On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Criminal No. 86-112.
Higginbotham, Becker and Hunter, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
On this appeal from a final judgment of conviction and sentence, the appellant presents four grounds for this Court's review. He argues first, that the district court erred by failing properly to instruct the jury regarding the required unanimity of its verdict; second, that the district court abused its discretion by admitting a sworn statement previously made by appellant on an application for a marriage license, falsely stating that his marital status was single; third, that the district court erred by restricting appellant's opportunity to cross-examine an adverse witness; and, finally, that the district court erred by imposing an unconstitutional condition of probation specifically prohibiting appellant from serving as a labor union official during the term of probation.
We have reviewed each of appellant's contentions, and find only the first of the enumerated claims to be meritorious. Specifically, we hold that the district court erred with regard to Counts 3 and 5 of the indictment, by failing to give a sufficiently precise instruction to the jury to assure that it understood the requisites of unanimity of its decision and rendered a verdict in compliance therewith. Accordingly, we will vacate the convictions as to those counts, and the appellant's sentence, and remand this matter to the district court for resentencing on the remaining counts.
Appellant James M. Beros, an officer of the Teamsters Joint Council 40 and a trustee of the Western Pennsylvania Teamsters and Employees Pension Fund ("Pension Fund"), was indicted on a sixteen count indictment. In its several counts, the indictment alleged that on separate occasions Beros was guilty of "embezzling, stealing, abstracting or converting to his own use" funds of the Teamsters Joint Council 40 and the Pension Fund, in violation of 29 U.S.C. § 501(c) (1982) and 18 U.S.C. § 664 (1982),*fn1 and that Beros was guilty of conspiring with another person to commit those offenses.
29 U.S.C. § 501(c) (1982). Similarly, section 664 provides that
any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use or to the use of another, any of the moneys, funds, securities, premiums, credits, property, or other assets of any employee welfare benefit plan or employee pension benefit plan, or of any fund connected therewith, shall be find not more than $10,000, or imprisoned not more than five years, or both.
Beros was tried by a jury and convicted on seven of the charged accounts.*fn2 He was fined $20,000 and was placed on probation for a period of five years. On appeal, Beros challenges these convictions and sentences. We note jurisdiction to review his claims pursuant to 28 U.S.C. § 1291 (1982).
At the conclusion of the government's case, Beros unsuccessfully moved for acquittal on Counts 3 and 5 of the indictment, arguing that the government's evidence as to those counts was insufficient to support a conviction. Alternatively, Beros argued that if those counts were to be submitted to the jury, the district court should administer specific jury instructions regarding unanimity.*fn3 Beros asserted that because Counts 3 and 5 each alleged several theories of culpability and also enumerated several distinct occurrences, any of which could support a conviction, the jury should be instructed that it must unanimously agree upon a particular theory of criminality, and also unanimously agree upon the specific transaction that it believed supported Beros's guilt under that theory. See Appellant's Appendix ("Appellant's App.") at 33a-35a. The district court granted Beros's request regarding the first aspect of unanimity but determined that a specific instruction regarding unanimity on the particular act was unnecessary. We find that this decision was in error. Given the range of possibilities by which the jury could have reached its verdict, and the possibility that individual jurors reasonably could have disagreed as to which act supported the guilt, it was necessary that the district court in this case clearly instruct the jury regarding the required unanimity of its verdict.
It is apparent to us, in light of the allegations made, and the evidence presented to support them, that a significant potential existed for the jury to misunderstand its obligation. Count 3 of the indictment charged that
on or about December 13, 1981 and continuing to on or about January 26, 1982, in the Western District of Pennsylvania, the defendant James M. Beros, did willfully and unlawfully embezzle, steal, abstract and convert to his own use the monies, funds, property and other assets of Joint Council 40, to wit, the approximate sum of $1,063.00, expenses incurred by James M. Beros for a plane ticket in the name of Mrs. C. Beros, for a flight to Ft. Lauderdale, Florida and lodging in Hollywood, Florida. In violation of Title 29, United States Code, Section 501(c).
Appellant's App. at 7a. In support of this allegation, the government presented evidence to prove that Beros had unreasonably expended union funds while serving as President of Joint Council 40 and trustee of the Pension Fund. The evidence showed that in this capacity, Beros and his wife had traveled to Florida, ostensibly to attend a union conference. In connection with the trip, he (1) used Joint Council credit card to pay airfare for himself and his wife; (2) occupied a hotel suit that cost $160 per day, rather than a single or double room which would have cost no more than $60 per day; and (3) remained in Florida for personal reasons after the conclusion of the conference, but continued to expend union funds.
Count 5 made similar allegations with regard to a separate incident.
On or about November 26, 1982 and continuing to on or about January 24, 1983, in the Western District of Pennsylvania, the defendant, James M. Beros, did willfully and unlawfully embezzle, steal, abstract and convert to his own use the monies, funds, property and other assets of the Pension Fund, to wit, the approximate sum of $765.87, a cash advance drawn upon the Pension Fund by James M. Beros on or about November 26, 1982 for a trip to Orlando, Florida and expenses incurred by James M. Beros for lodging, food, and rental car in Orlando, Florida. In violation of Title 18, United States Code, Section 664.
Appellant's App. at 9a. As to this count, the government offered evidence that on the dates specified, Beros traveled to Florida on behalf of the union for the purpose of attending a conference. Prior to leaving, Beros apparently obtained an advance from the Pension Fund in the amount of $1,000. The evidence indicated (1) that Beros failed to report this advance until May 23, 1984; (2) that when he reported having taken the advance, he was unable to account for $160; (3) that one of the listed expense items represented airfare that had previously been reimbursed by the Pension Fund; and (4) that the Pension Fund paid Beros $399.27 for expenses that he incurred during two days he and his wife spent in Florida after the conclusion of the conference, during which time no union business was conducted.*fn4
The district court noted that any one of the acts alleged in these counts could provide the basis for a conviction under the statutes, and appears to have recognized the necessity that the jury's verdict be unanimous not only as to its finding that Beros violated the statutes but also as to the particular act or acts by which he did so. In its charge to the jury, however, ...