*1 recognize of this case as we these cases are On whole record We facts, it, no hardly recited we have our instant have reviewed and similar Supreme doubt that there substantial evidence Court citation is is findings (and support those of the But cases the factual dictum. these best Corp. follow) of Board. Camera v. do illustrate the breadth Universal B., supra. R. has N. L. the Board exercised discretion which express approval or tacit with occasional indicate, expressed already The views bargaining proceed- appropriate unit course, its Board was within Greyhound supra; Spartan ings. Corp., assuming jurisdiction of this rules Stores, supra; Department Panther Coal case. Inc., supra. Co., grant- petition for is enforcement Certainly statutory definition ed. “employer” “person” words 152(1), (2), “employee” U.S.C. § very are broad. (3) NLRA together be read These definitions must language of 29 with the underlined 159(b), assure to order to “in U.S.C. §
employees freedom in exer- the fullest rights guaranteed by cising this sub- * * chapter America, UNITED STATES granting regard these We sections Plaintiff-Appellee, independent power hold to the NLRB to historically chosen employers who have Benjamin Dranow, HOFFA, James R. aspects jointly important such handle Zachary George Strate, Jr., A. S. Bur- relationship employer-employee of their ris, Weinblatt, Kovens, Abe I. Calvin joint above, forth as employers set we Hyman, Defendants-Appel- and Samuel defining purpose for the lants. bargaining appropriate unit under the Nos. 14892-14898. NLRA. Appeals United States Court Greyhound Corp., supra, Boire v. Seventh Circuit. Court, Supreme after the United States Oct. pointing toward reciting facts various joint employers control independent Rehearing Denied Nov. significant employees, added certain sentence: possessed Greyhound
“[Wjhether to be an control indicia sufficient essentially a issue ‘employer’ factual
** Greyhound Corp., Boire v. at 899. 84 S.Ct.
supra, atU.S. employ case, group of In this together so themselves
ers have banded hiring machinery joint for up as to set working establishing employees, operating giving employees, for rules disciplin employees, for instructions rules, for ing employees for violation employees
disciplining violation regulations. we be
safety facts These of control” indicia to be “sufficient
lieve finding employer joint warrant
the Board. *2 Judge,
Swygert, Circuit dissented.
Center, Y., Bellows, George N. Charles A. Cotsirilos, Marshall, J. H. Prentice Chi- cago, 111., appellants.
Raymond Fla., LaPorte, Tampa, E. appellant Dranow. Minn, Chicago, 111.,
Howard W. Jason Bellows, Magidson, E. C. Chi- Sherman cago, 111., counsel, appellant Wein- blatt. Page Atty., Moore, Dept,
Donald Justice, Vinson, Jr., Atty. Fred M. Asst. Gen., Washington, C., D. Edward V. *4 Hanrahan, Atty., Chicago, 111., U. S. Feit, Justice, Atty., Dept, Jerome of Washington, C., Bittman, D. William Canavan, McTiernan, James Thomas J.' Ryan, Washington, C., William E. counsel, D. appellee. Judge, DUFFY, Before Circuit Senior SWYGERT, and Judges. and CASTLE Circuit DUFFY, Judge. Senior Circuit appellants The herein were indicted 4, 1963, twenty-eight June counts. twenty-seven charged The first counts substantive mail and violations (18 wire fraud statutes U.S.C. §§ 1343). twenty-eighth charged The count conspiracy to commit the substantive appel- offenses. convicted all The conspiracy count, lants on the and each appellant on certain the substantive counts. judgment Court directed ac-
quittal 2, 5, of all defendants on Counts 11, 26 and 27. The dis- missed Counts and 18.
Except for the interstate transmission mailing allegations involved, twenty-seven are, each of the first counts identical, practical purposes, for all al- leging the same scheme to defraud the Central and Southeast Southwest Fund, Areas Pension often referred to in the record as the Teamsters Pension Lavin, Walsh, J. Anna R. Maurice Chi- just Fund or the Pension Fund. 111., Shenker, Louis, cago, Morris A. St. Mo., Ragano, Tampa, Fla., George charged Frank proof indictment and Callaghan, Gorman, F. Richard E. Chica- showed that defendant James R. go, 111., president Jacques Schiffer, M. Rockville was of the Teamsters Inter- proved by Fund Union,1 president Pension trustees. Local national addition, defendants, par- Detroit,2 by their Union in Teamsters allegedly ticipation scheme, obtain- Pension also of the Teamsters a trustee options, fees and contracts ed stock Fund. fees, services, construction and owner- charged de- The indictment borrowing corpora- ship and control of conspired “devise and did fendants tions. Pen- defraud the scheme and artifice * * * false means sion charged in dis- indictment representa- pretenses, fraudulent pro- posing diverted some of the submitting false promises tions and ceeds, applied more than misleading of material statements repayment $100,000 of debts in- by concealing facts material fact Inc., Valley, curred Florida real from loans order to obtain corporation, Hoffa had a estate Fund; diverting, various Repayment substantial secret interest. devices, amounts substantial fraudulent Valley to debts enabled Sun these personal proceeds for their the loan reorganization pro- extricate itself use and benefit.” ceedings Chapter X of the Bank- under among ruptcy Act. Included the Sun alleged described the The indictment proceeds debts the diverted including fol- detail some scheme *5 repaying owed assisted in lowing: and Burris Dranow Defendants by Valley Repay- Sun to a Florida bank. applicants prospective and loan contacted Valley ment enabled of Sun debt agents employment as their obtained Hoffa from Florida to withdraw Dranow procuring Fund loans. Pension money $400,000 which bank of Teamster prospective loan and Burris induced the deposited Hoffa had in a non-interest- holding by applicants retain them security bearing account at the bank as being specially as in a themselves out $400,000 loan to the bank’s Sun position Pension to obtain favored Valley. special of relation- loans because their ship Hoffa and Hoffa. with defendant Separate counts of indictment con- prospec- some of these Kovens referred allegations mailings, tained tele- of applicants Bur- loan to Dranow and tive grams by telephone and calls which the applicants Among involved ris. the loan alleged was furthered. The in- scheme Hyman. and defendants Strate charging by that all dictment concluded together conspired charged further indictment carry out devise and the scheme. Hyman Burris, Strate, Dranow, preparation participated in the Kovens trial, pre At the Government applica- loan and submission of inflated testimony documentary sented evi Fund; these Pension tions tending charges prove dence made applications falsifica- contained material happens, in the indictment. As often material facts tions and concealed charg a number of defendants are where misrepre- Hoffa made that defendant participating ed and convicted and concealed material sentations appellants conspiracy, counsel for will from and staff mem- facts the trustees arguments largely present their based Fund. bers of the testimony given by favorable to or alleged ignoring completely clients, all further their while The indictment contrary testimony other nature. themselves defendants enriched They will, lip perhaps, give causing $1,000,000 service to more than fraudulently proceeds and rule to be the well-established doctrine obtained sufficiency resolving ap- purposes those issue other than diverted to Teamsters, 299, Detroit, Michi- Truck Local Brotherhood of Drivers 1. International gan. Helpers Chauffeurs, Warehousemen America. conviction, began rescue ant Hoffa his efforts sustain a evidence to Valley, insolvency and appellate evi- Sun Inc. from must view the court pro- thus, argues, so inferences the Government dence and the reasonable charges possible may tect himself which be drawn therefrom misusing light he had been Union funds. most to the Government. favorable 60, United 315 U.S. Glasser v. Valley, pro- Inc. was real estate 680; 457, L.Ed. S.Ct. planned that motion in Florida. It was Mims, Cir., 340 F.2d States Valley project lots in the Sun would be But, service, giving lip after such sold Union to members of the Teamsters ignored. rule often is We feel Lower, Henry as well as to others. true in the instant case. employee, former Teamster president Valley. pro- proof of Sun Hoffa Government offered Valley a number moted Sun lot was received sales at Teamster evidence meetings specific purchase option in which various and had an transactions Valley all of the defendants were the Sun stock. Hoffa also involved. 45% except countersigned $75,000 of these No. transactions loans worth of Sun Valley were made the Teamsters notes of which total of desig- outstanding unpaid. Fund. These transactions were He also proj- nated as: owned a number of lots within the ect. Valley 1. The Florida Bank-Sun
transactions; Henry death, After Lower’s an instru- bearing signature ment Hoffa’s Connelly-Everglades 2. The transac- found in a cookbook in Lower’s desk ; tions his son. This document disclosed that 3. The Strate-Pelican-Fontainebleau held Lower stock in 22% % transactions; Although secret trust for Hoffa. Hyman-Key 4. The West Foundation signature *6 it denied that was his on the transactions; document, handwriting experts at Berkeley transactions; 5. The First genuine. testified that it was Kovens-Sager-Good 6. The Samaritan 1956, Valley In Sun need of Hospital transactions; property mortgaged. funds. Kipnis-Causeway 7. The Inn transac- Valley applied When Sun to the Florida ; tions loans, National Bank for bank in- 299, sisted that Hoffa’s local Union No. Simon-Airport 8. The Hotel transac- times, all deposit maintain on ; tions bank, non-interest-bearing a restricted 9. The Strecker-4306 Duncan trans- account, equal in a sum to the amount ; actions and Valley borrowings. the Sun Hoffa Dioguardi-Club 10. The 300 loan. deposited money belonging then opinion Within the limits it is immediately Union and the bank made practical not to discuss in detail all Valley equalling loans to Sun the amount various transactions hereinbefore deposits.3 the Union listed, part played nor the in each July July 1960, From Sun Val- Therefore, various defendants. we shall ley, being bills, unable to meet its not refer in detail more than two reorganization proceeding involved a these transactions. Chapter Bankruptcy under X of the Act. proof During offered Government period, Valley Sun owed tended to show that scheme or $399,000 con- Florida National Bank and spiracy commenced in 1958 when defend- $400,000 Hoffa’s Detroit Local had tied 20, 1956, deposited $300,- 17, 1956, On June Hoffa deposited ber Hoffa an addi- $200,000 000 of funds, Teamsters funds in the restricted tional of Teamsters Valley days account. The bank loaned Sun two later bank loaned Sun Val- $300,000 day. ley $200,000. on the same On Novem- an additional Valley, cosigned reim- up for Sun had in the “restricted” account at 1959, for the during Local the Teamsters Detroit burse bank. On three occasions a had lost as the Local the Detroit interest which Hoffa. tried to withdraw up having $400,000 $400,000 its tied bank would result of Local’s but the exchange, In account.” the “restricted honor checks. Valley agreed give up his Sun Hoffa heading Ef- Under “The ‘Bail-Out’ option. No mention was made stock Begins,” ne- cites fort agreement with Lower. Hoffa’s secret gotiations Sanson, and offered with one Sanson, proof a Florida to show that THE CONNELLY-EVERGLADES large man, applica- loan business TRANSACTIONS pending Pen- Teamsters tion before the Vaughan Connelly Ev- In owned the sion Fund the summer trustees. One sought erglades his loan Dranow told Sanson that Hotel in Miami. He paid a put if to finance renovation would be Fund loan Sanson Pension agreed Kovens, a Mi- him. substantial “fee” to Sanson hotel so, told “fee” said he would to do Dranow that Kovens ami contractor. paid by bring would which would con- secure the loan be check man “who could in a * * * explicit man tain an to the true little reference Teamsters with the ** * purpose Apparently always Dra- to be able check. who seemed brought goods.” terminated now then lost interest He to deliver introducing Dranow, the conversation. him as “Grossman.” turn, brought Dranow, in Burris and July 1958, and Hoffa In Dranow him as an accountant introduced telephone. jointly called Sanson his Team- Fund “handled all Pension who Hoffa, proposed presence, in Dranow’s applications.” ster loan “straighten out” Sanson would pending September Valley, During August Pension Sanson’s granted. application Connelly proposed Fund loan would be discussed the loan (San- suggested Kovens, Hoffa that he The latter to Sanson Dranow and Burris. son) application. helped prepare additional would able to obtain procur- Pension Fund loans for fee for asked a Dranow project. agreed. Connelly $3,300,000 this was said “that loan. proposition him, must January ” * ** something had to be done. including Hoffa, granted trustees, agent, loan, Connelly de- Dranow and his financial first received *7 Sanson,4 Weinblatt, fendant met Ko- with Dranow and million dollar draw. propos- Connelly but Sanson turned down Hoffa’s would have to vens told the fee rejected Fund paid al.5 The Pension San- in bills” “under table” “small application. loan son’s made to the and Reference was once. raising hell, fact “Hoffa was that George September 1958, In * * got and Dranow excited then incorporated Land and Burris Union Connelly hoped would the latter he told Company purpose Home rescu- rough”, boys play not be harmed. “These Valley. acting aas Sun Burris was said Kovens. Dranow, and Hoffa knew “front” for following Connelly day, Com- Dranow’s concealed interest took agreed pany. that $100,000 Hoffa and Burris and bills to Kovens in small Company strong Land and Home would Union that inference Dranow. The pay promissory proceeds off note which Hoffa from the these bills were brought suggested to Kovens Burris Dranow and its con- and abandonment introduced obliga- meet Sanson. He Burris “moral would violate the tinuance “great man had influence” with the who promoters owed tions” Teamsters. buying lots Teamster members report project. on the Sun Val- Sanson wrote ley development. its He recommended stronger get Fund burned the him Pension loan. Kovens to make the letter and money wrappers. prior Dranow stuffed the Fund its to to March 15th go meeting. bag Connelly stay and left “to Wash- cash into Hoffa told to to ington money away meeting saying to deliver the the Boss.” “I’ll call you you.” if I need the March 15th At Throughout spring Con- meeting, motion, Hoffa’s the Fund payments nelly made additional “fee” trustees voted for moratorium. May 1959, and Dra- Kovens Dranow. In Connelly sight” keep April 1960, Connelly appearing now “to out of In told be- grand investigating investi- because the McClellan Committee fore a federal gators “trying up Valley pay-offs, link were Miami and Fund Pension * * * pension making any pay-offs Dranow loans denied in connec- Later, with Mr. Hoffa.” tion the Teamsters with his loans. told he suggested Connelly grand Kovens leave Dranow he had lied to the country, Connelly jury. later, refused to do so. Two months the Pension mortgages Fund its Con- foreclosed investiga- However, when Committee nelly’s hotel. him, Connelly tors denied interviewed pay-offs Connelly he had made for his Pension The evidence disclosed that Connelly Kovens, paid loan. $400,000 Fund told Burris almost “fees” proof he in- Dranow that had lied to connection with his loans vestigators. Connelly made, “had Dranow said which the was entitled be- up Hoffa, Later, lieve, money stood for Mr. Hoffa.” of this went referring Connelly’s denial, told Con- into what the Government called “the nelly “a it was fine statement.” bail out.” By spring Connelly late STRATE-PELICAN-FONTAINE- again short funds. Dranow told him BLEAU TRANSACTIONS get he could him another million dollars prin- one of Defendant Strate was going from the Pension Fund “but it was cipal Corporation owners of the Pelican * * * money to cost more than the constructing which was the Fontaine- ” * * * other one. bleau Hotel in New Orleans. Difficul- financing helped Connelly
Dranow and Burris on ties were encountered as the being application. building his second loan A on leased erected Connelly $1,000,000 approved on land. The Pension Fund twice had re- subject jected applications, explaining Hoffa’s motion to certain condi- tions which had not At “We cannot the leased land.” been fulfilled. see regular meeting the end of a Pen- April 1959, representatives trustees, sion Fund Hoffa called what Strate contacted who Kovens referred the Government has characterized as a them to Dranow later who instructed “rump session of the trus- provide $175,000 them “small bills got “Connelly tees” and told them has money” safety deposit old in a box.7 today.” Thereupon, have his check Con- promised This was done. Dranow de- nelly got his million dollar check. $1,350,000 *8 a liver Pension Fund loan for only $155,000. a “fee” of Strate and his By January 1960, Connelly was once agreed partners to the terms. money. more short of He discussed his inability pay to his debts with 1959, Hoffa 6, applied On Strate the June to Connelly prepared and Dranow. a letter appeared for Pension Fund the loan. He requesting a being Pension Fund moratorium Trustees, in- before the Board payments. on all of his loan told by Hoffa troduced Hoffa who made defendant time, Attorney At originally both and Dranow IXoffa had been for made living Hotel in Woodner prior to Cohen contact between Washington. However, or Strate and Dranow. Strate representatives along arrangements $175,000 went for in small placed deposit safety bills-safety procedure. deposit to be bills a box small box 706 conceding existence such problem. that even “leased land” of the
no mention conspiracy, did $1,350,- the evidence July, approved a scheme the Board it. month, him with deliv- not connect a Strate 000 loan. Within Dra- $155,000 bills” to “in old small ered Although Government was by pro- funded This “fee” was now. conspiracy required rath establish one Fund loan. ceeds from the Pension separate conspiracies, er than a series of applied 1959, for a In October Strate 750, States, 328 Kotteakos v. United U.S. $2,325,000 loan build Fund “to Pension 1239, 1557, the fact 90 L.Ed. S.Ct. Dur- addition the Fontainebleau. to” may conspiracy’s members that various ing negotiations, made a Strate these executing play it, and different roles misrepresentations number participating have dissimilar motives Pension Fund Board. single it, not mean that con does and November Between March 1960 spiracy does not exist. 1961, $3,350,000 in Pen- Pelican received proof hold in this case We proceeds but sion Fund construction find was that sufficient only $3,104,000 was used on the about single conspiracy and did exist that $200,000 Over
new construction. knowing member each defendant was purchases, re- used for stock Strate it; primary that Hoffa’s concern payment payments and him- of loans conspiracy when the was formed offered evidence self. The Government conspiracy purpose central support its claim that almost Valley. out” scheme to “bail Sun through Dranow and Wein- can be traced Dranow, Further, and Bur Kovens Valley bail into Sun out.” blatt “the knowingly Hoffa in ef ris assisted THE SUFFICIENT WAS EVIDENCE fort which resulted not the rescue Valley project, THE CONSPIRA- TO ESTABLISH of the but also receipt payments THE OF CY AND CONNECTION their of cash other IT? WITH EACH DEFENDANT emoluments. Hyman burden Government Strate were borrowers conspired prove object joining whose the scheme get large
and did
to defraud
projects.
devise
scheme
loans
their
submitting
and Kovens,
Fund
false
Samaritan transac-
the Good
representations
Berkeley
and conceal
tions,
fraudulent
and Burris
in the First
ing
transactions,
facts
from the Pension
material
would also fit
into
bor-
ob
category.
and staff
in order to
trustees
rower
seems clear that
It
large
Fund loans.
It also had
tain Pension
loans was so
borrowers’ need for
showing
great
willing
pay
that defendants
burden of
Applica-
in aid
price
joining
conspiracy.
used the mail and wire services
execution
the scheme.
ble is
statement
in Blumenthal v.
559,
539,
332 U.S.
S.Ct.
rested on the
burden also
248,
154,
all
de-
92 L.Ed.
the cen
demonstrate
“
**
*
joined
knew of and
fendants
object
conspiracy
to ob
tral
overriding
“All
and that
scheme”
“bailing
money
purpose of
for the
tain
knowledge
reason of
their
Valley, and
out”
each defend
general
scope,
plan’s
its
not
exact
conspiracy
knowledge
ant had
**
limits, sought a common end
Falcone,
States
scheme. United
123;
61 S.Ct.
L.Ed.
U.S.
guilty,
To find States, 319
v. United
Direct Sales Co.
necessary
for the Government
it was
*9
1265,
L.Ed.
U.S.
S.Ct.
prove
every
that he knew
detail
arrangement
Burris,
Dranow,
between
strongly
It also was
Kovens and the borrowers.
insists
that
Each
unnecessary
prove
for the Government
not
the exist-
the evidence did
establish
argues
knew
details of
that
the borrowers
of such a scheme and further
ence
placed through Hoffa for the
other loans
tainebleau
is
illustrative
those
support
evidence was sufficient
the made in connection
other loans in
with
jury’s finding
had a stake in the
that all
case.
common venture.
argues
Defendant Hoffa
his in-
that
urges
Defendant Hoffa
that
helping
Valley
terest
Sun
moti-
actually
money
Fund
did not
lose
only by
help
vated
his desire to
the Team-
on the loans
in this ease. How
involved
sters,
jury apparently
but the
was unim-
ever,
long
of the
due
term nature
pressed by
protestations
good
his
subsequent
loans and
loans
the fact that
faith.
It was entitled to believe the tes-
loans,
were made to refinance earlier
it
timony that Hoffa considered the “bail
impossible
to ascertain
cer
Valley,
proposition.”
out”
a “must
tainty
whether or not
loss occurred.
submitted,
From the evidence
it undoubt-
any event,
is
it well established
edly rejected
proffered
Hoffa’s
motive
actual
loss is not an essential
element
and concluded
Hoffa’s
interest
Sylvanus,
crime. United
States v.
“bailing
generated
Valley
out” Sun
Cir.,
192 F.2d
by other considerations.
The Fontainebleau Hotel
loans illus-
w;as
One of these considerations
Hof-
pro-
trate the
defendants’
involvement
Valley
fa’s financial
interest
in Sun
dis-
curing otherwise doubtful Pension Fund
cussed
perhaps
above. Another and
far.
applicants
willing
loans for
who
important
more
one which the
could
pay
price,
and also demonstrate how
considered,
was Hoffa’s use of
granted
undoubtedly,
which,
loans were
money
of Teamster
to secure
would not have
been made
all the ac-
Valley’s
position.
financial
tual
facts had been known.
light
could have concluded
group
Strate
his
had twice failed
investiga-
of the McClellan Committee
to obtain loans from
the Pension
tion,
get
Hoffa was most anxious to
being
due to
fact
that their hotel was
money out of the
bank and
Florida
re-
However,
built on leased land.
when
turn it to the Union Local. This conclu-
intervened,
Dranow and Burris
may
sion
have been further buttressed
promised
$155,000,
Dranow was
a fee of
testimony
that Hoffa had con-
approved.
the loan was
gratulated Connelly
lying
to the Mc-
Clellan Committee
about
the Pension
$2,235,000
A second loan of
was made
pay-offs.
Fund loan
group
Strate
for additional
construction on the Fontainebleau Hotel.
Finally,
good
Hoffa’s claim of
faith in-
proof
The Government offered
to show
Valley
terest
in Sun
runs afoul of the
during
negotiations
fact
his secret connection with Sun
loan,
representations
Strate made false
properly
regarded
could
be
as a
regarding
to the Pension Fund trustees
fiduciary
violation of his
duties to the
past
expenses
pres-
and future
and the
beneficiaries
of the Teamster Pension
requisite
equity.
ence
owner’s
Fund.
proved
The Government also
that de-
Dranow’s connection with the scheme
fendant Hoffa callecT'the Pension Fund
clearly
evident.
part
He took an active
appraiser
and informed
him that
al-
conspiracy
every
step.
He was.
though
equity requirement
the owner’s
placing
active in
larger
all
loans.
yet
loan,
had not
met
the above
obtaining
He succeeded in
substantial
applicants
would
able
to meet
money
amounts
for himself and his
sixty days.
days later,
within
Seventeen
sought
legitimate
claim that he
find-
the Pension Fund issued its letter of
apparently
ring
ers’ fees
did true to
granting
$2,350,000
commitment
the full
jury.
His insistence on his fees from
loan.
Connelly
being paid
and Strate
in “small
type misrepresentation
having
Connelly
found
old
falsify
bills” and
granting
connection with the
Fon-
the McClellan Committee as to the Ever-
*10
would
evidence
have
find that the
loan,
inno- We
glades
claimed
his
all belie
concluding
jury in
that
warranted
cence.
conspiracy
in the
Kovens was involved
necessary
Dranow’s
to discuss
It is
respects.
in numerous other
and scheme
counts, as
mail
on the substantive
attack
Hyman
Undoubtedly,
was
conspiracy count
his
on
conviction
obtaining
principally
loans
interested
imposed
him.
the sentence
sustains
projects.
his
How-
for
various business
359,
States, 355 U.S.
Lawn v.
ever,
evidence, the
find
from the
we
that
2 L.Ed.2d
78 S.Ct.
jury
Hyman
that
could
concluded
argues
also
he was
Burris
Defendant
finding
conspiracy,
awas member of the
legitimate
merely engaged
busi-
obtaining
price
a
he knew
that
plac-
obtaining
for
fees
finders’
ness
Fund
Dranow and
Pension
loan
However,
ing
dis-
the evidence
loans.
help
Burris
a
fee
would
finders’
that
far be-
involved
Burris was
closes that
yond
Dranow and others
extricate Sun
legitimate
finders’
an interest
Valley.
Con-
Burris to
introduced
Dranow
fees.
Hyman
investing $100,000 in
admitted
all
nelly
who handled
as
accountant
Company,
Union Land
and Home
applications. The
loan
of his Teamster
jury
company
purpose
formed
for the
“bail-
Burris
was entitled
believe
Valley. He
out” Sun
also advanced
co-conspirator
active
who
was a
$50,000
Valley
pay
Sun
creditors of
obtaining
part
loans
fraudulent
May 1960. Evidence was offered to
using
proceeds of
Fund,
Pension
repaid
show that he was
for this advance
help extricate Sun
loans to
inflated
Valley
$400,000
proceeds
of the
out
Pension
profit
to make
as well as
application
Fund loan. The
loan
part in
Burris took an active
himself.
Hyman
was made in the
same month
Connelly
Everglades
and the
loans to
pay
made his
advance
Furthermore,
Hyman.
Key
loan to
West
creditors.
for the
Burris
the accountant
became
timing
of the advance and the
group at the
Strate Fontainebleau
they
time
application
curiously
loan
is
coincidental.
applying
loan.
a second
sup-
When the fact is added that Hoffa
was not involved
Defendant Kovens
ported
statements,
the loan with false
However,
proved.
all
transactions
readily appears
the inference
granting
for the
sufficient evidence
there was
of the loan was not on its mer-
knowing
conclude that he was
its,
conspiratorial
the result of a
as
conspiracy
and scheme
agreement.
member
Fund.
defraud the Pension
has
of defendant Strate
role
with the
above in connection
discussed
brought
early
July
Kovens
As
fact that he
Fontainebleau loans. The
Connellytaking
up
possibility of
over
group
unable to secure
had been
Valley.
later introduced Con-
He
Fund loan until Kovens
nelly
called “Gross-
Dranow whom he
brought
picture
into
Dranow
man,”
could secure
as an individual who
agreed
pay
a finder’s fee of
the latter
Kovens
loans.
was also
Pension Fund
It
significant.
The loan
went
suggested
Connelly
leave
that he
who
through on
and Dranow
Hoffa’s motion
country
Commit-
until the McClellan
group
loan
notified the Strate
investigators
town.
left
tee
approved
had been
before it received
addition,
offered
the Government
this,
Considering all
formal notification.
misrepresentations made
proof of
have concluded
could well
trustees
to the Pension
not made
the merits but
Kovens
conspiracy.
as a result of the
Samaritan
the Good
connection
it was
loans,
Hospital
showed
member
Weinblatt
a lesser
agent
brought
conspiracy.
into the
He
Dranow’s
Dranow
who
Kovens
his nominee
number
bank ac-
transactions.
Hotel
Fontainebleau
Strate
*11
as
such
AT THE TRIAL
He
acted
because
ALLEGED ERRORS
counts.
interest
in
Dranow wanted
own
these
of the instant case
trial
ex
investigators.
concealed from
accounts
period
tended over
three months. At
Judge imposed
The District
a sentence of
attorneys
least six of the
for the various
custody
$5,000.
hour in
a fine of
one
and
actively engaged
defendants
in
were
Although
great
not of
Weinblatt was
quite
defense.
It would have been
un
importance
scheme,
in
did
usual
if some errors had not occurred
holding
that he was
basis for
during
period. However,
that extended
knowingly implicated
conspiracy.
in the
Supreme
stated,
as the
has
Court
the test
is
“A
entitled to a fair
QUESTION OF SEVERANCE
perfect
trial but not a
one.” Lutwak v.
604, 619,
States,
United
344 U.S.
A
claim
number of defendants
481, 490,
S.Ct.
DENIAL
TRIAL
OF SPEEDY
they were
from the
drawn
box.
challenge
Hoffa and other of the defend
grand jury
to the
they
claim
ants
were denied their con
array
has been waived
laches. De
right
speedy
arraigned
stitutional
to a
trial. There
25,
fendants
on
June
delay
awas
due
the Hoffa trial
They
willingness
indicated
forego
pretrial
all
Tennessee.
case
motions
instant
went
granted an
April
1964,
immediate trial.
27,
The trial
six
trial
weeks
about
judge explained
a trial
date was not
Tennessee,
after
Hoffa’s conviction
possible
coming fall,
grant-
until
and some eleven months after
the return
twenty days
ed them
to file
motions.
of the indictment. The Tennessee indict
Many
seeking
motions were filed
dis-
prior
ment had
in
been returned
covery,
particulars,
severance,
bill of
dictment
case.
instant
Under the
attacking the
indictment
whole or in
circumstances, we hold that
there was no
part.
hearing
The case was called for
part
abuse
discretion on the
1964,
April 9,
March
1964. On
judge
postponing
trial,
challenging
petit
motion was filed
hold
we
that defendants were not denied
jury array.
April
It
not until
right
speedy
their
constitutional
to a
challenging
that motion was filed
trial.
grand jury array.
This was
un-
requires participa-
provision
8. 28 U.S.C. Section 1864
person
as to the
who must draw
placing
tion
the Commissioner
the names from the box.
box,
names
there is no
*12
questioned
States,
on
delay. Hyde
the
500 veniremen were
United
reasonable
v.
jurors
793,
voir
the twelve
347, 373,
56 L.Ed.
dire before
32 S.Ct.
225 U.S.
The Fed-
per-
chosen.
four alternates were
the time
1114.
It was filed after
entitle
Criminal Procedure
12(b),
eral Rules of
by
F.R.Cr.P.
mitted
Rule
non-capital
defendants, whether
tried
1864, provides
28 U.S.C. §
singly
jointly,
ten
or
no
than
to
more
jurors “shall be
the names of the
challenges
peremptory
a
matter
containing
publicly
a
the
from box
drawn
right.
or stat-
There
no constitutional
hundred
three
names of not
less than
right
greater
utory
a
number. Stilson
qualified persons
of each
time
the
586-587,
583,
States, 250
United
U.S.
v.
drawing.”
practice in
the
Pursuant
1154;
28,
v.
63 L.Ed.
Schaefer
40 S.Ct.
as
Court, the
of court
District
clerk
the
States,
40
251
S.Ct.
United
U.S.
jury
by
deputies, drew the
sisted
two
259,
Certain limited the defend- preju- the court they dice because claim All defendants challenges; eighteen peremptory ants to publicity diced directed toward permitted also, charging because Hoffa, much of this potential ju- questions certain publicity generated ask the Govern- judge at first rors, complaint because is made of ment. Particular venireman, with each time limited their public At- clashes between the then questioning him- Kennedy, later took over torney General, Robert F. self. defendant Hoffa. argue that the trial court Defendants The selection protect adequate action to failed to take days. ten court Over
this case consumed
impossible
prejudicial
be to establish an
kinds of
standard.
them from various
during
juror
publicity.
They
lay
It is
sufficient
can
assert
aside
selection,
impression
jurors’
opinion
period
Look
and render a
concerning
Magazine
story
published
presented
verdict
based
the evidence
alleged plot by
assassinate
court.”
Kennedy,
shortly
F.
and that
Robert
prop-
dire
voir
examination is the
Magazine
thereafter,
ran a similar
Life
place
er
to determine whether a defend-
article.
public notoriety
ant’s
has
resulted
*13
juror’s
April
prospective
jurors
prejudice. Although
on
of
commenced
Selection
May
27, 1964,
complain
counsel
11. On
and continued to
that
unduly
Kennedy spoke
May 1, Attorney
were
restricted on the voir
General
dire,
Day
do not
a Law
at the Univer-
we
think this is
Some
at
observance
true.
days
Chicago. During
sity
ten
question
a
and
court
were consumed in obtain-
oT
jurors
the
after
the
who
on
As
answer
session with students
sat
this case.
panel
speech,
box,
each
of
Kennedy
admitted
heard
veniremen entered
he
the
charges
judge
the
made
one Edward G.
informed them that
put
opin-
those
any past
who could
that
was interested
aside
Partin
suggested
entirely
ions
Al-
a
of him.
reach
decision
on
assassination
Attorney
presented
though
evidence
General’s answer
court were desired
jurors.
given
as
with
Each
was not
venireman was asked if
an interview
so,
press,
story
he
expressed
could do
a news
based on
state-
those who
any
appear
newspapers.
ability
doubt as
ment did
in the
their
this re-
gard, were excused.
any person
prominence
of
Whenever
charged
story
crime,
is
a
usual-
reading
transcript
A
of
ly
will receive wide distribution
proceedings
extending
a
over
two
may
im-
various news media.
It
be
period
convincing
ju
weeks’
is
that
practicable
postpone
the trial
for a
prejudiced
rors
pub
were
selected
not
long
period
enough
public
interest
licity as to Hoffa or otherwise.
Court
die down. As the Ninth Circuit
(Beck
Appeals
of
said of Dave Beck
SEQUESTERED
JURY
AT GREAT
622, 628)—
States,
F.2d
298
LAKES NAVAL STATION
“ *
**
it seems obvious that
it would
sequestered jury
The
was taken from a
bring
impossible
be
this defend-
ever
Chicago
downtown
hotel
removed to
necessary
ant
to await
to trial
it were
quarter's
the Bachelor Officers’
at Great
complete
publicity
a
of all
abatement
con-
Lakes Naval Station.
ofAll
the defend-
cerning
public
man
much in
view.”
so
error,
ants claim such action was
and the
juror may
The
fact
suggests
jury
defendant Hoffa
“
newspaper
*
read
or heard com
* *
accounts
kept
under
mili-
virtual
ments
radio or
to a
television relative
tary imprisonment
[which]
violative
charge
criminal
is alone not sufficient
process]
[due
the Fifth
and Sixth
ground
excusing
juror.
prospective
[public
amendments.”
trial]
Hoffa fur-
Finnegan
Cir., 204 F.
v. United
8
argues
ther
sequestration
such
“
required
ju
2d
* *
It is
*
patently
is
at odds with the
ignorant
totally
rors be
facts
deploring any
basic American tradition
Dowd,
and issues
Irvin v.
involved.
military
reg-
interference
with the
717, 722,
U.S.
81 S.Ct.
L.Ed.
justice
ular administration
case,
Supreme
2d
the latter
civil courts.”
page 723,
page
Court said
at
at
S.Ct.
1642 —“To
hold that
mere existence
hold
We
view
guilt
notoriety given
preconceived
trial,
sequestra
notion as to the
accused,
more,
jury
entirely proper.
tion of
innocence of
without
presumption
judge
Furthermore,
sufficient
to rebut
the trial
knew of
juror’s impartiality
charges
jury
prospective
alleged
tampering
would
recent
keep
charge
naturally thought
document which was
a sealed
it advisable to
The document
jury
delivered to the Court.
isolated.
ambig-
requested information, but was
Naval
quarters
at
Lakes
the Great
specific information
uous as
what
separate and comfortable.
Station were
jury
It
“work
desired.
referred
They
hour’s drive
within one
papers”
“document
and mentioned
jury
could
federal courthouse.
counts,”
law
all
all
“document
quar-
easily
kept
more
be
isolated
these
of overt acts
counts” and “document
hotel
than in a crowded downtown
ters
numbers
named.”
rows of
Several
employees
hotel
where
contact with
indicating
listed, apparently
also
bellboys
operators
such
elevator
twenty-one
remaining in is-
counts then
necessarily
frequent.
would
sue and
had been
the seven counts which
place
where the
dismissed.
kept
within the sound
was to be
twenty-eight
counts
As seven
judge.
hold
We
discretion
the trial
dismissed,
jury may
had been
well
no
of that discre
there was
abuse
*14
as
were the
have been in doubt
to which
com
tion and
there
no error
that
longer
no
case.
jury
seven counts
How-
quartering
mitted
reason
the
ever, upon reading
jurors’ request,
the
during
at
trial
Great Lakes Naval
the
the
judge
Deputy
trial
told the
Marshal
the
Station.
give copy
of the
to
to
entire indictment
LEE
EXCUSED
JUROR
WAS
jury
“they
the
and to tell
can have
them
arguments, the
Near the close of final
nothing
more.”
[the indictment]
judge
from
trial
received information
None of
defendants or their attor-
the
attending
ninety-two
the
the
year
doctor that
neys
present.
Deputy
then
The
were
Lee
mother
had under-
old
of Juror
gave
jury
Marshal
the
to
indictment
the
gone major surgery
hip,
for a
broken
message.
and related the Court’s oral
expect
the
he did not
her to leave
that
copy
It was later discovered that the
Judge
par-
hospital alive. The
asked the
of the indictment which had been sent
they
continue
ties whether
wished to
jury,
in to the
contained certain ink
jurors in
of the
with eleven
the event
markings. The Court indicated that
lady's
during deliberations, or
death
markings
placed
had not
these
the
prefer
would
to
the
whether
have
copy of the indictment
time it was
juror replace
first alternate
Lee before
jury room.
sent to the
began.
the deliberations
marking
principal
indict-
suggested
for
that
Counsel
defendants
im-
ment was the word “out” written
Lee
consulted as to whether he wished
be
mediately
5,
count
after
subheads
excused,
if the Court refused
to be
count
count
count
26 and
count
so, they
prefer proceeding
do
would
count 27. All
counts
had
of these
either
juror
with the alternate
substitution.
by the
or
been stricken
Court
dismissed
judge
not
consult
did
desire to
The trial
by the Government.
not
He
Lee and did
do so.
with Juror
proceeded
Lee, and
trial
with
excused
copy
other marks on the
sitting
juror
aas
alternate
first
drawn
indictment
lines
panel.
of the
member
had
the name of Herbert R. Burris who
case,
been dismissed
and two
judge
not
did
hold
trial
We
markings near
in a
small
Hoffa’s name
excusing
hav
Lee without
Juror
err in
ing
relating
telephone
call be-
sentence
he wish
him as to whether
consulted
one Maurice A. Lieber-
Hoffa and
tween
excused.
ed
be
markings
th,e
appear
It
man.
would
IN-
OF
COPY
OF
SUBMISSION
copy
were made
on the
indictment
JURY
TO
DICTMENT
of the
some member or members
way
jury,
jury,
prejudicial
no
and were in
of the
During
deliberations
Deputy
other defendants.
Marshal Hoffa
handed
its foreman
however,
pointed
reading
urged,
portion
trial
It
Court
out
com-
court
committed reversible error
the indictment —“That these are mere
municating
allegations
orally
jury
in the indictment which are
sending
copy
proof
anything.”
of the indictment
not
At another
point
at-
jury “Now,
the absence
their
the Court said to the —
torneys.
again,
you
Defendants insist that the trial
I tell
the indictment
judge
notify
parties
stated he would
this case is
no evidence
the defend-
* *
any questions
guilt
and their counsel
ants’
*. You must
not
during
jury
prejudiced against
asked
deliberations.
the defendants be-
cause an indictment has been returned
judge
Undoubtedly,
assumed
the trial
against
them.”
jurors
it would assist
as to
them so
note
the indictment before
We
counsel
of the
counts
them relate the
had
enable
earlier indicated he wanted
various transactions.
indictment
that a number of
know
counts
judge
abe
por-
this would
The trial
knew
had been dismissed and that other
suggested
forma
problem
had
and earlier
tions
indictment
not been
proved.
identified
verdict
would have
He said the
was entitled
“Everglades”
counts,
putting
such
know
Government “flunked
However,
top
course;
defend-
at the
of Count
that is seven counts
25%
* *
objected
done.
twenty-eight
not
ants
out
went down
*.”
suggestions as
Court
asked
good practice
It was
be better identified
how the counts could
judge
to have sent the brief mes
*15
jurors,
counsel for defend-
for the
sage
jury
the
indictment
in the
ants
none.
counsel,
of defendants and their
absence
al.,
Press,
In
2
United
et
States v.
but it is obvious that the indictment was
Cir.,
1003, a
similar
336 F.2d
somewhat
thing
jury
the
the
sent to the
Court
page 1016.
situation was discussed at
anything
or not
whether
was said. No
improper for
The Court said: “It is not
given
further
instructions were
as was
in its
court to
the
the
read
indictment
majority
the situation in the
of cases
jury
entirety
portions
or
thereof
by
relied on
defendants.
United
See
(citations).
Indeed,
protracted
in
cases
Neal,
533;
Cir.,
States v.
3
320 F.2d
involving
numerous counts such as
Cir.,
States,
Evans United
6
284
v.
F.2d
one,
often
reference to the indictment
393,
266,
94 A.L.R.2d
and Rice v. United
delineating
guide
helpful
as a
in
serves
Cir.,
States,
709,
8
356 F.2d
717. Under
jury may
on
issues the
be called
the
present,
the circumstances then
we hold
give
Similarly,
decide.
it is not error to
procedure
complained
the
now
jury
dur-
the indictment
for use
prejudicial
was not
and does not warrant
(Citing cases).
its deliberations
The
a reversal of defendants’ convictions.
decision to
so rests in
dis-
do
the sound
Compagna, Cir.,
United States
2
146
v.
cretion of the court.”
524;
F.2d
Walker v. United
116
U.S.App.D.C. 221,
v.
lating
trial errors
exclusion of
the admission or
strate
background
including
curred,
evidence,
facts
as to bene
certain relevant
evidence
Fund,
by
must
stated.
trial errors will
payable
be
Several
fits
first.
considered,
hold there was
discussed
and we
been
prejudicial
no
error.
I.
by
or all of the
some
Other contentions
Impeachment of Hoffa
1. The
corporate
production of
as
defendants
documents,
Conviction
Tennessee
judge
trial
my opinion
court com-
the district
misconduct,
guilty
as
to Government
permitting
in
reversible
mitted
error
arguing to
counsel’s comments
impeach
Government
jury,
instructions were
certain
jury tamper-
conviction
carefully
erroneous, all
con-
have been
in Chat-
a federal district court
no
find
error
therein.
sidered. We
impeaching
tanooga,
The
Tennessee.2
counsel
de-
Each claim of error
permitted
evidence should not have been
carefully
has
considered
fendants
to be used because
ordering
the Government’s
hereby
error are
and all such claims of
Chicago
Chattanooga and
of the
denied.
atmosphere of
an
indictments
create
judgments
each
conviction
prejudice against
all
14894,
14892, 14893,
appeals,
of the
Nos.
unrelated, factually
subse-
otherwise
and 14898 are
quent
of one of
conviction
them.
Affirmed.
against the defendants
The indictment
instant
June
case
returned
Judge
SWYGERT,
(dissent-
Circuit
4, 1963,3
month after Hoffa
less than one
ing).
jury tampering in Ten-
was indicted for
upon
My dissent
based
several
giving rise to the
nessee. The facts
grounds. First, a
errors
number
trial
however,
charge,
occurred
Tennessee
require
independently
a reversal
prompted
after
sometime
those
of all defendants. Addition-
convictions
present
prosecution
case. At
of the
ally,
is re-
without remand
a reversal
arraignment
in this case
June
quired
because
as to certain defendants
1963 all defendants announced
proof
sustained neither
Government’s
ready for
and offered to waive
single
scheme to defraud the Team-
pretrial
all
motions in order to obtain
charged
as
sters’ Pension Fund
speedy
resisted
trial.
indictment,
single,
nor a
overall con-
stating
efforts, however,
all
that it
such
spiracy to
the mail fraud statute
violate
try
case first
wanted to
the Tennessee
alleged.
“one
defend-
because it involved
length
My apology
of this dis-
The dis-
ants” named
the indictment.
largely
judge
rests
on the fact
sent
trict
position.
acceded
the Government’s
began
many
loan transac-
evidence as to
Tennessee case
briefly.1 Only January 1964,
tions must be discussed
and Hoffa was convicted
apparent
jury tampering
then does it become
there
on March
charges Following
conviction,
was a fatal variance between
Hoffa’s Tennessee
*18
irrelevant,
proof
for
and
prejudicial
and that much
all
moved
a
continuance
trial,
submitted to the
had
set for
evidence was
instant
been
complex.
day,
1.
multifarious and
3.
district
The facts were
the same
federal
On
Florida,
three months. The
District of
The trial lasted
record
court for
Southern
17,000 pages
approximately
an in-
moved
dismiss
consists
the Government
testimony
proceedings.
in
1961 which
and trial
dictment returned
October
charged
and con-
mail
Hoffa with
fraud
Hoffa,
spiracy
promotion
F.2d
States v.
connection
among
1965),
granted,
enterprise
(6th
382 U.S.
Cir.
cert.
the Sun
(1966).
645,
719
just
consistently
discussed
courts
held
If
have
that
the
the communications
subject
by
harm
all, a conclusion
thus created
be undone
were
at
cannot
relevant
doubt, they
were admis-
instructions from
trial court.
considerable
the
United
(3d
only
impeach
Clarke,
Indeed
States
F.2d 90
sible
Dranow.8
v.
Cir.
judge
recognized,
1965);
States,
trial
all times
so
at
Scott v. United
F.2d
(5th
1959);
attempting
consideration
Cir.
Holt v. United
limit
1937).
by
(10th
letters
to that defendant.
8. The rehabilitated against Local 299 the letters admissible had recovered its funds when they Second, the letters Dranow were received were received. let- because during conspira- Qualify Link ters could as the existence of the not “verbal acts” cy they and, alternatively, inasmuch were ad- written ex- planation against independently missible all as “verbal material act. * * * prove acts relevant the ex- may deep 9. That the letters have had a im- conspiracy.” of a from the istence Aside jurors pact on the is evidenced the fact argument appears fact this belated juror eventually who became the designed meeting to avoid head-on the de- juror foreman showed alternate Pare a relating principal fendants’ contention newspaper account of the events surround- letters, prejudice inherent to introduce efforts the letters argument First, is without merit. into evidence. *21 720 page signa- motions for severance second contained
The defendants’
the
granted.
jury.
ture of each member
It
Dranow
have been
of
should
the
receiving
upon
was also disclosed that
Jury in the
with the
3. Communication
communication,
judge
the
directed
Absence
the Defendants
deputy
the
marshal to deliver the indict-
a com-
trial
concerns
Another
error
jurors
ment
“they
to the
to tell
them
jury
judge
munication
with the
the
nothing
could have this and
more.”
and their
absence of
the
the defendants
Neither
Government
defense counsel
counsel,
jury had
de-
after the
retired to
nor the defendants were
notified
upon
liberate
its verdicts.
request
jury,
they
from the
nor
in-
During
requested
discussion over
the
judge’s
response
formed
action in
judge
the district
instructions between
it, despite
judge
fact
had
that the
counsel,
judge
he
indicated that
expressly stated that such notice would
proposed
to the
to read the indictment
given.10
be
jury,
intend
send a
but
he did not
judge in
of the district
action
jury
copy
room. The
it to the
defend-
sending
jury room
to the
the indictment
object
reading
ants did
indictment,
to a
notifying
in commu-
without
counsel and
suggested
that certain
through
nicating
jury
depu-
with the
upon
portions
had not
which evidence
ty
presence of the
marshal out
judge
offered
be omitted. The
a vio-
their counsel was
defendants and
that he intended
nevertheless indicated
rights
lation
under
of the defendants’
During
read the
indictment.
entire
amendment,
sixth
as well
aas violation
charge, however,
did not
he
read the
Rule
Federal Rules of Criminal
43 of the
indictment;
omitted
entire
he
certain
con-
decisions in which
Procedure. The
portions
to which the
by the
duct similar to that condoned
objection and also
had voiced
omitted
legion.
majority
condemned are
has been
counts,
allegations
contained in seven
g.,
States,
United
273 U.S.
E.
Shields
advising
jury
that these counts had
(1927);
47
twenty-seven contain- counts substantive materially appli- preparing false them in allegations charging de- ed identical Hyman to the Fund. Strate and cations vising single, all-inclu- of a execution *23 among alleged those have been to the Teamsters’ sive scheme to defraud applications. who submitted such differing par- Fund, only in the Pension alleged position aas to have used was alleged to ticular interstate transmission Fund to further of the trustee Pension of the scheme. furtherance thereby misrepresent in- and the facts single conspiracy charged a final count approval The in- of the loans. fluence among all to the com- the defendants use alleged by of this virtue dictment in the munications media execution more diverted scheme the defendants the overall scheme pro- dollars than one million alleged jointly devised. Fund to of loans from the ceeds allegations The indictment contained fees, contracts the form themselves background preliminary of certain facts borrowing services, and control outlining alleged scheme. As one corporations, than and that more part background, central of this it was funds dollars hundred thousand alleged that in 1955 Hoffa obtained Sun used to rehabilitate so diverted was Valley, secret financial interest Sun Valley. Inc., corporation engaged Florida alleged to have loans which were estate, sale of he real and that by scheme devised included in the placed belonging also indict- in the the defendants were listed Detroit Local in the Teamster loans, totalling more than These ment. Florida col- National Bank at Orlando as dollars, twenty loans: million included granted by lateral secure a Everglades 1) New To remodel Valley; bank amount to Sun Florida; Hotel, Miami, Valley that Sun thereafter met with 2) enlarge Fon- To refinance and financial and unable to difficulties Orleans, Hotel, tainebleau Motor New repay the loan and bank there- Louisiana; fore refused release the funds held security. alleged It Dranow shop- 3) To of a finance construction Company, formed and Union Land Home apartment ping center, renovation September acquire Inc. 1958 to and buildings, property, acquisition of real Valley, succeed Sun then un- which was Key mortgages by payment reorganization process der the under West, Company, Key Foundation West laws; bankruptcy Burris, Dra- Florida; now, Weinblatt, at Hoffa’s direction 4) purchase Casa To finance the benefit, acquire and for his undertook Corporation Casa of the Marina Hotel Valley, pay Sun its and the re- debts Florida; West, Key Hotel, Marina organization costs, thereby to secure 5) purchase LaCon- To finance the the release of Local 299’s funds from the Corporation of LaConcha cha Hotel bank. ; Key Hotel, West, Florida The scheme to defraud the Teamsters’ financing alleged 6) permanent To obtain Pension Fund to have been Corpo- July 2, prior devised Four-Three-O-Six Duncan sometime Missouri; ration, Louis, allegedly all the defendants. It Saint 7) purchase by upon communications, To finance First individual buildings Berkeley Corporation merged conspiracy scheme and the inso- Buildings known as Connell and Cor- proof far as the evidence related to the Buildings, nell and a leasehold inter- of them. Beverly est Wilshire Health Another characteristic of the indict- Club, vicinity located in the of Los preoccupation ment is its with the finan-
Angeles, California; well-being Valley. cial of Sun In the 8) pay obligations To off make im- charge Government’s efforts provements Buildings to the Cornell single prove conspiracy scheme operated by Berkeley Corporation First among defendants, Valley all Angeles, California; in Los unifying became element. 9) mortgages To refinance on Mir- majority opinion recognizes explicitly Shopping Center, acle Plaza Vero that, least under the Government’s Beach, Florida; theory case, of the the extrication 10) from its financial difficul- To construct North Miami General ties, benefit, for Hoffa’s Hospital, was the common Miami, Florida; North object alleged scheme to defraud 11) provide financing To for the Mi- the Pension Fund. Such cohesive Airport Hotel, ami International Mi- *24 among force the defendants was neces- ami, Florida; sary objection multiple to avoid the that 12) provide financing To for the Bir- conspiracies encompassing schemes or mingham Airport Motel, Birmingham, fewer than all of the defendants were Alabama; multiple The involved. existence of con- 13) improve To construct spiracies sepa- would have necessitated Causeway Inn, Florida; Tampa, rate trials to avoid a fatal in variance 14) mortgages and other proof To refinance occurring similar to in that obligations 300, Upper of States, Club Sad- Kotteakos v. United 328 U.S. River, Jersey. 750, dle New 66 S.Ct. 90 L.Ed. 1557 (1946). charges From this brief outline of the against defendants, a of ob- number difficulty placing Valley The in Sun pertinent. servations become In an in- position prominence in a of as the cen- one, present dictment such as for all objective physical alleged tral of practical purposes is no there difference is in- scheme nevertheless visible in the charge between the substantive devis- alleged The dictment. defendants were ing executing a scheme to defraud to have diverted over one million dollars charge conspiring to commit themselves, yet only to one hundred offense, is, the substantive alleged that unlaw- thousand dollars was to have fully agreeing devise and to execute the Valley, “trickled down” to a Sun rela- scheme. “A tively insignificant scheme to use the mails could amount which joined defraud, by to which is in supplied more have been one conspiracy.” person, than one paid by several “finders fees” various States, Pinkerton recipients 328 U.S. loans from the Pension 640, 647, 1180, 1184, 66 S.Ct. 90 L.Ed. sug- Fund. As the defendant Kovens (1946); Cochran charge v. United gests, merely had the been 1930). (8th 41 F.2d Cir. The the defendants a scheme en- devised to theory Government’s of the indictment expense rich themselves at and demonstrates Fund, binding evidence this fact. Pension task of them attempted The together scheme to defraud was manifestly would have been joint to be shown as an unlawful significant enter- more It is difficult. also prise by defendants, is, a con- activity note that the last recorded in spiracy. Thus, discharging but for Valley the fact the Sun indebtedness permits separate the law substantive occurred in June and that mail and belonging wire fraud counts to be based to Teamsters Local by standing alone, as the trial court 299 was the Florida Nation- lent recognized released jury, in its instructions al Bank Orlando on June reception evidence. not in the Valley in If the situation Sun case, tying then fact the element in this charged gist the crime obvious, position its calls allegations case in the and evi- resides overlooked, seemingly clarification. respect to false and dence submitted effect- defendants were on trial representations made to the fraudulent Valley. reorganization of Sun Unless Fund the defendants. Valley, or, rehabilitation Sun element of the crime essential epithet, use the Government’s Sun alleged money proved, diversions illegal per out,” se. “bail was not necessary although Valley, may had The fact have together, mean- bind the defendants Valley or “secret” interest ingless. upon the Thus it was incumbent respect may have actions with prove loans ob- Government to duty been violation of some owed tained from the Pension him to of Teamsters’ Lo- the members misrepresentations de- material nothing do 299 had cal whatever fendants, prove that de- and also charged in the indict- with the crime joined together pre- to do fendants legitimate ment. The reason cisely thing for reason this sort of some Valley and the inclusion of the Sun This common to all them. common Company opera- Union Land and Home says, object, the Government was Sun and the submis- tions the indictment Valley. respect sion of to them was evidence mind, premises an anal- With these may operations show how these ysis vari- reveals fatal the evidence for, furnished motive charged ance from crimes object of, loans to obtain scheme *25 indictment, prejudicial defend- through from false the Pension Fund Kovens, Strate, Hyman, and a ants and representations. There- and fraudulent great wholly of was mass evidence which repeated fore, infer- the Government’s charged, there irrelevant to the crimes during ences, and in both prejudicial all the defendants. appeal, Valley only be could that Sun 4. in the Proof Variance skullduggery and other associated with evil-doing largely beside varieties are light evidence, most viewed Valley point. rescuing If was Sun Government, not does favorable “end,” purposes of this then single to defraud the disclose a scheme no more than case it could have been misrepresenta- Fund Pension object conspiracy to achieve lawful of a Valley tions in from order Sun to.rescue by lawful end unlawful means. Instead, the résumé financial ruin. tends show made which follows A should be evidence similar observation schemes, criminality in- respect several and distinct smaller aura with volving (“pay payment of the fees different combinations cast about de- offs”) from defendants and with two three and other “diversions” schemes, payment proceeds common to all fendants loan as such.12 The personal designed en- each in the effect to one who assists fee particular loan, procurement it members of a else richment whatever upon be, relat- may the scheme. Yet the evidence fraud all not of itself a is al- to all of the loan transactions fraudu- “diversions” lender. Nor are money example to rehabili- to make available which was 12. As an of the climate may Valley. such conduct tate be While and in connection with Sun created the reprehensible, morally fees, payment does as- Fund, upon knowing participation a fraud the Pension in the amount to serts that conspiracy charged indictment, by ab- the crime shown the awareness misrepresentation part to the Fund. sent some of certain defendants getting “price” Fund loans leged security place, the indictment was admitted the loan had not taken against Connelly yet paid required defendants. and all the had not charge” “service to the Fund. Everglades (a) Hotel Loans Assuming that these latter items misrepresenta- amounted to material by Two loans made the Pension Fund, tions to the Pension the Hyman Connelly13 evidence Vaughn Fund B. failed to connect Strate and Everglades finance the renovation Everglades loan, the second and loan, Kovens Hotel, Miami, Florida. The first only can be connected January inference $3,300,000, was obtained his association as building the contractor 1959. contrac- Kovens was the any showing hotel. Nor was there brought into tor. He Dranow Burris any money from this loan diverted negotiations. helped Burris Valley.14 to Sun Later, prepare application. relating joined ap- the discussion to this (b) The Pelican-Fontainebleau Loans plication. The evidence shows that Con- nelly payments to Dranow total- made Government introduced evidence ling $300,000 in connection with this of four loans made the Pension Fund loan, suspicious Corporation, under circumstances to the Pelican State Hotel majority opinion pointed partly Strate, has owned the defendant enlarge out. The evidence also shows that Con- refinance Fontainebleau nelly paid Hyman Greenberg, $15,000 to Hotel in New Orleans. These brother-in-law, Dranow’s which found loans with which Strate way its into Union Land and Home Com- connection. The dates amounts pany to assist in the rehabilitation these loans are as follows: Valley. money, however, This July $1,350,000 not shown to have come from the Pen- 2,325,000 February Further, misrepre- sion loan. no 500,000 3. December 1960 sentations to the Pension Fund in con- 500,000 4. March 1961 proved nection with this loan were the indictment did not include a substan- The evidence shows that Dranow and charge upon any mailings tive re- based applica- Burris assisted with his Strate lating Hyman to it. Strate nowhere tions for these loans and that Hoffa appear in connection with loan. was aware of their efforts and *26 Everglades loan, again The securing ap- second for instrumental in by Connelly $1,000,000, proval was secured in of some of loans. The evi- July 1959. Burris and payment Dranow assisted dence also shows the sub- preparation applica- granting of the loan stantial fees and of other tion and Hoffa ing influential in was obtain- concessions Strate to Dranow and approval. misrepre- its No direct in Burris connection with at least the appear sentations to have been made in first two loans. It further shows sever- application, misrepresentations does but evidence al made to Pen- paid show loan respect applica- that at the time the sion Fund with to the out, inspection, appraisal, an an and the for tions the second and third loans.15 mortgage part execution a as of the Finally, a the evidence reveals that Strate Connelly, principal ticipate joint Government wit- were accorded substantive ness, coeonspirator, responsibility. not named as a although position appears his to differ 15. Strate was convicted on the substantive Hy- from that of Strate and alleging mailings relating counts to the only degree. in man guilty first three loans. Hoffa was found mailing alleged relating 14. The in the first count of on the count to the second loan. remaining acquitted the indictment related All to this loan. The defendants were guilty pertaining the defendants were found on this on all the Fon- counts to the count, only loan transaction as to tainebleau loans. directly par- which defendants who did relating prin- portions flagrant, statements were diverted substantial cipally expenditures periodic proofs proceeds loan to his own benefit and that required up $50,000 for the which to be submitted he were “came with” enterprise. Valley could be The third and fourth the Fund before disbursements granted loans, however, misstate- after the made on the loans. Hoffa’s were Valley relatively ments minor nature had taken were rehabilitation arguing Further, in place. he failed and occurred while evidence Hyman or of the Kovens favor of loan to the trustees disclose that either knowledge conveyed with, They impres- false had Fund. connection Key of, ma- in loans. The sion conditions the Fontainebleau that business “representa- upgrade. pro- jority opinion on the The states West were Key loan who were tives of contacted Kovens ceeds the second West Strate Dranow,” as an indica- not disbursed Fund until referred them to the Pension complicity part of on the Kovens. of Sun tion of rehabilitation fact; accomplished therefore, no that an attor- such The evidence shows ney proved. Further, Strate’s, Cohen, friend of diversion was neither owner, con- to have Miami restaurant nor Strate was shown Kovens Elliott^ unsuccessfully Key at- tacted Kovens even known about the loans financing tempted him in to interest West.17 Later introduced Fontainebleau. Kovens (d) Marina Ho- The LaConcha and Casa Dranow thereafter Elliott to Dranow. tel Loans contacted Strate New Orleans. Hyman applied Late to the Key (c) Loans Foundation West totalling $650,- Pension Fund loans granted loans The Pension two purchase of La 000 to finance Company, Key Foundation to the West Key Hotels, Concha and Casa Marina buildings apartment owned West, ap- Florida. loans were Hy- Key West, Florida. The proved January Hoffa’s mo- fifty per man held cent wife tion. As condition the disburse- loan, Key The first stock West. proceeds, $217,000 ment of loan $875,000, was obtained in the amount of required Pension Fund satis- July combined ef- factory to a re- leases of hotels Hyman evi- forts and Burris. Hyman sponsible person be executed. Hyman indicates “invested” dence Lavin, an leased the hotels to Charles proceeds of this loan operator of retirement hotels who Company and Home the Union Land working salary for him at a of $100 (Sun Valley) suggestion of Bur- at per months, apparently week several misrepresentations Pen- ris. No assisting in re- the establishment of a proved loan sion Fund to this plan tirement The bal- hotels. court dismissed and the district proceeds ance disbursed in the indictment which recited count Hyman in March fired Lavin mailing relating to it.16 *27 operated and the hotels never un- were granted $400,000 A of was second loan der leases. Key in June 1960 to remodel West proceeds No Apartments. diversions loan The evidence Poinciana charge Hyman were and the loans were disbursed supports shown that both long Valley misrepresenta- after Sun had been rehabili- and Hoffa made certain regard tated. The other defendants were not in tions to the Fund Hyman’s connected to LaConcha-Casa Marina application. false loan testimony following charged Hymans sentation of a 16. that the The indictment Pension Fund official to the same effect. they misrepresented sole were Key fact stock when in owners West Hyman guilty four counts was found relating The trial court owned All to the second loan. other de- 50%. acquitted misrepre- on these counts. immaterial fendants held this be an
727
Irving
Murray Randolph.
except
transactions,
that Burris was
Link and
appraiser
sought
proceeds
Hyman
present
when the
Government
to trace the
with
Berkeley
properties.18
inspected
this loan
First
for the
Valley.
Dranow and
to Sun
thence
(e)
Berkeley Loans
The First
Finally,
attempted
$55,-
to show that
Berkeley
000 from
First
the third
loan
made three loans
The Pension Fund
indirectly
repay
was
used
Factor
Berkeley Corporation, a
the First
real
loan. The
court ruled
district
corporation
which Burris
in
was
estate
so,
to do
Government
failed
dis-
of record.
sole stockholder
alleging mailings
missed the
counts
two
granted
$266,000
A
in
loan of
was
relating
court,
to this loan. The
how-
January
acquire
Beverly-
ever,
did not strike
evidence.
Angeles.
Health
near Los
Wilshire
Club
Strate,
Hyman,
Neither
nor Kovens
conceded at
the trial
any
was connected
loans to
with
misrepresentations
no
were made
Berkeley.20
First
in connection
loan. The
with
sec-
this
Berkeley,
$2,966,-
ond loan to First
(f) The
Loans
Good Samaritan
granted
in March
to ac-
The Government
introduced evidence
Buildings
quire
in Los An-
the Cornell
concerning
by
two loans
the Pension
geles.
misrepre-
several
Burris made
Hospital,
Fund to Good
Inc.
Samaritan
application
in
con-
sentations
the loan
to finance
the construction
the North
cerning
Berkeley’s
First
collateral and
Hospital.
Sager,
Miami
Burt
General
might
financial
condition
original
attorney,
pro-
Miami
in
been material
considerations
organizer
hospital
moter of
although
granting
loan,
of the second
Sager
Hospital,
of Good Samaritan
Inc.
by
certain of the misstatements
cited
contacted
in the summer
Kovens
questionable sig-
the Government are
inquired
possibility
into
of con-
perhaps
nificance.
is
The evidence
suf-
structing
by
hospital
property
held
Hoffa and Dranow
ficient
to connect
Inc.,
corporation
by
Ruedd,
owned
knowledge
this loan
with
their
Following
discussions,
Kovens.
several
evidence,
Burris’ activities.19 The
how- Sager
apply
decided to
for a loan from
ever,
failed to establish that
the Pension Fund
was introduced
proceeds
Valley
loan
went into
Sager’s
to Burris. Burris assisted
ac-
operation.
rescue
preparing
application
countant
granted
A third loan of
$2,300,000.
loan
A
loan
Berkeley
approved
the Pension Fund to
amount was first
the Fund
First
April
improvements
September 1959,
no
but
disburse-
Buildings.
misrepresenta-
Cornell
No
proceeds
ments of loan
were made until
concerning
proved.
loan
tions
late
The loan itself
disbursed
after Sun
alleged
The indictment
several mis-
financially
had been
restored.
representations
respect
with
to this
attempted, however,
The Government
loan,
applica-
connection
portion
show some
connection between
itself,
generally relating
tion
to con-
proceeds
Valley by
the loan
placed upon
ditions
disbursement
introducing
of a series of
evidence
com-
proceeds by
the Pension Fund.
plicated
involving
transactions
an ear-
materiality
The evidence as to the
$125,000 by
misrepresentations
equivocal
lier loan of
John Factor to
these
*28
Hyman
18.
on two counts re-
was convicted
with the second loan. All other defend-
lating
acquitted
to
All
the loans.
other
ants were
on this Count.
acquitted
were
counts.
these
permit
pledge
20. Kovens did
Burris to
his
Ruedd,
19. Hoffa was
on the substantive
stock in
convicted
Inc. as
in ob-
collateral
mailing
taining
alleging
count
a
in connection
loan.
the second
assuming
materiality
purchased
he held as
of
had
and which
best.21 But
by
(con-
Corporation.
4306 Duncan
Hoffa
re-
of
Kovens
one or more
them
agreed
Burris,
cerning
ferred
who
the contractor on
Strecker
to
his bond as
securing
by
(relating
loan
funds
in
project)
Hoffa
to
to assist
Streck-
and
accounting firm
Burris’
made
er would retain
to have been
available
which were
took
hospital),
for his
Burris
then
in
none
business.
investors
proceeds
discussed
to
to Miami where
loan
shown
Strecker
were
application
any purpose,
in-
loan
with Dranow.
been
for
diverted
got
cluding
Valley.22
fee
Kovens
Max Feder-
Later Burris
contacted
constructing
$200,000
hos-
for
suggested
bush,
acquaintance,
an
pital,
con-
his
but the reasonableness
purchase
Duncan
Federbush
tracting
ques-
not called into
fee was
property,
him he could obtain a
and told
supports
in-
also
tion. The evidence
Fund
loan
the Pension
to finance
$28,000
ference that Kovens contributed
purchase.
Federbush
had few
re-
reorganization
assist
in the
to
agreed
own,
sources of
but
however,
Valley.
contribution,
was
His
reading
signed
proposition and
without
Fund in
the Pension
not connected to
put
papers
him
before
number
way;
any
fact,
payment
made
was
Burris.
Included
these documents
proceeds of
Good
before the
the first
application for
was an
a Pension Fund
loan
Samaritan
were disbursed.
Corporation,
loan
4306 Duncan
list-
granted a
The
Fund
second
president.
its
Burris
Federbush as
$500,000
loan of
Good
Samaritan
brought
to-
then
Strecker
Federbush
in the
June 1961 to
an increase
gether
finance
obtained a loan of
single
hospital.
imma-
give
A
size
for Federbush
Strecker
as a
relating
misrepresentation
this
terial
payment”
property.
“down
on the
Some
Eight days
proved.
loan was
after
later,
Fund
time
before the Pension
during
approved,
dis-
loan
second
application,
considered
4306 Duncan
application
cussion of an
loan
unrelated
ap-
Burris told Federbush that his loan
Kovens,
Hoffa
told the
submitted
rejected
plication had
been
because
loan had
Fund trustees
the second
prior
Federbush's
criminal
record
expended
adding
floor
another
arranged
money.
return
of “his”
hospital,
addition-
to the
when
fact no
(Weinblatt deposited $15,000
Feder-
The Sun
al floor had been constructed.
account.)
bush’s bank
had
indebtedness
been extin-
Pension Fund
attended the
Strecker
guished
granted.
loan
before the
application
meeting
loan
which the
Hyman had
neither
nor
Finally,
Strate
meeting be-
was considered. Before
of the Good
connection with either
gan,
told him that
Burris
Dranow and
loans.23
Samaritan
being presented in
application was
party,” Feder-
“straw
the name
¿306
(g)
Corporation Loan
Duncan
that, within
testified
bush.
Strecker
trustees,
hearing
Strecker,
several
Fred
a Pension
trus-
objected
sought
tee,
loan
re-
told Hoffa that he
a Pension Fund
he
being presented in
property
application
he
finance
in St. Louis which
expressly
example,
its
conceded
to have
22. The Government
For
Hoffa
shown
allegation
prove
in-
represented
in the
Fund that Dade Coun-
failure
portion
op-
ty,
going
substantial
that “a
Florida was
lease and
dictment
hospital
investing
money
other
been diverted
erate the
money
purposes.”
Fund.
much
it as the Pension
They
representations were false.
Dranow, Kovens,
Burris,
made, however,
not in connection
guilty
application
loan,
counts
of certain of the
but dur-
were found
relating
with the
ing
concerning
loans.
Samaritan
to the Good
the reduction
discussion
acquitted on the loan from
other defendants
interest rate
6%%
these counts.
to 614%.
*29
pose presented
applica-
replied, “Do
in the various
manner,
for loans.
you
The loan
tions
or not?”
want
the loan
approved
motion and
on Hoffa’s
was
specifically
view,
This
embodied
Corporation
subsequently
4306 Duncan
throughout
instructions,
obvious-
Despite
procure-
$840,000.
received
ly
purpose
confuses the common
of a
from the Fund
of this loan
ment
single
several,
enterprise with the
Dranow, Burris, and
connivance
though similar, purposes
numerous
payments
Hoffa,
or
fee
no diversions
separate adventures
like character.
proved
no-
was
were
******
Kovens,
or considered.
where mentioned
many
they
conspire,
When
invite mass
Strate,
Hyman
not connected
were
by
so,
Even
trial
their conduct.
any way.24
with this transaction in
proceedings
exceptional
are
to our tra-
relating
preceding
analysis
every
dition and
safe-
call for use
charged
guard
several of the loan transactions
to individualize
each defend-
part
single conspiracy
to be
of a
demon-
ant
his relation
the mass. Whol-
design
strates
no common
bound all
ly
join
is it with
different
those who
together.
though
This case
the defendants
together
only
few,
governed
by Kotteakos
therefore
many
doing
may
others
be
the same
States,
750, 66
328 U.S.
S.Ct.
though
may
up
of them
line
some
(1946).
1239,
7S1
relevant,
‘airport
loans were
transaction was further
hotel’
evidence
*31
general
only
conspiracy
pattern
usual
the
the
because
also revealed
the
place
arrangement
procuring
loans,
Pen
Fund
Burris
fraudulent
Pension
fee,
that,
Dioguardi
sion
but also
since
Fund loans for a
be
it showed
when
for ac
told
in
cause
loans were obtained
Hoffa
he
the
wanted a
who,
George
loan,
about
countant
Simon
at
Hoffa
referred
him to Burris.”
1960),
(March
partici
justify
the
same time
Such
“referral”
does not
the
pated
preparation
in
of the fraudu
admission into
of all
evidence
the facts
application
concerning
application for,
First
lent
loan
filed
and the
(Si
Berkeley
granting
of,
Fund.”
the Pension
with
otherwise unassailable
prepared
“pat-
mon
sheet for First
loan.
was
balance
Nor
it evidence of a
Berkeley Corporation
placing
information
tern” of
“fraudulent”
loans.
Burris.)
That Burris
furnished
Causeway
(d)
The
Inn Loans
charged
per
fee,
cent
or that Simon
two
totally
dealings
$1,500,000
had
with
irr
Burris was
Pension Fund loans of
and
$350,000
granted
Causeway
elevant.26
circumstances did not
These
En-
any way
prove
terprises,
an unlawful
tend to
Inc.
to construct
the Cause-
agreement
Valley way Inn, Tampa,
to rehabilitate
Florida.
The first
by defrauding
approved
the Pension Fund.
loan was
in October 1960 and
the second
fewa
months later. The dis-
(c) Loan
Club 300
acquittal
court directed
trict
a verdict of
relating
the count
the indictment
$900,000
A loan of
was made
loans,
to these
but the evidence was not
Inc.,
Pension Fund
1961 to Club
stricken.
River,
Upper
Jersey,
Saddle
New
bowling alley.
Irving
promoted
Causeway
finance a
and
Kipnis
motel
subject
application
loan was
of the mail
of one
Inn
for
venture.28 His first
rejected.
fraud counts in the indictment
three
a Pension Fund
loan was
conspiracy
agreed
Later,
help
the overt acts in the
count.
Burris,
he met
who
Although
mailing
proved,
ap-
was
secure
loan for a fee. While the
plication
pending,
Kip-
Government
dismissed the substantive
Burris
told
was
money
count before the case
submitted to
was
nis that he needed some
for Sun
jury; however,
immediately
Valley
the evidence was not
and asked him to
Dioguardi,
buy
stricken.
James
a contrac-
per
Kip-
cent
ten
interest
it.
tor,
gave
first
talked to Hoffa
a loan
about
nis
for $57,000,
Burris
check
al-
undeveloped
Jersey.
legedly
land in New
“option-loan”
for an
interest
suggested
Dioguardi
contact
Valley,
principal
being
condition
Later, Dioguardi
money
Burris.
consulted
option
be refunded if the
regarding
Burris
a loan for
the Club
years.
was not exercised within three
Dioguardi
300.
given
Bur-
Dranow,
the defendant
The check was
who
Herbert,27 split
per
ris’
Valley.
son
a five
cent
used it to rehabilitate Sun
Bur-
preparing
fee from the borrower
ris later
received checks from the bor-
application.
There was no evidence
$57,000
$58,000
rower
as fees
any misrepresentations
securing
part
Pension
loans.
In
gave
Fund in
loan
turn,
Kipnis
connection with the
and all
Burris
a check for
long
discussions
about
“option-
fees occurred
in cancellation of the
after Sun
agreement.
been rehabilitated.
loan”
loan,
As to the relevance of this
was
to show
Evidence
introduced
Dioguardi-Club
states,
Government
“The
Kovens became the contractor
on the
Dioguardi
28. Simon was neither
indicted nor named
nor
neither
indicted
named
coeonspirator.
as a
coconspirator.
as a
Burris,
Kipnis
Herbert
named
a defendant
neither
indicted nor named
indictment,
acquitted
coconspirator.
as a
close of the Government’s
case-in-chief.
Causeway Inn,
starts,
the accused
When
showed
impact
conspiracy
full
Kipnis’
made the con-
feels the
son and son-in-law
Strictly,
prosecution
strategy.
tracting arrangements
after
Kovens
prima
granted.
first
should
conspiracy
establish
first
loan
facie
conspira-
identify
evi-
also introduced
tors,
evidence of acts and
after which
Inn,
Causeway
third
dence of a
declarations of each in the course of
January
Kipnis appeared
Inc.
against
its
are admissible
execution
requested a
before
proof of
all. But
order of
so
*32
$1,000,000
ex-
used
be
charge
sprawling a
is difficult
a
Causeway operation
pansion of
judge
practical
a
control. As
mat-
adjacent
purchase
ter,
is
the accused often
confronted
requested
payments
motel. He also
hodgepodge
awith
of acts and state-
suspended loans be
other
may
he
ments
others which
never
Causeway
eighteen months
because
have authorized or
intended
even
losing money. Upon Hoffa’s
Inn was
per-
about,
help
known
but which
granted by
motion,
requests
these
suade
existence
the trustees.
conspiracy
words,
itself.
In other
Thus, despite
first
the fact that
conspiracy
proved
often is
evi-
Causeway
Inn transaction was shown
only upon
dence that
is admissible
relationship
at-
some
with the
assumption
conspiracy
existed.
tempt
Valley, no
to rescue
evidence
Sun
case were faced
this
any
respect
of fraud
Causeway
with
problems.
with similar
produced. The
loans was
says
Apropos
the loans were
Jackson’s
also is Mr. Justice
generally
because
were “tied to
will be
relevant
observation that “there
somebody.”
Valley,”
got
wrongdoing by
because “Kovens
the Cause-
evidence
contract,’
way
454,
and because
Indeed it
construction
Id.
at 723.
S.Ct.
got
Burris
here in-
“Dranow and
fees.”
can
said that
the evidence
be
guilty
that each defendant
dicates
argument
illus-
The Government’s
wrongdoing.
con-
kind of
But a
of some
ad-
error in the
trates the fundamental
is a
viction should not stand if there
much of
evi-
mission of
the irrelevant
charge
variance between the
substantial
ar-
introduced in
case. The
dence
proof
or if
is
even
based
gument
any
assumes that
connection
immaterial, prejudicial
part upon
evi-
part
of the defendants with
dence.
Fund,
other
each
or with the
summary,
or remote from
in this
however innocent
the convictions
against
Valley, was admissible
all the
should
for different
case
set aside
be
prove
Hyman,
reasons,
con-
the scheme and
as to
defendants to
spiracy charged
the defendants
Kovens,
in the indictment.
of the vari-
and Strate because
assumption
proof,
such an
resides
defendant
flaw in
ance in the
group
conspiracy
insufficiency
ais
notion that a
Weinblatt because of the
agree-
evidence,
people
than an act
rather
and as to the defendants
objective.
Hoffa, Dranow,
upon
and Burris
a common
because
ment
(2d
regret
Borelli,
336 F.2d
reversible
reluctance,
errors. With
States v.
say
impelled
I
1964).
noted
am
also
The court
Cir.
Borelli
tendency
study
misgiving
to treat
convinces
an intense
of the record
designed
prosecution
conspiracy
this manner.
me that
Such
cases
charge
amorphous
sprawling,
practice
problems of the kind to to
creates
conspiracy,
Jackson referred
scheme and
in order to allow
to which
Justice
Mr.
presentation
confusing,
U.S.
of a
series
Krulewitch v. United
complex
440, 453,
cific crime and convicted every Moreover, ain
dence. funda-
criminal is entitled case trial, preju- fair free of mentals
dicial errors occurred this case. *33 COMPANY,
BUTLER PRODUCTS an Illi- Corporation, George nois Gladys W. Butler and Butler, Plaintiffs-Appellees, A. CORPORATION, Michigan
UNISTRUT Corporation, Defendant-Appellant.
No. 15641. Appeals
United States Court of
Seventh Circuit.
Oct.