United States v. Harry Seidman

bills, ing administering the Union’s the Union MICHAEL, Before WILLIAMS and basis, day-to-day office on a obtaining and KISER, Judges, Circuit and Senior United annual financial per- audits. Seidman was Judge States District for the Western sonally sign authorized to checks on the Un- Virginia, District of sitting designation. ion’s Although Secretary/Trea- behalf. surer, Jr., Hopkins, James T. was the chief by published opinion. Judge Affirmed Union, major financial portion officer of the a opinion. Judge WILLIAMS wrote the Secretary/Treasurer’s of the time was devot- separate opinion MICHAEL a wrote handling grievances ed to contract for Union I, concurring parts in II and IV and the Secretary/Treasurer members. The did not judgment. Judge Senior KISER wrote a review invoices submitted to the Union or separate opinion concurring part in and signed by checks on Seidman behalf of the dissenting part. Union. Timothy When Brown became President of OPINION April the Union in of the Union inwas WILLIAMS, Judge: Circuit poor financial condition. In Seidman Harry Septem- Seidman was convicted on informed Brown that Seidman had cashed ber conspiracy on one count of the last of the Union’s cash reserves which union, embezzle funds from a labor see 18 had been held in million dollar certificates of (West Supp.1998) U.S.C.A. and 29 deposit. Approximately percent five to six (West 1985), U.S.C.A. and on twelve $30,000 expenditures, the Union’s total union, counts of embezzlement from a labor month, were Union-published incurred 501(c) (West 1985), see 29 U.S.C.A. or aid- monthly newspaper. In the fall of same, ing see 18 U.S.C.A. print Brown decided newspaper on a (West 1969). § 2 The district court sen- bimonthly basis to reduce costs. thirty-nine impris- tenced Seidman to months independent Ronald was an con- count, onment on each the sentences to run provided printing tractor who services to the concurrently, imposed $30,000. a fine of through corporate entity Union “Mercury appeals Seidman his convictions on two Graphics” approximately 1978 to Octo- (1) grounds: that the district court erred in Initially, Schoop provided ber 1993. general denying his suppress tape-re- motion to services, printing cards, including business conversation; corded that the district envelopes, During and wall calendars. court’s instructions on 18 U.S.C.A. 2 were Schoop began printing the newspaper. Union improper. Because we conclude that the dis- In Schoop briefly October of became an trict properly suppression denied the employee of the resignation Union until his correctly motion and instructed the in December of 1993 when a scheme of em- abetting, we affirm Seidman’s bezzlement between Seidman and convictions. was discovered.2 had an office locat- headquarters, print- ed the Union but no

I. ing actually performed services were at the employed by Seidman the Internation- payment Union office. To obtain for his Masters, Organization Mates, al services, printing and Pilots Schoop submitted bills to (the Union), a headquartered labor union paid by the Union which were Seidman. Linthicum, Maryland,1 May Gutmann, from the 1950s until Beverly late the Un- During underlying some placed relevant events payroll on the Union action, newspaper reduce this the cost of the Union the Union office was and to located in New bring regarding compliance guidelines the Union into with City. Mary- York The Union office was moved to employees indepen- the status of land sometime in 1984 or 1985. dent contractors. there had Brown ris also confirmed been Comptroller, informed ion’s Assistant billings for the news- billing least two double Union potential double been a that there had paper. questioned newspaper. Brown for the Union billing, possible double about Seidman 28, 1993, Borris submitted On December that the additional responded and Seidman report meeting Inter- his financial at a changes that were for editorial charges Subcommittee, group of five indi- national in a issue of the had made recent Brown charged managing the affairs viduals question

paper. Brown did peri during the Union time ods between substantially rewrit- he had answer because Executive meetings of the General Board. pa- large sections of edition ten During meeting, per. questioned allegations about the of dou- were billings. of Borris’ audit and inquired the ex- ble As a result Brown later about When meeting, producing news- the December Subcommittee penses associated with resignation. for his Seidman during summer of Seidman asked Seidman paper newspaper resignation letter on December signed responded that the cost of Schoop, that time paper 1993. Ronald who was at though even had not decreased Union, employee resigned of the bimonthly instead of a salaried being published day one later. monthly. was not satisfied with Seid- Brown expenses associated explanation of the man’s 1995, Schoop to In March of confessed newspaper. He became publishing with Department of the of Labor’s Office agents suspicious November of even more Racketeering conspiring with of Labor to again approached him about when Gutmann funds from the Union Seidman to embezzle Schoop’s printing services charges for double participate government as a agreed and to. 1992/January Febru- the December for capacity, Schoop In that made informant. 1993, May/June 1993 editions ary/March Seidman, on telephone calls to two recorded newspaper. told of the Union Gutmann Schoop and March 1995. March Schoop Seidman and Brown that she believed wearing agreed go to to Seidman’s residence -embezzling from the funds Union. were recording record a an electronic device and May Seidman on mounting suspicions of conversation with of these Because residence, Upon arriving at Seidman’s Brown an outside impropriety, financial hired approxi- auditor, Borris, Schoop knocked on door perform to Gunther forensic no 24,1993, mately ninety When he received met times. December Borris an audit. On answer, Schoop opened the unlocked door Secretary/Treasur- Hopkins, the Brown and hallway near the in the er, spent the and saw Seidman office. Borris at the Union what he Schoop asked Seidman financial door. When day reviewing the Union’s entire responded he had doing, records, Seidman particularly potential double bill- bicycle in the base- riding his exercise newspaper. As a result of been ings for the Union basement, as to and closed the door for the ment investigation, Brown learned Borris’ led just upstairs. Seidman to if he had come had been issued first time that checks pro- the two Schoop to the kitchen where sub- Schoop personally for invoices Ronald next for the to have a conversation Mercury Graphics that 1099 ceeded mitted Schoop.3 forty-five Bor- minutes.4 to forms had not been issued Gutmann of 1099 forms. ees the issuance engaged a trade or business who 3. Persons Gut- annually Seidman instructed payments $600 further testified that of more than make "rent, salaries, Schoop wages, premi- form for for not to issue a 1099 an individual of mann money paid remunerations, Gorman, ums, annuities, compensations, personally. him John emoluments, Comptroller determinable other fixed or for the or who succeeded Seidman required Union, profits, to make gains, upon learning and income” are that no 1099 testified that returns, commonly referred to as Schoop, they informational then were had been issued to forms Secretary the Internal “1099 forms” and filed with the IRS. issued setting forth the amount Revenue Service Seid- tape-recorded between conversation 6041(a) (West 4. The Supp. See 26 U.S.C.A. income. Schoop's tax dilem- related to 1998). man and Beverly trial that Gutmann testified at business, ma, Schoop's Seid- Union payments typically for accounted the Union Although did not personal Seidman employ- man's lives. other than salaried made to individuals September II. A two-week trial was held in testified that he and Seidman May charged in On Seidman was participated in a kickback scheme.5 a thirteen with one count of count indictment testified that he submitted fraudulent in- conspiracy to embezzle funds from a labor corporation, voices to the Union from his union and twelve counts of embezzlement Mercury Graphics, and that Seidman issued from a labor union or checking cheeks on the Union’s account alleged same. The indictment that Seidman Schoop personally.6 Schoop explained that conspired approximately from gave approximately he cashed the cheeks and July approximately 1987 to 1993 to embezzle eighty percent proceeds to Seidman. $800,000 complicated in a kickback scheme gave also testified that he Seidman by “directing” “causing” Schoop to submit family gifts payments and his and made fraudulent invoices for services from Mercu- ry Graphics corporate expenses and other entities. incurred fami- and his explicitly participation my plans confess to in a scheme to Seidman: I don't —I’m not sure what Union, responses embezzle funds are in the future. (J.A. 105.) Schoop’s questions, respond and his failure to know, instances, Schoop: you supported You tell me to some tell corroborated them, truth. I tell the truth to testimony government’s both of us are witnesses and the you in trouble. Is that what want me to government’s documentary evidence. con- do? taped pertinent part

tents conversation in Seidman: Tell the truth. follow: (J.A. 110.) at Well, Schoop: your problem Are this too. Yeah, him, Schoop: send it to but there's no you going help to me? that, ah, you record know—how in the hell Seidman: I wish—I don’t know. All I can tell prove gave you money? can I that I I fact, you [referring Schoop’s is in tell Jeff to can’t do it. accountant]. Schoop: everything, If I told Jeff any liability may then it would high Seidman: But not be as you you My guess you’re incriminate and me. as think it is.... him, going give to work Seidman: I would them this and tell it out with the IRS. Schoop: money, Harry. you It’s a lot of “Do what have That to."— thing you gave sick, bullshit me with the two- Schoop: Harry. I don’t know.—I’m sixty-five me, doesn’t even come nowhere near it. Seidman: I understand that. —Believe I (J.A. 116-17.) at understand that. Schoop pleaded guilty conspiracy to to embez- Schoop: you What do want me to tell them? zle funds from the Union. received [referring Seidman: I received these ten to [..] departure two-level downward under the U.S. forms], "Here’s a letter’.'— Sentencing willing- Guidelines as a result of his No, no, no, Schoop: talking I’m about when testify ness to at Seidman's trial. they the Feds back come 'cause I'm sure will. printing "broke down” his bills for into Seidman: Tell them the truth.— legitimate invoices for the cost of the mean, actual Schoop: Tell them the truth? I both of printing provided by corporation, services us ... are in trouble Mercury Graphics, and fraudulent invoices for (J.A. 97.) "typesetting” performed. services that he never Well, Schoop: thing whatever it is on this invoices, In accordance checks for the here, expect you pay I to for it 'cause I ain’t legitimate payable services were made to Mercu- gonna pay begin to for it. I don’t have it to ry Graphics, typesetting while the checks for it, bub, pay with. If I had I’d do it. I’d it. payable were personally. made to putting But I don’t have it. I’ve been this off payable cashed the checks made to him it, putting Every day it off. I look at personally typesetting provided for services and get I sick. most of the cash to Seidman. Schoop: up. you gave I counted it almost a duplicative also submitted invoices for you million dollars. Do know that? And printing newspaper services for and other you’re living (Laughing.) items, over here. such as the Union constitution. For ex- ample, Schoop submitted two invoices in Febru- Schoop: you going you (one What are to do? Are ary printing types- of 1993 for and one for going stay to here? etting) February/March for the issue of the Schoop: newspaper. Schoop You don’t know? duplicate then submitted Schoop: Huh? invoices in March of 1993 for the same issue. gifts legal contended that the We review conclusions made ly. The Government part of the kickback payments pursuant suppression were to a district court’s de novo, scheme. underly termination de but review the ing findings factual for clear error. that he version of events was Seidman’s McDonald, States v. F.3d payments Sehoop gifts and from' received (4th Cir.1995). construe We the evidence Sehoop he were close friends for because light Government, most favorable to the many years. also claimed that Seidman party prevailing below. See United Sehoop gave him cash to be held in trust for (4th Elie, States v. F.3d Schoop’s Sehoop was addicted to Cir. son because 1997) Han, Sehoop (citing In a to gambling and alcohol. letter United States v. Cir.), denied, stated that dated March Seidman cert. returning money Sehoop be- he was 1239, 116 1890, 135 (1996)). L.Ed.2d 184 from the Union: cause Seidman had retired protects The Fourth Amendment returning you you “I all assets am “right people to be secure in their me, including all interest entrusted to earned houses, effects, persons, papers, against (J.A. 1046.) conjunction thereon.” searches unreasonable and seizures” letter, gave Sehoop a check with the Seidman Const, government agents. its $265,000.00. request, At Seidman’s IV; amend. see also United States v. Jacob Sehoop signed Sehoop March 21 letter. sen, 109, 113, $265,- accepted cashed the cheek for also trial, however, During suppression L.Ed.2d 85 Sehoop testified at 000.00. hearing gave August him the Government that he shocked when Seidman money Sehoop acting gov and that he had never asked conceded any money in trust for him. agent hold when ernment he went Thus, Schoop’s home.7 conduct violated the jury all guilty The found Seidman thir- if it Fourth Amendment constituted un ap- teen counts of the indictment. Seidman Jacobsen, reasonable search or seizure. See conviction, peals arguing that the district 113, 1652; 466 at 104 U.S. S.Ct. United denying suppress court erred in his motion to (4th 903, Taylor, v. 90 States F.3d 908 Cir. tape-recorded conversation and that a 1996). expecta “A ‘search’ occurs when an portion of the district court’s instruc- privacy society prepared tion of that is tions constituted reversible error. We ad- Jacobsen, infringed.” consider reasonable is each in turn. argument dress 113, 466 U.S. 104 S.Ct. 1652. It is well established that a search conducted without III. “per warrant se unreasonable under appeal, that On Seidman first claims subject only Fourth to a few Amendment — Sehoop, acting government agent, aas en- specifically established and well-delineated result, illegally. tered his home As a Seid- exceptions.” Katz v. that man contends the recorded conversation 507, 347, 357, (1967); 88 S.Ct. 19 L.Ed.2d 576 by Sehoop obtained was the tainted fruit of 111, Layne, 141 see also v. F.3d Wilson illegal entry sup- and should have been 1998) (en banc) (4th 8, April WL 159673 Cir. pressed. assuming, deciding, Even without' (noting entry that into a home without a illegal entry, that there was an we conclude per warrant se unreasonable unless an ensuing that the conversation between Seid- exists). exception requirement to the warrant sufficiently independent Sehoop man and was Schoop’s that The district court concluded purge any taint unlawful invasion opening action of Seidman’s unlocked door Therefore, arising entry. from the initial we inside, warrant, stepping without a was not err in hold that district did denying suppress. infringement motion to an unreasonable on Seidman’s Seidman’s Although agree we are not we that the evidence demonstrated that bound Govern concession, Stanfield, ment’s see United States Sehoop acting government as a informant denied, (4th Cir.), 109 F.3d 984 n. 5 cert. when he went to home. Seidman’s U.S.-, (1997), 139 L.Ed.2d 101 concluding subsequent con- a search vio- Seidman’s thus constituted

privacy and Amendment. tape-recorded of the Fourth conversation lation sent rendered Rather, the court should admissible. district nevertheless, court, denied The district arising taint have determined whether the suppress the recorded motion to Seidman’s entry sufficiently at- from the unlawful court concluded The district conversation. by the consent.9 Schoop tenuated irrelevant whether it was without ex- stepped inside house Seidman’s voluntarily press invitation because Seidman rule, general As a evidence obtained ensuing conversation. consented to Amendment violation as a result of a Fourth con- court determined Seidman’s district 484-85, is inadmissible. See id. at was manifested to the conversation sent exclusionary prohibition ex 407. This broad appearance attempt to create the physical tends to verbal evidence as well that, Schoop, he had not politeness out of Sun, however, Wong evidence. See id. According Schoop’s knocks.8 to the heard Supreme intervening that an Court noted court, also manifested his district [may] purge primary “act of free will asking to the conversation never consent invasion.” Id. at taint the unlawful by speaking Schoop to leave and inquiry 407. Factors relevant to the S.Ct. family topics including length about various (1) of time include: the amount between Moreover, personal lives. relations and their acquisition of illegal action and the the evi court noted that never the district (2) dence; presence intervening cir manner threatening in a or hostile acted cumstances; purpose flagran Seidman, so Seidman was not coerced toward cy of the official misconduct. See Brown v. into the conversation. Illinois, 590, 603-04, U.S. S.Ct. specifically estab “[0]ne (1975). Nevertheless, “a 45 L.Ed.2d 416 exceptions requirements of both lished respect ... finding with to attenuation can probable a warrant and cause is search only be made after consideration of all the pursuant to consent.” is conducted Schneck circumstances of the ease.” United States Bustamonte, loth v. Cir.1981) Wellins, If the S.Ct. Bustamonte, 412 (citing Schneckloth v. has a constitutional Government committed 218, 248-49, 36 L.Ed.2d

violation, however, evidence obtained as a (1973)). sifting requires This a “careful result of the violation cannot be used unless unique facts circumstances of the each the connection between the unlawful conduct 233, 412 case.” Schneckloth U.S. at 93 S.Ct. acquisition and the the evidence has “be Finally, showing 2041. ad “[t]he burden dissipate taint.” come so attenuated as to the missibility prosecution.” ... on the Id. rests States, 338, 341, Nardone v. United 308 U.S. 604, Although at 95 the district S.Ct. (1939). 266, 60 S.Ct. 84 L.Ed. 307 Because engage inquiry in an as to did not Schoop the court concluded that en district entry illegal whether the had taint in the tered Seidman’s residence violation of purged, court’s factual been the district find Amendment, required apply Fourth was suppression hearing ings at the transcribed analysis a “tainted fruit” to determine wheth May tape recording and the 23 are sufficient illegal entry purged. er the taint determination, make so that us to such States, Wong v. United 371 U.S. See Sun 604, necessary. 471, 486-88, 407, remand is not See id. at 95 441 83 S.Ct. 9 L.Ed.2d (1963). simply district court erred in S.Ct. 2254. Schoop tape-recorded

8. Seidman told that he had not heard and that conversation was finding Schoop knocking because he was in the base- therefore admissible was tantamount to riding sugges- illegal entry purged. ment his exercise bike. The clear that taint of court, however, knocking, explicitly tion is that had Seidman heard the he The district did not Schoop apply analysis Wong would have let in. set forth in Sun v. United 471, 407, 371 U.S. 83 S.Ct. 9 L.Ed.2d 441 Illinois, 590, (1963), finding and Brown v. 422 U.S. 95 The district court's that Seidman con- 2254, (1975). ensuing S.Ct. 45 L.Ed.2d 416 sented to the conversation with

549 very purposes appeal, elapsed of this we will little time For between assume, Schoop’s deciding, Schoop’s entry without en regard- and the conversation try into home was violative of the ing Schoop’s Seidman’s Approximately tax dilemma. having With that been entered, Fourth Amendment. stated, one minute after he said, we note that the brief intrusion into this, going “What are we do about bub?” home was at worst a minor and Seidman’s (J.A. 83) unpaid referring to his taxes. rights. In invasion of Seidman’s technical Despite the concurrence’s contentions to the deed, by the cases cited the concur unlike contrary, significant intervening the lack of a rence, was neither arrested without Seidman period require tape of time does causé, involuntarily transported probable nor recording suppressed in question be for want in police interrogated station and of sufficient attenuation. See United States up. hope something would turn See (5th Rodriguez, v. 585 1242 F.2d Alabama, 687, Taylor v. 102 S.Ct. Cir.1978). Indeed, “the Brown test does not 2664, (1982); Dunaway 73 L.Ed.2d 314 v. require that each of the factors set forth be York, 200, 2248, 442 60 New U.S. resolved in favor Government.” Unit- Illinois, (1979); L.Ed.2d 824 Brown v. Wellins, 550, ed v. States U.S. 45 L.Ed.2d 416 Cir.1981). Here, the second and fac- third (1975); Gonzalez, Cal.App.4th People v. weigh strongly admissibility. tors in favor of Nor, Cal.Rptr.2d for that matter, present was Seidman when incrimi factor, As to the we second conclude that illegal in nating evidence was found Seidman’s actions toward after of his home or search confronted Schoop’s entry intervening constitute circum- they police incriminating evidence that immediately stances. Almost after fact, illegally had seized. this case lacks home, any taint arising entered police the element of overt coercion that Schoop’s entry was attenuated Seidman’s every cited exists case the concurrence. Shortly consent to the conversation.10 after Kentucky, Rawlings v. house, Schoop opened the door Seidman’s (1980); S.Ct. Johnson Schoop, Seidman shut the front door behind Louisiana, and Seidman him motioned into the kitchen. (1972); L.Ed.2d 152 United States Good intervening These acts indicated Seidman’s (4th Cir.1982); ing, 695 F.2d 78 United willingness engage in a conversation with (9th Cir.1981). Wellins, States v. 654 F.2d 550 Schoop. importantly, shutting More result, purged taint that As a must be motioning door behind him into is, best, slight. here independent the kitchen were acts of free following forty-five will Seidman. For the

Applying analysis developed Wong minutes, Schoop engaged in a progeny, and its we determine that the Sun kitchen, regarding conversation illegal entry purged, taint had been lives, families, business, and, therefore, personal their Union tape-recorded conversa- 23, 1995, Schoop’s and tax never May properly tion of was admitted dilemma. Seidman factor, recognize Schoop at trial. As to the first we asked to leave. Bustamonte, 218, 219, 2041, By focusing subsequent on Seidman's consent 412 U.S. 93 S.Ct. 36

10. conversation, suggests (1973). the concurrence why L.Ed.2d 854 We see no reason it we have "confused the Fifth Amendment could not also sever the connection between an analysis voluntariness with Brown's distinct acquisition unlawful act and the of additional analysis." Fourth Amendment attenuation See Indeed, voluntary quin- evidence. consent is the test, disagree. post proper at We 22. The which act v. tessential of free will. See United States applied, we have is whether a statement made Dickson, 409, (8th Cir.1995) 64 F.3d 410-11 subsequent a Fourth Amendment violation (holding independent that defendant's and volun- “sufficiently purge an act of free will to dissipated tary apartment consent to search his Illinois, 590, primary 422 U.S. taint.” Brown search); prior illegal taint of United States v. 602, 2254, (1975) (citing 95 L.Ed.2d S.Ct. 416 Cir.1990) Sheppard, 901 F.2d 471, 486, WongSun v. voluntary (holding that defendant’s consent to (1963)). S.Ct. L.Ed.2d 441 Consent has dissipated illegal taint of his car officer's recognized search to waive often been as sufficient rights. entry). Fourth Amendment See Schneckloth v. subjective mental prior about his weighs against sup- an accused also The third factor carefully above, impressions reactions must be flagraney pression. As noted scrutinized, testimony always influ as such miscon- governmental of offensiveness self-interest.” United States comparison [his] to other enced pales in in this case duct (4th Cir.) (en Braxton, inadmis- has been held cases where evidence banc) police (holding statement officers grounds. In Amendment on Fourth sible in voluntary under the Fifth Amendment was Sun, officers went to Wong six or seven circumstances) (internal totality view of Toy, alleged man to have business James — denied, omitted), cert. quotation marks door, heroin, followed open broke sold -, bedroom, almost immediate- him into his exception of Seidman’s own With Sun, Wong him. ly and arrested handcuffed testimony, simply there is no evidence to 407. The 83 S.Ct. suggest intimidated Seidman. Toy’s statements to Supreme held that Court shortly thereafter were inadmis- the officers Considering all of the factors set forth unreasonable to infer it was sible because Illinois, Supreme in Brown v. Court an act of free will that the statements were case, unique of this we circumstances circumstances. Id. at 83 S.Ct. under the May that the admission of the conclude Brown, Similarly, police officers 407. abridge at trial not Seid- tape-recording did apartment and into Brown’s searched broke guarantee Fourth Amendment of free- man’s a war- probable cause and without without sei- dom from an unreasonable search and Brown, 422 U.S. at rant. See span though zure. Even the time between returning apartment Brown was to his entry the unlawful and Seidman’s consent pointed police officer a revolver when short, say we cannot that Seidman’s was arrest. him and told him he was under exploitation from the statements resulted subsequently gun- was held at id. Brown Rather, entry. the unlawful we conclude id. at point and searched. See arising entry that the taint from the initial resulting degree of coercion independent purged intervening Wong police illegal, officers’ acts Sun shutting acts of the door behind Seidman simply present Brown v. Illinois was not kitchen, motioning Schoop Schoop, into his According to own here. testimo- engaging Schoop in conversation for a many ny, had been friends for he and period substantial of time. Seidman acted fact, Schoop’s years. visit Seidman’s voluntarily, or threat of without coercion day entirely unexpected. was not house that Therefore, Schoop. force from we conclude telephone In a recorded conversation May tape-recording properly that the 21,1995, poten- the two discussed March had by the court. admitted district Columbia, person Mary- tially meeting in resided, land, instead of Bal- where Seidman IV. timore, Maryland, where worked and Next, noted, Schoop argues Seidman that his convic resided. As the district court through any threats to or exert- tions on Counts two thirteen never made must be the dis any force towards him. Seidman now indictment vacated because ed § 2 that he trict court’s instructions on 18 U.S.C.A. appeal claims on did ask (West 1969) Specifically, improper. him.11 were to leave because intimidated however, context, Schoop, contends that as a matter slightly In a different we Seidman law, testimony “[s]ubsequent could not have been convicted have noted that No, suppression hearing, at the A. sir. 11. Seidman testified however, you during Q. as follows: Did shout at the course of he during Q. it wasn’t once the course of And this conversation? you asked him to this conversation No, A. sir. leave? threatening physical Q. Did he make a mo- correct, sir. A. That is you? at tion (J.A. 264.) No, A. sir. you during Schoop Q. Did Mr. threaten 265-66.) (J.A. at course of this conversation? 501(c) (West 1985). (b) § violating willfully 29 U.S.C.A. Whoever causes an act to be Thus, Seidman claims the district court directly performed by done which if him or jury instructing erred in that it could find another against would be offense guilty § him 2 if under it found that he aided States, punishable principal. as a 501(c). violating § and abetted § 2. U.S.C.A. The district charged (or give give) “Both the decision to not to a jury that it could guilty find Seidman as a jury instruction and the content of an in 2(a) principal § if “beyond under it found a struction are reviewed abuse of discre government reasonable doubt that has Russell, tion.” United States v. proved that person actually another commit- (4th Cir.1992). If, however, ted the offense with which the defendant was law, Schoop, as a matter of not could have charged and that the defendant aided or 501(e), § violating been convicted of the dis person abetted that in the commission of the trict court did abuse its discretion instruct result, offense.” a As the district court in- States, jury. ing the See Koon United jury structed the that it must first 81, 100, 116 2035, 135 S.Ct. L.Ed.2d 392 (1996) (noting that “[a] district court defi person, find that Schoop, another Mr. has nition abuses its discretion when it makes an charged, committed the crime the embez- law”). error of alleged zlement in the substantive count. Obviously, no one can be convicted of aid- through Counts two thirteen of the ing abetting the criminal acts of anoth- charged indictment Seidman with embezzle ifer no crime was committed the other ment from a labor union in violation of 29 person so, therefore, place the first if 501(c) § aiding abetting U.S.C.A. or Mr. did not commit the embezzle- § same in violation of 18 U.S.C.A. When a charged through ments in 2 13 then Mr. jury legal has been instructed on two theo Seidman could aiding not be convicted of ries, legally inadequate, one of which is abetting Schoop. Mr. possi conviction must be if it is reversed not ble to jury determine whether the convicted (J.A. 1016.) legally adequate, on the or inadequate, theo charged crime in the substantive ry. States, See Yates v. United § count U.S.C.A. 501. That section 1064, 1 (1957); L.Ed.2d 1356 cf. provides: 46, 56-60, v. United Griffin (ex Any embezzles, steals, person who or un- plaining lawfully willfully that when a case is submitted to a abstracts or converts use, jury another, adequate legal any on two to his theories and the own or the use of jury general funds, securities, returns a guilty, moneys, property, verdict of affir appropriate long organization mance so as the or other assets of a evidence labor officer, support is sufficient to which he is an conviction on either or which he is theory). employed, directly gener indirectly, Because the returned a or shall be guilty, $10,000 al possible verdict of is not not more than imprisoned fined years, determine whether for not Seidmaris convictions more than five or both. theory were based on the that he violated 29 501(c) added). (emphasis 29 U.S.C.A. Sec- theory U.S.C.A. or on the that he terms, tion its own applies to violated 18 U.S.C.A. Seidman concedes persons “employed” by the Union. Seidman 501(c) provides legally adequate employee claims that was not an Thus, ground for his convictions. this case Accordingly, the Union. Seidman contends § 2 provides legally turns on whether ade could not have been convicted of quate ground for Seidman’s convictions. violating Following § 501. this line of rea- provides: Section (ie., soning con- could have been (a) against union), commits an Whoever offense victed of embezzlement from a labor aids, abets, counsels, the United States or argues that he could not have been commands, procures induces or its com- convicted of embezzle- mission, punishable principal. § is as a in ment violation of 18 U.S.C.A. 2. 552 See, independent contractors. not include legally adequate provides § 2 Whether Co., Ry. e.g., turns on Baker v. Texas & convictions for Seidman’s ground Pacific (1959); 227, 664, by the Union Schoop employed 79 S.Ct. 3 L.Ed.2d was U.S. whether 501(c). McComb, Despite § meaning Corp. 331 U.S. Food

within Rutherford contrary, we 728-29, 1473, 722, contentions 91 L.Ed. 1772 employed Schoop (1947). so dur- Indeed, employee was conclude that the definition 1973) period 152(3) (West covered time ing expressly the entire § 29 U.S.C.A. requisite has the An individual Here, indictment.12 independent contractors. excludes 501(c) § if is “he convicted under status to be however, Congress chose not to use the word indirectly,” by a labor directly or employed, 501(c). § Morissette v. “employee” in See 501(c). § It organization. See U.S.C.A. 263, States, 246, 342 U.S. S.Ct. United Schoop clearly at trial that was established (1952) 240, (noting that when 96 L.Ed. 288 to the Union dur- provided printing services presumably of art it Congress uses a term by the period time covered ing the entire meaning to adopts the attached knows and Lawton, 995 United States indictment. word). Instead, Cf. Congress applied (D.C.Cir.1993) 290, (holding indi- 294-95 F.2d 501(c) embezzles or “any person” § to who pursuant embezzled vidual could not have “by organization which he steals from a labor relationship to International § where indirectly.” employed, directly or We be- is trial). clearly at not established union was language is that the aforementioned lieve difficulty concluding that a little We have enough independent con- to include broad printing services perform contractor hired Schoop.14 like tractors indirectly employed by the Union.13 Cf. Schoop that could be Because we conclude 973, Capanegro, 576 F.2d States v. United 501(c), necessarily § fol- Cir.1978) under (2d convicted attorney (holding that an could also be convicted lows that Seidman legal primarily services to indi- provided who abetting Schoop. aiding § 2 for under employed vidual union members was convic- union). Accordingly, we hold that Seidman’s that the holding, recognize In so we under Yates.15 “employee” require not reversal does tions do common law definition brief, 2(b) Schoop perform willfully § caused has conceded if he In the Government its Seidman, which, directly performed by if Schoop employee of the Union. acts that was not an concession, against Notwithstanding be an the United States. would offense the Government’s 1969). Thus, 2(b) (West § Seid- may 18 U.S.C.A. our own review of the issue. we conduct York, simply arguing that he could man is incorrect See Sibron v. New Schoop (noting "[i]t that convicted under 2 if could not not be 501(c). practice conduct its of this Court to under 29 U.S.C.A. the uniform be convicted of the record in cases where own examination [error]”); ... the ... Government confesses jury instructing on the elements of 15.In Young v. United 501(c), § embezzlement, conversion, defined the terms the district court (1942) (noting that con S.Ct. 86 L.Ed. 832 partic- and theft. Of of error do not "relieve this Court cessions here, importance the district court instruct- ular function”); performance judicial person jury can embezzle funds ed the that Stanfield, 109 F.3d 984 n. 5 States v. only position Although of trust. we if he holds a Cir.1997) (refusing defendant’s convic to reverse indirectly readily Schoop conclude that em- error), despite Government’s concession of tion Union, ployed by agree Seidman that we - denied, -, cert. position Schoop As a did not hold a of trust. L.Ed.2d 101 Schoop consequence, could not have embezzled the Union. funds from Schoop undisputed was a salaried that It is months, necessary explaining convict employee the Union for three the elements abetting pursuant through of 1993. As to 18 October of 1993 such, December Seidman of time, was, directly erroneously for a the district court stated least U.S.C.A. employed by jury are "committed the Union. For reasons that must find that clear, however, alleged entirely charged, the indictment cov- the crime embezzlement 1016.) (J.A. July (emphasis occurring between 1987 and count.” ered acts the substantive added). course, cursory review of the statu- Of of 1993. necessary tory language it was not reveals that jury embezzled assuming not em- for the to find 14. Even Union, Seidman of violat- could convict ployed Seidman could have been funds. ing finding con- pursuant U.S.C.A. 2 principal to 18 U.S.C. convicted as a V. tional incursion “voluntary” to obtain even a statement. proper- that the We conclude district Nevertheless, ly suppress denied Seidman’s motion to because the inadmissible 23,1995, May tape merely conversation at resi- was Seidman’s cumulative and Seidman’s guilt that beyond dence. We also conclude the district was established a reasonable doubt, court’s instruction was would find the error to be harmless proper Sehoop indirectly because was affirm em- Seidman’s According- conviction. ployed by Accordingly, ly, I judgment, the Union. we affirm concur in the and I concur in I, II, parts Seidman’s conviction on all counts.16 majority opinion. and IV the AFFIRMED.

I. MICHAEL, Judge, concurring Circuit The Fourth Amendment to the Constitu part concurring judgment: in the tion of the government United States forbids agree majority’s While I agents conclu- from conducting unreasonable sion that Seidman’s conviction be af- prohibition should searches and seizures. This firmed, join I cannot reasoning especially powerful its on the when it “pro- comes to admissibility tape May 23 con- tectfing] physical integrity of the home.” McCraw, versation between Sehoop. Seidman and In United States v. 920 F.2d (4th Cir.1990) admissible, (citations holding tape major- omitted). that to be The ma ity protections waters down jority recognizes Sehoop acting was as a Sehoop pressed Fourth Amendment. government agent his when he entered Seid- way into Seidman’s Also, home violation of the man’s home. See ante at 547 n. 7. literally Fourth Amendment. In majority a minute’s opening assumes that Sehoop trying time was to ensnare Seidman entering .closed front door and per without result, guilt. invitation, into admissions of As a Seid- mission or Sehoop violated the man did not have a sufficient chance to con- Fourth assumption Amendment. This will, options sider his and exercise his free should be a firm Sehoop conclusion. did not Schoop’s warrant, and the taint of unconstitutional have a search and he no legiti had entry purged. majority’s was never con- mate entry reason to make an uninvited into clusion—that Sehoop Seidman’s nonresistanee alone Seidman’s home. therefore commit Schoop’s attenuated the illegal taint en- a clear ted violation of the Fourth Amend try Thomas, effect relies on Fifth Amendment ment. See United States v. —in (4th Cir.1992) (FBI satisfy voluntariness criteria to the stricter agents F.2d 207 violated requirement Fourth by entering Amendment Fourth Amendment defendant’s warrant). government may exploit permission unconstitu- room without or conclude, analysis”). particular, "beyond verted or stole the funds. 28 U.S.C.A. we embezzles, doubt, (stating "[a]ny person § steals, correctly who a reasonable that a instructed unlawfully willfully jury or abstracts or would have reached the same conclusion.” use, Hastings, converts to own or the his use of another” United States v. Cir.1998), - -, money or other assets from labor union vio- rt. denied ce Indeed, 501(c)). lates the district court had 140 L.Ed.2d 1100 The evidence previously person instructed Sehoop money that a vio- stole labor Union embezzling, stealing, simply lates either overwhelming. or converting Sehoop funds. could not embezzle funds, certainly capable stealing but he 16. Seidman also claims that because district clear, therefore, converting through those funds. It is court's instruction on Counts two thir- simply object that the district court used "embezzle- teen of the Indictment —the offenses of the describing conspiracy inadequate, legally conspir- ment” as a short hand for all the acts —was 501(c). prohibited by Although acy upon legally inadequate we do not con- conviction rests also grounds. sider the district court's instruction a model of Because we find that Seidman's con- clarity, we do not find it to be so harmful as to victions on the counts of substantive embezzle- require through prop- reversal the convictions. See Johnson ment in er, two thirteen were Counts 461, -, challenge v. United we also conclude that Seidman's (1997) (stating conspiracy charge in Count one of the indict- “subject a misinstruction is to harmless-error ment fails. 554 hours, significant were no there incriminating than two obtains an agent an

When events, was for an intervening of a Fourth Amend- and the arrest the heels statement on violation, a sub- government (investigation ques- has improper purpose the ment admissibility. establishing burden suspect’s stantial the tioning), the Court held government to show enough for the It is not by illegal the arrest was tainted statement voluntary under the that the statement at 604- inadmissible. See id. and therefore Rather, government the Amendment. Fifth OS, 95 S.Ct. was not that the statement must also show exploitation of the Fourth by obtained B. Illinois, violation. See Brown Amendment 590, 601, 45 L.Ed.2d 95 S.Ct. 422 U.S. apply the Brown majority purports The to government could Because the 416 surrounding May 23 the events test to here, said burden what Seidman not meet its to the first Brown factor conversation. As May tape have 23 should to violation to (proximity of Fourth Amendment trial. excluded at been statement), majority recognizes that (about minute) A. elapsed “very little time” Schoop’s entry question and his first between by suspect made Even if a confession at wrongdoing. about See ante to Seidman violation is following a Fourth Amendment majority apparently would con- 549. The voluntary, the statement must be completely cede, must, factor as it that the first Brown can show government unless the excluded “ heavily against government. weighs will to ‘sufficiently an act of free that was ” astray majority goes its taint.’ Id. at 95 Where the purge primary fac- (quoting Wong analysis Sun of the second and third Brown There, 83 S.Ct. majority 371 U.S. has confused the tors. (1963)). showing This is com- L.Ed.2d analysis Fifth Amendment voluntariness with Amendment pletely separate from the Fifth attenu- Brown’s distinct Fourth Amendment voluntariness, and an other- requirement analysis. ation voluntary must excluded if wise statement be the taint of the Fourth Amendment violation Taylor v. Ala- purged. not been

has intervening circumstances ly purge Amendment mining whether the taint has been ment threshold “[l][t]he entry] three poses of the Fifth Amendment is York, situation, L.Ed.2d 824 ^[3] may L.Ed.2d bama, established be factors that we must consider in deter- the taint of an analysis” (citing purpose ‘voluntary’ temporal proximity of the requirement finding (1979))). (1982) (“[T]his ... that the fact that a confession confession, 687, 690, is not for of ‘voluntariness’ flagraney illegal The Court has purposes of the Fifth for Fourth Amend- Dunaway ^[2] itself sufficient and, particularly, Court [has] arrest. of the official presence merely a v. New purged: set out In this [illegal firm- pur- Amendment Amendment See ante tempts into the tant Fourth Amendment violation. The majority consent, which would be relevant to a consent Schoop’s entry was attenuated stance that assists presence an Seidman’s Schoop, as cannot The second Brown open accept kitchen, takes Seidman’s front door manifested apparent transform them into a Fourth voluntariness intervening circumstances. “intervening conversation”). (“[A]ny is an majority’s position consent purging Sehoop’s factor intervening taint his acts of motioning Schoop acts of inquiry, focuses circumstance.” arising This talk with apparent circum- closing on the Fifth goes bla- at- completely against Supreme Court’s 603-04, Brown 422 misconduct.” omitted). voluntary consent (citations teaching consistent S.Ct. 2254 and footnotes purge taint of Brown, is insufficient to suspect’s itself because the statement violation. It is also separated illegal by less a Fourth Amendment from his arrest interpretation lawyer). contrary to the Court’s consult When measured intervening against examples, circum- these in- what constitutes Seidman’s rather attenuation context. closing nodding stance in a taint nocuous acts of a door and Schoop are not sufficient to the causal break inquiry intervening to determine cir- chain. the Fourth Amendment is cumstances under the one to determine volun- Court, different from Supreme Like the our court has the Fifth Amendment. An tariness under refused to find that the taint aof Fourth' (for intervening circumstance Fourth purged Amendment violation was when a purposes) one that Amendment “eontrib- suspect did not have the chance to consider choice; ability suspect’s] to to consider ute[s] [the options rationally his and make a free objectively options carefully and his and to Gooding, In United States v. 695 F.2d 78 Taylor, exercise his free will.” 457 U.S. at Cir.1982), (Gooding) the defendant was 691,102 Taylor 2664. In the defendant S.Ct. stopped illegally by police officers at a bus illegally arrested without a war- had been stop they suspected because carrying he was followed, period rant. In the short the drugs. illegal stop, Within minutes of the warnings Taylor police gave Miranda to Gooding permission the officers askéd to times, three a written Miranda obtained flight bag. Gooding search his briefcase and him, him, fingerprinted placed from waiver assented, opened bag, his briefcase and lineup, permitted speak him him a to actively police handed items to the officers to a girlfriend with his and male com- briefly facilitate question their search.' There is no panion. weighed The Court all of these Gooding’s actions willing- manifested a them, events, that not one of and held cooperate to ness with search. Yet we waiver, even the Miranda was an interven- Gooding’s held actions were not “inter- “purge the ing circumstance sufficient to vening purge circumstances” sufficient to 690, illegal at 102 taint of the arrest.” Id. taint of the Fourth Amendment violation. 2664; Dunaway, 442 S.Ct. see also U.S. Taylor, (citing Dunaway, id. at 84 218-19, (finding intervening no 99 S.Ct. 2248 Brown). Gooding’s positive signs If of as- illegal ar- circumstance between defendant’s sufficient, cooperation sent and were not then confession, subsequent though rest and even benign shutting acts of Seidman’s a door and given warnings he was Miranda and waived nodding to could not be either. counsel). right his to McCraw, cases, In another of our a sus- By comparison, Supreme Court has pect consented to a search of his room and intervening found circumstances when voluntary made statements that were man- were sufficient to break the “caus- events police of ifestations consent after the had al between the Amendment chain[ ] [Fourth permission his room without his or a entered violation] and statements made subse- Nevertheless, warrant. we found the fruits Broum, 602, quent thereto.” U.S. at suspect’s of that search and the statements Examples circum- intervening S.Ct. 2254. to be' táinted the Fourth Amendment stance sufficient to break that chain include a violation: hearing magistrate judge before a at which Assuming that consent to search and rights, the defendant advised see voluntary by hotel room statements were Louisiana, 365, 356, Johnson v. standards, proximity fifth amendment (1972); an ar- S.Ct. L.Ed.2d place in time and between the arrest and raignment plus six-day release custo- the search and statements and the absence Sun, dy, Wong see 371 U.S. at intervening circumstances nevertheless 407; and the issuance of a valid search war- require suppression of this evidence independent that resulted in the discov- rant protect physical integrity of the home admission, ery spontaneous drugs and purpose of the fourth and to vindicate Kentucky, Rawlings see 108- amendment. (citations omitted). McCraw, at 230 920 F.2d Wellins, See also United States v. (9th Cir.1981) majority is (finding intervening The case law clear. The wrong conclude that Seidman’s circumstance when defendant was allowed therefore that would ren- than evidence of intimidation Schoop should be double to talk consent involuntary under the Fifth the Fifth Amend- der a confession under as consent counted Rather, “quality un- intervening circumstance it is the Amendment. ment and as actions are not Amendment purposefulness” of Fourth the Fourth. Seidman’s der circumstances that taint of intervening whether the the kind of violation determines Brown, or we have consid- Supreme Court attenuated. either that violation is the taint of to attenuate ered sufficient 95 S.Ct. 2254. Moreover, violation. Fourth Amendment Taylor, though police did not even way pushing his into a minute of within get or intimidate the defendant threaten house, into a Schoop launched investigatory illegal after an his confession to admit getting aimed at Seidman question arrest, Fourth Amendment violation simply .activity. did not illegal to purposeful flagrant mis- still found be and carefully opportunity “to consider have police “The fact that the did not conduct. exercise objectively .options his and to petitioner, that the con- physically abuse or 691, 102 Taylor, 457 U.S. at free will.” they may been ‘volun- fession obtained have intervening cir- no 2664. There was S.Ct. Amendment, purposes Fifth tary’ for of the purged attenuated cumstance initial illegality not cure the of the does Fourth Schoop’s violation of Seidman’s Taylor, 457 arrest.” U.S. “intervening cir- rights. The Amendment in Similarly, police misconduct weighs heavily cumstances” factor thus without Dunaway (arresting the defendant May tape.1 against the admission something might probable hope cause “in the up”) turn not involve threats or abuse did Nevertheless, against defendant. “pur- factor looks at the The last Brown “virtually Dunaway as a Court identified pose flagrancy” of the Fourth Amend- ” replica of the situation in Brown found Here, disagree I with the ment violation. purposefulness of the Fourth Amend- government a majority’s suggestion that required of the con- ment violation exclusion flagrant purpose- agent’s conduct will be Dunaway, 442 fession. S.Ct. degree only ful if it involves the of coercion 2248; id. at 99 S.Ct. 2248 see also Wong present in Brown and Sun. After set- (Stevens, J., concurring): unjustifiably high, majority ting the bar flagrancy of the official misconduct is The again erroneously compounds its mistake relevant, my judgment, only as it insofar standards of vol- applying Fifth Amendment tendency a to motivate the defendant. has to conclude that the taint was untariness guns will midnight A arrest with drawn be (“Seidman attenuated. See ante at 550-551 frightening police act- equally whether the voluntarily, or threat acted without coercion recklessly Conversely, good ed or in faith. Schoop”). of force from same effect a courteous command has the government’s It is true that the actions whether the officer thinks on the arrestee Wong particularly fla- Brown and Sun were probable that he he has cause or knows instance, Brown, policeman grant. In event, In if the Fourth does not. either getting gunpoint held defendant at before violated, admissibility Amendment “However, the fla- his consent to search. question will turn on the causal relation- graney police is not measured misconduct ship that violation and the defen- between police polite how are to the defen- subsequent dant’s confession. Gonzalez, Cal.App.4th People v. dant.” desperate Schoop, In who seemed Cal.Rptr.2d this case incriminating conver- “pur- engage that the Seidman Supreme Court has made clear sation, deliberately entered Seidman’s home pose flagrancy” inquiry looks for more taiy goes against precedent itself does cure Fourth majority simply consent 1. The why factors must says, violation. The Brown [consent] "We reason Amendment when see no 690-93, Taylor, applied. 457 U.S. at between an still be could not also sever the connection 2664; Dunaway, 442 U.S. at acquisition unlawful act and the of additional 2248; McCraw, Again, 920 F.2d at 230. Ante at 549-550 n. 10. volun- evidence.” result, addition, government has not met permission. the federal its bur- without atti- directing Sehoop establishing had a cavalier agents Schoop's den of that the taint of rights. constitutional tude about Seidman’s Fourth Amendment violation has been during Sehoop’s second This was confirmed purged, if even Seidman’s statements were attempt gain entrance (agent-directed) voluntary under the Fifth Amendment. The home on June about into Seidman’s tape May 23 conversation should have (wired) after the first visit. three weeks suppressed.2 been at the front door Schoop’s repeated knocks unanswered, his call to went as did II. (Schoop’s) phone. Sehoop from his car When agents parked, were returned to where Although majori- agree do not with the asked, his door locked this agent one “Is ty’s analysis, agree Fourth Amendment I do time?,” answered, This Sehoop “Yeah.” government with the that the error in admit- Schoop’s agents confirms that the condoned tape ting May was harmless. If the Fourth violation of Seidman’s Amendment guilt beyond of a defendant established May they ready rights on 23 and were reasonable without the evidence doubt admit- very encourage the same violation June error, ted in the error is harmless and we Schoop’s uncon- 19. I can conclude that must affirm the conviction. See United entry, complicity stitutional and his handlers’ Melgar, States v. 139 F.3d it, flagrant purposeful. in The third was Cir.1998). the, weighs against government. factor also Here, guilt, the evidence of even absent C. taped May conversation of was 544-545, strong. See ante at 546-547. against All of the factors cut Brown Moreover, government’s point main elapsed government. significant No time be- May tape, about the that was entry May Schoop’s illegal tween on 23 and transparent deny Schoop’s in his failure to with were his conversation Seidman. There suggestions wrongdoing, equally sup- intervening no circumstances that broke the ported by tape an admissible that was also Schoop’s entry link causal between and his played jury. tape That was the of a efforts to draw Seidman into admissions of telephone conversation on March between guilt. Finally, Sehoop his controllers Seidman, Sehoop in purposefully disregarded which Seidman also flagrantly and Seid- deny Schoop’s suggestions they rights man’s Fourth Amendment in order to failed to illegal an position get themselves to a confession. As a were in the middle of scheme.3 it, ority’s notwithstanding, you you maj But did do were ... 2. The assertion see Seidman: too, ha, Well, bub, Sehoop: saying ha I do not an I’m I did ante contend that lack of I’m, only thing you damn is that intervening period required suppres- but the time alone know, Rather, very my concerned. sion. is based on a con- conclusion of all three Brown factors. sideration Sehoop: Alright, now how the hell do I answer 3. The March 21 conversation included the fol- payment? You know what I’m the direct lowing exchange: get saying? all And I don’t want to into this Well, look, Bub, why Sehoop: we don't meet phone. shit on the Because, uh, lunch, alright? they, they, for they know, exactly payments ... Seidman: The direct I, you hit me with lot stuff and says you gave money, ... what the letter only you get can me, there’s so much you gave you remember all did me the and, know, away you they buy. because, said, or that exactly you money what save they’re Department because, Well of Labor. Seidman: again, you mean, money for David are Uh, ah, they looking, what are uh exactly gamble. [or][or] known to I Department of Labor? happened. what Sehoop: Harry, only thing just No, do is fly. I can Sehoop: going to It’s not that it's not said, know, babes, you they you tell what the hell easy, it isn't. that, babe, they happens you And to me was me. they, they what said own Seidman: Well if it very why your are curious as to ... business be, Sehoop: would uh want to Controller Union Huh? wou . n ..wou ... would know, uh, okay you everything was out in the Seidman: I mean it, typesetting they Always everything payments open. I was to me for mean to, reported reported, figures apparently all the were ... claim I never did. And majority points. two disagree I with the a considerable prosecutor The devoted First, Congress intended for closing argument to the whether or not of time in his amount 501(c) conversation, apply independent § contractors while he March 21 uncontested May conversa- a criminal statute is am- is unclear. Where mentioned the inadmissible lenity expan- point. biguous, prevents the rule of only briefly to bolster his tion Applying merely reading cumulative of the statute. May was sive 23 conversation lenity, I was not March 21 conversation. rule of conclude of the admissible 501(c). employed which is the Union under “Improper admission evidence Therefore, Schoop legally capable of shown admissible was not cumulative of matters embezzling, stealing, abstracting, or convert- error.” Smith v. Fire- evidence is harmless Co., 501(c). Second, ing funds under the dis- Tire & Rubber stone (8th Cir.1985). May tape was Because the trict court instructed evidence, aiding of admissible would could convict Seidman cumulative admitting tape Schoop’s embezzlement. lacked the that the error hold necessary fiduciary relationship with the harmless. Un- underlying embez-

ion to be convicted of the zlement, Thus, irrespective of however. III. 501(e) indepen- whether or not extends May tape cumulative Because the contractors, I find that Seidman could dent majority opinion I concur in the and because abet- not have been convicted of issues, I to affirm remaining on the vote 2(a). ting Schoop under conviction. I. KISER, Judge, concurring Senior District part dissenting part: provides that: Section of Title I, embezzles, steals, I II III of the Any person concur with Sections and who or un- major- I majority opinion. disagree lawfully willfully with the and abstracts or converts however, use, another, ity, aiding abetting any on the and issue of to own or the use funds, securities, presented opinion. in of its moneys, property, Section TV organization or other assets of a labor of IV, majority upholds In Section the officer, an which he which he is or is on district court’s instructions counts employed, directly indirectly, shall or be through two thirteen of the indictment. $10,000 imprisoned not more than or fined First, majority Schoop, that decides years, for not more than five or both. contractor, indirectly independent em- 2(a) ployed by Organization the International of of Title 18 extends criminal lia- Section Union) (the abets, counsels, Masters, Mates, “aids, bility anyone and Pilots for to who 501(c). Thus, commands, § purposes procures” of 29 induces or the commis- U.S.C.A. majority against “an concludes that could em- sion of offense the United bezzle, steal, abstract, or convert funds from The interaction of these two stat- States.” 501(c). Then, § majori- under utes means that Seidman could have been Union ty guilty aiding abetting finds that Seidman could be of convicted of and under 2(a), § and under 18 if could have been convicted 2(a). 501(c). § principal as a under United States U.S.C.A. uh, you they actually report you gave here I don’t know if it to me because that's what cost, newspaper they're separate put told me to it in a what the wanted do. You Committee, thing, you there was the Finance trust for David because don’t want to this you gamble away you you charged. it were afraid that is what Yeah, Schoop: okay, happens they drinking you hut if were wanted to save it for what thing put paper David. trace on this damn Schoop: Harry, story gonna fly, they my find out it never went account? isn't into Well, did, just you again, you Can come Seidman: what the rea- babe. It isn't. It isn’t. in, you put up it I know ... and meet me for lunch? son didn’t as far as your you put place? At I account, I’m not sure if it in the Seidman: Schoop: mean didn't, you you but if what did was Yeah.

559 (D.D.C. 15, Coleman, F.Supp. if passed; v. 940 17-18 intends do a certain line is second, 1996); Capanegro, legislatures v. 576 F.2d United States and not courts should (2d Cir.) 973, (Friendly, dissenting), activity.” criminal J. define Babbitt v. Sweet denied, 928, 312, Chapter cert. 439 U.S. 99 S.Ct. 58 Home Communities a Great (1978). Schoop Oregon, L.Ed.2d 320 could have been 704 n. U.S. 115 S.Ct. 501(c) (1995) (citations principal as a under if he convicted embezzled, stole, omitted); unlawfully willfully quotations or internal see also United Lanier, 259, -, abstracted or converted the funds at -issue States v. 520 U.S. 1219, 1225, 137 (1997) (“the organization “by from a labor which he is S.Ct. L.Ed.2d 432 employed.” canon of strict construction of criminal stat utes, lenity, or rule of fair warning ensures

A. resolving ambiguity so in a criminal stat apply ute as to clearly it to conduct First, employed find that was not covered”) (citations omitted); Hughey v. statute, by the Union. “As a criminal States, 411, 422, 501(c) strictly must be construed.” United (1990) (lenity princi L.Ed.2d 408 Hart, F.Supp. v. States ples “demand resolution ambiguities (S.D.Iowa 1976) (citing United States Wilt defendant”) criminal statutes in favor of the (5 Wheat.) 76, 95, berger, 18 L.Ed. (citation omitted); Crandon United (1820) (“The penal rule that laws are be 108 L.Ed.2d strictly, perhaps construed not much less (“Because construction of a crimi than It old construction itself. is founded on guided by nal statute must be the need for rights tenderness the law for the warning, legislative fair it is rare that history individuals; plain principle, statutory policies support will a construc power punishment vested tion of a statute broader than clearly legislative, judicial department.”)). text.”). warranted Under the rule of Belt, See also United States v. lenity, interpret a court “will not a federal (5th Cir.1978) (“We interpreted 1237-38 have criminal statute penalty so as to increase the creating as a remedial statute a new places on an individual when such an given federal crime to be its broadest con interpretation can be based on no more than struction designed to reach the ills it was guess Congress as to what intended.” duty imposed by counteract. Thus the Ladner v. United may stringent statute be more than that 3 L.Ed.2d 199 imposed by necessary the common law if Nevertheless, statutory purpose. fulfill the Congress It is unclear what intended when one, because the statute is a criminal we “by it phrase used the which he is em- wary must be of a too-broad construction ployed.” language The use of such could goes, beyond congressional that intent attempt have been a deliberate to avoid the (citations omitted). power.”) “employee,” majorities use of the term as the Capanegro The doctrine that a criminal statute should in this case and have concluded. strictly Capanegro, be construed is known as the rule of See 576 F.2d at 978-79.1 Alter- lenity. lenity premised natively, phrase merely “The rule of the use of the could first, warning two a ideas: fair should be have been a “draftsman’s choice.” at 981 Id. J., given language (Friendly, to the world in that com- dissenting). the I am inclined to understand, agree mon world of what Judge Friendly will the law with that this was a statute, Capanegro, majority penalties 1. In the stated "the criminal theft a for embezzlement or view, clearly provides indepen- [an in our dent that Guidry employee." union officer or v. Sheet Met- unambiguously contractor] its cov- within Fund, al Workers Pension National erage.” 576 F.2d at 980. I do not understand 374 n. Capanegro majority how the could claim that added). (emphasis Supreme The Court was ad- 501(c) "unambiguously” § sion, supported its conclu- dressing a issue and to call this different even jurist Friendly Judge when as learned as stretch, dictum be a the statement would but Indeed, very dissented on that entirely unambiguous, issue. if it were of statement the unanimous Court undermines Supreme the Court would unambiguous. that statute is claim the "501(c) § not have stated that ... establishes lenity Accordingly, I that the rule of find I do not not substance.2 form and choice of conclusion, interpretation of majority’s precludes how- the ultimate to reach this need minimum, that, lenity, rule of I con- Applying § at a I 501.3 ever. am satisfied of any construction not have been em- ambiguous and that could statute is clude 501(c). rule of governed § be Since the statute should the Union under ployed lenity. employed by not be have been could Union, subject to criminal he was not that by Congress a clear indication Absent 501(c). liability Consequently, § Seid- under 501(c) non-employees, § to reach it intended aiding abet- guilty not be man could lenity to restrict by the rule of I am bound Therefore, Schoop. the district court ting First, employees. statute to the reach of the jury that it could erroneously instructed the interpretation majority’s find aiding under convict Seidman 501(c) warning to provide fair § does not 2(a). § they are sub- independent contractors liability under ject criminal to federal 501(c). Second, importantly, most § B. liability for to extend criminal

whether or not employed by Assuming that 501(c) independent § con- a violation of Union, I that the district court’s conclude legis- province exclusive tractors is the only permitted the to con- instructions branch, judiciary. Since Con- lative abetting Schoop’s vict Seidman explicitly chosen to extend gress has not embezzlement, underlying crime which contractors, it is not liability independent Schoop could not have committed. place our to do so now. government requests Judge Friendly and district agree for four Where I tend to out, First, standard, Friendly pointed legal Judge applies in- as the correct reasons. 501(c) Congress the Labor-Man- § entertained versions of U.S.C.A. and 18 U.S.C.A. teraction of 29 agement Reporting Act that more 2(a) (b) and Disclosure provide adequate protection §§ liability clearly criminal would have extended employ- property union from union officials and Yet, beyond employees. it did not enact such ees. (Friend- Capanegro, 576 F.2d at 981 n. 1 statute. J., dissenting). ly, earlier, majority 3. As stated concludes Second, out, majority pointed the defini- indirectly employed by the Union. 152(3) "employee” ex- in 29 U.S.C.A. tion of plicitly Thus, "directly majority or indi- assumes independent contractors. excludes 501(c), “by rectly,” as used in modifies which Third, Congress where has demonstrated that precedent employed.” I found on this he is issue, however, liability beyond to extend criminal em- it wants "directly implies that or indirect- context, labor-management ployees in the "embezzles, steals, actually ly" or un- modifies See 18 U.S.C.A. 664 knows how to do so. lawfully willfully abstracts or converts.” "[a]ny (liability person” rather than extended to Robinson, ("It 512 F.2d at 494 is understandable employed”). "[a]ny person ... which he is by union officials that this kind of obvious abuse Fourth, Congress extend crimi did not need to congressional principal lead- was the concern of liability independent con nal under preceded hearings and debates which ers in accomplish objectives. As tractors in order to its question. of the statute in How- enactment States v. the Second Circuit stated in United ever, unambigu- evident from the clear and it is Robinson, "[tjhere question is no but that language employed by the statute that the ous history legislative of the reveals that the statute not limited to the embez- behavior condemned is principally Congress with the concerned funds. The statu- zlement or conversion of union looting of union treasuries union leaders tory language embezzlement or condemns the 491, (2d personal profit.” their 512 F.2d 493-94 only moneys, and securi- of funds conversion debate) Cir.) (emphasis (citing Congressional ties, 'property, assets of a but also of or other added), Villegas v. United cert. denied sub nom. directly organization or indirect- labor ... States, 853, 100, Silverman, ”); (purpose ly. ...' 430 F.2d at 113 Silverman, (1975); States v. 430 see also United 501(c) § subverted the use of “should not be 106, Cir.) ("It (2d plain F.2d 113 was the inten methods”) (Moore, (cita- dissenting) J. indirect of employees Congress to hold officers and tion of omitted); Capanegro, F.2d at 977 n. 3 tion 576 strictly responsible for the union as fiduciaries Robinson). opine (discussing omitted) I do not ....”) (citation funds entrusted to them "directly indirectly” phrase (Moore, which modifies. grounds, dissenting), J. on other modified denied, (1970), simply note these cases as evidence that this less and cert. 439 F.2d 1198 (1971). artfully ambiguous. drafted statute is L.Ed.2d 123 than 29 The lower court instructed the The central element of the traditional “[cjounts concept of through two thirteen of the indict- embezzlement is the conversion property of ment, belonging to another. conspiracy Conver- these are not the counts but sion involves an act of counts, control or dominion charge the substantive also Mr. Seid- property seriously over the interferes aiding abetting man with the embezzle- rights.... with the owner’s ment of of the at 1015. [Union].” funds J.A. The crime of embezzlement builds on court then went on lower to instruct the conversion, concept but adds two jury that the facts of “under this case this First, further elements. the embezzled aiding abetting concept concerns the the- property must have in been the lawful ory it that was Mr. who committed possession of the defendant at the time of in 2 through embezzlements Counts Second, appropriation. its embezzlement inclusive, that Mr. but Seidman aided and requires it_ knowledge appropriation that the doing you Mr. abetted As contrary to the wishes the owner of see, can requirement you the first is that find property. In less formal language, the person, Schoop, another Mr. has com- defendant must per- have taken another charged, mitted the crime the embezzlement property taken, son’s or caused it to be alleged Obviously, in the substantive count. knowing person that the other would not aiding no one can be convicted of and abet- have wanted that to be done.... ting the criminal acts of another if no crime then, up, To sum concept the traditional person was committed the other in the (1) comprises of embezzlement a conver- so, therefore, place first if Mr. did or, words, in other an unauthorized sion— charged not commit the in 2 embezzlements appropriation property belonging to —of through 13 Mr. then Seidman could not be (2) another, property where lawfully Schoop.” convicted of Mr. possession (though the defendant’s for a J.A. at 1016. purpose) limited appro- the time of the The Fourth Circuit discussed embezzle priation, and the defendant acts with 501(e) ment under United States knowledge appropriation that his Stockton, Cir.), 788 F.2d 210 cert. de unauthorized, property is or at least with- nied, U.S. S.Ct. 93 L.Ed.2d good-faith out a it belief has been (1986): authorized. Although reaches theft of- other (internal quotation, Id. at 215-17 citations well, fenses as it is clear that embezzle- omitted). and footnotes primary' ment is the statute’s concern. subject To be to conviction for embezzle captioned The section is “embezzlement 501(c), ment under must have come assets,” legislative history and its refers possession property into at issue provision designed impose it as a a way fiduciary relationship of a with the Un punishment federal for embezzlement.... 4; ion. Id. at 215 n. see also Colella (1st Cir.) Looking language first 501(c), (“Embezzlement Congress we note that chose to ... carries with the con “embezzle,” use the term which cept fiduciary relationship.”), term of a of a breach already denied, acquired generally accepted legal cert. case,

meaning in interpreting clearly court decisions L.Ed.2d 65 In this there position ... state statutes.4 was no such of trust between and the Union.5 Nothing legislative history in the 501(e) § contradicts the that Despite conclusion the embezzlement instructions Congress adopt meant fiduciary relationship the traditional and the lack of a be- Union, concept Schoop majority of embezzlement.... the tween and the statutory remedy 4. a Embezzlement is crime which did statutes were enacted to the common deficiency. law's not exist at common law.... A defendant who possession property lawfully, obtained a of fiduciary capacity, converting majority agrees point before it could not 5. The with this in footnote opinion. be at convicted common law. Embezzlement 15 of its the abetting more clear instruction from aiding and Without uphold would majority bench, jury only that concludes that the could The I conclude convictions. instructions would have court’s aiding the district and abet- have convicted Seidman Schoop jury that stole or permitted a to find Schoop’s from the Union. ting embezzlement and that funds from the Union admitted, converted Because, requisite as has been the abetted that crime. aided and exist, fiduciary relationship Schoop did not underly- could not have been convicted the employed by Schoop that was Assuming a on ing embezzlement. Where conviction 501(c), agree I with the under the Union possible, underlying crime is not there support a con- the majority that the would facts aiding for that stole or converted funds also can no conviction and clusion be However, the lower court abetting alleged underlying from the Union. that crime. See jury. aiding Blackwood, instruct In its did not so the v. 735 F.2d United States instruction, court abetting the district (4th Cir.1984) (defendant’s and for aid- conviction stealing, abstracting or con- never mentioned ing abetting overturned where court and yet it referenced embezzlement on verting, determining legal for gave incorrect standard (quoted occasions. J.A. at 1015-16 several guilt principal). (“Now above); you at if look back J.A. summation, I that In find could One, conspiracy, think back to Count and or embezzling have been convicted of from the counts, embezzlement, you will see the other I also find that the lower court did Union. concepts that in each of them there are three jury not instruct that it could convict very important knowingly, willfully,- ... are aiding abetting theory on a Seidman of and (“It intentionally.”); important J.A. at 1020 stole or converted funds from to bear in mind that this is a criminal embez- Therefore, irrespective of the Union. wheth- case_”); (discussing at 1021 zlement J.A. union, employed by er or not negligence cannot be basis for conviction how erroneously court conclude that the district embezzlement). majority concludes jury that it convict instructed the could Seid- as that the lower used “embezzlement” 2(a). aiding abetting man of and under describing for all of the con- an abbreviation 501(c).6 Indeed, prohibited by follow- duct objections, ing the defendant’s the lower C. that the instruction covered court intimated pointed majority, As out where the embezzlement and conversion. J.A. at 1033. jury district court instructs the as to two subjective No matter what lower court’s guilt, one alternative theories is an

intent, only jury it that it still instructed law, statement of the it must be incorrect aiding abetting could convict Seidman of jury upon clear that convicted the correct Schoop’s It instructed embezzlement. never legal theory guilty jury they or the verdict must be could convict Seidman of abetting Schoop’s aiding and conversion.7 overturned. See Yates United conclusion, majority robbery. providing jury support concepts ate between the of embezzlement and 501(c), § I cannot turn a eye blind to the (1957) (“[W]e proper think the rule to be error in this court, case. As a reviewing it is applied requires is that which a verdict be strictly our task to interpret stat- criminal set sup- aside cases where the verdict is utes and to check abuse of the pro- criminal portable another, ground, on one but not on case, cess. In government this the requested impossible and it is to tell ground which the gave and the court an instruction erro- which selected.”), jury grounds overruled on other neously jury allowed to convict Seidman States, v. Burks United 501(c) aiding abetting Schoop’s § and em- (1978); L.Ed.2d v. Griffin bezzlement. A possibly conviction based 46, 49-60, United 112 S.Ct. upon legally a erroneous instruction cannot (1991) (discussing L.Ed.2d and Accordingly, stand. I would reverse con- Yates). Here, applying court in- lower victions as to through counts two thirteen.9 jury structed the that Seidman could be con- on victed either one of two different theories:

(1) embezzlement, abstraction or conversion 501(e) §

under 29 U.S.C.A. aiding or and Sehoop’s abetting embezzlement under 18 2(a). above, § U.S.C.A. As discussed PORTERFIELD, Sherman O. theory guilt latter was an incorrect state- Plaintiff-Appellee, Therefore, ment of law. it can be unless jury ascertained that the convicted LOTT; Faye Anthony; Berry Leon under the theory, former the convictions as Brown, Defendants- through two counts thirteen must be re- Appellants, versed. and ease, In this provided the district court jury general awith verdict form which did County, political subdivision; Richland clarify not whether the convictions on counts County Department; Richland Sheriff's two through thirteen were based upon find- Doe; Roe; John Richard State of South ing principal liability § under or Carolina, Defendants. 2(a).8 aiding abetting liability under No. 97-2254. Thus, it is unclear whether the jury’s verdict upon was based Appeals, valid invalid alterna- States Court of United Yates, Accordingly, tive. guilty under Fourth Circuit.

verdicts as to through counts two thirteen Argued April 1998. must be overturned. Sept. Decided 1998.

II.

While believe jury likely I that the would

have principal convicted Seidman as a under opinion, At majority footnote of its proceeding requires states conspira- reversal of the its that Seidman cy belief could have been convicted disagree. as conviction well. The lower 2(b). principal under 18 U.S.C.A. I be- clearly conspir- instructed the that the lieve supported the facts of this case would have acy charge separate in count one was and dis- such a conviction. The court’s instructions do charges through tinct from the in counts two conviction, support such a conclude, therefore, however. The thirteen. J.A. at 995. I aiding court below instructed as to conspiracy aiding that the instruction and 2(a). abetting under It did not instruct "were not instruction so intertwined jury regarding punishment principal as a under highly probable that it was that [Seidman] was 2(b). J.A. 1015-1018. As with the lower prejudiced [conspiracy] count[ ] court’s to instruct failure on conversion in its [aiding erroneous instruction on the and abet- abetting charge, agree I cannot that a Walker, ting] counts.” States person theory be convicted can on a which was (4th Cir.1982) (citation omitted). 2n. presented jury. never Here, conspiracy the evidence of the object evidence of each of the various offenses Appellant argues respect that the error with which could have formed the basis of the con- through counts spiracy two thirteen simply overwhelming. tainted the entire conviction was of its notes J.A. 1012. After 6. embezzling, that the lower court steal- possibilities discussed with definitions to all of the for ing converting jury when it instructed the principal, convicting Seidman as the district 501(c). principal liability Seidman's under regarding instructions court then limited its jury J.A. at 1008. The lower court instructed the underlying aiding abetting offense principal that it could convict Seidman as if it Such limitation the lower embezzlement. "embezzled, stole, found that he had abstracted may court less, have been unintentional. Nonethe- or converted” finds from the Union. J.A. at effectively jury it informed the that it could 1009-10. The lower court then instructed the Seidman of if it convict "[ejmbezzlement voluntary is the first concluded embezzled from taking intentional or conversion to one’s use of Union. money property or of another after that mon- ey property lawfully possession came into the "Congress recognized that there a differ office, person taking virtue of some and conversion ence between embezzlement position employment, of trust.” J.A. including both in statute.” United States The court also instructed as to the definitions of Harmon, (6th Cir.1964), cert. at 1011. The abstraction and conversion. J.A. denied, provided hypothetical 13 L.Ed.2d court then differenti-

Case Details

Case Name: United States v. Harry Seidman

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 9, 1998

Citation: 156 F.3d 542

Docket Number: 97-4075

Court Abbreviation: 4th Cir.