United States v. Franco, 19723.
| Decision Date | 30 November 1970 |
| Docket Number | No. 19723.,19723. |
| Citation | 434 F.2d 956 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. FRANCO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COPYRIGHT MATERIAL OMITTED
Moses Krislov, Cleveland, Ohio, for defendant-appellant; P. D. Maktos, Washington, D. C., on brief.
Michael B. Pollack, Special Atty., Dept. of Justice, Detroit, Mich., for plaintiff-appellee; Robert J. Grace, U. S. Atty., Detroit, Mich., on brief; Jeremy G. Zimmerman, Atty., Dept. of Justice, Detroit, Mich., of counsel.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.
O'SULLIVAN, Senior Circuit Judge.
Appellant, Joseph V. Franco, appeals from judgment entered upon a jury verdict finding him guilty of violating Section 209(b) and (d) of the Labor Management Reporting and Disclosure Act (Landrum-Griffin), 29 U.S.C. § 439(b) and (d), by filing a false financial report of the 1959 affairs of Local 42 of the General Industrial Employees Union. In 1959, appellant was the Secretary-Treasurer of Local 42 and signed and caused to be filed with the Secretary of Labor of the United States the report identified as Form LM-2. The falsity charged was the alleged failure of Franco to set out in such report an accurate statement of loans that had been made to him during the year covered by the report, as required by Section 202(b) (4) of the Act, 29 U.S.C. § 431(b) (4).
The relevant statutes read as follows:
Schedule H of Form LM-2 — under Loans Made by Organization — set out that during the relevant year, 1959, one loan out of union funds had been made to Franco in the amount of $300, for which Franco had given his sixty day note. Upon demand for a Bill of Particulars, the government advised that the unreported loans made to Franco were:
March 23, 1959 $130.50
August 31, 1959 73.79
September 22, 1959 500.00
September 29, 1959 52.32
October 5, 1959 250.00
October 5, 1959 500.00
October 23, 1959 500.00
November 18, 1959 314.31
Evidence showed that on the foregoing dates and in the specified amounts, checks were drawn on the Local's bank account, all signed by Franco and countersigned by Eugene Bashor, then president of the Local. Bashor testified that he was in the habit of countersigning the Local's checks in blank to avoid the necessity of being contacted each time a check was needed. On the stub of each of the checks here involved was a notation which, in substance, said, "to be refunded by J.F." On one of the stubs there was a notation that the amount thereof — $300.00 — was repaid on July 1, 1959. The stubs of all of the other checks contained the notation "refunded by J.F. on 12/14/59." The evidence showed that three of these checks, each in the amount of $500, and one in the amount of $314.31, were issued to pay accounts charged on Franco's personal American Express Company credit card, for items not properly chargeable to Local 42. The other checks listed in the bill of particulars were also used to pay accounts not properly chargeable to the Local. The relevant statute did not limit information to loans unpaid at the end of the reporting period. So if the various withdrawals by Franco, totalling upwards of $2,300, were in fact direct, or indirect, loans to him, the report was false even if Franco had repaid the money before the end of the covered year.
In his address to us, Franco argues that the evidence was insufficient to permit submission of the issue of his guilt to the jury; he also charges the presence of other reversible errors.
We affirm.
We discuss appellant's claims as follows:
1. Sufficiency of the evidence.
It is our view that the monies taken out of the Local's bank account by Franco, especially the $1,814.31 used to pay what he owed on his American Express credit card, had to be either borrowings by him or embezzlement. It is not claimed that they were embezzlements. At the time of the withdrawals, Franco directed his secretary, who was also the Local's bookkeeper, to note on each check stub that the amount taken was to be refunded. Franco's way of attempting to avoid the government's claim that the withdrawals were loans was to say that as the only full time employee of the union, it was permissible for him to use the union's funds for what he considered appropriate uses, and that later if such disbursements were disapproved upon review by the Executive Committee, he would be required to refund the involved amounts. But the record contains nothing which would forbid a jury's conclusion that neither Franco nor the Local's Executive Committee could have looked upon the payment of Franco's personal bills as legitimate expenses of the Local. Also, the Minutes of the Executive Board Meetings contain nothing to indicate that the Board had ever given consideration to any of the items set out in the government's bill of particulars. It was Franco's contention, supported by two former officers of the Local, that the union did not look upon his withdrawals as loans. These witnesses did not, however, provide a substitute definition and their conclusional observation did not foreclose a contrary conclusion by the jury.
Familiar law teaches that in testing the sufficiency of the government's evidence to withstand a motion for directed acquittal, "the trial court, as well as the appellate tribunal, must view the evidence and the inferences that may justifiably be drawn therefrom, in the light most favorable to the government." United States v. Decker, 304 F.2d 702, 705 (6th Cir. 1962). See also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704 (1942); United States v. Day, 394 F.2d 335 (6th Cir. 1968); United States v. Compton, 355 F.2d 872 (6th Cir. 1966), cert. denied, 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed.2d 548 (1966); United States v. Carter, 311 F.2d 934 (6th Cir.), cert. denied, 373 U.S. 915, 83 S.Ct. 1301, 10 L.Ed.2d 415 (1963). We obey such rule in our decision to affirm.
2. Evidentiary rulings.
Local 42 employed the firm of Aronoff and Grossberg, certified Public Accountants, to review and audit the Local's books and assist in preparation of needed reports. Among records produced by the union, was a Financial Report of Local 42 for the year ending December 31, 1959, prepared by the above accounting firm. It was marked as Government Exhibit 13. Upon cross-examination by the government, a former recording secretary of the union identified the report as "a statement of assets and liabilities of the local union." This report was part of the Local's books and records. Under the caption "Loans Receivable — December 31, 1959" was an item — "Joseph Franco $1,000." Defendant's initial objection to this exhibit was that the witness who had identified it had not prepared it, and that it could only be identified by the individual who had prepared it, who "can vouch for the accuracy of the figures." No objection was made to its relevancy and materiality. Defense counsel asked the witness whether there was anything on the report which would indicate that the $1,000 loan to Franco "was actually incurred in the fiscal year this report refers to." The witness said no. Franco made no explanation of the item. Neither did the defense call any representative of the accounting firm to testify. No objection was made to testimony that the exhibit was part of the record of the Local and had been prepared by its auditors. It was properly admitted into evidence. Irrespective of its authenticity as to amount, the report was relevant to show that the union did make what it considered a loan to Franco, whether in 1959 or otherwise. If, in fact, the $1,000 loan had been made during a period not covered by the LM-2 report, as defense counsel attempted to establish, no prejudice was visited upon defendant by its admission. What was done was a proper exercise of the trial judge's discretion. A $1,000 loan was not listed in the bill of particulars and the District Judge carefully instructed the jury that they were to consider only the loans so listed. If any rule of evidence was offended by the introduction of this exhibit, no substantial rights of defendant were affected.
Other evidentiary rulings of the District Judge are claimed to have been erroneous. Objections that would save such rulings as questions for review were not made in the trial court. We find no fault in the District Judge's accused rulings and in all events, we will not notice them as plain error, Fed.R.Crim.P. 52.
3. The Court's instructions.
At the beginning of his charge, and after reading the information which contained the charge against appellant, the District Judge said:
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