NEESE, District Judge.*
The jury found the defendant Mr. William L. ("Corky") Ellis guilty as charged in counts one through six, inclusive, and fourteen through eighteen, inclusive, of the indictment herein. After the discharge of the jury, Mr. Ellis elected timely to renew his earlier motion for entry of a judgment of acquittal1 as to each of those 11 counts. Rule 29(c), Federal Rules of Civil Procedure.
In deciding such motion, the crucial consideration is whether the evidence as to each such count was sufficient to sustain a conviction under that count; in other words: whether there was relevant evidence from which the jury could have found or inferred properly beyond a reasonable doubt that the defendant is guilty as charged. American Tobacco Co. v. United States (1946), 328 U.S. 781, 787 n. 4, 66 S.Ct. 1125, 1128 n. 4, 90 L.Ed. 1575, 1582 n. 4. The late Judge Prettyman expressed the guiding rule this way:
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The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence under which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.
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Curley v. United States, C.A.D.C. (1947), 160 F.2d 229, 232-233, certiorari denied (1947), 331 U.S. 837, 67 S.Ct. 1511, 1512, 91 L.Ed. 1850; accord: United States v. Gaines, C.A.6th (1965), 353 F.2d 276, 2788.
The evidence at this juncture in the proceedings is to be viewed in the light most favorable to the prosecution. Glasser v. United States (1942), 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (headnote 17); United States v. Collon, C.A.6th (1970), 426 F.2d 939, 9422. In that light, the Court views the evidence as follows:
Historically, presidents of the local labor organization of Teamsters at Nashville, Tennessee (union) seem to have managed its treasury as if it were their private preserve. As an example, while serving in this capacity, Mr. Don Vestal operated to his own private gain, with no ostensible benefit to the union, a newspaper in which business concerns and individuals who desired the good-will of the union purchased advertising (of dubious value to them). That publication was printed upon presses located in the basement area of the union headquarters. Eventually, Mr. Vestal was removed from his office by judicial fiat, and the union was operated under a trusteeship of its parent, international-union.
Mr. Ellis was the first member-elected president of the union after the termination of that trusteeship. Along the way, those printing presses were moved from the union's headquarters-building, and there has not been since an equally blatant perversion of the union's prestige for private gain.
To fill this void and for private fiscal enhancement, Mr. Ellis entered into a two-pronged conspiracy to profit personally from publications, established by others, seeking to reap the harvest of the then-untapped available advertising revenues. On behalf of the union, he entered into a contractual arrangement with D. & P. Associates, Inc. (D. & P.), represented by a Mr. Pomporini, whereby D. & P. would publish 3 annual editions of the Tennessee Teamster's Yearbook (Yearbook), and the union would be paid a minimum of $1,000 a year from the proceeds.
Belatedly, the union "accepted" this project, but none of the cash consideration it was to be paid therefrom ever reached its treasury; Mr. Pomporini paid a sum of money to Mr. Ellis (which Mr. Ellis testified was in repayment of a personal loan and constituted in no part union funds). In any event, no money received from Mr. Pomporini or D. & P. was placed in the union's treasury by Mr. Ellis.
Mr. Ellis also entered into an agreement with Mr. Cecil Stamps, a convict at time of trial, for the publication of the Tennessee Labor News (News); the union at no time acquired any property or other interest in this newspaper, but Mr. Stamps made cash payments to Mr. Ellis for the latter's tolerance of this project. But 2 editions of this publication were issued, after which Messrs. Stamps and Ellis decided to allow advertisers therein "* * * to rest a little while. * * *" At the conclusion of this rest-period, publication was resumed, this time under the name, The Tennessee Labor Journal (Journal).
Mr. Ellis' codefendant Mr. Nelson T. Lewellen, not on trial jointly with him, was a coconspirator with Messrs. Ellis, Pomporini and Stamps. He acquired in the Nashville, Tennessee Post Office rental post office box no. 8162 in the name of the Journal and utilized the mail extensively in connection with the business of that publication.
Throughout, it was a part of the scheme agreed upon by the conspirators to keep the operation of these publications as far removed in the public view from Mr. Ellis as possible, and to conceal from advertisers whether these publications were, or were not, projects which benefited the union and its general membership. As many of the advertisers were in places far removed from Nashville, it was an essential part of the conspirators' plot that the mail be used by advertisers to pay the Journal for the advertisements which had been purchased. 5 or more of these respective advertisers were caused by Mr. Ellis, through one or another of his coconspirators, to utilize the mail in the execution of their scheme.
The interest the union acquired by contract in the publication of the Yearbook was a property-interest, and Mr. Ellis converted that interest to his own use or the use of some other person.
The foregoing is believed to be a fair statement of the essential facts of this lawsuit as they relate to all counts of the indictment, under which Mr. Ellis was convicted, with the exception of the latter (numerically) 4 counts thereof. As to those latter counts, the salient facts under the view most favorable to the prosecution are:
The union furnished Mr. Ellis with an automobile; he was authorized to use this vehicle for his personal and private business as well as for union business. Mr. Ellis' telephone tolls on union business were authorized also by the union; but, he was not authorized to charge tolls which related to his personal and private business to the union's telephones. Mr. Ellis was authorized (implicitly or expressly) also to use a credit-card to charge to the union's telephones long distance tolls on union business for calls which he made on telephones other than the union's telephones; he was not authorized by the union to authorize anyone else to charge telephone tolls to its telephones unless for the benefit of the union.
Mr. Ellis made personal long distance telephone calls at union expense to order veterinary supplies for his horses. He engaged on his private business 2 different persons to train and otherwise attend to his personal racehorses, including racing them in Louisiana and Florida. One of these trainers, Mr. John Thomas Hickman, used the automobile, assigned to Mr. Ellis' unrestricted use, to transport one of Mr. Ellis' racehorses. Mr. Ellis gave Mr. Hickman the number of the union's telephone credit-card and instructed him to utilize it as necessary in connection with that transportation. Mr. Hickman charged one such call on that card for such reason; however, thereafter, Mr. Hickman also charged his personal calls placed to his own relatives on that card.
The other trainer, Mr. George Akin, was also given such number by Mr. Ellis, to use in contacting by telephone unemployed members of the union, with whose whereabouts Mr. Akin was more familiar than Mr. Ellis, and conveying to them information relating to job-openings to be filled on the referral of the union. Mr. Akin went farther and allowed his nephew to charge on the card telephone tolls for calls he made from Louisiana and Florida to his girl-friend back in Tennessee. In an 11-month period, Mr. Akin was responsible in this manner for the charging of tolls to the union's telephones in the aggregate amount of some $1,000.
Mr. Ellis, as president of the union, was an essential signatory on annual reports of the union under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 401, et seq. His salary and other compensation from the union exceeded $10,000 annually. He was required to disclose, or cause the union to disclose, all material facts concerning his salary, allowances, and other direct and indirect disbursements to himself as such officer. 29 U.S.C. § 431(b)(3). In reports for the respective years, 1974-1976, inclusive, Mr. Ellis failed to disclose, or cause to be disclosed by the union, the compensation he received represented by the value of the aforementioned telephone calls. This misrepresentation or failure to disclose a material fact, knowing the representation to be false, was done knowingly by Mr. Ellis. See 29 U.S.C. § 439(b).
The immediately foregoing is believed to be a fair statement of the facts of this lawsuit as they relate to the final 4 counts of the indictment. From the foregoing (in its entirety), it will be seen readily that...
