632 F.2d 1354 (9th Cir. 1980), 77-2907, United States v. Ford

Docket Nº:and 77-2907.
Citation:632 F.2d 1354
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward FORD, Robert Little, John Felix, Solomon Johnson, Phillip Usquiano, Marcus Thompson, E. Dene Armstrong, Defendants-Appellants. Nos. 77-2731, 77-2741, 77-2772, 77-2832, 77-2833, 77-2847
Case Date:September 26, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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632 F.2d 1354 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,


Edward FORD, Robert Little, John Felix, Solomon Johnson,

Phillip Usquiano, Marcus Thompson, E. Dene

Armstrong, Defendants-Appellants.

Nos. 77-2731, 77-2741, 77-2772, 77-2832, 77-2833, 77-2847

and 77-2907.

United States Court of Appeals, Ninth Circuit

September 26, 1980

Argued and Submitted Feb. 5, 1980.

Rehearing Denied Nov. 19, 1980.

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L. E. Osborne, Jr., Michael J. Roberts, Fredman, Silverberg & Lewis, Frank V. Gregorcich, Joseph Milchen, Neal Pereira, Michael J. McCabe, San Diego, Cal., for defendants-appellants.

Thomas M. Coffin, Asst. U. S. Atty., argued, Michael H. Walsh, U.S. Atty., Thomas M. Coffin, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

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

Before WALLACE and KENNEDY, Circuit Judges, and LUCAS, [*] District Judge.

WALLACE, Circuit Judge:

Appellants were trustees of three trust funds established by collective bargaining agreements between the International Laborers Union, Local 89 of San Diego (Local 89) and various employer organizations. The trusts included (1) the San Diego County Construction Laborer's Pension Fund (pension trust), (2) the San Diego County Construction Laborer's Group Insurance Trust (health and welfare trust), and (3) the San Diego County Construction Laborer's Vacation Trust (vacation trust). All counts upon which appellants were convicted relate to schemes designed to enrich the trustees at the expense of the trusts. Appellants contend that the evidence presented at trial is insufficient to support their convictions and that various procedural errors require reversal.

This case is a companion of United States v. Andreen, 628 F.2d 1236, (9th Cir. 1980) (Andreen), wherein we reviewed the conviction of the trust attorney on four of the counts before us in this case. A detailed summary of background facts is set forth in Andreen. This opinion will state only those facts necessary to resolution of the appellants' contentions.

We will first review the sufficiency of the evidence presented at trial. We will then review appellants' alleged procedural errors. We reverse in part and affirm in part.


  1. The Deferred Compensation Scheme

    The pension trust was organized in 1963 under the Taft-Hartley Act which requires that the trust be governed by an equal number of management and union trustees. 29 U.S.C. § 186(c)(5)(B). Seven trustees were chosen by management and seven trustees were chosen by the union. The trust provided monthly pension payments for retired employees of all employers who were party to collective bargaining agreements with Local 89. Employees acquired pension rights in the form of pension credits which were purchased for the employee by his employer. The employer would make a specified contribution to the pension trust for each hour worked by an employee, and after 1,200 hours of labor an employee acquired one pension credit. Once 15 pension credits were accumulated an employee was eligible to retire at age 55 and begin receiving monthly pension payments. The amount of these monthly payments was determined by multiplying the number of accumulated pension credits by a credit value set by the pension trustees.

    As trustees, the appellants were employees of neither management nor the union, and thus were not entitled to pension credits

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    for service as trustees. The pension trust document did provide, however, that trustees could be compensated for their services and reimbursed for expenses. Thus, trustees received a set fee for attendance at each monthly meeting of the board of trustees.

    Several times between the creation of the trust in 1963 and enactment of a deferred compensation plan in 1970, the pension trustees explored the possibility of obtaining pensions for themselves. Three times attorneys opined that the trustees could not legally obtain pensions. Nonetheless, the deferred compensation plan enacted by the trustees in 1970 provided retiring trustees with monthly "deferred compensation" payments for life, in amounts determined by the value of pension credits under the pension trust. Prior to issuance of the indictment, more than $150,000 was paid to retired trustees as "deferred compensation" and the pension trust was committed to pay an additional $2,000,000 in deferred compensation over the expected lives of the trustees.

    Count 2 of the indictment charged Armstrong, Felix, and Ford with violating 18 U.S.C. section 664 1 by enacting and receiving payments from the deferred compensation plan, and charged Thompson, Johnson, Usquiano, and Little with aiding and abetting commission of the crime in violation of 18 U.S.C. section 2. 2 In Andreen we concluded that section 664 prohibits the use of trust money in an unauthorized manner or to an unauthorized extent, if that use is accompanied by criminal intent. 628 F.2d at 1241. We also concluded that this deferred compensation plan was an unauthorized and excessive use of pension trust money within the prohibition of section 664. At 1243. Having already determined that the deferred compensation scheme falls within the prohibition of section 664, we should affirm the Count 2 convictions of Armstrong, Felix, and Ford if we find sufficient evidence to support the conclusion that they acted with criminal intent. 3 Because the intent required for aiding and abetting a crime is essentially the same as the intent required for commission of that crime, we may also affirm the Count 2 convictions of Thompson, Johnson, Usquiano, and Little if we find sufficient evidence to support the conclusion that they acted to further the deferred compensation scheme with the same criminal intent. Andreen, supra, at 1248.

    Criminal intent necessary for theft offenses such as those enumerated in section 664 exists when a defendant knowingly acts wrongfully to deprive another of property. Morissette v. United States, 342 U.S. 246, 275-76, 72 S.Ct. 240, 255-256, 96 L.Ed. 288 (1952); United States v. Goad, 490 F.2d 1158, 1166 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665

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    (1974). The existence of such criminal intent is a question for the trier of fact. Morissette v. United States, supra, 342 U.S. at 274, 72 S.Ct. at 255. Usually, it cannot be proven directly, but must be inferred from circumstantial evidence. United States v. Sullivan, 498 F.2d 146, 150 (1st Cir.), cert. denied, 419 U.S. 993, 95 S.Ct. 303, 42 L.Ed.2d 265 (1974); Taylor v. United States, 320 F.2d 843, 849 (9th Cir. 1963), cert. denied, 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964). Thus, we must determine whether the government produced sufficient circumstantial evidence to permit a rational trier of fact to conclude, beyond a reasonable doubt, that appellants acted with specific intent to deprive the trust beneficiaries of trust funds; that is, that appellants were sufficiently aware of the facts to know that they were acting wrongfully and contrary to the trust placed in them by the pension trust beneficiaries. United States v. Belt, 574 F.2d 1234, 1238 (5th Cir. 1978). 4 In doing so, we must view the evidence in the light most favorable to the government. United States v. Santiago, 528 F.2d 1130, 1132-33 (2nd Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976); United States v. Sullivan, supra, 498 F.2d at 150-51.

    Armstrong, Felix, Ford, and Thompson were intimately involved with the creation and perpetration of the deferred compensation scheme. The record indicates that Armstrong, Felix, and Ford were present when questions about the legality of trustee pensions were raised by attorneys asked to review them as possible means for trustee compensation, and Thompson recalled having heard an attorney's opinion that the trustees could not legally be granted a pension under the trust. 5 Nonetheless, all four of these trustees participated in (1) the meeting where the deferred compensation plan was enacted, 6 (2) a meeting where the plan was amended to provide trustees with widow benefits more generous than those offered to pension trust beneficiaries generally, (3) a meeting where the minimum retirement age the age before which pension trust beneficiaries could not collect pension payments was eliminated for trustees under the deferred compensation plan, and (4) a meeting where the financial report format was amended to prevent disclosure of trustee deferred compensation payments. Moreover, Armstrong, Felix, and Thompson were present when the trustees voted to give Brown, a retiring trustee, "deferred compensation" of $168 per month for the rest of his life, despite the fact that Brown had actually "deferred" only $40 in trustee meeting fees. Finally, the record shows that these trustees took full advantage of the scheme's lucrative benefits. Armstrong retired at the age of 34, began receiving monthly deferred compensation payments of $675, received $10,125 in deferred compensation payments before return of the indictment, and would have received $348,300 in deferred compensation over his life expectancy. Felix received deferred compensation payments of up to $510 per month as a retired trustee, received $19,655 before the indictment was returned, and stood to receive $117,575 during his life. Ford was receiving deferred

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    compensation payments of $600 per month, received $9000 before the indictment, and stood to receive $136,800 over his life expectancy. Thompson was still a trustee when...

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