U.S. v. Long

• Decision Date: 21 February 1992
• Docket Number: No. 90-3063,90-3063
• Parties: 139 L.R.R.M. (BNA) 2017, 120 Lab.Cas. P 11,037 UNITED STATES of America, Appellant, v. Sam F. LONG, Appellee. UNITED STATES of America, Appellant, v. Elmer J. CANTRELL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1520

952 F.2d 1520

139 L.R.R.M. (BNA) 2017, 120 Lab.Cas. P 11,037

UNITED STATES of America, Appellant, v. Sam F. LONG, Appellee.

UNITED STATES of America, Appellant, v. Elmer J. CANTRELL, Appellee.

No. 90-3063.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1991.

Decided Dec. 12, 1991.

Rehearing and Rehearing En Banc

Denied Feb. 21, 1992.

Sheryle L. Jeans, Kansas City, Mo., for appellant.

James Wyrsch, Kansas City, Mo., for appellee Long.

Richard McFadin, Kansas City, Mo., for appellee Cantrell.

Before JOHN R. GIBSON, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The United States appeals from an order acquitting Sam F. Long and Elmer J. Cantrell of conspiring to embezzle money from a union in violation of 18 U.S.C. § 371 (1988), of embezzling money from a union in violation of 29 U.S.C. § 501(c) (1988) and 18 U.S.C. § 2 (1988), and of unlawfully transporting stolen money in violation of 18 U.S.C. § 2314 (1988). A jury convicted Long and Cantrell on these three counts, and the district court ordered acquittals on the grounds of insufficient evidence. 757 F.Supp. 1038. The jury also acquitted Long, Cantrell, and Edward E. Quick on seven other charges. On appeal, the government argues that the district court erred by considering only the evidence relating to the counts on which the jury convicted Long and Cantrell, and that sufficient evidence existed to support the convictions on all three counts. The government also argues that the district court erred by conditionally ordering a new trial to determine whether there was one conspiracy or multiple conspiracies. We reverse the order of acquittals and the conditional grant of a new trial.

Long was president and business manager of Local 101, a labor union affiliated with the AFL-CIO. Local 101 is located in Kansas City, Missouri, and is a member of the Missouri State Building and Construction Trades Council and the International Union of Operating Engineers. The Trades Council is a labor organization composed of representatives of various building and trades unions and councils, and is located in Jefferson City, Missouri. Elmer J. Cantrell was president of the Trades Council. Cantrell was also a member of the Missouri House of Representatives. The International is an international union comprised of local unions, and is headquartered in Washington, D.C.

In early 1985, Long approached the Director of the Department of Safety and Health for the International, A. Bennett Hill, Jr., requesting money to promote safety programs in Missouri. Long wanted to implement a cooperative labor-management safety program. Hill told Long that the Trades Council should apply for its own grant from OSHA. Hill received a copy of an application for an OSHA grant signed by Cantrell, and Hill understood that the Trades Council filed the grant application with OSHA, but that OSHA would not fund the program. There was evidence, however, that the Trades Council never filed the application with OSHA. Sometime later, Hill sent Long two $5,000 checks from the International's OSHA grant funds as "seed money" for the Missouri program. The checks were payable to the "Missouri State Building Trades Safety Program."

Long delivered the checks to Edward E. Quick. Quick was a member of the Missouri Senate. Long asked Quick to be the director of the safety program. Cantrell and Quick opened a checking account under the name of "Missouri Building and Trades Council Safety Program," with themselves as signatories, and deposited the $10,000 received from the International in the account. In January 1986 Cantrell and Quick began writing themselves salary checks from the account. By the end of March 1986, the account had been reduced to a balance of approximately $557, which the two then divided between themselves. All told, Quick received approximately $6,500 of the $10,000 and Cantrell received approximately $3,500.

In late May 1986, OSHA audited the International's grant account and disallowed the $10,000 disbursement to the Trades Council. OSHA informed Hill that the money would have to be returned to the International's grant account. Hill told this to Long, and Long assured Hill that the money would be returned. Long stated that the Trades Council did not have the money, but that he would find a way to provide it. Long told Cantrell and Quick that the International needed the money returned. Long told Cantrell that Local 101 would reimburse the money.

In August 1985, a model of a crane and display boards had been prepared for a press conference following a fatal crane collapse on a construction project in Kansas City, Missouri. In the summer of 1987, Long sold these items to a safety consultant, Ernest Jorgensen, an owner and employee of Professional Safety Consultants, Inc., who did some work for the International. Jorgensen sent Long two checks from Professional Safety Consultants, one in the amount of $6,200 for the model and display boards, and another $3,800 check for additional materials consisting of photographs of the crane accident, miscellaneous news clippings, legal pleadings, and a copy of a trade publication. These two checks were deposited in Local 101's bank account on July 16, 1987. On July 21, 1987, at Long's direction, Local 101 sent a $10,000 check to the Trades Council. The Trades Council deposited the $10,000 check into its general account, and at Cantrell's direction, sent a $10,000 check to the International.

This brief outline of events, which we will supplement as necessary in this opinion, led to the filing of a ten-count indictment against Long, Cantrell, and Quick. Count I charged all three defendants with conspiring to obtain $10,000 from the International for a safety program which was never implemented, in violation of 18 U.S.C. § 371. Counts III through VI charged all three defendants with receiving money unlawfully converted and taken by fraud from the International, in violation of 18 U.S.C. §§ 2, 2314, 2315, and unlawfully transporting checks in interstate commerce in violation of 18 U.S.C. §§ 2 and 2314. Count VII charged Cantrell with embezzling money from the Trades Council, and Quick and Long in aiding and abetting Cantrell in committing that offense, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2. Count VIII charged Long with embezzling assets of Local 101 (specifically, the model, display boards, carrying case, and file of photos and clippings), and Cantrell with aiding and abetting Long in committing that offense, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2.

The remaining counts of the indictment charged a separate conspiracy involving only Long and Cantrell. Count II charged Long and Cantrell with conspiring to embezzle $10,000 from Local 101 to reimburse the International's grant account, in violation of 18 U.S.C. § 371. Count IX charged Long with embezzling $10,000 from Local 101 and Cantrell with aiding and abetting Long in committing that offense, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2. Count X charged Cantrell with unlawfully transporting a $10,000 check, containing at least $5,000 of funds embezzled from the Trades Council and Long with aiding and abetting Cantrell in committing that offense, in violation of 18 U.S.C. §§ 2 and 2314.

A jury acquitted all three defendants of the charges relating to the first conspiracy (Counts I, III-VIII). The jury convicted Long and Cantrell on the charges relating to the second conspiracy. (Counts II, IX and X).

The district court granted Long and Cantrell's motion for an acquittal. United States v. Long, 757 F.Supp. 1038, 1046 (W.D.Mo.1990). The court also ruled that its failure to give two of defendants' instructions on the issue of multiple conspiracies constituted sufficient error to merit a new trial, but that the issue was moot because of the acquittals. Id. at 1046. This was, in effect, a conditional grant of defendants' motion for new trial should the acquittal be set aside on appeal. Fed.R.Crim.P. 29(d). The government appeals the order of acquittals and conditional grant of a new trial.

I.

The government argues that the district court erred by considering only the evidence relating to the counts on which Long and Cantrell were convicted in determining whether sufficient evidence existed to support the jury's convictions, and that sufficient evidence existed to support the convictions.

The district court first considered the evidence relating to Count IX. Count IX charged that Long embezzled money from Local 101, a labor organization, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2. ¹ Section 501(c) holds union officers criminally liable when they embezzle, steal, or unlawfully and willfully abstract or convert a union's funds to their own use or the use of others. United States v Welch, 728 F.2d 1113, 1116 (8th Cir.1984). "To prove 'willfulness' under section 501(c), the government must show that the union officials possessed fraudulent or criminal intent to deprive the union of its funds." Id. Willfulness may be "proved by showing that defendant 'was sufficiently aware of the facts to know that he acted wrongfully and in contravention of the trust placed in him by the union and its members.' " Id. (quoting United States v. Belt, 574 F.2d 1234, 1238 (5th Cir.1978)).

This court in United States v. Goad, 490 F.2d 1158 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974), held that the elements of a case under 29 U.S.C. § 501(c) are: "(1) fraudulent intent to deprive the union of its funds and (2) lack of authorization according to the union's constitution and bylaws." Id. at 1166 (footnote omitted). The district court here declined to follow Goad, concluding that lack of authorization was not an essential element of a 501(c) offense. 757 F.Supp. at 1042. The court reached this conclusion by relying on Welch. In Welch, we rejected the union's...