U.S. v. Beros

Citation833 F.2d 455
Decision Date10 November 1987
Docket NumberNo. 86-3766,86-3766
Parties, 107 Lab.Cas. P 10,234, 24 Fed. R. Evid. Serv. 36 The UNITED STATES v. James BEROS, Titus McCue a/k/a Tim McCune. Appeal of James M. BEROS.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Dennis J. Clark (argued), Livingston and Clark, Pittsburgh, Pa., for appellant.

Paul J. Brysh, Constance M. Bowden (argued), Asst. U.S. Attys., Pittsburgh, Pa., for appellee.

Before HIGGINBOTHAM, BECKER and HUNTER, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

On this appeal from a final judgment of conviction and sentence, the appellant presents four grounds for this Court's review. He argues first, that the district court erred by failing properly to instruct the jury regarding the required unanimity of its verdict; second, that the district court abused its discretion by admitting a sworn statement previously made by appellant on an application for a marriage license, falsely stating that his marital status was single; third, that the district court erred by restricting appellant's opportunity to cross-examine an adverse witness; and, finally, that the district court erred by imposing an unconstitutional condition of probation specifically prohibiting appellant from serving as a labor union official during the term of probation.

We have reviewed each of appellant's contentions, and find only the first of the enumerated claims to be meritorious. Specifically, we hold that the district court erred with regard to Counts 3 and 5 of the indictment, by failing to give a sufficiently precise instruction to the jury to assure that it understood the requisites of unanimity of its decision and rendered a verdict in compliance therewith. Accordingly, we will vacate the convictions as to those counts, and the appellant's sentence, and remand this matter to the district court for resentencing on the remaining counts.

I.

Appellant James M. Beros, an officer of the Teamsters Joint Council 40 and a trustee of the Western Pennsylvania Teamsters and Employees Pension Fund ("Pension Fund"), was indicted on a sixteen count indictment. In its several counts, the indictment alleged that on separate occasions Beros was guilty of "embezzling, stealing, abstracting or converting to his own use" funds of the Teamsters Joint Council 40 and of the Pension Fund, in violation of 29 U.S.C. Sec. 501(c) (1982) and 18 U.S.C. Sec. 664 (1982), 1 and that Beros was guilty of conspiring with another person to commit those offenses.

Beros was tried by jury and convicted on seven of the charged counts. 2 He was fined $20,000 and was placed on probation for a period of five years. On appeal, Beros challenges these convictions and sentences. We note jurisdiction to review his claims pursuant to 28 U.S.C. Sec. 1291 (1982).

II.

At the conclusion of the government's case, Beros unsuccessfully moved for acquittal on Counts 3 and 5 of the indictment, arguing that the government's evidence as to those counts was insufficient to support a conviction. Alternatively, Beros argued that if those counts were to be submitted to the jury, the district court should administer specific jury instructions regarding unanimity. 3 Beros asserted that because Counts 3 and 5 each alleged several theories of culpability and also enumerated several distinct occurrences, any of which could support a conviction, the jury should be instructed that it must unanimously agree upon a particular theory of criminality, and also unanimously agree upon the specific transaction that it believed supported Beros's guilt under that theory. See Appellant's Appendix ("Appellant's App.") at 33a-35a. The district court granted Beros's request regarding the first aspect of unanimity but determined that a specific instruction regarding unanimity on the particular act was unnecessary. We find that this decision was in error. Given the range of possibilities by which the jury could have reached its verdict, and the possibility that individual jurors reasonably could have disagreed as to which act supported guilt, it was necessary that the district court in this case clearly instruct the jury regarding the required unanimity of its verdict.

It is apparent to us, in light of the allegations made, and the evidence presented to support them, that a significant potential existed for the jury to misunderstand its obligation. Count 3 of the indictment charged that,

[o]n or about December 13, 1981 and continuing to on or about January 26, 1982, in the Western District of Pennsylvania, the defendant James M. Beros, did willfully and unlawfully embezzle, steal, abstract and convert to his own use the monies, funds, property and other assets of Joint Council 40, to wit, the approximate sum of $1,063.00, expenses incurred by James M. Beros for a plane ticket in the name of Mrs. C. Beros, for a flight to Ft. Lauderdale, Florida and lodging in Hollywood, Florida. In violation of Title 29, United States Code, Section 501(c).

Appellant's App. at 7a. In support of this allegation, the government presented evidence to prove that Beros had unreasonably expended union funds while serving as President of Joint Council 40 and trustee of the Pension Fund. The evidence showed that in this capacity, Beros and his wife had traveled to Florida, ostensibly to attend a union conference. In connection with the trip, he (1) used a Joint Council credit card to pay airfare for himself and his wife; (2) occupied a hotel suite that cost $160 per day, rather than a single or double room which would have cost no more than $60 per day; and (3) remained in Florida for personal reasons after the conclusion of the conference, but continued to expend union funds.

Count 5 made similar allegations with regard to a separate incident.

On or about November 26, 1982 and continuing to on or about January 24, 1983, in the Western District of Pennsylvania, the defendant, James M. Beros, did willfully and unlawfully embezzle, steal, abstract and convert to his own use the monies, funds, property and other assets of the Pension Fund, to wit, the approximate sum of $765.87, a cash advance drawn upon the Pension Fund by James M. Beros on or about November 26, 1982 for a trip to Orlando, Florida and expenses incurred by James M. Beros for lodging, food, and rental car in Orlando, Florida. In violation of Title 18, United States Code, Section 664.

Appellant's App. at 9a. As to this count, the government offered evidence that on the dates specified, Beros traveled to Florida on behalf of the union for the purpose of attending a conference. Prior to leaving, Beros apparently obtained an advance from the Pension Fund in the amount of $1,000. The evidence indicated (1) that Beros failed to report this advance until May 23, 1984; (2) that when he reported having taken the advance, he was unable to account for $160; (3) that one of the listed expense items represented airfare that had previously been reimbursed by the Pension Fund; and (4) that the Pension Fund paid Beros $399.27 for expenses that he incurred during two days he and his wife spent in Florida after the conclusion of the conference, during which time no union business was conducted. 4

The district court noted that any one of the acts alleged in these counts could provide the basis for a conviction under the statutes, and appears to have recognized the necessity that the jury's verdict be unanimous not only as to its finding that Beros violated the statutes but also as to the particular act or acts by which he did so. In its charge to the jury, however, the district court failed to instruct the jury properly regarding this last aspect of unanimity.

With regard to Count 3, the district court instructed the jury that:

counts 3, 6, 8 and 10 of the indictment charge the defendant with willfully and unlawfully embezzling, stealing, abstracting and converting to his own use the moneys, funds, assets and other property of the Teamsters Joint Council 40. In addition you will note that in some of these counts the government contends the defendant violated Section 501(c) in more than one manner. However, Section 501(c) is worded in the disjunctive, that is, a defendant may be guilty of an offense if he embezzled, stole, abstracted, or converted to his own use the moneys, funds, property or assets of a labor organization. Therefore, if you find beyond a reasonable doubt that one method, mode, or manner of violating the law occurred, that is sufficient to find the defendant guilty so long as you agree unanimously upon the particular method, mode or manner that occurred.

Appellant's App. at 102a-103a. Similarly, with regard to Count 5, the district court instructed the jury that

[i]n each of Counts 4, 5, 7, 9, 11 and 13, the defendant James M. Beros is charged with, on various dates, willfully and unlawfully embezzling, stealing, abstracting and converting to his own use or the use of another the moneys, funds, property and other assets of the Western Pennsylvania Teamsters and Employers Pension Fund, which I will refer to as the pension fund, or the Western Pennsylvania Teamsters and Motor Carriers Welfare Fund, which I will refer to as the welfare fund, in violation of Title 18, United States Code Section 664.

* * *

Again, you will note that in each of Counts 4, 5, 7, 9, 11 and 13, that the government charges that the defendant embezzled, stole, abstracted and converted the moneys and properties of the fund in question, and that in some of these counts the government contends that the defendant violated Section 664 in more than one manner. Because Section 664 is worded in the disjunctive, that is, a defendant may be guilty of an offense if he embezzled, stole, abstracted or converted to his own use or the use of another the money, funds, property or assets of an employee pension or welfare plan. If you find beyond a reasonable doubt that any one method, mode or manner...

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