*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. 97 L.Ed. 593. motion a sever error because their However, they denied. ance was were We shall consider and now discuss a proper part conspiracy, it was all one alleged number of the errors which the try together. them Blumenthal prejudicial claim to be and 539, 248, States, 68 S.Ct. U.S. which, they argue, require a reversal 154; 92 L.Ed. v. United Schaffer a remand for trial. a new 511, 945, 514, 4 L.Ed.2d 362 U.S. 80 S.Ct. ALLEGED ERROR IN THE SE- LECTION OF GRAND AND complain Hoffa and Kovens it was PETIT JURORS prejudicial have been tried them to personality with Dranow because Burris, Defendants Hoffa and Kovens naturally antagonize a the latter would claim that the manner in which the jury. grand We not this com- do think petit jurors con- were selected plaint in view of amounts to error prejudicial They stituted claim error. extremely of Hoffa and close association jurors improperly these were drawn Kovens with various Dranow Jury because the did Commissioner transactions. participate drawings8 in the and be- cause the names were not read aloud as

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, 64 L.Ed. 360. panel. requested the Defendants they complain that Defendants also petit jury be for the read names drawn inquire permitted to cer- not into were judge held such trial aloud. The subjects political affilia- such as the tain necessary procedure would be a not jurors, prospective wheth- or tions of the drawing public to be a the order a Team- crossed er a venireman ever To insure that the one under 1864. § picket sters line. potential jurors approached not would be or defendants either the Government circum under hold that the We jury, prior of the the considering to the selection present, stances Judge dire, that until voir length process ordered time consumed their names were not be disclosed to jurors, selecting acted the trial court side, foreclosing marshal or the counsel on either in discretion within its dilatory court itself. The list was locked quiries be a which seemed to requires 1864 clerk’s vault. 28 U.S.C. § nature. drawn, jury publicly it taking judge As over interpret require do nor we does not jurors, potential a de the examination of aloud. names must be read mean that not have fendant in a criminal case does keep made to secret No efforts were right question each have his counsel being jury fact was drawn. v. venireman the voir dire. Paschen judge undoubtedly, extremely was, trial Cir., States, F.2d United 70 jury possible tam the idea sensitive to F.R.Cr.P., Furthermore, per 24(a), Rule taking precautions pering, and extra discretion, judge, trial in his mits prospective jurors re would so that examination himself. to conduct any contamination. main We free has held to not This rule violate prejudicial error not committed hold right constitutional defendant. following procedure here outlined. Cir., Hamer F.2d respect find We no error with CLAIM ERROR DEFENDANTS manner in select TO DUE EMPANELLING ed. PROCEDURES PREJUDICIAL PUBLICITY preju- defendants claim of the

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, 322 F.2d 434. copy The claim that the the indictment new informa- transmitted EVIDENCE OF HOFFA’S reading jury, tion to in- since PRIOR CONVICTION jury, dictment had omit- court portions. However, May ted certain 9, Court 1963, On Hoffa was indicted repeatedly jury had advised the in the United District States Court charges in evi- the indictment were not the Middle District of Tennessee on a guilt. illustrate, charge willfully dence To Court that he had endeavored jury you influence, told impede petit “As have heretofore intimidate advised, jurors discharge been the indictment has of their duties in grand been returned is not violation Title 18 U.S.C. § guilt evidence of and must not be con- indictment the Tennessee case was re- by you Again, prior strued such.” turned that the the time indict- 714 testing solely purpose credi- filed in the instant case. ment was ** cases) (Citing bility. found Hof in the Tennessee case guilty charge, fa and the Unit Levi, United States In Assistant Appeals for ed Court of States Attorney the same asked Levi he were Sixth Circuit affirmed. States days pre- a few Levi who was convicted Hoffa, Cir.,

v. 349 F.2d 20.9 viously We held in a tax evasion case. question error because Govern- case, In instant defendant Hoffa have known counsel knew should ment stand own took the in his behalf. At judgment had not that a conviction examination, beginning the cross case, and been entered in that Hoffa admitted had been convicted he acquit- had the motion trial court endeavoring still March 1964 of to obstruct Judge Minton tal under consideration. justice by tampering the federal expressing dissenting opinion wrote a jury, district court his verbatim answer no reversible the view that there was testimony being “Yes, perjured anof that surround- error. The circumstances kidnapper.” now claims admitted impeaching question are ed in Levi prejudicial error Court committed certainly distinguishable from those of permitting impeach the Government at bar. case adducing testimony his con- him pending ap- viction which then say the trial We cannot peal. reversible fol court committed error The trial our decision lowing court relied on au in this circuit. No law Packing Empire in United States cited to us con thorities 20, Company, Cir., previous F.2d cert. us now our decision vince Packing 377 U.S. 69 S.Ct. L.Ed. Empire den. erroneous. panel or division of our Court finding no An reason for additional Major, Judges in that case consisted of impeaching ques- prejudicial error appeal, Minton and Wham. On this experienced and able tion is Hoffa’s Empire likewise relies object question did counsel Packing and that Bloch v. United states fact, in his clos- *16 when it was asked. States, Cir., 185, 188, 226 F.2d is in ac ing argument jury, counsel said: cord. thing that Mr. Bittman first “But Mr. to for went [Government Counsel] Hoffa relies on our decision United proper like, grip, Levi, Cir., and it is cross Hoffa States v. 177 F.2d 827 [Ma- object you jor, Duffy] apparently examination —I didn’t Minton and con- —‘Are — sidering R. Empire the James Hoffa who was convicted that our decisions Chattanooga?”’ [Emphasis supplied] Packing and Levi are We inconsistent. jury agree. for Counsel Hoffa then told do not ap- was on Tennessee conviction that the “ * * * Empire Packing we said: peal, it use of and that the Government’s taking accused, An in his own stand impeachment purposes indicated defense, may regard- be cross-examined Tennessee in both the lack confidence felony, prior as conviction for prosecution. and in the instant conviction cases). affecting credibility (citing in- counsel Chapman’s The fact that Several defendants’ conviction previous- cluding ap- Hoffa had pending counsel for income tax evasion was judge ly re- brought peal, court, the trial conferred with out in the trial as ruling questing should to his advice as did im- not render the cross-examination judgment defendants proper. former convictions and until Unless brought reversed, on cross examination. be out the trial court defend- judge he them that may informed properly The trial ant stands convicted bring permit questioned regarding -would said conviction granted Supreme 86 S.Ct. 382 U.S. later certio- Court question. 645, 15 L.Ed.2d 538. limited Hoffa rari to one prior RE- out the author- TO convictions ALLEGED ERRORS AS Packing. ity Empire is, therefore, It CEIPT AND EXCLUSION quite apparent from this and counsel’s OF EVIDENCE jury comments to that counsel above urge numerous claims The defendants deliberately en- decided not to upon of error based the admission or objection impeaching ques- ter an Perhaps exclusion of al- evidence. tion. We hold that it not reversible leged urged by strenuously error most error ask witness Hoffa if he had relates to the Link-Dranow previously been convicted. letters. examination, On cross Dra- TESTIMONY OF ALTERNATE now was asked he had written letter PARE JUROR George stating “Everything Burris Defendants filed an additional me, everything can be blamed on supplemental for a new trial motion put protect could be on me to the others ” upon coming based information them * * * should be blamed on Dra- me. juror alternate Pare. At a writing answered now he did not recall hearing jury held had after the returned although the letter in his hand- dismissed, its verdict had been Pare writing. during trial, testified that a member Dranow was asked if he had then writ- jury Chicago of the him a shown designating ten a second letter certain newspaper concerning the trial article persons including some of the defend- court’s exclusion of the let- Link-Dranow put ants, should sums who aside of mon- ters discussed Pare testified he infra. ey ranging per day, to be $5 $15 had read the article but that no con- eventually Upon turned him. over versation had occurred in connection objections, jury the Court instructed the with it. only to consider this matter Dra- appears It that while the was at again now. The witness he answered newspapers Station, Lakes Great Naval writing letter, could not recall nor However, any were available to them. delivering did he recall either referring articles to the trial of the in- Irving Link, letters to Mr. but admitted jurors stant case were cut out before the the second letter was also in his papers. received the We surmise that handwriting. question the article in was missed be- initially Both the end inconspicuous placement cause of its be- testimony, the Court instructed the obituary tween the column and the to consider this evidence as to de- church announcements. However, fendant Dranow. later *17 no There was evidence of possible preju- Court decided that the jury outside influence on the outweighed and from dice to the other defendants testimony, appears that, Pare’s testimony’s for the the relevance and it instruct- part, jurors most disregard followed jury testimony the Court’s ed the to among admonition not to discuss case of both and Link Dranow to these as finally themselves letters, until the case was testimony sub and not to take this think, mitted them for arriving to decision. We into consideration in at its ver- under all present, of the circumstances dict. brought that these matters to atten We hold there was no error judge tion of after verdict the.trial impeach as the letters to were admissible require inquest by not sufficient an judge Dranow. trial exercised The wise granting the Court or the aof new trial. refusing grant in discretion a mis We find no error in the Court’s refusal protected rights trial, and he of the call back examination by directing other defendants disregard or in its denial of entirely a new trial. the letters. jury. Moreover, order to demon- errors re in The claimed other prejudicial oc-

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). 645,15 L.Ed.2d 538 locals and their members. 86 S.Ct. Teamsters preju- justice is April the fear of ministration of criminal bet- because by trying subsequent Hoffa’s ter served a of- publicity use of dicial and the first, purposes impeachment fense a then criminal record so conviction for appeal. pending created should not admissible its These motions be trial, against proceeded as also trial his later denied * * * 208 A.2d at scheduled. was In manner Furthermore, there was no waiver permitted arrange date the trial objection Hoffa’s counsel of an to the case Tennessee this case so that impeaching testimony. question thereby used could be tried first and be admissibility its was raised at a both though impeachment purposes even pretrial hearing during the trial single involved defendant was testimony, advance Hoffa’s when though judge therein and even that conviction district he was asked whether occurring subsequent was for an offense permit would the disclosure of Ten- alleged being tried in the offenses permits nessee conviction. record prosecution. In these circum- instant admissibility no doubt that its chal- adopt the view lenged stances this court should on both occasions. Govern- Pennsylvania expressed Supreme objected ruling ment in advance McIntyre, 417 Court in Commonwealth taking judge, Hoffa’s the stand.4 The (1965). 415, 208 treat- Pa. A.2d 257 however, ruled that he would allow the ing situation, similar that court stated: impeaching question to and an- be asked though swered even con- Tennessee scheduling Generally, of criminal pending appeal. viction was Given is trials a matter within the discretion ruling, it is understandable un- We are Commonwealth. standpoint strategy of defense trial willing opportunity ar- to allow objection impeach- that no formal ranging the of cases so trial ing question put raised when might criminal record created be to the witness before the and that where that record would not otherwise argued Hoffa’s counsel did in he tried exist were the earlier offenses reference to the Tennessee conviction promptly. objection summation. Once is un- we is on the What here decide qualifiedly interposed, no there is re- particular facts record and circum- quirement it be renewed at the risk stances this case the introduction of waiver. record of the defendant’s criminal subsequent crimes committed Impeach Dra- 2. The Letters Used to being charge unduly preju- tried now requires dicial unfair. This Benjamin tes- Dranow The defendant the conviction be set aside and that a At time of tified his own behalf. Especially new trial had. this so a fed- the trial he was under sentence in because, instance, preju- in this fraud, prison for of mail eral convictions dice created the introduction of the evasion, bail-jumping. income tax subsequent criminal record far out- competency challenged dur- His had weighed the Commonwealth’s need voir after dire examination case, evidentiary as an the trial judge had re- district disclosed that he circumstance, impeach defendant’s rambling, long, in- ceived a and rather credibility by particular of these use telegram comprehensible from Dranow. records. During frequent Dranow made many compelling If clashes reason the outbursts verbal some orderly judge, attorneys, mar- local trial or the ad- with the calendar though might permitted *19 4. not If had been successful the court have the Government endeavor, tactic be answered. this the would it to permitted question to be the asked even buildings, George spectators. per day; shals, As a witness and even b. $10 vulgar Repeated Burris, Irving George, per he was and boisterous.5 ask $10 Hyman, George, day; a a or sever- ask motions for mistrial Sam Sam defense c. George Kovens, per day; ance from Dranow were denied. d. Cal $10 day; Cal, per ask e. Glen Hillbom $10 cross-examination, During Dranow’s George Building, ask Fashion Mart prosecutor inquired: Gladstone, Glen, per day; f. Lou $5 Dranow, you a write let- Mr. did ever Lou, day.” per Did Milton talk to $15 you George in which ter to S. Burris you that, write sir? him, “Everything blamed told can be me, everything could be and that Objections question motions to this put protect should overruled, on to to others again me for severance were let blamed on me. But don’t that again judge limited the evidence any feelings your inme toward affect replied the letter Dranow. Dranow that way handwriting, whatsoever.” that he was in his but he had recall details of when didn’t judge objected. The Defense counsel it had been de- written whether objection the state- overruled the Irving Link. livered to answered, question ment that prosecu- up.” it must be “followed The during Irving Link, who testified would be tor assured the court case-in-chief, later the Government’s objection that done. After further Link tes- as a rebuttal witness. recalled inquired “after communication about was Septem- Dranow told him tified that alleged offense,” the instruct- court mail ad- would be ber 1962 that there jury ed matter consider Dranow’s, Buck friend dressed impeach- purpose to Dranow for the Traub, meant Link. Link which and a hear- ment. Motions for a mistrial addressed, letter, later said thus presence of outside the proved about contain the two letters being Dranow, shown were denied. after questioned. Dranow was which undated, letter, admitted judge Subsequently, to ad- refused handwriting, said he in his it was He evidence. refer- whom mit letters into did know when sent it or to he prejudicial the let- it was written.6 red nature ters, could be “inference” noted Dranow was asked: then Dranow’s referred drawn Dranow, you letter, Did Mr. write prosecutions, commented other also following saying: amounts “I want dangers against “weighing away put me each protect benefits, going I this rec- am day. following persons I all each want judge instructed ord.” Later money spot put in one where it disregard testimony of both picked up four or five times will be regard to the let- and Link in year pay Dranow for the new enable me place The California and business: a. ters.7 illustration, testimony when 5. a rather mild the name As about witness Link, on cross-examination Dranow was asked and the cross-examination any connection with Mr. whether he had Dranow. replied, interrogation Fund, of Mr. In the he course Teamsters’ Pension pris- interrogation representative “Yes, of Mr. I’m Dranow and their prison loan, Link, I will to some wants a some reference made If on. it.” letters. recommend you disregard court instructs “Dear the letter read salutation on testimony both Dranow and Mr. George.” letters, regard Mr. Link in to those given cautionary reads as take into consideration instruction do not your way arriving verdict. follows: Among you hear in the last witnesses testimony you was some last heard

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. 94 F.2d 90 Cir. majority opinion assumes without circuit, In this States admissibility discussion of these that the Haupt, (7th 1943), Cir. F.2d 661 Dranow, against attend- communications tending statements to incriminate not by cautionary ed instructions only the made them but defendants who jury, effectively disposes of other de- only also other were admitted defendants objections. possible fendants’ rele- against them, who made the defendants impeach- vance of the documents to the under instructions from the court. We however, Dranow, ment of is not deter- held there that such to limit efforts important question minative of the most evidence to the individual declarants question raised. The crucial is whether were and that ineffectual court contents of the let- disclosure denying erred in various defendants’ prejudicial ters was so de- to the other motions for a severance. We stated: prejudice fendants that the could not be reading statements, A by these how- cured the final exclusion the letters ever, evidence, is, leaves no room for that whether but that doubt they only damaging were not to a as other defendants were entitled sever- against preju- defendants whom offered ance from of the Dranow because injected prosecutor. as to all doubt if dice others. We it was so possibility within the realm for this ques- There is one answer to this jury to limit its consideration of the inherently preju- tion. The letters were damaging such effect of statements Together they dicial to all defendants. merely against to the defendant whom conveyed strong guilt inference of they equal were admitted. We have all; as to those named the second any jury, doubt or for that that matter letter, inescapable the inference any court, perform could such a her- they guilty were of some misconduct for * * * culean feat. they which could blackmailed an period Asking procedure We are time. unaware indefinite compartmentalize disregard which trial court could have de- such vised, severance, by impossible evidence was other than a an task.9 There incriminating prosecutor’s these can be little doubt statements could impeach against efforts to Dranow this man- introduced the de- attempts inject high- making them, ner were in fact fendants without seri- ly ously inflammatory rights prejudicing material into the case other prejudicial defendants. to all defendants. The Id. argues appeal completely

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 71 L.Ed. 787 S.Ct. been dismissed. (8th States, Rice v. United 356 F.2d 709 verdicts, jury After the its returned Neal, 1966); 320 Cir. United States v. inquired defense jury counsel whether 1963); (3d F.2d States, v. United 533 Cir. Jones copy had a in its of the indictment U.S.App.D.C. 308 F.2d 113 during possession its deliberations. (1962); States, 284 Evans 307 v. United judge jury informed them that the had ; 1960) (6th F.2d Unit- 393 Cir. Little v. given copy. It dis- fact been was later 1934). (10th States, ed F.2d 861 Cir. 73 testimony closed right present A defendant’s be charge deputy jury marshal in stages all right criminal includes the of a he a sealed communication received present on occasions to be those jury during from the the course de- of its judge when communicates with delivered liberations he during im- its deliberations on judge. pages On one of two in this portant “Private communica- matter. following appeared: note, the tions, though in them- even harmless counts Document of all selves, may way open to abuses “ on all law counts legal may destroy procedure confidence in “ of overt acts named judiciary. Therefore, im- and the it is judge proper any impor- Please return for the hold following jury, 10. The record discloses the state- made so that within charge judge question ment after his is hour's time the time a jury: at, is we can asked or verdict arrived request parties I that all involved all assemble here. * * * your your with the clients de- leave Marshal Have available you phone numbers at which can be here for the verdict or what- sire readily question may there is reached case a ver- ever be asked. inquiry or in dict case there some produce con evidence tant communication showing cerning openly prejudice and with unless Rice case no resulted. supra; present opportunity States, v. United the accused to be Little v. object exceptions.” supra. and to and to take Walker v. United *22 (8th States, Ray U.S.App.D.C. 221, 114 508 116 F.2d F.2d 322 v. United majority, 709, 434, (1963), by Cir.), denied, U.S. 61 S.Ct. 436 cert. 311 cited the 318, (1940). 85 the court said that “we cannot let [the L.Ed. 461 stand the defendant’s] conviction ‘unless upon majority opinion the dwells negatives completely any record reason- jury may have de assistance which the possibility prejudice’ able him aris- of to identifying rived from in the indictment ing Second, judge’s from the error.” against charges each de the substantive possibility” prej- here a “reasonable fendant, unquestioned to the and adverts affirmatively to udice the defendants may jury have to that be entitled rule appears example, in For the record. deliberations, during its the indictment portion of to the indictment not read Press, citing 336 F.2d United v. States jury charge during ap- the the court’s denied, (2d 1964), 379 1003 Cir. cert. pears as follows: 658, 13 L.Ed.2d U.S. 85 S.Ct. (1965). irrele are These observations defendant, R. The action of the James majority point fails * * * vant. The the which Hoffa, depositing in funds of emphasize * * the was * to is that indictment Local in at] the [bank jury response in * * to * transmitted the being Florida, Orlando, was ambiguous best, request which was questioned by court-appointed accompanied by an communica was oral Board of for the Monitors Internation- through * no more * tion marshal * al Brotherhood of Teamsters information furnished —without would be judicial proceeding in a in United coun notice to the defendants their District States District Court opportunity an to be * * and without * sel of Columbia as breach present objections. comments or offer fiduciary duties. plain This was error. recognized Even counsel recog- Although majority not does jury informed should not be error, judge’s nize as it does action allegations indict- this and other acknowledge good prac- it was “not upon offer- no evidence was ment which judge tice” for “to have sent Yet, ed.11 the indictment sent message brief and the indictment” jury important- unexpurged. was More jury in absence the defendants jury’s subject ly, inter- note was majority then and their counsel. something pretation requesting other not concludes the defendants than, to, or in the indictment. addition thereby. prejudiced The fault with this itself indicated communication First, conclusion is doubt- is twofold. may jury un- have confused been showing prejudice re- ful that was circumstances, In certain. these quired, error committed was since the prej- speculate should no court proportions. constitutional Shields resulted when udice to defendants States, supra; Arrington v. Rob- jury part inquiry on of the further 1940). ertson, (3d 114 F.2d 821 Cir. judge immediately foreclosed involving event, any in all the decisions through by the communication oral communications court and between marshal absence defendants, prejudice is the absence of strongly presumed upon and the burden and their counsel. During instructions, Yes, did, thought your conference on I I Honor. we reply judge’s prosecutor, ought to the to the defendants. fairness inquiry the Government had ex I also left material refer- whether out the proceedings cluded which to the reference counts ence monitor’s which proposed your from its Honor— dismissed excluded instructions, stated: designed by the ob- to defraud the Fund II. repre- false tainment loans hinged in this case The indictment each various roles which sentations. The statutes, upon the mail and wire fraud alleged the defendants generally U.S.C. §§ played securement in the fraudulent proscribe various communica- the use of general terms. loans can these be stated media furtherance tions Dranow, Kovens, Burris, and Weinblatt money obtain schemes defraud alleged cooperated in seek- to have representations. Each fraudulent assisting applicants out

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, 90 L.Ed. 1557 group. with more than one Kotteakos, thirty-two they may be, persons25 Criminal but is not the single criminality They charged conspiracy conspiracy. were with a of mass Housing by to violate Act mass the National do invite their con- inducing grant 768-769, 773, financial institutions duct. Id. at at S.Ct. loans which then offered to 1249-1252. would Housing the Federal Administration Kotteakos, lay here, Thus in the vice containing upon applications insurance prosecution in the fact al- evidence, fraudulent information. proceed theory lowed to on the that a eight however, proved at least different generic description the substantive conspiracies loans obtain fraudulent alleged crime which by separate groups of defendants which conspired to have commit a suf- had no connection with each other ex- objective ficient common so as to make cept principal defendant acted each defendant a codefendant with ap- aas broker to handle the fraudulent named in others the indictment. plications Supreme in all of them. The Hoffa, Dranow, and com- Burris were Court held that it reversible error to majority mon of those loans actors try “en masse for the all the defendants repre- in which evidence of fraudulent conglomeration separate of distinct and present. Therefore, sentations was as to offenses committed others.” Id. at them, joinder subsidiary multiple 775, 66 1253. The Court stated: S.Ct. conspiracies preju- could not have been The trial court was of the view that dicial. Kotteakos su- v. United conspiracy one was made out show- pra. participation But the Strate ing that each defendant was linked to Hyman only they those loans in which transactions, Brown in one more were interested as borrowers and the possible and that it on the evi- participation Kovens those dence for the conclude that all acquire loans in which he stood to con- were in a common adventure clearly because tracts services indicate that seriously similarity pur- prejudiced by of this fact and the their persons The indictment did Nineteen not contain a sub- were tried. The cases relating jury. mail stantive fraud count thirteen were submitted to the loan, pertaining three overt acts Seven were convicted. conspiracy were included count. *30 in the venture. joinder Kovens was associated and with the each other with mailing “conglomeration proved, but the Govern- The was other defendants for prior to the the count separate ment dismissed and offenses.” of distinct jury. submission evidence, the case to as to the The evidence however, No not stricken. was wholly to insufficient was Weinblatt suggesting any facts introduced were responsible re- criminally with find him spect loan or fraud showing connection with any loan transactions. to any transaction that the was Prejudicial Evidence and Irrelevant Valley. way linked to Sun foregoing dis- apparent from the is It argues its brief The Government great of irrele- amount cussion that a tied Miracle Plaza loans were “the admitted vant, immaterial evidence was pro- Dranow, in to the scheme because against evi- Similar the defendants. moting Berkeley Fontaine- first and relating to a num- dence was introduced deals, repeatedly pointed bleau out yet not been of loans which ber shopping center, had Kovens which fact, a num- In examined. substantial money, as one built with Pension Fund toas which the loan transactions ber of triumphs. Fund On Pension no and had was offered received evidence logical occasions, and Bur- third of these Strate tendency prove ex- to either present ris were when Dranow showed to of the scheme execution istence shopping It off the center.” is difficult charged in Fund Pension defraud the comprehend observation, to how any matter, indictment, or for that correct, “tie” Miracle Plaza to would Fund. to defraud the scheme charged the scheme indictment fraud no evidence Loans as to which justify the submission of evidence no produced had relation and which was respect But it. the observation Valley were irrelevant Sun supported by record, not even respect purpose. to these with Evidence shopping indicates center refer- against prejudicial effect loans red to Beach, Dranow was located in Miami vol- its not because defendants Florida, Beach, in Vero not complexity, but also because ume emphasized Plaza where Miracle located. was association of the mere (b) Airport International Miami with other and with each Birmingham Airport Hotel moreover, Fund; it tended the Pension Motel Loans payment emphasize of fees and to obtaining alleged The indictment and evidence advantages de- various concerning was introduced two Pension though the Pension fendants even corporations Fund loans in which way or harmed. defrauded in no was George Simon, accountant, having a Miami M. evidencing no fraud Loans $2,000,000 interested. Valley relationship some granted Airway Hotel, loan was Inc. reasons, prejudicial same to finance the construction of Miami so, amounted more because even Airport International In 1961 an Hotel. find con- an invitation granted $1,000,000 loan of additional spiracy mere association inherent in the Birmingham Airport to finance the persons pursuing venture. a lawful Motel, Birmingham, Alabama. Simon Loan (a) Miracle Plaza obtained loans with Burris’ assist- charged per Burris ance. two cent bro- Fund loan 1960 a Pension In June fees, kerage totalling $85,000, for his granted $1,100,000 refinance misrepresentations efforts. No with re- shopping mortgages on Miracle Plaza spect proved, these loans nor Beach, One of center, Florida. Vero ever mentioned in connection alleged indictment counts in the with them. attorney mailing by a Miami letter of a Again referring the Government’s representing in connection the borrower argues, brief, “The shown that the Government loan. It was with the

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, 93 L.Ed. 790 transactions and abet 69 S.Ct. immaterial, (1949) (concurring opinion), he of mass of when introduction person prejudicial If a evidence. stated: prosecuted punished for his mis- charged spe- deeds, awith he should be by proper evi-

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.