APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Criminal No. 79-00366-01
Before Adams, Rosenn and Hunter, Circuit Judges.
In June, 1980, appellee, Joseph P. Uzzolino, was charged under 18 U.S.C. § 371 (1976) with conspiracy to receive kickbacks in violation of 18 U.S.C. § 1954 (1976), and conspiracy to embezzle pension fund assets in violation of 18 U.S.C. § 664 (1976). In addition to the conspiracy count, the defendant was also charged with eleven counts of specific violations of sections 664 and 1954. A jury found Uzzolino guilty of conspiracy, but acquitted him on the substantive crimes of embezzlement and receiving kickbacks. The trial court, believing the verdicts to be inconsistent, granted appellee's Fed.R.Crim.P. 29(c) motion and set aside the jury's verdict on the conspiracy count. On July 24, 1980, the district court entered a judgment of acquittal for the appellee.
The Government appeals from that judgment. It argues that even under the wording of the indictments in this case, conspiracy is a separate offense from the substantive acts in furtherance of that conspiracy. The Government therefore asserts that it was within the province of the jury to find the defendant guilty of one and not the other. We agree. Therefore, we will reverse the district court's judgment and order appellee's conspiracy conviction to be reinstated.
Appellee was charged with conspiring to embezzle Pension and Welfare Fund assets; conspiring to receive kickbacks as trustee of the fund; accepting kickbacks; and embezzling Pension Fund assets. The alleged offenses occurred during Uzzolino's tenure as President and Business Agent of Local 478, an employee organization entrusted with the management of an Employee Pension Benefit Plan. In November, 1975, appellee met at a roadside diner with Sam Mor, the owner of Towers Transportation, Inc. ("Towers"), a company owing approximately $80,000 to the Pension and Welfare Fund. At that meeting, Mor offered to pay appellee $10,000, in $2,500 installments, if appellee would use his influence as President and Business Agent of the Fund to help Mor escape payment of the $80,000 debt. He also offered to pay appellee $1,000 a month if he would turn his back on Mor's use of non-union owner-operators.
The next day appellee agreed to Mor's proposal. After receiving the cash, appellee instructed Albert S. Parsonnett, attorney for the Fund, not to seek collection of the Towers' debt. Shortly thereafter, the Fund's billing statement to Towers ceased to reflect Towers substantial delinquency to the Fund. The Fund also decided not to strike Towers, as it had done before, in an attempt to force payment of the delinquent Welfare Fund contribution. Towers never paid its delinquent contributions and it failed to keep up its current contributions to the Fund. Consequently, the Company's insurance lapsed and some of the workers were forced to pay their own hospital bills. Still, the Fund did not press Towers for payment.
Finally, in May 1976, Mor and appellee discussed a plan to change the corporate shell of Towers. Mor changed the name of the trucking firm to Far East Truck Leasing ("Far East"). Far East, the same company as Towers except for the changed name, was never asked to pay the Towers obligations, including the judgment on a suit which had been initiated prior to appellee's agreement with Mor. Far East eventually defaulted on its contributions to the Fund causing the employees' insurance to be cancelled for non-payment.
The Government brought an eleven count indictment against appellee. Count 1, described by the trial judge as a conspiracy indictment, charged in part:
From in and around November 1975 until approximately in and around the end of 1976 at Elizabeth in the District of New ...