U.S. v. Papia, 89-1906

• Decision Date: 11 September 1990
• Docket Number: No. 89-1906,89-1906
• Citation: 910 F.2d 1357
• Parties: 135 L.R.R.M. (BNA) 2100, 116 Lab.Cas. P 10,263, 30 Fed. R. Evid. Serv. 1144 UNITED STATES of America, Plaintiff-Appellee, v. Sally A. PAPIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1357

910 F.2d 1357

135 L.R.R.M. (BNA) 2100, 116 Lab.Cas. P 10,263,

30 Fed. R. Evid. Serv. 1144

UNITED STATES of America, Plaintiff-Appellee, v. Sally A. PAPIA, Defendant-Appellant.

No. 89-1906.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 12, 1990.

Decided Aug. 10, 1990.

Rehearing and Rehearing En Banc Denied Sept. 11, 1990.

Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Marna M. Tess-Mattner, Franklyn M. Gimbel, Gimbel, Reilly, Guerin & Brown, Milwaukee, Wis., for defendant-appellant.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

MANION, Circuit Judge.

The Taft-Hartley Act (the Act), as amended in 1984, makes it a crime (with exceptions not relevant to this case) for an employer to pay union membership dues to a labor organization "willfully and with the intent to benefit himself or other persons...." 29 U.S.C. Sec. 186(d)(1) (Supp. IV 1986). Before the 1984 amendment, the Act required only that the payment be made "willfully"; intent to benefit was not necessary to violate the law. Compare id. with 29 U.S.C. Sec. 186(d) (1982). Before 1984, violations of Sec. 186(d) were always misdemeanors, no matter how much money the employer illegally paid. The 1984 amendment changed this, making a violation of Sec. 186(d)(1) a felony if "the value of the amount of money" exceeds $1,000.

Sally Papia manages and directs Sally's Steak House, a restaurant in Milwaukee. She is also the principal owner of the corporation that owns the business. Over a number of years, Papia paid union membership dues on certain of her employees' behalves to Local 122 of the Hotel, Motel, Restaurant Employees and Bartenders Union. A grand jury charged Papia with three counts of violating Sec. 186; each count aggregated a number of payments. Count 1 charged a misdemeanor under the old Sec. 186 for payments Papia made between January and September 1984. Count 2 charged a misdemeanor under the amended law for payments made between October 1984 and July 1985. Count 3 charged a felony under the amended law for payments made between August 1985 and June 1986. A jury convicted Papia of all three counts, and she appeals.

I.

In 1982, Papia signed a document known as the "1982-1985 Hotel Agreement" (1982 agreement), a purported collective bargaining agreement with Local 122. The 1982 agreement was supposed to apply to all eligible employees. But not all of Sally's eligible employees were enrolled in the union. Instead, Papia submitted the names of seven employees, from all job classifications, to include on the union's membership rolls. Papia told these employees that she had submitted their names to Local 122, and she also paid their membership dues.

The practice of carrying a limited number of Sally's employees on the union's membership rolls began long before 1982; the arrangement had existed under a series of contracts with Local 122 dating back to the early 1970's. The arrangement allowed Papia to avoid full unionization (and the costs associated with it). Indeed, a number of Sally's employees testified at trial that they had no idea that Sally's had a collective bargaining agreement with Local 122, and that they were eligible for union membership.

Papia's cozy arrangement with Local 122 began to unravel in early 1985. Joann Calarco, a waitress at Sally's, had incurred significant medical expenses the past October, and was facing additional expenses in January. Calarco discussed her predicament with her mother, who advised her to contact Vince Gallo, a long-time family friend. Gallo was Local 122's business manager, having replaced Phil Valley, the old business manager (and the union official with whom Papia mainly had dealt in the past) in 1984. Calarco explained her situation to Gallo who, much to Calarco's surprise, told her that Sally's was unionized and that she was eligible to join Local 122 and receive health benefits. Before allowing Calarco to join the union, however, Gallo told Calarco to inform Papia that she wished to join.

When Calarco told Papia that she intended to join the union, Papia became angry. Nevertheless, Calarco joined. After Calarco joined Local 122, two other waitresses joined, and other Sally's employees became interested in joining (principally to take advantage of the union's health benefits). At about this same time, Papia began to receive notices from the administrator of Local 122's employee benefit plans about employer contributions she had failed to make under the 1982 agreement. Also around this time, the FBI began to investigate Papia's relationship with Local 122. Papia told FBI agent Roger Trott that Gallo was "pressuring" her to unionize Sally's. To combat this pressure, Papia's attempt to avoid full unionization moved to a different tack.

Shortly after Papia spoke to the FBI agent, Papia and Gallo began negotiating a new contract for the period beginning in 1985. During these negotiations, Gallo pressed Papia to submit all her eligible employees' names to the union. Papia resisted this because of the cost of paying union benefits for all her employees. Instead, Papia submitted twelve names to Gallo for union membership. However, Papia did not inform these twelve employees that they would be listed on the union rolls. Papia also prepared twelve Local 122 membership cards for these employees, forged their names on them, and submitted them to the union.

On June 15, 1985, the 1982 agreement expired. Negotiations over a new contract continued. A couple weeks later, Papia had ballots prepared for her employees to indicate whether or not they wanted to join Local 122. Each ballot contained a line for the employee to sign. All employees except one (including the twelve employees whose names Papia had submitted to the union) voted against joining Local 122. Papia sent copies of most of these ballots to Gallo. She did not, however, send copies of the ballots signed by the twelve employees whose names she had previously submitted to Gallo. On October 15, 1985, Papia finally signed the new contract. As she had under the old agreements, Papia continued to pay the union membership dues of the employees the contract purportedly covered.

The FBI continued to investigate Papia's dealings with the union. In January 1986, Papia told Agent Trott that she had gotten Gallo to "back off." Federal agents also interviewed the twelve employees whose names were on the forged membership cards Papia had submitted to the union. After learning of this, Papia prepared "permission slips" for each of these employees, backdated to May 31, 1985, that purportedly gave Papia each employee's permission to enroll that employee in the union. Papia told the grand jury that she had received the employees' permission to sign their names to the membership cards. As we have seen, this did not prevent the grand jury from indicting her, an indictment that led to the conviction now on appeal.

II.

As we noted at the beginning of this opinion, in 1984 Congress amended Sec. 186(d) to provide that dues payments by employers to labor unions are criminal only if made "willfully" and "with intent to benefit [the employer] or other persons...." 29 U.S.C. Sec. 186(d). Before 1984, Sec. 186(d) explicitly required only that payments be made "willfully" to be criminal. Count 1 charged payments Papia made before the 1984 amendments. Consequently, the indictment charged only that Papia made the payments "willfully."

Papia argues that we must reverse her conviction on Count 1 because the district court required the government to prove only "general intent" as opposed to "specific intent." Papia's argument on this point is not particularly clear because she does not state what she means by the terms "general intent" and "specific intent." These terms have been interpreted to mean different things at different times. For example, courts have used the term "general intent" simply to connote the general notion that crimes other than strict liability offenses require some kind of mens rea, or evil intent. Courts have also used "general intent" to express the notion that a crime requires at least that the defendant intended to perform the act that constitutes the crime. Courts have similarly given "specific intent" different meanings. The most common use of the term is to designate a special mental element beyond that required with respect to the defendant's acts, such as the intent to steal in burglary (or, the intent to benefit in Sec. 186(d)). For a discussion of the different uses of the terms "general intent" and "specific intent," see 1 Wayne LeFave & Austin W. Scott, Jr., Substantive Criminal Law Sec. § 3.5(e) (1986). Some commentators have suggested that abandoning the terms "general intent" and "specific intent" would make the criminal law clearer, and the Model Penal Code has abandoned these terms. See id. at 316 & n. 66.

There are two ways to interpret Papia's argument. First, Papia seems to be complaining about how this court has previously interpreted Sec. 186(d)'s willfulness requirement. In United States v. Kaye, 556 F.2d 855, 863 (7th Cir.1977), we held that to act willfully under Sec. 186(d) means to act with "an awareness of [Sec. 186's] restrictions or a reckless disregard of that section." See also United States v. Incisio, 292 F.2d 374, 380 (7th Cir.1961). According to Papia, this is not good enough because it requires only that the government prove that she intentionally committed the acts in question, whether or not she had any idea those acts violated the law. Papia argues that willfulness requires proof that the defendant had "a specific intent to do an act forbidden by law." See United States v. Drew, 722 F.2d 551, 553 (9th Cir.1983). This court's formulation, says Papia, robs Sec. 186(d) of any mens rea requirement, and thus violates what Papia characterizes as the Supreme Court's teaching in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 ...