U.S. v. (07–1695/1850)

• Decision Date: 10 February 2011
• Docket Number: 07–1696,07–1850,07–1851.,Nos. 07–1695,s. 07–1695
• Citation: 634 F.3d 852
• Parties: UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant,v.Donny G. DOUGLAS (07–1695/1850) and Jay D. Campbell (07–1696/1851), Defendants–Appellants/Cross–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

634 F.3d 852
190 L.R.R.M. (BNA) 2201
160 Lab.Cas. P 10,345

UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant,
v.
Donny G. DOUGLAS (07–1695/1850) and Jay D. Campbell (07–1696/1851), Defendants–Appellants/Cross–Appellees.

Nos. 07–1695

07–1696

07–1850

07–1851.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 20, 2011.Decided and Filed: Feb. 10, 2011.

[634 F.3d 856]

ARGUED: N.C. Deday LaRene, LaRene & Kriger, P.L.C., Detroit, Michigan, Harold Gurewitz, Gurewitz & Raben, PLC, Detroit, Michigan, for Appellants. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: N.C. Deday LaRene, LaRene & Kriger, P.L.C., Detroit, Michigan, Harold Gurewitz, Gurewitz & Raben, PLC, Detroit, Michigan, for Appellants. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.Before: MARTIN and MOORE, Circuit Judges; BUNNING, District Judge. ^*

OPINION BOYCE F. MARTIN, JR., Circuit Judge.

Defendants–Appellants–Cross–Appellees Donny Douglas and Jay Campbell appeal their convictions under the Labor Management Relations Act and the Hobbs Act. The United States cross-appeals their sentences. This case is now in its eighth year of litigation. Some of the underlying events transpired over seventeen years ago. Our court, and this same panel, heard a first appeal in this case more than six years ago. United States v. Douglas, 398 F.3d 407 (6th Cir.2005). For the following reasons, we AFFIRM Douglas's and Campbell's convictions, and although we would prefer to end these lengthy proceedings and give closure to the parties, we must REMAND for resentencing.

I. BACKGROUND

Donny Douglas and Jay Campbell worked as representatives of the United Auto Workers at the General Motors factory in Pontiac, Michigan. While negotiating with General Motors in the 1990s, they pressured General Motors several times to give highly skilled, “journeyman” jobs to two non-qualified relatives of Union members. These jobs paid as much as $150,000 per year, which was approximately double

[634 F.3d 857]

the salary of a production line worker. General Motors refused to comply each time. Acquiescing would have violated the hiring priorities set forth in the national and local agreements between the Union and General Motors. The pressure came to a head when the Union was on strike in 1997, costing General Motors millions of dollars each day. On the eighty-seventh day of the strike, Union leaders met with representatives from General Motors to attempt to resolve all their issues and end the strike within twenty-four hours. The parties successfully resolved every official issue and grievance between them within twenty-four hours, but Douglas informed James Rhadigan, a General Motors official, that the strike would not end unless the two unqualified relatives of Union members finally received journeyman jobs. Rhadigan relented, the non-qualified relatives received the journeyman jobs, and the strike ended. As a result, multiple qualified journeyman applicants filed grievances with General Motors for not adhering to the hiring priorities laid out in the national and local agreements. Two qualified applicants were eventually hired on top of the two non-qualified Union member relatives.

The United States prosecuted Douglas and Campbell for violations of the Labor Management Relations Act and the Hobbs Act, claiming that they conspired to demand “things of value” and wrongfully used their labor positions to force General Motors to give jobs to two relatives of Union members. The district court dismissed the indictment as insufficient, but this Court reversed when this same panel found that the indictment sufficiently alleged the charges. Subsequently, Douglas and Campbell proceeded to trial and were convicted. They now appeal, arguing that their convictions are not supported by sufficient evidence. The United States cross-appeals their sentences.

II. DISCUSSION

Douglas and Campbell appeal their convictions on several grounds: (1) their actions do not constitute a violation of the Labor Management Relations Act, and the district court's jury instruction regarding the Act was an incorrect statement of the law; (2) violating a labor agreement is not a criminally “wrongful” use of a labor position under the Hobbs Act; and (3) the United States's Brady violation at trial warrants a new trial. Additionally, Campbell argues that the district court's jury instruction constructively amended his indictment to include activity not covered by the Labor Management Relations Act.

The United States cross-appeals both sentences, claiming that the district court erred by: (1) using the Blackmail Sentencing Guideline, U.S.S.G. § 2B3.3, rather than the Extortion Sentencing Guideline, U.S.S.G. § 2B3.2; (2) failing to enhance Douglas's and Campbell's total offense level by calculating the loss to General Motors as zero; and (3) varying Douglas's sentence downward to match a departure that Campbell received due to his lung cancer.

A. The Labor Management Relations Act

The Labor Management Relations Act prohibits “any employer ... to pay, lend, or deliver ... any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce.” 29 U.S.C. § 186(a)(1). It further forbids anyone to “request, demand, receive, or accept ... any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.” Id. § 186(b)(1). Douglas and Campbell argue that their actions do not fall within the

[634 F.3d 858]

scope of the Act because: (1) they did not demand a “thing of value” for purposes of the Act; and (2) they did not personally receive any “thing of value.” We review both questions of statutory interpretation de novo. United States v. Gagnon, 553 F.3d 1021, 1025 (6th Cir.2009). Douglas and Campbell also claim that the district court incorrectly instructed the jury as to section 186(b)(1). We review de novo this claim as well. H.C. Smith Invs., L.L.C. v. Outboard Marine Co., 377 F.3d 645, 650 (6th Cir.2004) (citing Fisher v. Ford Motor Co., 224 F.3d 570, 576 (6th Cir.2000)). Lastly, we review constructive amendment claims de novo also. United States v. Budd, 496 F.3d 517, 528 (6th Cir.2007).

1. Thing of Value

Douglas and Campbell protest that the word “other” in the phrase “money or other thing of value” constrains “thing of value” to things of monetary value. They also invoke ejusdem generis, a principle of statutory interpretation providing that, “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Wash. State Dept. of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384–85, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003). But that rule applies to “list[s] of specific items separated by commas and followed by a general or collective term,” not to a “phrase [that] is disjunctive, with one specific and one general category.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (refusing to apply the canon to the phrase “any officer of customs or excise or any other law enforcement officer”). The interpretive canon noscitur a sociis (“a word is known by the company it keeps”) is also inapplicable when the statute provides few other analogous terms. Id. at 226, 128 S.Ct. 831. Additionally, “[t]he rule [of lenity] does not apply when a statute is unambiguous or when invoked to engraft an illogical requirement to its text.” Salinas v. United States, 522 U.S. 52, 66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). And the name of the section, “[r]estrictions on financial transactions,” should not trump the plain meaning of the statutory text.

“[A] fundamental canon of statutory construction is that ‘when interpreting statutes, the language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.’ ” Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir.2007) (quoting United States v. Boucha, 236 F.3d 768, 774 (6th Cir.2001)). Douglas's and Campbell's position is contrary to the plain language of the statute. The statute's scope is not limited to only monetary items. Truly, of all the things in this world widely regarded as valuable, money and the like comprise only a small percentage. In the midst of the world's current financial struggles, when the unemployment rate in this country fluctuates between nine and ten percent, it is somewhat laughable to argue that Douglas and Campbell did not demand a “thing of value” when they demanded high-paying jobs for their cronies. The value of a job, especially one that pays $150,000 per year, is undeniable. In this case, the jobs demanded were things of value.

2. Third party beneficiaries

Douglas and Campbell argue that they could not have violated section 186(b)(1) because they themselves never received a “thing of value,” but plainly, this is not a requirement of the statute. Although section 186(b)(1) outlaws receiving or accepting things of value, it outlaws

[634 F.3d 859]

requesting or demanding them in the same statutory breath. The plain language of the statute applies to demanding things of value, even if they are intended for, and eventually go to, a third party.

Furthermore, we find agreement from our sister circuits. In United States v. DeBrouse, 652 F.2d 383, 387 (4th Cir.1981), the defendant, president of Teamsters Local 639, demanded that an employer pay $200 each week to a third party. The Fourth Circuit held that the defendant received “the precise thing of value [he] demanded, that is, payment of $200 a week to [the third party]. Therefore, the fact that the thing of value ... took the form of payments to [a third party] does not place the transaction beyond the scope of the Act.” Id. at 388. The court...