U.S. v. Browne

• Citation: 505 F.3d 1229
• Decision Date: 25 October 2007
• Docket Number: No. 05-11137.,05-11137.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter J. BROWNE, a.k.a. Buster, Patricia A. Devaney, a.k.a. Patricia Browne, a.k.a. Patricia Cardone, a.k.a. Patricia Browne Cardone, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

505 F.3d 1229

UNITED STATES of America, Plaintiff-Appellee, v. Walter J. BROWNE, a.k.a. Buster, Patricia A. Devaney, a.k.a. Patricia Browne, a.k.a. Patricia Cardone, a.k.a. Patricia Browne Cardone, Defendants-Appellants.

No. 05-11137.

United States Court of Appeals, Eleventh Circuit.

October 25, 2007.

Elliot H. Scherker, Greenberg Traurig, P.A., Kathleen M. Williams and Michael T. Caruso, Fed. Pub. Defenders, Miami, FL, for Defendants-Apellants.

Kathleen M. Salyer, Anne R. Schultz, Asst. U.S. Atty., Madeleine R. Shirley, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and HULL, Circuit Judges, and RESTANI,^* Judge.

TJOFLAT, Circuit Judge:

The crimes in this case arose from the activities of Walter J. Browne and his sister, Patricia A. Devaney, as a high-ranking official and administrative assistant, respectively, in two labor unions. Accused of lining their pockets by abusing their positions in the unions, the defendants in this brother-and-sister operation were prosecuted under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), the Taft-Hartley Act, and other federal statutes proscribing embezzlement and fraud. After a two-month joint trial, Browne was convicted of eight counts and acquitted of seven counts, and Devaney was convicted of nine counts and acquitted of six counts. The Government obtained an order of forfeiture for which the defendants were held jointly and severally liable. In addition, the defendants received prison sentences, and Devaney was ordered to pay restitution. Both now appeal, contesting the legal and factual support for their RICO and Taft-Hartley Act convictions, the district court's denial of severance, and the order of forfeiture.

We affirm the defendants' convictions and sentences in all respects. The structure of the opinion is as follows: Part I provides the facts relevant for purposes of this appeal. Part II describes the charges against the defendants and the proceedings in the district court. Parts III through VI examine the issues raised on appeal by the defendants.

I.

As an understanding of the membership and organizational structure of the two labor unions is crucial to this appeal, we first describe these unions, the defendants' involvement therewith, and the incidents leading to prosecution.

Founded in 1875, District 1-Marine Engineers Beneficial Association ("D1-MEBA") is an AFL-CIO-chartered labor organization headquartered in Washington, D.C. Throughout the relevant period, D1-MEBA represented both licensed and unlicensed seamen in its maritime divisions.¹ These seamen served on all manner of ships, including ships in international commerce, ready reserve force vessels, military sealift command ships, National Oceanic and Atmospheric Administration research vessels, ships of institutions such as Scripps Research Institute and Woods Hole Research Center, and Staten Island ferries.

In addition to representing seamen, D1-MEBA also represented non-maritime workers. In its Professional Office Industrial Division ("POID"), D1-MEBA represented land-based employees who handled the freight and offices of shipping companies whose maritime employees were represented by D1-MEBA's maritime divisions. D1-MEBA also represented various public-sector employees, ranging from school bus drivers to custodial workers, in its Federation of Public Employees ("D1-MEBA/FOPE") division, which was headquartered in Broward County, Florida. Although POID and D1-MEBA/FOPE were administered as separate divisions, their members were considered full voting members of D1-MEBA.

Walter J. "Buster" Browne became executive director of D1-MEBA/FOPE in 1977. Under Browne's leadership, the membership of D1-MEBA/FOPE grew steadily. In 1988, D1-MEBA merged with the National Maritime Union, a union that primarily represented unlicensed seamen, and became D1-MEBA/NMU. Sometime thereafter, Browne was forced out of the newly merged entity by D1-MEBA president Gene DeFries. Browne went to Washington, D.C., and became involved in a movement to oust DeFries. The merger did not last; DeFries and others were indicted on charges including election rigging and embezzlement,² and in late 1991, D1-MEBA voted to secede and reconstitute itself as an autonomous entity under its original name. It retained a number of unlicensed seamen who worked on state-operated ferries in Alaska and Washington state. In 1992, the new leadership of D1-MEBA restored Browne to his former position as D1-MEBA/FOPE's executive director.

During the fall of 1993, Browne's sister, Patricia A. Devaney, attempted suicide by ingesting a large quantity of pills and alcohol. The failed attempt was precipitated by her depression, heavy drinking, and the loss of her job at the Broward County sheriff's office. After receiving psychiatric and rehabilitative treatment, Devaney moved into Browne's house. Browne hired Devaney as his administrative assistant and gave her a car. Although Devaney initially performed clerical work, she later began taking charge of the division's finances, causing the office manager who had previously handled the finances to become offended and to quit.

As executive director, Browne was permitted to make union-related telephone calls on union cell phones and union calling cards. He was also permitted to incur certain entertainment and travel expenses, so long as they were related to the union's business. Under the Labor Management Reporting and Disclosure Act, the union was required to file a Labor Organization Annual Report, or LM-2, detailing financial receipts and disbursements, including union-related expenditures, and to retain sufficient records documenting and explaining such transactions for at least five years. See 29 U.S.C. §§ 431(b), 436; 29 C.F.R. § 403.3. Accordingly, D1-MEBA regulations required that each employee personally complete expense vouchers and attach substantiating documents justifying the expenses, such as receipts. Contrary to these regulations, Devaney often completed Browne's expense vouchers. Furthermore, D1-MEBA accountants noticed that supporting documentation for expenses charged to Browne's union credit card was frequently late or missing.

In October 1993, Browne began working as a lobbyist and consultant for Hvide Marine, Inc. ("Hvide"), a marine company operating out of Port Everglades in Broward County. Browne accepted monthly payments from Hvide from October 1993 to July 1998. In total, these payments amounted to $254,000.

By late 1993, the swelling ranks of D1-MEBA/FOPE and POID members began to generate friction. Because of previous attempts by leaders of the former merged entity to marshal the increasing number of votes held by members of D1-MEBA/FOPE and POID, members of the maritime divisions feared that those non-maritime divisions would eventually dilute the traditional maritime focus of the union. For their part, members of D1-MEBA/FOPE and POID believed they would be better served by a separate union. D1-MEBA therefore decided to create an autonomous affiliate union, the National Federation of Public and Private Employees ("NFOPAPE"), to represent directly the bargaining units of D1-MEBA/FOPE and POID.

With the help of a $250,000 loan from D1-MEBA, NFOPAPE headquarters were established in Fort Lauderdale, Florida. The new union was organized into two divisions: the Federation of Private Employees and the Federation of Public Employees. Browne was named president of NFOPAPE and divisional president of the Federation of Public Employees. Devaney also began working for NFOPAPE, answering to both Browne and Gilbert Carrillo, who was hired as in-house counsel of the Federation of Public Employees.

Browne was keen to establish NFOPAPE's autonomy from D1-MEBA and its Washington, D.C. headquarters. He directed the drafting of NFOPAPE's own constitution to ensure that, despite its affiliation with D1-MEBA, NFOPAPE would have its own structure and identity. Under the affiliation agreement, bargaining units from D1-MEBA would be transferred by election to NFOPAPE. Upon NFOPAPE's creation, POID's bargaining units were transferred to the Federation of Private Employees. In addition, approximately half of D1-MEBA/FOPE's bargaining units were transferred to the Federation of Public Employees; the remaining units were retained by D1-MEBA until they were likewise transferred by late 1996 or early 1997. Thus, Browne continued to serve as D1-MEBA/FOPE's executive director for a couple years, remaining on D1-MEBA's payroll.

As with his position at D1-MEBA, Browne's positions at NFOPAPE also permitted him to incur travel and entertainment expenses related to union business, for which he could be reimbursed by personally submitting expense vouchers and substantiating documentation. In addition, NFOPAPE policy required the secretary/treasurer to approve such expenses. Under the division bylaws of the Federation of Public Employees, it was also the responsibility of the secretary-treasurer, together with the divisional president, to maintain custody of the books and records, to supervise the financial accounts, to give financial reports at membership meetings, and to sign checks for disbursement from the division's accounts.

Shortly after NFOPAPE's formation, Browne hired George Zakaib as the secretary-treasurer of the Federation of Public Employees. Zakaib was a former custodian and repairman who served as shop steward of the custodial unit. He had never attended college, had no financial training, and had never been involved in union finances. As secretary-treasurer Zakaib primarily worked as a recruiter of new members. At membership meetings, his sole responsibilities were to lead the pledge of allegiance and to handle the raffle tickets. Zakaib did not have access to the union's books and records, never signed payroll checks, and never reviewed union credit card bills, bank statements,...