U.S. v. Schurr, s. 84-1404

• Decision Date: 30 October 1985
• Docket Number: 84-1405,Nos. 84-1404,s. 84-1404
• Citation: 775 F.2d 549
• Parties: 103 Lab.Cas. P 11,669 UNITED STATES of America, Appellee, v. Maurice SCHURR, Appellant. UNITED STATES of America, Appellee, v. Harry ROSETSKY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 549

775 F.2d 549

103 Lab.Cas. P 11,669

UNITED STATES of America, Appellee, v. Maurice SCHURR, Appellant.

UNITED STATES of America, Appellee, v. Harry ROSETSKY, Appellant.

Nos. 84-1404, 84-1405.

United States Court of Appeals Third Circuit.

Oct. 30, 1985.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Chief of Appeals, Robert E. Welsh, Jr. (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Thomas A. Bergstrom (argued), Philadelphia, Pa., for appellant Schurr.

Pamela W. Higgins (argued), Higgins & Madden, Philadelphia, Pa., for appellant Rosetsky.

Before GARTH, BECKER, and ROSENN, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

These consolidated appeals present challenges by two officials of Teamsters Local 929, Maurice Schurr and Harry Rosetsky, to convictions for substantive violations of 29 U.S.C. Sec. 186 and for conspiracy to violate that statute. Appellants make two principal contentions. The first is that there was a material variance between the conspiracy identified in count one of the indictment and the proof offered at trial, in that, whereas the indictment charged a unitary conspiracy against all of the defendants, the government's proof was of at least three separate conspiracies, all involving different members. Appellants contend that this in itself is reversible error. Appellants' second argument, also cast in terms of variance between indictment and proof, is that the jury was improperly influenced by prejudicial evidence that was admitted only on account of an overbroad indictment. Appellant Schurr argues separately that a variance between the indictment and the proof of the date of the offense requires reversal of his conviction on count two, one of the substantive counts. We conclude, however, in agreement with the government, that, although its proof was narrower than its allegations, the government proved a single conspiracy ¹ and that the appellants were not prejudiced either by the variance between pleading and proof, or the alleged variance on count two. Accordingly we affirm.

I. PROCEDURAL HISTORY

A.

On February 7, 1984, a grand jury in the Eastern District of Pennsylvania indicted five officials of Teamsters Local 929, including appellants Maurice Schurr and Harry Rosetsky, for conspiracy to receive secret cash payments from "employers whose employees were represented, or eligible for representation by, Teamsters Local 929," primarily the Valley Fish Co., in violation of 29 U.S.C. Sec. 186. ² See 18 U.S.C. Sec. 371. The twenty-six count indictment alleged that the payments were "in exchange for peace and not organizing all the employees of that Company" and that approximately $89,000 in secret payments were made to the conspirators over several years. The indictment also alleged that each of the conspirators had received additional payments from other employers in violation of 29 U.S.C. Secs. 186(a)(2), 186(b)(1), and 186(d). At all times relevant to the indictment, Schurr was the President and Rosetsky was a business agent of Teamsters Local 929. The other three indicted co-conspirators also occupied positions at Local 929: Paul Cardullo was a business agent, Vice President and Secretary-Treasurer; Augustine Venditti was a business agent and Vice President; and Joseph Grisafi was a Vice President and Secretary-Treasurer.

One day prior to trial, Grisafi and Venditti pleaded guilty to two violations of 29 U.S.C. Sec. 186(a)(2) and Sec. 186(b)(1). ³ The government characterized these counts as relating to payments of "what are, in fact, Christmas or vacation gratuities." The government explained further that "there is absolutely no allegation or evidence of bribery as to [defendant Venditti]. Our witness will say there was no bribery and there is no evidence he accepted these [payments] as bribes." In exchange for Grisafi's and Venditti's pleas of guilty to the four substantive counts, the government agreed to dismiss as to them the count alleging the five-person conspiracy.

After these guilty pleas were entered, the government moved to dismiss the conspiracy count against Cardullo and to sever the remaining substantive counts against him. In moving for dismissal and severance, the government stated that it would have a "very serious problem proving by a preponderance of the evidence that he was a member of the conspiracy as to Valley Fish." The government also indicated that Cardullo received only gratuity payments or, as they came to be known during Schurr and Rosetsky's trial and appeal, Christmas payments. At his separate trial, Cardullo was acquitted of the substantive charges against him.

On May 22, 1984, the government's case against appellants proceeded to trial without the other alleged co-conspirators, hence on a narrower conspiracy than had been pleaded. Three days later, a jury convicted both Schurr and Rosetsky of conspiracy. Schurr was also convicted of one substantive count, and Rosetsky of six substantive counts. Schurr was sentenced to imprisonment for six months on the conspiracy count, to be followed by two years probation on the substantive count, conditioned on payment of a fine of $10,000. Rosetsky was sentenced to six months on the conspiracy count followed by six months' probation, see 18 U.S.C. Sec. 3651, and also to three years' probation on the substantive counts. Additionally, he was fined $1,000 on the substantive counts. We turn to a summary of the evidence.

II. THE FACTS: SUFFICIENCY OF EVIDENCE OF A CONSPIRACY BETWEEN SCHURR AND ROSETSKY

From 1972 until October 19, 1979, at least two of the fourteen or fifteen employees working at the Valley Fish Co. were members of Local 929. ⁴ Beginning in 1972, Stanley Pinkus, the owner of Valley Fish, accepted the advice of Leonard Katz, an employee of the company, to make weekly payments to Local 929 to discourage union organizing and otherwise to encourage labor peace. Katz made the initial arrangements. He contacted Paul Freedman, a friend of Schurr, who, in turn, met with Rosetsky. Thereafter, Rosetsky began appearing regularly at Valley Fish and accepting weekly payments of $125 from Katz. ⁵ Freedman testified that Rosetsky was to share these proceeds with Schurr and Cardullo. These payments continued for approximately four years, until 1976 when Pinkus sold the business.

Several months later, Pinkus repurchased the Valley Fish business and Katz, with Pinkus's knowledge, increased to $400 the weekly amount of money deducted for payments to ensure labor peace. Katz testified that he continued paying Rosetsky $125 each week until October of 1979. Katz also testified that he began paying $200 each week to Freedman to be given to Schurr, ⁶ stating that these latter payments were made from 1976 until October 1979. Freedman testified that he struck a new deal between Valley Fish and Schurr beginning in 1976, that Rosetsky and Cardullo were not aware of this deal, and that payments to him and Schurr were to be $250 each month split evenly between the two men. Freedman also testified that each year from 1976 to 1978 he received an additional $2,500 from Katz at Christmastime and that he kept $1,250 and gave $1,250 to Schurr. ⁷

The government also introduced evidence of payments to Rosetsky at Christmas or vacation time from businessmen who employed Local 929 members but were not associated with Valley Fish. The evidence was introduced to prove the substantive violations of 29 U.S.C. Secs. 186(a)(1) & 186(b)(1) and was sufficient to support Rosetsky's convictions on the six substantive counts. It was also introduced to prove alleged overt acts of the underlying conspiracy.

We believe that this evidence is sufficient to support a finding that there was a conspiracy entered into by Schurr and Rosetsky to accept payments from the Valley Fish Co. in exchange for labor peace, and that the conspiracy extended from 1972 through 1979. Even disregarding Freedman's special payments to Schurr and the non-Valley Fish payments to Rosetsky, the jury could believe Katz's testimony that payments to Rosetsky continued and conclude that such payments were in furtherance of the conspiracy originally undertaken in 1972. In addition, Pinkus testified that payments to Local 929 officials continued through 1979 because Valley Fish owed substantial amounts to the union--in his words, "quite a number of hundreds of thousands of dollars"--on account of Valley Fish's failure to make the necessary deductions for health and welfare payments and union dues. Given this substantial debt to the union, the jury could justifiably have concluded that problems with Local 929 would have resulted were it not for a continuing agreement among interested local union officials that, in exchange for payments, Valley Fish's practices would not be questioned.

III. VARIANCE ON COUNT ONE

Appellants contend that there was a material variance between indictment and proof on the conspiracy count (count one). They argue that the government, assuming that it proved some conspiracy or conspiracies, was unable to prove the broad five-person conspiracy for which the grand jury had indicted Schurr and Rosetsky.

A. Basic Principles

It is now well settled that a conviction must be vacated and the indictment dismissed when (1) there was at trial a variance between the indictment and the proof and (2) the variance prejudices a substantial right of the defendant. See, e.g., United States v. Maker, 751 F.2d 614, 624 (3d Cir.1984); United States v. Camiel, 689 F.2d 31, 35 (3d Cir.1982). See also Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935) ("The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused.").

The rule proscribing any material variance between indictment and proof is grounded in three critical principles. Most fundamentally, the rule protects the right of each def...