675 F.2d 825 (6th Cir. 1982), 80-5280, United States v. Gibson

Docket Nº:80-5280.
Citation:675 F.2d 825
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John F. GIBSON, Defendant-Appellant.
Case Date:April 20, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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675 F.2d 825 (6th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

John F. GIBSON, Defendant-Appellant.

No. 80-5280.

United States Court of Appeals, Sixth Circuit

April 20, 1982

Argued Dec. 17, 1981.

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Anthony M. Cardinale, F. Lee Bailey, Boston, Mass., for defendant-appellant.

James C. Cissell, U. S. Atty., Patrick J. Hanley, Asst. U. S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

This is a direct criminal appeal from embezzlement and conspiracy convictions. John F. Gibson was found guilty by a jury of misappropriating union property in violation of 29 U.S.C. § 501(c). 1 Gibson is the General Secretary-Treasurer of the Hotel and Restaurant Employees' and Bartenders' International Union ("The International"). In March, 1979, a Grand Jury sitting in the Southern District of Ohio returned an 18-count indictment against Gibson, alleging numerous acts of embezzlement from the Union. The counts that concern us charged that Gibson has misused the Union's jet airplane for personal travel. Gibson was also charged with conspiring with James Stamos and Herbert Schiffman to misuse the Union jet for a fishing trip. 2

After a jury trial on all but two of the original counts, Gibson was convicted of one count of overstating unreimbursed employee business expenses on his tax returns. The jury acquitted Gibson of another tax count; one unauthorized travel count; and all unauthorized salary counts. The jury was unable to reach verdicts on six other counts. Accordingly, the trial judge declared a partial mistrial.

Gibson was retried in May, 1980. He was convicted of misusing the Union jet for pleasure trips to Gaspe, Canada and Sacramento, California. He was also found guilty of conspiracy. The jury acquitted Gibson of the other charges. The District Court sentenced Gibson to serve three concurrent four-month terms.

Gibson now appeals, raising four contentions. First, he challenges the sufficiency of the evidence supporting the guilty verdicts. Second, he contends that he was prejudiced by an erroneous evidentiary ruling excluding certain testimony as hearsay.

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Third, Gibson argues that the District Court abused its discretion by prohibiting a defense witness from testifying as a sanction because the witness violated a sequestration order. Finally, Gibson complains of prosecutorial misconduct during closing argument. For the following reasons we affirm.

I. SUFFICIENCY OF THE EVIDENCE

Gibson contends that his Rule 29 motions for a judgment of acquittal were improperly denied. He argues that the government's proof of the personal nature of the Gaspe and Sacramento trips was circumstantial and insufficient to warrant submission to the jury.

To establish a violation of section 501(c) the government must prove that a defendant embezzled, stole, or unlawfully or wilfully abstracted or converted to his own or another's use, the funds or property of a labor union. United States v. Dibrizzi, 393 F.2d 642 (2d Cir. 1968); United States v. Harmon, 339 F.2d 354 (6th Cir. 1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963 (1965). The language of section 501(c) imposes the "broadest possible fiduciary duty upon union officers." United States v. Bane, 583 F.2d 832 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). In enacting the statute, Congress created a new criminal penalty to prevent the following evil:

(O)fficers and other union representatives may not act adversely to their organization or to the members as a group or acquire a personal interest which is contrary to the interests of the organization. Being trustees the officers must subvert their own personal interests to the lawful mandates and orders of the organization.

United States v. Goad, 490 F.2d 1158, 1162 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974), quoting Johnson v. Nelson, 325 F.2d 646, 650 (8th Cir. 1963).

Section 501(c) cases can be brought on either of two theories: one theory involves unauthorized expenditures or use of property, and the other involves authorized expenditures or use of property for a wrongful purpose. Gibson was prosecuted under the latter theory. 3 The essential elements of an authorized use case are: (1) proof that the defendant had a fraudulent intent to deprive the Union of its funds; and (2) proof that the defendant lacked a good faith belief that the expenditure or use was for the legitimate benefit of the Union. United States v. Bane, 583 F.2d at 836. 4 See also United States v. Santiago, 528 F.2d 1130 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976); United States v. Boyle, 482 F.2d 755 (D.C.Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973). See generally United States v. Marolda, 615 F.2d 867 (9th Cir. 1980), later app., 648 F.2d 623 (1981).

The instructions given by the District Court have not been challenged on appeal. The Court correctly defined the essential elements of the offense for the jury as follows:

To constitute a violation of 29 United States Code Section 501(c) where the expenditure of union funds is not authorized, there are four essential elements which must be proved beyond a reasonable doubt: One, the embezzlement, theft or unlawful and willful abstraction or conversion to his own use or the use of another of; two, the moneys, funds or other assets of; three, a labor organization of which; four, the defendant is an officer or employee.

Where the expenditure of union funds was authorized, the United States must in addition prove beyond a reasonable

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doubt: First, a fraudulent intent by the defendant to deprive the union of its funds; and second, a lack of good faith belief by the defendant that the expenditure was for the legitimate benefit of the union.

The District Court also instructed the jury that, in considering the Sacramento and Gaspe travel counts, they must decide whether the primary purpose of these trips was to further Union interests, or Gibson's personal interests:

If the primary purpose was to conduct union business the fact that the defendant obtained personal enjoyment does not make the expenditure of funds or use of the union property a violation of the statute.

On the other hand, if the primary purpose of a trip was to provide enjoyment or social entertainment for the defendant, the fact that union business was incidentally transacted does not excuse a violation of the statute.

Your determination of the primary purpose of each trip in question must be based upon the evidence, these instructions and your own knowledge and experience.

In connection with the Gaspe trip, you may take into consideration the fact that the defendant paid part of the expenses.

The burden is upon the United States to prove beyond a reasonable doubt that the primary purpose of each trip was the enjoyment and social entertainment of the defendant.

Before reviewing the government's evidence to determine whether the prosecution met its burden, we briefly state the rules governing our inquiry. In deciding whether evidence is sufficient to withstand a motion for an acquittal, we must view the evidence and all reasonable inferences in the light most favorable to the government. E.g. United States v. Collon, 426 F.2d 939 (6th Cir. 1970). If the evidence is such that we conclude that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is one for the jury. If we conclude that a reasonable doubt is raised, we must reverse a denial of an acquittal motion. Id. We cannot weigh the evidence or judge credibility independently in deciding whether the District Court erred in submitting the case to the jury. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1940) cited in United States v. Nell, 526 F.2d 1223 (5th Cir. 1976). Applying these principles to the record before us, we hold that the court below correctly refused to direct a verdict in Gibson's favor. We turn to describe the evidence adduced by the government, which amply supports the jury's verdict.

A. Sacramento Trip.

Gibson was charged with misusing the Union's airplane to transport Helene Hallett, an intimate friend, from Oakland, California to Sacramento for a one-night dinner date in November, 1975. No one disputes the facts that Hallett travelled to Sacramento in the Union plane, that she dined alone with Gibson that evening, that she spent the night with him, and that she returned to Oakland the next morning in the Union plane. Rather, the disputed issue is whether Hallett's trip was for union or personal purposes.

The government relied exclusively on Hallett to show that Gibson's purpose in bringing her to Sacramento was strictly personal. Hallett testified that she and Gibson had dated occasionally and had developed an intimate relationship before her trip. Sometime in November, Gibson called Hallett and asked her to accompany him on a three-day trip to visit three local unions and to attend their installation dinners. Hallett declined the invitation at first because she was unable to leave her job as acting office manager of Local 28, a branch of Gibson's International. Apparently Hallett's supervisor, Ray Lane, was not in town at the time. Gibson then invited her to join him for dinner for one evening in Sacramento. Hallett told Gibson that she would ask her superior for permission to leave the office early when he called from out of town. After Ray Lane gave his consent, Hallett agreed to go when Gibson called her

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again. Gibson told her that he would arrange to send the Union plane to meet...

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