U.S. v. Rubin
| Decision Date | 22 September 1977 |
| Docket Number | No. 76-1143,76-1143 |
| Citation | 559 F.2d 975 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bernard G. RUBIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard L. Rosenfield, Los Angeles, Cal., for defendant-appellant.
Robert W. Rust, U. S. Atty., Miami, Fla., Ivan Michael Schaeffer, Atty., T. George Gilinsky, Dept. of Justice, Washington, D. C., Jerome M. Feit, Atty., Marty Steinberg, Sp. Atty., Dept of Justice, Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before GOLDBERG and HILL, Circuit Judges and KERR *, District Judge.
Bernard G. Rubin appeals from his conviction of charges relating to his role in the financial operations of several southern Florida laborers' organizations. Appellant is a Special International Representative of the Laborers' International Union of North America. He is President of the Southwest Florida Laborers' District Council (hereinafter "District Council"), an umbrella organization supervising several locals. He is President of the Concrete Products & Material Yard Workers Local 666, Business Manager of Local #478, and a trustee of several labor trust funds.
Following a two week trial a jury found appellant guilty on 103 counts of the 105 count indictment charging embezzlement of union and employee welfare benefit plan funds, 29 U.S.C. § 501(c), 18 U.S.C. § 664; racketeering, 18 U.S.C. § 1962(c); false statements on income tax returns, 26 U.S.C. § 7206(1); and failure to keep labor union records, 29 U.S.C. §§ 436, 439. The court imposed concurrent sentences on all counts up to a maximum of five years imprisonment. The court levied fines totalling $50,000.00 on five different counts. Finally, the court ordered appellant to forfeit all his union and trust fund positions as well as his right to seek such positions in the future.
Eighty-six counts of the indictment charged appellant with embezzling funds from the various unions and trust funds by submitting to those entities duplicate expense vouchers, mostly for travel and entertainment, thereby receiving multiple reimbursements for expenses incurred. With respect to each expense covered by the indictment, appellant had sent a voucher to each of two or more of the organizations and received reimbursement. The government credited one reimbursement of each expense as legitimate, charging embezzlement only on the duplications. Appellant did not deny the fact of these many multiple reimbursements. Rather, he maintained that he employed the duplicate billing system to create a cash fund he needed for additional union related expenses. Rubin asserted that he had understood his power of the purse in the various organizations to encompass accumulating such a fund and making such expenditures. Numerous defense witnesses testified that he had spent large amounts of cash in past organizing drives and in entertaining management.
Additionally, the indictment charged appellant with two counts of embezzlement through granting himself over $300,000 in unauthorized salary increases as an officer of local 666 and the District Council. The charges of inadequate recordkeeping largely related to required documentation of union treasury disbursements. The tax counts charged false subscribing of income tax returns, in that appellant received substantial income in excess of the amount reported. Finally, on the basis of the embezzlement allegations appellant was charged with conducting or participating in the conduct of the union organizations through a pattern of racketeering activity.
On appeal Rubin proffers several claims of error. We agree with appellant's contention that two of his defense witnesses should not have been cross-examined regarding their prior refusals to testify before a grand jury, but we find the error harmless in the circumstances. We reject appellant's remaining claims of error in the conviction. Finally, though we think the district court properly ordered Rubin to forfeit the positions he presently holds, we must reverse its order that he forfeit his right to seek such offices in the future.
Appellant's most troubling challenge to the validity of the conviction relates to the government's attempt to impeach two defense witnesses by eliciting on cross-examination their prior refusals to testify before a grand jury. We conclude that the trial court violated evidentiary canons by permitting such impeachment.
In light of the cumulative nature of the witnesses' testimony, the substantial proper impeachment of these and all other defense witnesses, and the inherent implausibility of appellant's defense theory, however, we cannot conclude that the error here requires reversal.
Kenton Wells, an organizer for the District Council, and Jack Gordon, an organizer for the District Council and local 666, were two of eight witnesses who corroborated appellant's story that during the relevant years he had handed out large amounts of cash to subordinates for use in organizing campaigns and had spent large amounts of cash entertaining management figures. Appellant testified these expenditures required a large cash fund which he maintained through the multiple billing of the various union entities for yet other expenses. Rubin claimed he had understood that accumulating funds in this manner and disbursing them for general organizing purposes fell within the authority granted him by the District Council and local 666. The defense witnesses, Wells and Gordon among them, corroborated only the fact of numerous disbursements for organizing and entertaining. They gave no testimony regarding the source of Rubin's funds.
In an effort to impeach the testimony of Wells and Gordon through proof of a prior inconsistent act, the prosecution brought out on cross-examination the witnesses' previous refusals to testify before the federal grand jury investigating the activities of southern Florida laborers' organizations. Of Wells the government inquired as follows:
Q. Without respect to the exact date, sir, did you appear twice before the Federal Grand Jury?
A. Yes, sir.
Q. Were you asked questions concerning your labor-union activities and Mr. Rubin?
A. Yes, sir.
Q. Did you refuse to testify on both of those occasions?
A. Yes, sir, I did. (T. 1522-23).
At one time during the colloquy, set out in its entirety in the margin, 1 Wells volunteered that he "had taken the Fifth Amendment." (T. 1521). Similarly, the following exchange took place during the cross-examination of Jack Gordon:
Q. Mr. Gordon, did you appear at the Federal Grand Jury on May 27, 1975?
A. I don't remember the date. I appeared there, yes, at the grand jury.
Q. Did you ever refuse to testify?
A. Yes, I did. (T. 1622-23).
The trial court overruled defense counsel's objections to both these lines of inquiry. As part of his discussion of the defendant's case during closing argument, the prosecutor commented on the testimony of Wells and Gordon, plainly stating that he saw a contradiction between their corroboration of appellant's exculpatory story and their refusals to speak to the grand jury.
Appellant asserts that admission of the witnesses' silence before the grand jury, exacerbated by the prosecutor's reference during argument, was error. We agree that under well-established evidentiary principles the impeachment was improper.
In United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975), the Supreme Court reiterated the governing principles:
A basic rule of evidence provides that prior inconsistent statements may be used to impeach the credibility of a witness. As a preliminary matter, however, the court must be persuaded that the statements are indeed inconsistent. 3A J. Wigmore, Evidence § 1040 (Chadbourne rev. 1970). If the Government fails to establish a threshold inconsistency between silence . . . and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.
See also Grunewald v. United States, 353 U.S. 391, 418-19, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In Hale, the Court concluded that a defendant's silence in the circumstances following arrest and Miranda warnings lacked the requisite inconsistency with his exculpatory trial testimony and that such silence was therefore inadmissible for impeachment purposes. More recently the Court has held that the impeachment use of a defendant's post-arrest, post-Miranda warning silence violated the due process clause. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
For present purposes we limit our analysis to the evidentiary framework employed in Hale. Into that framework we must place, not a defendant, but a defense witness and, not the circumstances of a post-arrest police interrogation, but those of the grand jury room. The question before us is whether the prior silence of a defense witness before the grand jury conveys the threshold inconsistency with the witness's exculpatory trial testimony that is necessary to permit the use of the silence to impeach the testimony. We hold that it does not.
Grunewald v. United States, supra, precludes any suggestion that silence before the grand jury is more probative than silence following arrest. In the circumstances of Grunewald, the Supreme Court squarely rejected the argument that the defendant's invocation of the privilege against self-incrimination before the grand jury had "involved such inconsistency with any of his trial testimony as to permit its use against him for impeachment purposes." 353 U.S. at 419, 77 S.Ct. at 981.
To reach that conclusion the Court placed significant reliance...
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