Hayes v. United States
| Decision Date | 15 June 1964 |
| Docket Number | No. 17363-17365.,17363-17365. |
| Citation | 329 F.2d 209 |
| Parties | Floyd Rairdon HAYES, Appellant, v. UNITED STATES of America, Appellee. Cecil H. BENNETT, Appellant, v. UNITED STATES of America, Appellee. Stanley Burke CLEVENGER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Stanley M. Rosenblum and Merle L. Silverstein, St. Louis, Mo., for appellants; Stanley M. Rosenblum and Merle L. Silverstein, St. Louis, Mo., filed joint brief for appellants Hayes and Clevenger; Barnes Griffith, Kansas City, Mo., filed brief for appellant Cecil H. Bennett.
Owen A. Neff, Atty., Crim. Div., Dept. of Justice, Washington, D. C., for appellee; Herbert J. Miller, Jr., Asst. Atty. Gen., Washington, D. C., and Richard W. Schmude, Lafayette E. Broome and James J. Featherstone, Attys., Crim. Div., Washington, D. C., with him on the brief.
Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.
Certiorari Denied June 15, 1964. See 84 S.Ct. 1883.
VAN OOSTERHOUT, Circuit Judge.
Defendants Floyd Rairdon Hayes, Cecil H. Bennett and Stanley Burke Clevenger, hereinafter sometimes jointly referred to as appellants, have taken timely appeals from their convictions and sentences upon the counts of a sixteen count indictment upon which each stands convicted. Count I of the indictment, which is the count most vigorously attacked, charges the three appellants and four co-defendants, Karl Rogers, Robert Williams, Roy Williams and Earl Dean Williams, with conspiracy under 18 U.S. C.A. § 371 to violate 29 U.S.C.A. § 501 (c). Section 501(c), effective September 14, 1959, provides:
"(c) Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be (punished). * * *"
It is alleged and undisputed that the seven defendants charged in the indictment are all officers or employees of Local 41 and/or Local 541 and/or Joint Council 56, all affiliated with the Brotherhood of Teamsters.
Count I charges that the seven defendants between September 14, 1959, and February 20, 1962, conspired to unlawfully abstract money and assets from the union locals just described, of which they are officers or employees. In substance, three categories of fraudulent transactions are asserted to wit: (1) Invoice padding and kickback arrangements with two business establishments, Harold's D-X Service Station and La Louisiane Restaurant; (2) fraudulent automobile repairs on nonauthorized vehicles at three garages; and (3) fraudulent home improvements and furnishings for Hayes.
Numerous overt acts in furtherance of the conspiracy are alleged.
Counts II through XVI charge substantive offenses arising out of the same type of wrongful conduct involved in the conspiracy charge and are directed against some or all of the defendants heretofore named. All counts charge the defendants named in such counts as officers or members of labor organizations willfully and intentionally embezzled assets of such labor organizations and converted them to their own use or the use of others directly or indirectly in violation of 29 U.S.C.A. § 501(c). We are here concerned primarily with the charges against the three appellants. Hayes is charged in Counts II, III, V, VI, VIII, IX, X,1 XI, XIII, XIV, XV and XVI. Bennett is charged in Counts II, V, VIII, XI, XII, XIV, XV and XVI. Clevenger is charged in Counts VIII and XI.
Counts II, III and IV charge a pad and kickback arrangement with La Louisiane Restaurant. Counts V, VI and VII charge a similar arrangement with Harold's D-X. Counts VIII through XIII charge fraudulent arrangements with automobile establishments to have unauthorized personal automobile repairs charged to and paid for by the unions. Counts XIV, XV and XVI involve improvements and furnishings for Hayes' home fraudulently charged to and paid for by Local 41.
Defendant Robert Williams entered a plea of guilty to all counts on which he was charged and was an important witness for the Government at the trial. The remaining six defendants were tried to a jury. The court sustained Earl Williams' motion for acquittal upon the ground the evidence was insufficient to sustain the charges against him. Defendants Karl Rogers and Roy Williams were acquitted by the jury upon all counts.
Hayes was found guilty upon all counts upon which he was charged. He was sentenced to five years imprisonment on Counts I and II to be served concurrently and fined $500 upon each of the remaining ten counts upon which he was convicted, with imposition of imprisonment upon such counts suspended.
Bennett was found guilty on Counts I and VIII and not guilty of the other charges against him. He was sentenced to two years imprisonment on Count I; imposition of imprisonment on Count VIII was suspended but defendant was placed on probation for a two year period beginning at the expiration of the Count I sentence.
Clevenger was found guilty on Counts I, VIII, and XI, which were the only counts with which he was charged. He was sentenced to two years imprisonment on Count I. Imposition of sentence on Counts VIII and XI was suspended, defendant being placed on probation for two years commencing with the expiration of the Count I sentence.
Appellants here urge that they are entitled to a reversal for the following reasons:
I. The court erred in overruling Bennett and Clevenger's motion for acquittal on Count I upon the ground that there is a fatal variance between the indictment charging a single conspiracy and the proof showing at best a number of separate conspiracies.
II. The court erred in its instructions permitting conviction if the conspiracies were separate and distinct and in failing to delineate and define such separate conspiracies and gave the jury a roving commission to return convictions upon undefined conspiracies.
III. The court by its instruction on the substantive counts relating to automobile repairs improperly placed the burden of proof upon the defendants.
IV. The court erred in refusing to permit appellants to call and examine Special Assistant Attorney General Featherstone as a witness.
V. The court erred in failing to strike Robert Williams' testimony by reason of the Government's failure to comply with 18 U.S.C.A. § 3500.
Appellant Bennett joins in the points just stated and asserts additional grounds for reversal as follows:
VI. The court erred in overruling Bennett's motion for acquittal on Count VIII as the Government has failed to produce substantial evidence to support conviction upon such count.
VII. The court erred in ordering Bennett's counsel to refrain from commenting in closing arguments upon the failure of certain codefendants to testify thereby depriving Bennett of a fair trial.
We shall consider the errors asserted in the order in which they have just been stated.
Bennett and Clevenger in their timely motions for acquittal, which were renewed after verdict, urged that there was a fatal variance in Count I in that said count charges a single overall conspiracy, whereas the proof at best shows only many separate and distinct conspiracies involving the seven defendants and some fifteen non-indicted conspirators and that under the teaching of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, they have been prejudiced by such variance and hence the court erred in overruling their motions. The Government has consistently maintained that it has charged a single overall conspiracy and that it has proved such conspiracy.
Recently in Isaacs v. United States, 8 Cir., 301 F.2d 706, we were confronted with the contention that the conspiracy to defraud the traction company was multiple rather than single. There, as here, the defendants did not receive their payoff out of the same transactions. The various fraudulent schemes employed differed considerably and involved different primary participants, both insiders and outsiders. In Isaacs by reason of the instruction given to acquit if a single overall conspiracy had not been proved, it was apparent the jury found the single conspiracy. We affirmed the conviction. At pages 724 to 726 of 301 F.2d we pointed out that the multiple conspiracy defense is not a novel one and we set out the principles to be applied in determining whether a single overall conspiracy is established, citing supporting authorities. No purpose will be served in restating such principles which are thoroughly discussed in Isaacs. We adhere to what we have there said.
Appellants stress their contention that the conspiracy here was of the circle type rather than of the chain type. We perceive no useful purpose in attempting to name the type of conspiracy here involved. Conspiracies to deal in contraband goods such as narcotics have sometimes been described as chain conspiracies. In such situations where all dealing with the narcotics know the transaction to be an illegal one, it is somewhat easier to infer an intention to participate in an overall illegal activity. For a discussion of the chain conspiracy situation, see United States v. Agueci, 2 Cir., 310 F.2d 817, 827.
Isaacs did not involve dealing with a contraband product. Nevertheless, we found the evidence sufficient to support the finding of a general overall conspiracy in a situation where different groups performed different functions in carrying out the overall scheme to defraud the traction company.
The fundamental problem in each conspiracy case is to establish the nature and the scope of the conspiracy agreement and the connection of the defendants with the conspiracy. In Sigers v. United States, 5 Cir., 321 F.2d 843, Judge Wisdom characterizes the conspiracy there under consideration as follows:
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