U.S. v. Busacca

• Decision Date: 06 December 1988
• Docket Number: No. 88-3099,88-3099
• Citation: 863 F.2d 433
• Parties: 130 L.R.R.M. (BNA) 2083, 110 Lab.Cas. P 10,926 UNITED STATES of America, Plaintiff-Appellee, v. Salvatore T. "Sam" BUSACCA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 433

863 F.2d 433

130 L.R.R.M. (BNA) 2083, 110 Lab.Cas. P 10,926

UNITED STATES of America, Plaintiff-Appellee, v. Salvatore T. "Sam" BUSACCA, Defendant-Appellant.

No. 88-3099.

United States Court of Appeals Sixth Circuit.

Argued Sept. 27, 1988.

Decided Dec. 6, 1988.

Joseph Douglas Wilson (argued), Dept. of Justice, Washington, D.C., Joseph R. Wilson, U.S. Dept. of Justice, Michael T. Rae, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Alan P. Caplan, San Francisco, Cal., Leonard W. Yelsky (argued), Angelo F. Lonardo, Yelsky & Lonardo, Cleveland, Ohio, for defendant-appellant.

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and BALLANTINE, District Judge. ^*

PER CURIAM.

Salvatore T. "Sam" Busacca appeals from his conviction on 16 counts of a 39-count indictment. Busacca was convicted of one count of embezzling funds from a labor organization, in violation of 29 U.S.C. Sec. 501(c) and 18 U.S.C. Sec. 2 (Count 1); three counts of mail fraud, in violation of 18 U.S.C. Secs. 1341 and 2 (Counts 2, 3, and 16); four counts of embezzling funds from an employee benefit plan, in violation of 18 U.S.C. Secs. 664 and 2 (Counts 17, 18, 21, and 22); one count of accepting a kickback to influence the operations of an employee benefit fund, in violation of 18 U.S.C. Secs. 664 and 2 (Count 23); two counts of making a false statement on a document required to be kept by the Employment Retirement Income Security Act of 1974 (ERISA), in violation of 18 U.S.C. Secs. 1027 and 2 (Counts 30 and 31); one count of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Secs. 1961 and 1962(c) (Count 32); one count of conspiracy to conduct an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Secs. 1961 and 1962(d) (Count 33); and four counts of filing a false income tax return, in violation of 26 U.S.C. Sec. 7206(1) (Counts 34-37). Busacca was sentenced to a total of ten years in prison and fined $35,000.

Busacca objects to two of the trial judge's jury instructions. Upon consideration of Busacca's arguments on appeal, we affirm the convictions.

I

The events that led to Busacca's convictions arose from his actions as the president of the Excavating, Building Material, Construction Drivers, Race Track Employees, Manufacturing, Processing, Assembling, and Installer Employees Local 436 of the International Brotherhood of Teamsters ("the local"). Busacca was also the chairman of the board of trustees of the Local 436 Welfare Fund ("Welfare Fund") and the Local 436 Pension Trust Fund, both of which are governed by the provisions of ERISA. Busacca was indicted and convicted for using his position of power in the union to obtain kickbacks from merchants wishing to do business with the Welfare Fund. He also filed several false insurance claims with the Welfare Fund. None of the income generated by these activities was reported on his income tax returns.

Busacca bases his appeal on the contention that the district court improperly instructed the jury on the law concerning both the crime of embezzling funds from a labor organization in violation of 29 U.S.C. Sec. 501(c) and the crime of embezzling funds from an employee benefit plan in violation of 18 U.S.C. Sec. 664.

The alleged embezzlement of labor organization funds concerned an insurance claim filed under the name of Jethro Robinson. Robinson was an independent truck operator and a member of the local. He, however, was not employed by the union or by a contributing employer and, thus, was not eligible for benefits from the Welfare Fund. After Robinson died in an accident on May 5, 1981, Busacca and Local 436 business agent David Kerr, the government's main witness, with the assistance of Deborah Hanson, the Welfare Fund's office manager, decided to file a $28,000 accidental death benefits claim with the Welfare Fund in Robinson's name and split the proceeds. On June 11, 1981, in order to secure retroactive insurance coverage, the local made a contribution of $2,465 to the Welfare Fund on behalf of Robinson. This payment constituted the source of the Sec. 501(c) embezzlement charge contained in Count 1 of the indictment.

The alleged embezzlement of employee benefit plan funds involved kickbacks received by Busacca from merchants doing business with the Welfare Fund. Specifically, he was convicted of arranging for a caterer and a T-shirt manufacturer employed by the Fund as suppliers for an anniversary party to overcharge the Fund and then pay the difference to Busacca and Kerr. Busacca was also convicted of taking such a kickback from a merchant who supplied the Fund with a computer system at an inflated cost.

II

In the review of criminal cases, if no contemporaneous objection was made during trial to an error alleged on appeal, a reviewing court should not reverse the trial court unless there is plain error. United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). Plain error is defined as an egregious error, one that directly leads to a miscarriage of justice. Ibid. If an objection was made at trial, a reviewing court may reverse the trial court only if there is an abuse of discretion. United States v. Beros, 833 F.2d 455, 458 n. 3 (3rd Cir.1987). The trial court is "vested with broad discretion in formulating its charge and will not be reversed unless the charge fails accurately to reflect the law." United States v. Pruitt, 763 F.2d 1256, 1261 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986).

The parties disagree as to whether the appellant made a proper objection to the first jury instruction challenged in this appeal. A proper objection to a jury instruction is made when the subject of the objection and its grounds were identified with sufficient precision to give the district court a full understanding of its nature. United States v. Eiland, 741 F.2d 738, 742 (5th Cir.1984). An objection to the omission of a charge can have the same effect as a request for the charge. Ibid.

The instruction at issue dealt with the charge contained in Count 1 of the indictment. This charge involved the embezzling of funds from a labor organization. This circuit has held that this crime can be proved through either of two theories. The embezzling of the funds, under the first theory, is an unauthorized taking from the labor organization. Under the second theory, the labor organization authorizes the expenditures, but it receives no benefit. Busacca maintains that the government can proceed under only one of these theories in any one prosecution in order to ensure that the jury agrees unanimously on exactly what crime was committed.

In our opinion, it is clear that Busacca made a proper objection to the jury charge. Busacca's trial counsel argued several times that the judge should instruct on only one theory of the crime in question, and the trial court should make the government choose which theory it wished to proceed under in order to ensure a unanimous verdict. At one point, the appellant's counsel stated, after the prosecutor explained why it requested the instruction at issue, "The problem with that, Judge, is it means we might never have a unanimous verdict because five might think it's one and seven might think it's another." At another point, appellant's counsel continued his argument, "I mean we have an impossible conflict, your Honor, in terms of instructions, because at some point in time this jury has to be told unanimously that they are going to have to decide it was authorized or unauthorized."

The government claims, on the other hand, that the appellant never asked for a specific jury instruction and, thus, waived his objection. In light of the law set out in cases such as Eiland, this argument cannot be maintained. The standard of review, then, for Busacca's first allegation of error is whether the district court abused its discretion. The appellant admits that he did not object at trial to the second jury instruction challenged, making the standard of review as to that allegation one of plain error.

III

The first allegation of error concerns the appellant's conviction on Count 1 of the indictment. This charge involved Busacca's procuring $2,465 from the local as a contribution to the Welfare Fund in the name of Jethro Robinson in violation of 29 U.S.C. Sec. 501(c). The appellant contends that the trial judge erred in instructing the jury that they could find the defendant guilty of violating 29 U.S.C. Sec. 501(c) ¹ if they believed the defendant was guilty under either of two theories of liability. These two theories were explained in United States v. Bane, 583 F.2d 832, 835 (6th Cir.1978), cert. den., 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Under one theory, the union authorizes expenditures or use of property by the defendant, but the funds are not used for the benefit of the union. Under the other theory, the expenditures are wholly unauthorized. A union official or employee can be convicted of violating Sec. 501(c) under an unauthorized expenditure theory if it can be shown that the expenditure was not authorized and the defendant acted with fraudulent intent to obtain the expenditure. United States v. Gibson, 675 F.2d 825, 828-29 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). A Sec. 501(c) conviction can be obtained under an authorized expenditure theory if the government proves that, first, the defendant had a fraudulent intent to deprive the union of its funds, and, second, that the defendant lacked a good faith belief that the expenditure was for the legitimate benefit of the union. Bane, 583 F.2d at 835-36.

The trial judge in the case sub judice instructed the jury on these two theories. He first instructed them on the basic elements of the crime, telling them that they must find that there was a union, that the defendant was a union official or...