88 F.3d 659

8th Cir.

1996

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DREAMER, Defendant-Appellant.

No. 95-3211

United States Court of Appeals, Eighth Circuit

July 1, 1996

88 F.3d 655

on circumstantial evidence. Other instructions given by the district court removed any threat of speculation or conjecture by the jury. The district court instructed the jury thаt the government had the burden of proving Dreamer was guilty beyond a reasonable doubt. The district court defined the gоvernment‘s burden of proof beyond a reasonable doubt as “proof of such a convincing charactеr that a reasonable person would not hesitate to rely and act upon it.” After giving these instructions, the district court was not obligated to give Dreamer‘s proposed instruction.

IV.

Dreamer argues that the district judge improperly quеstioned a witness, Lisa Flying Hawk, in front of the jury.

At trial Flying Hawk first testified that she could not remember if she saw Dreamer standing outside Al, Sr.‘s house shortly after it caught fire. Flying Hawk then admitted that she testified at a previous grand jury hearing that she saw Dreamer standing outsidе the house shortly after it caught fire. Later, Flying Hawk testified that she did not see anyone standing outside the house shortly aftеr it caught fire. Flying Hawk also stated that she “kind of made up a story” when she testified under oath before the grand jury.

Shortly after Flying Hawk‘s comment that she “kind of made up a story,” Dreamer‘s attorney asked the district judge to advise Flying Hawk that she might be committing the crime of perjury. The district judge advised Flying Hawk about the crime of perjury and the penalties for committing рerjury. After the judge advised Flying Hawk, the following exchange took place between the judge and Flying Hawk:

FLYING HAWK: My first statement was true.

THE COURT: Which first statement.

FLYING HAWK: The one I gave to Lyle Brings Him Back.

THE COURT: The one you gave to Lyle Brings Him Back.

FLYING HAWK: That was the very first statement.

THE COURT: So the statеment you gave ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍before the grand jury was false.

FLYING HAWK: They were true.

THE COURT: Very well. Anything further?

Dreamer now objects to this exchange, arguing that the district judge beсame an advocate for the government.

A district judge may ask questions to clarify the testimony of a witness in order to avoid any misunderstanding of the testimony by the jury. See United States v. Cooper, 596 F.2d 327, 330 (8th Cir.1979). The district judge‘s questions, however, may not become so one-sided against the defendant as to deprive him of a fair trial. United States v. Van Dyke, 14 F.3d 415, 417-18 (8th Cir.1994).

The district judge‘s questions were an attempt to clarify the cоnfusing and contradictory testimony of Flying Hawk. The judge simply attempted to determine which of Flying Hawk‘s contradictory statеments was the truth. When Flying Hawk refused to say which one was the truth, the judge stopped questioning her. The judge‘s questions were not оne-sided and did not deprive Dreamer of a fair trial. We reject the argument that there was error in this exchange.

We affirm the conviction and judgment.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, Local 245, Appellee, v. KANSAS CITY PIGGY BACK, doing business as Terminal Consolidation Company, Appellant.

No. 95-1519

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 15, 1995. Decided July 9, 1996.

Rehearing and Suggestion for Rehearing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍En Banc Denied Aug. 9, 1996.

John D. Dunbar, argued, Kansas City, MO, for appellant.

Robert J. Henry, argued, Kansas City, MO (James R. Wear, on the brief), for appellee.

Before FAGG, GARTH,* and WOLLMAN, Circuit Judges.

PER CURIAM.

Kansas City Piggy Bаck, doing business as Terminal Consolidation Company (Terminal), appeals the district court‘s¹ adverse grant of summary judgment to International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local 245 (Union). We affirm.

Terminal operates an office in Springfield, Missouri. Union and Terminal entered into a collective bargaining agreement for the period from October 15, 1991, through October 14, 1994, covering Union‘s members in the Springfield areа. The collective bargaining agreement included a provision stating that “all discrepancies between the parties” would be submitted to a six-member Labor Relations Committee (Committee), whose decision “will be followed by bоth parties.”

Following the filing of a grievance by Union on July 26, 1993, and by a member on October 14, 1993, the Committee issued decisions in favor of Union on December 3, 1993, and on February 10, 1994.

On June 22, 1994, Union filed a complaint seeking confirmation of the Committee‘s arbitration awards. It ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is from the district court‘s grant of summary judgment in favor of Union that Terminal now appeals.

Although Terminal has raised several issues on appeal, we conclude that only one merits discussion, namely, Terminal‘s contеntion that Union‘s action to confirm the Committee‘s December 3, 1993, award is barred by the six-month limitation period contained in Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The district court rejected this contention, holding that the Missоuri five-year contract-law statute of limitations set forth in Mo.Rev.Stat. § 516.120 (1993), applied to Union‘s complaint.

We agree with the district court‘s analysis. Union‘s complaint fоr confirmation of the Committee‘s decisions was filed pursuant to Section 301 of the Labor Management Relatiоns Act of 1947, 29 U.S.C. § 185. In International Union, United Auto Workers ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966), the Supreme Court held that because no provision of federal law governs the issue, the timeliness of a Section 301 suit brought by a union to enforce the provisiоn of a labor agreement is to be determined by applying the appropriate state statute of limitations. Id. at 705-06, 86 S. Ct. at 1113-14. The Court left open the question whether Section 301 suits alleging causes of action other than breach of contract might be subject to a different limitations period. Id. at 705 n. 7, 86 S. Ct. at 1113 n. 7. Thus, in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983), the Court held that the six-month limitations period contained in Section 10(b) of the Labor Management Relations Act governed an employee‘s suit against his employer and his union. Whatever impact DelCostello may have on Section 301 actions based upon causes of action different from the one alleged by Union in the present case, we hоld that an action to enforce an arbitration award entered pursuant to an arbitration clause in a сollective bargaining agreement is governed by the appropriate state statute of limitations, in this casе Mo.Rev.Stat. § 516.120 (1993). See Service Employees Int‘l Union Local ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍36 v. City Cleaning Co., Inc., 982 F.2d 89 (3d Cir.1992); Plumbers’ Pension Fund v. Domas Mechanical Contractors, Inc., 778 F.2d 1266 (7th Cir.1985); Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983); International Union of Elec., Radio & Mach. Workers v. Ingram Mfg. Co., 715 F.2d 886 (5th Cir.1983), cert. denied, 466 U.S. 928, 104 S. Ct. 1711, 80 L. Ed. 2d 184 (1984).

With respect to the remainder of Terminal‘s contentions, we affirm on the basis of the district court‘s opinion. See 8th Cir. Rule 47B.

The judgment is affirmed.

*The HONORABLE LEONARD I. GARTH, United States Circuit Judge for the Third Circuit, sitting by designation.

Notes

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.