United States v. Stubin, 19561.

• Decision Date: 15 July 1971
• Docket Number: No. 19561.,19561.
• Citation: 446 F.2d 457
• Parties: UNITED STATES of America v. John STUBIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

446 F.2d 457 (1971)

UNITED STATES of America v. John STUBIN, Appellant.

No. 19561.

United States Court of Appeals, Third Circuit.

Argued May 18, 1971.

Decided July 15, 1971.

B. Todd Maguire, Wilkes-Barre, Pa. (Arthur A. Maguire, Wilkes-Barre, Pa., on the brief), for appellant.

Laurence M. Kelly, Asst. U. S. Atty., Scranton, Pa. (S. John Cottone, U. S. Atty., Scranton, Pa., on the brief), for appellee.

Before SEITZ, VAN DUSEN and ADAMS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

During the years 1961 through 1964, John Stubin was Secretary-Treasurer of Local 158, International Hod Carriers, Building and Common Laborers' Union of North America. The Local represents laborers engaged in heavy construction such as the erection of pipelines and related projects. Pursuant to a contract between the Union and various employers, union dues and initiation fees were collected by the companies from their employees and delivered to the Union. Under the Union's constitution all such dues were to "be turned over to the Secretary-Treasurer, who shall give proper receipt therefor." Stubin was required by the Union constitution to keep proper records of the dues, to deposit the money in an account held in the name of the Union, and to arrange for periodic audits of the Union's records.

A grand jury convened in the Middle District of Pennsylvania indicted Stubin on twenty-four counts. The first nineteen counts charged him with having embezzled approximately $37,000 from the Union in violation of the Labor-Management Reporting and Disclosure Act of 1959. 29 U.S.C.A. § 501(c).¹ In addition, Stubin was charged in counts twenty through twenty-two with having made false statements, in violation of 29 U.S.C.A. § 439(b),² in a report signed by Stubin and filed with the Secretary of Labor. Count twenty-three charged that Stubin failed to maintain union records crediting the members with dues paid to the Union as required by 29 U. S.C.A. § 436.³ The last count, twenty-four, charged that Stubin failed to keep Union records and made false entries in records in violation of 29 U.S.C.A. § 439(c).⁴ After a jury trial, Stubin was convicted of the crimes in all twenty-four counts and was sentenced to a three-year term in prison.

The evidence adduced at trial demonstrated a pattern of criminal acts extending throughout the years 1962-64. Union dues collected by various employers working in Pennsylvania pursuant to a contract with Stubin's Local Union were mailed or delivered to Stubin's office. Some of the dues money was in the form of checks, but a substantial portion was in cash. Sarah Hoyer, an employee of the Union working in Stubin's office, testified that the established procedure during the relevant years was that dues payments received, including both cash and checks, were delivered to Stubin, and Stubin supervised the making of bank deposit slips and pertinent accounting entries in the Union's books. During 1962 entries in the Treasurer's Daybook were made solely by Stubin, and during 1963-1964, the entries were made by Stubin and Miss Hoyer. A substantial amount of money, approximately $37,000, was collected by the Union during the period covered by the indictment, but never deposited in the Union's bank account. The fact that such funds had been misappropriated was concealed by entering incorrect totals of receipts in the Union's records. Although Stubin was responsible for having periodic audits made of the Union's books, no audit was conducted, and consequently an early discovery of the fact that Union funds were missing was prevented.

Stubin assigns nine separate errors, contending that each is sufficient to require reversal. These allegations of errors may be divided into three categories — (1) the insufficiency of the evidence; (2) the improper division of the indictment into twenty-four separate counts; and (3) evidentiary and procedural errors at trial.

The principal argument made by Stubin, and the one we consider has the greatest force, is that the trial court erred in refusing to grant Stubin's motion for a judgment of acquittal. In this regard, we are mindful that in reviewing the evidence we must draw in favor of the Government all the inferences reasonably consistent with the evidence. Noto v. United States, 367 U.S. 290, 296-297, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961); United States v. Grasso, 437 F.2d 317, 320 (3rd Cir. 1970); United States v. Schwartz, 390 F.2d 1, 2 (3rd Cir. 1968).

Although Stubin did not refer in his argument to United States v. Lynch, 366 F.2d 829 (3rd Cir. 1966), we think that decision deserves comment because in it this Circuit had occasion to consider the adequacy of proof supporting a conviction of embezzlement of Union funds in violation of 29 U.S.C.A. § 501(c), a charge indentical to the one made against Stubin. Judge Ganey, writing for a unanimous panel, found the proof presented to the jury to have been inadequate to support the jury's ultimate verdict. The evidence demonstrated that Lynch had collected cash from a prospective union applicant as an initiation fee and for dues paid in advance. After receiving the money, it was Lynch's responsibility as a union business agent to give it to one Callahan, the Secretary-Treasurer, who in turn had the duty to take the money to the Union's office where the Union maintained its records. However, no entries representing the initiation fee nor the advance dues were recorded in the appropriate Union records. The Court, therefore, concluded that since the Government failed to introduce any evidence from which the jury might have concluded that Lynch had not transferred the money to Callahan, Callahan rather than Lynch might have been responsible for the failure to record receipt of the money in the Union's books. Furthermore, the Government in Lynch failed to prove that the money in question had not been deposited in the Union's bank account. Thus, in Lynch, the evidence revealed only a "possibility" that the defendant had kept the money for himself, and the Court found that the evidence was likewise consistent with the "possibilities" that Callahan might have embezzled the money, or that the money had been deposited in the Union's bank account, but through carelessness no record was made of this transaction.

Comparison between the present case and Lynch demonstrates that the evidence against Stubin was far greater than that against Lynch. Here, the Government introduced evidence capable of supporting the inference that Stubin had willfully converted the Union's money to his own use. Through an exhaustive audit of the Union's records, the Government demonstrated that a certain amount of money, representing initiation fees and dues, was received by Stubin's office, that a substantially lesser amount was eventually deposited in the Union's bank account, that the Union's records were falsified to hide the discrepancies between receipts and deposits, that Stubin as Secretary-Treasurer of the Union was responsible for supervising records and deposits, and finally that such records were in fact made under his direction, often by himself as evidenced by handwriting analysis. Clearly, the evidence is substantially stronger than the evidence in Lynch.

The question, however, remains whether the evidence here is sufficient. There can be no doubt, as asserted by Stubin, that he was convicted on evidence predominantly circumstantial. Circumstantial evidence, however, may support a jury's finding of guilt. See e. g., United States v. Powell, 413 F.2d 1037 (4th Cir. 1969); Taylor v. United States, 320 F.2d 843 (9th Cir. 1963); Compare United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

The facts of the present case are far closer to Doyle v. United States, 318 F. 2d 419 (8th Cir. 1963) than they are to Lynch. In Doyle the evidence, all circumstantial, demonstrated that the defendant was primarily responsible for keeping records of dues received from union members and depositing such money in the bank. And just as Stubin's co-workers occasionally performed record-keeping activities, in Doyle entries were made in the Union's books by clerical workers under Doyle's direction. The facts underlying the Doyle decision are closely analogous to those presented here. As stated in Doyle:

"No one saw the appellant take any part of the missing funds and she denies having done so. It was, nevertheless, for the jurors, as the finders of the facts, to weigh the evidence pro and con, to draw inferences reasonably supported by the evidence and in the end to say whether the government had established Mrs. Doyle\'s guilt beyond a reasonable doubt." 318 F.2d at 424.

Stubin argues further, in support of his contention that the evidence is insufficient, that the record is devoid of evidence from which the jury could reasonably find that Local 158 is a "labor organization," as defined in the Act. Section 402(i) of the Act provides:

"Labor organization `means a labor organization engaged in an industry affecting commerce * * *\'"

Moreover, 29 U.S.C.A. § 402(j) provides that:

"A labor organization shall be deemed to be engaged in an industry affecting commerce if it — * * *

(2) Although not certified as a representative of employees under the provisions of the National Labor Relations Act, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce * * *."

And § 402(c) defines "industry affecting commerce" as "* * * any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce * * *."

In Lawson v. United States, 300 F.2d 252 (10th Cir. 1962), the Tenth Circuit decided where the record revealed that union members had engaged in construction necessitating the use of mechanical equipment, a federal court had...