U.S. v. Cacioppo

• Decision Date: 22 August 2006
• Docket Number: No. 04-3713.,No. 04-3587.,No. 04-3588.,No. 04-4149.,04-3587.,04-4149.,04-3588.,04-3713.
• Citation: U.S. v. Cacioppo, 460 F.3d 1012, 2006 WL 2404056 (8th Cir. 2006)
• Parties: UNITED STATES of America, Appellant/Cross-Appellee, v. Anna CACIOPPO, Appellee/Cross-Appellant. United States of America, Appellant/Cross-Appellee, v. Richard Dean Plaskett, Jr., also known as Don Plaskett, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1012

460 F.3d 1012

UNITED STATES of America, Appellant/Cross-Appellee, v.Anna CACIOPPO, Appellee/Cross-Appellant.

United States of America, Appellant/Cross-Appellee, v.Richard Dean Plaskett, Jr., also known as Don Plaskett, Appellee/Cross-Appellant.

No. 04-3587.

No. 04-4149.

No. 04-3588.

No. 04-3713.

United States Court of Appeals, Eighth Circuit.

Submitted: April 20, 2006.

Filed: August 22, 2006.

Assistant U.S. Atty., Paul E. Becker, argued, Kansas City, MO, for appellant.

Robin D. Fowler, argued, Overland Park, KS (Mark J. Sachse, Kansas City, KS, on the brief), for appellee Cacioppo.

Daniel O. Herrington, argued, Kansas City, MO, for appellee Plaskett.

Before MURPHY, MELLOY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A jury convicted Anna Cacioppo and Richard Dean Plaskett of five counts of making false statements and/or failing to disclose certain facts in documents required to be kept by the Employee Retirement Income Security Act of 1974("ERISA") in violation of 18 U.S.C. §§ 1027and2.According to the jury verdicts, Cacioppo made the false statements and/or failed to disclose facts required to be disclosed in documents she submitted to Local 264 of the Laborers International Union of North America ("Local 264") and the Laborers Welfare Fund and Laborers Pension Fund (collectively, the "264 Fund").While Plaskett did not directly submit paperwork to the 264 Fund, the indictment alleged that he was punishable as a principal pursuant to § 2.The jury also convicted Cacioppo of six additional counts of violating § 1027 with respect to documents she submitted to Local 1290 of the Laborers International Union of North America ("Local 1290") and the Kansas Welfare Fund and the Kansas Pension Fund (collectively, the "1290 Fund").

Following trial, the district court entered a judgment of acquittal in favor of Cacioppo and Plaskett as to the counts of conviction based upon their submissions to the 264 Fund.The district court did not rule on Plaskett's alternative motion for a new trial.The district court refused to set aside the jury verdicts against Cacioppo for the counts of conviction related to the 1290 Fund submissions.The United States appeals the judgment of acquittal for Cacioppo and Plaskett.Plaskett cross-appeals the district court's failure to decide his motion for a new trial, and Cacioppo cross-appeals the denial of her motion for a new trial with respect to her submissions to the 1290 Fund.We affirm in part and reverse in part.

I.BACKGROUND

A Special Grand Jury returned a 39-count indictment charging five individuals with conspiracy, bribery and mail fraud, as well as the ERISA reporting violations that are the subject of this appeal.The conspiracy, bribery and mail fraud counts related to demolition and asbestos-removal work to be done for Rockhurst University in Kansas City, Missouri.Plaskett was the co-owner of Industrial Environmental Management ("IEM"), an asbestos removal company in Kansas City, Missouri, that employed both union and non-union employees at its work sites.Plaskett's partner in IEM was Charles A. Cacioppo, Jr.Charles Cacioppo's daughter, Anna Cacioppo, worked as an office employee at IEM during the relevant period.The ERISA reporting counts centered upon two collective bargaining agreements that IEM entered, one with Local 264 and another with Local 1290, and the employee benefit payments for which IEM was responsible.

In February 1999, IEM entered into a collective bargaining agreement with Local 264 for "covered work" in certain counties in Missouri and Kansas (the "IEM-264 Association Agreement").Plaskett signed on IEM's behalf.The agreement provided, among other things, that the parties would provide a fringe benefit program and that IEM would pay into the fringe benefit fund a specific amount for each hour of "covered work" conducted by "each employee covered by" the agreement.To implement the fringe benefit program, Article VIII of the IEM-264 Association Agreement required IEM to "file a written report . . . setting forth the names, social security numbers and the hours paid for each employee for whom [benefit] payments shall have been made during said period and such other information as the fringe benefit program trustees desire."The report, referred to as a "monthly remittance report," was to be submitted monthly along with IEM's payments to the 264 Fund.The monthly remittance report was required to be signed by an authorized employee at IEM, and Anna Cacioppo signed on IEM's behalf.Cacioppo certified, among other things, that "the employees listed [on the reports] constitute all employees for whom contributions are required under the terms of said agreements."

In April 2002, IEM entered a second collective bargaining agreement, this time with Local 1290 (the "Local 1290 Agreement").Under the Local 1290 Agreement, IEM was required to pay benefits and to submit a similar monthly remittance report each month.In contrast to the IEM-264 Association Agreement which required the individual submitting reports to list "all employees for whom contributions are required," the reports to the 1290 Fund explicitly required IEM to "report on all employees, union or non-union."(Emphases added.)Again, Cacioppo prepared and submitted the reports on IEM's behalf.

Following seven days of trial, the jury acquitted Plaskett of conspiracy and bribery charges.It also acquitted Cacioppo of a mail fraud charge.However, the jury returned guilty verdicts against Plaskett and Cacioppo on Counts 28 through 32 of the indictment, which alleged that they violated § 1027 in connection with their submission of monthly remittance reports to the 264 Fund.The jury also convicted Cacioppo on Counts 33 through 38 of the indictment, which alleged that she violated § 1027 in connection with her submission of monthly remittance reports to the 1290 Fund.

After trial, the district court set aside the 264 Fund-related jury verdicts and entered judgments of acquittal in favor of Plaskett and Cacioppo with respect to those charges.The district court found insufficient evidence that the IEM-264 Association Agreement actually required IEM to list all employees, including non-union employees.The district court did not rule on Plaskett's alternative motion for a new trial.The district court denied Cacioppo's request for a judgment of acquittal or, in the alternative, a new trial on the charges that she violated § 1027 in connection with her reporting to the 1290 Fund.The district court sentenced Cacioppo to 5 years' probation for those convictions.

II.DISCUSSION

The Government argues that the district court erroneously granted Cacioppo and Plaskett's motions for judgment of acquittal on Counts 28 through 32 of the indictment because the evidence was sufficient to sustain the jury's verdicts.Plaskett cross-appeals the district court's failure to rule on his motion for a new trial as to those counts.Cacioppo appeals her convictions on Counts 33 through 38 of the indictment.She argues that the district court improperly instructed the jury that it could convict Cacioppo based upon her reckless disregard for, rather than knowledge of, the falsity of her statements or the completeness of her submissions.Cacioppo also asserts that the jury should have been given a "good faith" instruction.

We begin by determining the proper mens rea requirement for a conviction under § 1027—an issue raised by Cacioppo's cross-appeal, but which also affects our analysis of the disposition of the Government's appeal.We then address the various motions for judgment of acquittal and new trial to determine whether the evidence was sufficient for a reasonable jury to find guilt beyond a reasonable doubt under the correct mens rea standard and, if so, whether a new trial is warranted due to misinstruction of the jury.We view this as the appropriate method of deciding the appeal and two cross-appeals that the parties present.SeeUnited States v. Boyd,566 F.2d 929, 937-38(5th Cir.1978)(reasoning that the district court misconceived the elements of the offense and, therefore, reviewing the evidence under the correct standard to resolve an appeal concerning the sufficiency of the evidence).

A.Section 1027's Mens Rea Requirement

Section 1027 criminalizes two separate activities.¹First, § 1027 provides for criminal penalties when any person makes in any document required to be kept for ERISA purposes "any false statement or representation of fact, knowing it to be false"(the "false statement prong").Second, § 1027 provides for criminal penalties when any person "knowingly conceals, covers up, or fails to disclose any fact the disclosure of which is required by [title I of ERISA] or is necessary to verify, explain, clarify or check for accuracy and completeness of any report required by such title to be published or any information required by such title to be certified"(the "concealment prong").

With respect to § 1027's false statement prong, the district court instructed the jury that Cacioppo and Plaskett could be found guilty if either "acted knowingly and in the case of a false statement, with knowledge that the statement was false or with reckless disregard for its truth or falsity."Jury InstructionNo. 34(emphasis added).The district court further instructed the jury that "the government must [prove] that the defendant had knowledge that the statement was false or acted with reckless disregard for whether or not it was false."Jury InstructionNo. 38(emphasis added).With respect to § 1027's concealment prong, the district court instructed the jury that Cacioppo and Plaskett could be found guilty if either "acted knowingly . . . and in the case of a concealment, cover up, or failure to disclose, without a ground for believing his action was lawful or with reckless disregard for its lawfulness."Jury InstructionNo. 34(emphasis added).Concerning both...