594 F.2d 558 (6th Cir. 1979), 78-5322, United States v. Scales

Docket Nº:78-5322.
Citation:594 F.2d 558
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John E. SCALES, Defendant-Appellant.
Case Date:March 08, 1979
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 558

594 F.2d 558 (6th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,


John E. SCALES, Defendant-Appellant.

No. 78-5322.

United States Court of Appeals, Sixth Circuit

March 8, 1979

Argued Dec. 13, 1978.

Certiorari Denied May 14, 1979.

See 99 S.Ct. 2168.

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Harold E. Wonnell, Columbus, Ohio, for defendant-appellant.

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James C. Cissell, U. S. Atty., Cincinnati, Ohio, John W. Palmer, Mary Jane McFadden, Columbus, Ohio, for plaintiff-appellee.

Before LIVELY and KEITH, Circuit Judges, and TAYLOR, [*] District Judge.

ROBERT L. TAYLOR, District Judge.

John E. Scales has appealed his conviction on nine counts of unlawfully converting to his own use assets of Local 423 of the Laborer's International Union in violation of 29 U.S.C. § 501(c) and one count of conspiracy in violation of 18 U.S.C. § 371. He was acquitted on the six remaining counts, which included three charges under Section 501(c), two charges for conversion of funds from an employee insurance fund in violation of 18 U.S.C. § 664, and one charge of mail fraud in violation of 18 U.S.C. § 1341. He was given an aggregate sentence of ten years.

From 1968 through 1977, appellant was the business manager of Local 423 of the Laborer's International Union, a labor organization as that term is used in 29 U.S.C. §§ 401-531. Count I of the indictment charged him with conspiracy to embezzle and misapply the funds of Local 423 and the Ohio Laborer's District Council Ohio Contractor's Association Insurance Fund. A number of overt acts were alleged in furtherance of the conspiracy including receiving double payments for expenses, receiving payment for expenses not incurred, using Local 423 funds for personal expenses of no benefit to the members of the Union and receiving interest free loans made for fraudulent purposes from union funds. All but one of the substantive counts upon which appellant was convicted were also charged as overt acts. Count XV involved similar self dealing with union funds.

At trial, the Government introduced 161 exhibits, consisting of thousands of pages of documents, and the testimony of eight co-conspirators who had previously pleaded guilty to conspiring with appellant to embezzle union funds. Seventeen other witnesses also testified, including FBI Agent Charles A. Tosi, who prepared Government's summary exhibit, Exhibit 145. The trial lasted eight days.

Appellant raises two question on appeal: One, whether the trial judge erred prejudicially in interrupting the testimony of a Government witness on cross-examination and inviting the Government to object; and Two, whether the trial judge erred prejudicially in admitting Government Exhibit 145 and in admitting the testimony of Special Agent Tosi of the FBI in connection with said exhibit.

Testimony of Thomas Needham

Thomas Needham, Comptroller of the Laborer's International Union, testified on direct examination to the absence of official union business at various times and places in 1974-76, and also to the issuance of per diem expenses and payments for airfare from the International to appellant on the occasion of the September 1976 International Union convention in Miami, Florida. On cross-examination, he was asked if he were familiar with the practice in some local unions of paying a per diem in addition to funds paid by the International. He replied that he did not have "first-hand knowledge" of such a practice. Over the Government's objection, he was nevertheless permitted to testify that it was his understanding that the International did permit such a practice, if payments were reasonable, and that some local unions did in fact supplement expense payments from the International. At this point, the Court inquired further of the witness concerning his personal familiarity with the determination of the reasonableness of payments by the local unions. The witness answered that he had no contact with that determination. At this point, the following exchange occurred:

By Mr. Wonnell (appellant's counsel)

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Q. Are you familiar with the procedure in some locals of giving a per diem without submission of an expense voucher or an expense account?

The Court: I am going to sustain an objection to that.

Mr. Palmer: The Government does so object, your Honor.

The Court: I will sustain the objection to that.

Appellant claims that the Court committed error in sustaining the objection, and suggested bias against appellant by intervening before an objection was made by the Government.

Although the Court agrees with appellant that the question posed was relevant, 1 the trial judge committed no error in ruling that the witness could not answer the question at issue. The witness had stated at the outset of cross-examination that he lacked personal knowledge of local union practices in regard to additional expense payments and was therefore not competent to answer the question.

Nor was there any error in the manner in which the trial judge sustained the Government's objection. A trial judge must not give an impression of partisanship on either side. United States v. Ornstein, 355 F.2d 222, 224 (6th Cir. 1966). That duty, however, does not require the trial judge to sit idly by while incompetent evidence is presented to the jury. See United States v. Wright, 542 F.2d 975, 978-979 (7th Cir. 1976), Cert. denied 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977). 2 The trial judge's action in this case did not contain any suggestion of bias against the appellant.

In addition to the foregoing, the court's action in inviting objection was particularly appropriate in this instance because the Government had objected moments earlier apparently on the basis of the witness' lack of personal knowledge of the subject matter. The court overruled the objection at that time. The trial judge may well have felt that the Government would not renew its objection in view of the court's earlier ruling. In such a case, a trial court would have to give some indication that an objection might be reconsidered before the Government could be expected to bring the matter up again.

Government Exhibit 145 and Related Testimony

Appellant contends that the trial judge erred in allowing Government Exhibit 145 to be admitted into evidence as well as in permitting Special Agent Charles Tosi to testify concerning the exhibit. Appellant argues that the exhibit was inadmissible and prejudicial because it summarized the indictment and part of the Government's proof, thereby constituting conclusion and argument, and that Agent Tosi's testimony contained improper conclusions and argument.

Exhibit 145 consisted of a series of large charts. The first chart summarized all the charges contained in the indictment. Each of the remaining charts summarized a count or an overt act, or both, by reproducing, or making reference to, some of the documentary proof already in evidence. The only references in Exhibit 145 that were not to documents admitted previously into evidence were several statements in the charts that union records did not contain certain information. The charts were authenticated by Agent Tosi.

There was no prejudicial error committed by the admission of Exhibit 145. In regard to the summary of the indictment, the rule is clear that the trial judge has discretion to submit the indictment to

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the jury in a criminal case as long as limiting instructions are given to the effect that the indictment is not to be considered as evidence of the guilt of the accused. See Garner v. United States, 244 F.2d 575 (6th Cir. 1957), Cert. denied, 355 U.S. 832, 78 S.Ct. 47, 2 L.Ed.2d 44; United States v. Russo,480 F.2d 1228, 1244 (6th Cir. 1973), Cert. denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974). Such a charge was given in this case. Indeed, the actual indictment was submitted to the jury in this case, and appellant raises no objection in that regard.

Nor can appellant claim that he was prejudiced by this chart because it was a summary rather than a copy of the full indictment. Not only was the Government's summary not inflammatory or prejudicially worded, the summary contained only enough description of the charges to remind the jury of the substance of each count. The trial judge carefully charged the jury as to all of the elements necessary for conviction on each count. The summary of the indictment clearly was intended to aid the jury in organizing the proof and no rights of appellant were prejudiced by its admission into evidence. Cf. United States v. Swan, 396 F.2d 883, 886-887 (2nd Cir. 1968), Cert. denied, 393 U.S. 923, 89 S.Ct. 254, 21 L.Ed.2d 259.

The remainder of Exhibit 145 consisted of a summary of some of the objective proof relating to a number of the counts and overt acts charged. The Government argues that the exhibit was admissible under Fed.R.Evid. 1006, which provides as follows:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or...

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