and the jury found that appellant was guilty on all three. The first involved the sum of $1667.08, personal expenditures incurred during the winter months of 1961-1962 at Miami Beach, the second the sum of $1234.72, telephone bills incurred on a telephone not used in any way to further union activity, and the third the sum of $136.25, personal expenses charged on a Diners' Club Card. Appellant received sentences of one year of imprisonment on each count, the sentences to run concurrently, but execution of the prison term was suspended and appellant was placed on probation for two years. Additionally, a $500 fine was imposed on the first count. We affirm the judgment below.

Appellant contends that the Government did not prove the crimes charged because the evidence failed to establish the requisite criminal intent. Before a violation of 29 U.S.C. § 501(c) can be made out, it must be shown that the person charged with the violation has embezzled, stolen, or unlawfully and wilfully abstracted or converted to his own use or the use of another the funds of the union. Any doubt as to the wilful intent to commit the act is usually deemed to be a doubt for the jury to resolve. Morissette v. United States, 342 U.S. 246, 273-276, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Harmon, 339 F.2d 354 (6 Cir. 1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963 (1965); Doyle v. United States, 318 F. 2d 419 (8 Cir. 1963). Direct proof that acts are done unlawfully and wilfully is not always necessary for such may often be inferred from the very fact that the acts constituting the crime have been committed. Too, the inferences may arise from a combination of acts, even though each act standing by itself may seem to be unimportant. Doyle v. United States, supra.

Here, appellant maintains that the expense items for which the Government showed the union was billed and which the union paid were authorized and adopted by it with knowledge of all the facts and without any fraudulent misrepresentations having been made by him. However, the Government adduced at the trial enough evidence from which the jury could have found beyond a reasonable doubt that the items were personal non-business expenses and in no way incurred in furtherance of the union's business. Therefore, the jury could reasonably have inferred, in turn, that appellant intended to receive and knew he was receiving union funds for purely personal expenses. Thus, viewing the evidence, as we must, most favorably to the Government, Colella v. United States, 360 F.2d 792, 802 (1 Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); United States v. Quagliato, 343 F.2d 533 (7 Cir.), cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702 (1965); Gentsil v. United States, 326 F.2d 243 (1 Cir.), cert. denied, 377 U.S. 916, 84 S.Ct. 1179, 12 L.Ed.2d 185 (1964), it appears to us that the jury quite reasonably drew the inference that this intelligent appellant was acting wilfully. Even if appellant may have established that his expenses were, as he claims, authorized and adopted by the union, such does not absolve him of his crimes; the reach of § 501 (c) is not limited to union officers who engage in stealthy larcenies or devious embezzlements but extends to an officer who "unlawfully and wilfully abstracts or converts to his own use" the funds of a labor organization. When one sends the union a voucher known to be an improper one, and then receives payment of the voucher, the crime is completed. See Morissette v. United States, supra, 342 U.S. at 271-273, 72 S.Ct. 240, 96 L.Ed. 288; Brown v. Bullock, 294 F.2d 415, 419-420 (2 Cir. 1961).

Appellant also contends that reversible error was committed because of certain actions of the prosecutor during the trial. Appellant lists some allegedly prejudicial questions put to appellant's character witnesses upon cross-examination; alleged misstatements of fact by the prosecutor in his summation to the jury; comment by the prosecutor in summation upon the fact that appellant had failed to call a key witness, that witness having been equally available to both parties; and the prosecutor's statement during his summation that "With respect to character witnesses, I am not going to tell you whatever information I myself possess."

The scope of the Government's cross-examination of defense character witnesses is determined by the trial court as a matter of discretion, and the trial court's rulings should be disturbed only "on clear showing of prejudicial abuse of discretion." Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948); United States v. Giddins, 273 F.2d 843, 845 (2 Cir.), cert. denied, 362 U.S. 971, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960). We cannot say there was such prejudice here. The questions asked were directed to the witnesses' knowledge of defendant's reputation in the community. By putting in issue his good reputation, defendant opened the door for the cross-examiner. See Michelson v. United States, supra; United States v. Giddins, supra. Moreover, the trial court, prior to the cross-examination of the character witnesses, took care to avoid extreme prejudice by ascertaining exactly what the Government intended to ask on cross and by prohibiting the prosecutor from following with one of the witnesses a line of questioning deemed to lead too far afield. Compare Michelson v. United States, supra 355 U.S. at 481, 69 S.Ct. 213, 93 L. Ed. 168.

The contentions regarding the prosecutor's summation are doubly without merit. First of all, appellant raised no objections to the summation at trial. Except for flagrant abuse, not present here, this is enough to preclude him from raising the contentions on appeal. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Murphy, 374 F.2d 651, 655 (2 Cir. 1967); United States v. Aadal, 368 F.2d 962, 965 (2 Cir. 1966), cert. denied, 386 U.S. 970, 87 S.Ct. 1161, 18 L.Ed.2d 130 (1967); United States v. DeAlesandro, 361 F.2d 694, 697 (2 Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 94, 17 L. Ed.2d 74 (1...

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