U.S. v. Walsh

• Decision Date: 10 January 1991
• Docket Number: No. 90-1583,90-1583
• Citation: 928 F.2d 7
• Parties: 136 L.R.R.M. (BNA) 2913, 118 Lab.Cas. P 10,626, 32 Fed. R. Evid. Serv. 532 UNITED STATES, Appellee, v. Bartley WALSH a/k/a Barney Walsh, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 7

928 F.2d 7

136 L.R.R.M. (BNA) 2913, 118 Lab.Cas. P 10,626,

32 Fed. R. Evid. Serv. 532

UNITED STATES, Appellee, v. Bartley WALSH a/k/a Barney Walsh, Defendant, Appellant.

No. 90-1583.

United States Court of Appeals, First Circuit.

Heard Jan. 10, 1991.

Decided March 13, 1991.

George C. McMahon with whom Mary T. Cummings and McMahon Law Offices were on brief, for defendant, appellant.

Gary S. Katzmann, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for appellee.

Before TORRUELLA and SELYA, Circuit Judges, and POLLAK, ^* Senior District Judge.

LOUIS H. POLLAK, Senior District Judge.

Appellant Bartley "Barney" Walsh appeals his multicount conviction on charges related to his use of labor union and employee-benefit plan funds. We affirm.

I.

On September 15, 1989, a federal grand jury returned a twenty-three count indictment against Walsh and a co-defendant not a party to this appeal. The case was severed, resulting in a joint trial on five counts, ¹ and a second trial with Walsh as the sole defendant on the remaining eighteen counts.

At the first trial, Walsh was convicted on one count of violating 29 U.S.C. Sec. 186(b)(1) and (d)(2), which prohibits a union official from accepting a thing of value from an employer who employs members of the union. At the second trial, Walsh was convicted on six of the remaining eighteen counts: one racketeering count, ² in violation of 18 U.S.C. Sec. 1962; two labor union embezzlement counts, ³ in violation of 29 U.S.C. Sec. 501(c); one count of causing the filing of a false labor union statement, ⁴ in violation of 29 U.S.C. Sec. 439(b); one count of making a false statement with regard to an employee-benefit plan report, ⁵ in violation of 18 U.S.C. Sec. 1027; and one employee benefit plan embezzlement count, ⁶ in violation of 18 U.S.C. Sec. 664.

The government's evidence at the first trial--in which Walsh was charged with accepting something of value from an employer of union members--showed that, during Walsh's tenure as business agent for Carpenters' Local 67, a member of the union performed work at Walsh's home. The union member performed the work, leaving his regular job site for several hours, while in the employ of Cleveland Cement Contractors, Inc. Walsh never compensated the employee or Cleveland Cement for the work; rather, Cleveland Cement compensated the employee for time spent at Walsh's residence.

Four of the convictions at the second trial ⁷ related to a scheme whereby Walsh allegedly arranged to receive duplicative reimbursements for travel and other expenses incurred while attending various union functions. The government's evidence showed that, during the period covered by the indictment, Walsh concurrently held numerous labor posts, including positions as (1) business agent for Carpenters' Local 67; (2) president of the Carpenters' District Council; (3) vice-president of the Massachusetts State Council of Carpenters; (4) president of the Building and Construction Trades Council of Greater Boston; (5) vice-president of the Massachusetts AFL-CIO Council; (6) trustee-chairman of the Boston Carpenters' Promotional and Educational Fund; and (7) trustee of the Boston and Eastern Massachusetts Carpenters' Health and Welfare Fund. The government's evidence also showed that Walsh requested and received compensation for two union business trips--one to Washington D.C. and another to Las Vegas--from one or more of these organizations, without informing them that he was also receiving compensation from one or more other organizations. The government's evidence also showed that the total amounts received from the various organizations were in excess of Walsh's documented expenses for either of these trips. Finally, to support the remaining labor union embezzlement and false filing counts, ⁸ the government introduced evidence that Walsh received duplicative advances for a trip to Ireland to be taken as part of a delegation led by United States Senator Paul Tsongas. The trip never occurred and appellant never returned either advance.

Walsh's defense largely took the form of claiming that all money received was spent on union business and that--although he could not produce receipts or other documentary evidence to substantiate his claims--the payments received from any one organization were insufficient to cover the sum of his expenses for any particular trip.

Walsh now raises three claims of error. First, he contends that the trial court abused its discretion in admitting at the second trial evidence of other allegedly bad acts committed by Walsh.

Second, with respect to the labor union embezzlement charge brought as a result of his failure to return the Ireland advances, Walsh claims (1) that the district court erred in failing to dismiss the charge on statute of limitations grounds, (2) that the district court did not properly instruct the jury, and (3) that his conviction was incompatible with a conviction, also related to the Ireland advances, for filing a false labor union statement.

Finally, Walsh argues that the evidence admitted at trial with respect to each count--including the conviction at the first trial for receipt of a thing of value--was insufficient to convince a rational trier of fact that all of the elements of a crime had been committed. He therefore contends that the convictions should be overturned on the authority of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II.

A. Other Acts Evidence

As part of his defense at the second trial, Walsh chose to take the stand and to testify about the incidents for which he was charged, including testimony on direct examination that sought to explain his receipt of funds from multiple sources. In the course of that testimony, appellant stated that "any and all moneys I ever got from the Labor movement I put back in plus a lot more money." Appendix, 109a. This statement fit with Walsh's general testimony that his labor union trips required substantial business entertaining, such that despite multiple reimbursements, he usually spent more on union business than he actually received from the labor organizations.

On cross-examination, over defense counsel's repeated objection, the government was permitted to inquire into a number of incidents not charged in the indictment, but which tended to shed a bad light on appellant's behavior while in office. ⁹ The incidents included, inter alia, (1) multiple instances in which Walsh submitted meal and gas receipts from establishments in the New England area, despite the fact that the receipts were dated such that they coincided with the dates of Walsh labor union trips outside New England; (2) multiple instances in which Walsh submitted expense claims supported by sequentially numbered receipts from the same establishment, but in which the expenses often were incurred weeks apart, or were incurred in inverse chronological order to the receipts' numbering; and (3) Local 67's sale of a $9,000 automobile to Walsh for $100.

Federal Rule of Evidence 404(b) provides ¹⁰

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Thus, under Rule 404, "other act" evidence is admissible if probative on an issue other than "character." However, such evidence must also conform to Rule 403, which provides that relevant evidence should be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice...." Walsh contends that the "other acts" inquired into were not probative, and thus not admissible under Rule 404(b). Walsh further contends that, even if those "other acts" are deemed to have some probative quality, inquiry into them was unfairly prejudicial and therefore should have been excluded under Rule 403.

To assess these contentions, we must consider the context in which the "other acts" were inquired into. On cross-examination of Walsh, the government sought to attack Walsh's direct testimony, including the claim that "all moneys I ever got from the Labor movement I put back in plus a lot more money." The government sought to do this by inquiring into the various incidents described above. The acts inquired into--the automobile purchase and submission of receipts in somewhat unusual patterns--were sufficiently out of the ordinary, at least on their face, that they raised an inference of improper activity. As such, they tended to rebut appellant's claim that he never received labor movement funds for purposes other than labor movement activity. Therefore, they were within Rule 404(b)'s prescription permitting the introduction of "other acts," provided that such acts are probative and not admitted to prove a person's character.

Admittedly, the acts inquired into were susceptible of a benign explanation. Indeed, on redirect examination, Walsh sought to provide an exculpatory account of the receipt patterns. The fact that a benign account of the evidence was plausible, however, does not mean that the evidence could not be introduced. The government's burden was only to provide probative evidence. The "other act" evidence in this case was probative, as it tended to undercut Walsh's protestations to the effect that he had never misused union funds. Also, the other acts tended to suggest that Walsh repeatedly improperly charged the union for his expenses. Such a practice in turn tended to support the government's claim that Walsh consciously engaged in a scheme to defraud the various organizations, making the other acts admissible as "proof of ... absence of mistake or accident." In such a situation it was appropriate to put the evidence before the jury, letting the jury determine what weight, if...