U.S. v. Bell, 93-2254

• Decision Date: 03 June 1994
• Docket Number: No. 93-2254,93-2254
• Citation: 22 F.3d 274
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronnie A. BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 274

22 F.3d 274

UNITED STATES of America, Plaintiff-Appellee, v. Ronnie A. BELL, Defendant-Appellant.

No. 93-2254.

United States Court of Appeals, Eleventh Circuit.

June 3, 1994.

William M. Kent, Asst. Fed. Public Defender, Jacksonville, FL, for appellant.

Mark B. Devereaux, Asst. U.S. Atty., Jacksonville, FL, Tamra Phipps, Asst. U.S. Atty., Tampa, FL, for appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Circuit Judge, CLARK and ESCHBACH ^*, Senior Circuit Judges.

CLARK, Senior Circuit Judge:

Defendant-appellant Ronnie A. Bell pled guilty to charges of embezzlement, making false statements, mail fraud, and conspiracy to commit these crimes. After his guilty plea but before his sentencing, Bell filed with the district court a motion to dismiss certain counts of the indictment and a motion to withdraw his guilty plea. The district court denied both motions. We agree with Bell that several counts of the indictment, including some counts to which he pled guilty, fail to state an offense as alleged. Accordingly, we vacate Bell's convictions and remand the case for further proceedings.

BACKGROUND FACTS

Bell and his co-defendant, James E. Cushion, ¹ were the administrator and assistant administrator, respectively, of two funds established for the benefit of members of the International Longshoremen's Association The charges against Bell and Cushion arose out of their alleged unauthorized issuance of checks, made out to themselves and others, written on accounts of the Pension Fund and the Royalty Fund. The superseding indictment against Bell and Cushion contains 36 counts. Count 1 charges Bell and Cushion with conspiracy to embezzle funds from the Pension Fund and from the Royalty Fund, to make false statements in connection with documents required to be filed under title I of ERISA, and to commit mail fraud, all in violation of 18 U.S.C. Sec. 371. Counts 2-22 charge Bell and Cushion with embezzlement from the Pension Fund, and counts 23-30 charge them with embezzlement from the Royalty Fund, all in violation of 18 U.S.C. Sec. 664. Counts 31-33 charge Bell and Cushion with making false statements in relation to documents required to be filed under ERISA, in violation of 18 U.S.C. Sec. 1027. Finally, counts 34-36 charge Bell and Cushion with mail fraud, in violation of 18 U.S.C. Sec. 1341.

                (the "ILA").  The first fund, known as the Welfare and Pension Fund (the "Pension Fund"), was established to provide retirement income and health benefits to eligible members of the ILA in Jacksonville, Florida.  The Pension Fund is an employee welfare benefit plan and an employee pension benefit plan within the meaning of and subject to the provisions of title I of the Employee Retirement Income Security Act of 1974 ("ERISA"). 2  The second fund, known as the Container Royalty Fund (the "Royalty Fund"), was established to provide supplemental income to eligible members of the ILA in Jacksonville.  This fund consists of the accumulated royalty payments made by the Jacksonville Maritime Association for each container that passes through the Jacksonville port.  These royalty payments are distributed at the end of each taxable year to eligible members of the ILA.  The Royalty Fund is a legally separate entity from the Pension Fund and is not subject to the provisions of ERISA
                

Pursuant to a written plea agreement with the government, Bell pled guilty to counts 1 (conspiracy), counts 19 and 20 (embezzlement from the Pension Fund), counts 29 and 30 (embezzlement from the Royalty Fund), count 32 (making false statements in relation to documents required to be filed under ERISA), and count 36 (mail fraud). Prior to his sentencing, however, Bell filed a motion to withdraw his guilty plea. He also filed a motion to dismiss certain counts of the indictment, arguing that several counts of the indictment failed to charge an offense; specifically, he argued that his alleged embezzlement from the Royalty Fund did not constitute a violation of 18 U.S.C. Sec. 664 because the Royalty Fund was not subject to the provisions of ERISA. The district court denied both motions and, subsequently, sentenced Bell to 30 months in prison. Bell filed this appeal.

DISCUSSION

Bell contends that the district court erred in declining to dismiss those counts of the indictment charging him with embezzlement from the Royalty Fund and in declining to permit him to withdraw his guilty plea. He seeks vacation of his convictions and an opportunity to have his case tried before a jury.

If a motion for withdrawal of a guilty plea is made before sentence is imposed, the district court is authorized to permit the withdrawal "upon a showing by the defendant of any fair and just reason." ³ Although a guilty plea waives many objections to the conviction, it does not waive the objection that the indictment fails to charge an offense. ⁴ In this case, Bell filed both his motion to dismiss certain counts of the indictment and his motion to withdraw his guilty plea before imposition of his sentence. Because the district court denied the motion to dismiss, thereby rejecting Bell's argument that certain counts of the indictment failed to state an offense, it never reached the question of whether the defective indictment constituted a "fair and just reason" for withdrawal Bell was charged with embezzling from the Royalty Fund in violation of 18 U.S.C. Sec. 664, which provides as follows:

of the guilty plea. We find that Bell's argument that several counts of the indictment fail to charge an offense, if meritorious, constitutes a "fair and just reason" for withdrawal of his guilty plea. We must determine, then, whether the district court erred in rejecting this argument.

Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use or to the use of another, any of the moneys, funds, securities, premiums, credits, property, or other assets of any employee welfare benefit plan or employee pension benefit plan, or of any fund connected therewith, shall be fined not more than $10,000, or imprisoned not more than five years, or both.

As used in this section, the term "any employee welfare benefit plan or employee pension benefit plan" means any employee benefit plan subject to any provision of title I of the Employee Retirement Income Security Act of 1974.

It is undisputed that the Royalty Fund is not an employee benefit plan subject to the provisions of ERISA. The government relies on the "fund connected therewith" language. The government points out that the Royalty Fund and the Pension Fund were both established for the benefit of ILA members in Jacksonville and that the two funds shared a common administrator; thus, the government argues, the two funds are sufficiently "connected" to bring the Royalty Fund within the purview of Sec. 664.

The parties have not cited and we have not located any case law construing the "fund connected therewith"...