Appeal from the United States District Court for the District of New Jersey.
Adams, Sloviter, Circuit Judges, and Kelly, District Judge.*fn*
John Soures appeals from his conviction and sentencing on one count of soliciting and accepting a payment in violation of 18 U.S.C. §§ 1954 and 2 prohibiting kickbacks for decisions relating to employee benefit funds. He claims that the statute does not apply to his conduct, that the evidence was insufficient to support a conviction, and that the trial judge erred in permitting the government to introduce only portions of his grand jury testimony.
Soures was president of an independent labor organization (Union) that represented minority workers in construction projects in New Jersey. He and the Union's Vice-President, Vernon Gurley, ran the Union, negotiated contracts, and administered the benefit programs. The Union was small and relatively unsuccessful, and had little funds for its daily operations.
A construction contractor with whom the Union had a collective bargaining agreement began work on a construction job in New Jersey at which the Union's members were employed. The builder discharged the contractor for its delays, and the Union imposed a lien on June 22, 1981 that protected, inter alia, unpaid welfare benefit funds. The imposition of the lien cut off the flow of money and shut down the project.
Counts 1, 2 and 3 of the indictment charged defendant Soures and his co-defendant Gurley with conspiracy and two substantive violations of 18 U.S.C. § 1954 in connection with their alleged solicitation and receipt of $2,000 on July 13, 1981 and another $2,000 on July 14, 1981 from a partner of the construction company and a plumbing contractor working on the project in exchange for subordination of the outstanding Union lien on that project. The jury acquitted both defendants on these counts.
Count 4 charged that both defendants violated 18 U.S.C. §§ 1954 and 2 by soliciting the payment of approximately $500 on August 11, 1981 from Morsit Brunson, the plumbing contractor, and George Smith, an F.B.I. undercover agent posing as Brunson's partner, so that Soures could pay his rent, and threatening to reimpose the then subordinated lien on the construction project on which Brunson's plumbing company was then working if the payment was not forthcoming. The indictment charged that payment was made the following day. The jury acquitted Gurley of this count but convicted Soures. The district court sentenced Soures to two years' imprisonment with all but three months suspended. Soures filed a timely notice of appeal.
SUFFICIENCY OF THE INDICTMENT CHARGE
Soures contends first that 18 U.S.C. § 1954 is inapplicable to the offense charged. Count 4 of the indictment charged, in part, that Soures and Gurley solicited "the payment of approximately $500 in cash from George Smith and Morsit Brunson, such payment being solicited in exchange for said Union officers not reimposing a then subordinated Union lien on a construction project in which Morsit's Plumbing Company was involved" in ...