U.S. v. Douglas

• Decision Date: 08 February 2005
• Docket Number: No. 03-2535.,03-2535.
• Citation: 398 F.3d 407
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Donny G. DOUGLAS; Jay Campbell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.3d 407

UNITED STATES of America, Plaintiff-Appellant, v. Donny G. DOUGLAS; Jay Campbell, Defendants-Appellees.

No. 03-2535.

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2004.

Decided and Filed: February 8, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellant. Harold Z. Gurewitz, Gurewitz & Raben, Detroit, Michigan, for Appellees. ON BRIEF: Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellant. Harold Z. Gurewitz, Gurewitz & Raben, Detroit, Michigan, Peter J. Kelley, Ann Arbor, Michigan, for Appellees.

Before: MARTIN and MOORE, Circuit Judges; BUNNING, District Judge.^*

OPINION

MARTIN, Circuit Judge.

The United States appeals the district court's dismissal of its three-count indictment for insufficiency to plead an offense. The indictment charges Donny G. Douglas and Jay Campbell with conspiracy to violate federal labor law, conspiracy to extort, and mail fraud. We find that the indictment sufficiently alleges these offenses. Therefore, we REVERSE and REMAND.

I.

Donny G. Douglas is a former United Auto Workers International servicing representative, and Jay Campbell is a former United Auto Workers Local 594 Chairman. The Local 594 unit of United Auto Workers represents over five thousand production and skilled trade employees at General Motors's Pontiac Truck facilities. The terms of employment for Pontiac employees are set forth in the National Agreement between General Motors and International United Auto Workers and in the Local Agreement between Pontiac and Local 594. Once national union officials and General Motors management agree to the terms of the National Agreement, local union officials and Pontiac management negotiate the terms of the Local Agreement. The National Agreement provides that an employee may be eligible to receive the designation of "skilled tradesman" after completing various education and training requirements. A skilled tradesman may bid upon various skilled trade positions, which pay in excess of $100,000 per year. Skilled tradesmen are hired according to a scale of preference: most preferred are skilled trade employees; next are current company employees who are qualified under the National Agreement; after that are current company employees. Outside applicants who do not meet the requirements set forth in the National Agreement are accorded no preference. The terms of the Local Agreement must not violate the terms of the National Agreement.

The charges against Douglas and Campbell are based on their conduct during contract negotiations for the Local Agreement between United Auto Workers Local 594 and General Motors. In 1995, defendants demanded that Pontiac hire Gordon Campbell, Jay Campbell's son, and Todd Fante, the son-in-law of a former Local 594 official — who were not employees of Pontiac or General Motors and were not qualified under the National Agreement as skilled tradesmen — into skilled trade positions. General Motors and United Auto Workers officials refused.

In 1996, General Motors and the International United Auto Workers signed a three-year National Agreement. Local 594 and Pontiac began negotiations for the Local Agreement. Defendants renewed their demands that Pontiac hire Campbell and Fante as skilled tradesmen.

In April 1997, Local 594 began a strike that lasted eighty-seven days. By July 1997, the parties had settled all issues involved in the strike except for defendants' demands that Campbell and Fante be hired into skilled trade positions. The United States alleges that in order to end the strike Pontiac Truck agreed to create the two new positions and fill them with Campbell and Fante. As part of the Local Agreement, the parties signed a "skilled trades proposal," which the United States asserts signified Pontiac's acceptance of defendants' demand for the two new hires.

The Local 594 Constitution requires that new Local Agreements be ratified by the membership of Local 594. The United States alleges that defendants submitted the "skilled trades proposal" to Pontiac employees in an altered form that omitted the provisions for the two new positions. Pontiac employees ratified the proposal and, in August 1997, Fante and Campbell were hired to fill two new skilled trade positions. The United States alleges that "because their hiring violated the National Agreement, the [Local 594 Constitution,] and the Local Agreement, other employees reacted angrily and filed two grievances." The United States alleges that another Local 594 official, William Coffey — who was originally named as a defendant in this case but has since passed away — concealed that Campbell and Fante were not qualified by agreeing to withdraw those grievances and any other grievances related to the two new skilled trade positions.

Defendants were charged in 2002 in a three-count indictment. Count One alleged that defendants violated 18 U.S.C. § 371 by conspiring to violate the Labor-Management Relations Act. The indictment identified the objects of the conspiracy as (1) the authority to amend the terms of the National Agreements and related documents and (2) the employment and skilled trades designation for Campbell and Fante. Count Two charged defendants with conspiring to obstruct, delay, and affect commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. Count Three alleged that defendants used a scheme and artifice to defraud members of Local 594 of their contractual right to obtain skilled trade positions and to rely on the honest services of defendants as the union's negotiating officials.

Defendants moved to dismiss, arguing that the indictment failed to allege offenses and was preempted by federal labor law. The district court concluded that the indictment failed to allege offenses and dismissed the case without considering the preemption question.

II.

An indictment is sufficient if it "set[s] forth the offense in the words of the statute itself, as long as `those words ... fully, directly, and expressly ... set forth all the elements necessary to constitute the offense intended to be punished.'" United States v. DeAndino, 958 F.2d 146, 147 (6th Cir.1992) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). In dismissing the indictment in this case, the district court applied the rule of lenity, which limits the expansion of criminal statutes by means of defining essential terms or elements of wrongful conduct to include "constructive" offenses or offenses not intended by Congress. According to the rule, a statute must be strictly construed, United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973), and constructive offenses should be avoided, McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The district court construed the statutes at issue to exclude defendants' conduct, concluding that "the indictment is only sufficient if the Court were to create numerous constructive offenses." Accordingly, we must consider what offenses, and their elements, Congress intended to prohibit when it enacted the statutes at issue in this case. Because Congress's intent is essentially a question of statutory interpretation, we review the district court's decision de novo. United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir.1994); United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990).

III.

1. Count One

Count One alleges that defendants violated 18 U.S.C. § 371, which criminalizes a conspiracy to commit a crime against the United States or to defraud the United States by conspiring to violate the Labor-Management Relations Act, 29 U.S.C. §§ 186(a)(1), 186(b)(1). Section 186(a)(1) provides:

It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, advisor or consultant to an employer, or who acts in the interest of an employer, to pay, lend, or deliver, or agree to pay, lend, or deliver any money, or other thing of value —

(1) to any representative of any of his employees who are employed in an industry affecting commerce.

Section 186(b) provides:

It shall be unlawful for any person to request, demand, receive or accept or agree to receive or accept any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.

Violations of sections 186(a) and 186(b) both require a showing of a "thing of value." The indictment identifies the objects of the conspiracy as (1) the authority to amend the terms of the National Agreement and related documents and (2) the employment and skilled trades designation for Campbell and Fante.

Defendants argued, and the district court agreed, that neither the authority to amend the National Agreement nor the procurement of jobs for third parties qualifies as a thing of value under the statute. The district court reasoned that because defendants did not conspire for "things of value," they did not engage in the acts prohibited by either section of the Act. The court concluded that absent an allegation that defendants violated the substantive statute, they necessarily could not have violated section 371, and, thus, the indictment did not allege a criminal offense.

The United States argues that in making a determination regarding "things of value," the district court acted beyond its authority.¹ Instead, the government contends, the district court should have considered only the sufficiency of Count One in alleging a violation of section 371, and to that analysis the "thing of value" inquiry is irrelevant.

We agree that the district court's scope of analysis was improper. It has been determined, by this Court and in other circuits, that a conviction under section 371 does not require the government to prove a violation of a separate substantive statute. See United States v. Khalife, 106 F.3d 1300, 1303 (6th Cir.1997) (...