On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 84-00043-01) and (D.C. Crim. No. 84-00043-02).
Before GARTH, BECKER, and ROSENN, Circuit Judges.
This criminal appeal is before us for the second time. In our previous disposition we affirmed the conviction of the defendants for substantive violations of 29 U.S.C. § 186 (labor representatives' acceptance of payments from employers) and for conspiracy to violate that statute. We held that although there had been some variances in the Government's case between indictment and proof, the variances did not warrant reversal because they were not material and prejudicial. United States v. Schurr, 775 F.2d 549 (3d Cir. 1985).
We subsequently granted panel rehearing to consider an issue that had not been before us previously -- whether the prosecution should have been barred by the statute of limitations. To answer this question, we have had to decide a point that we had reserved in the previous opinion: whether the payment of a sum to a coconspirator was a part of the conspiracy proved at trial. For the reasons discussed below, we conclude that the jury could have found that the payment was part of the conspiracy, and therefore that the prosecution was not time-barred. We therefore reaffirm the judgments of conviction.
The facts and procedural history of this case are recounted at length in our previous opinion, hence a brief summary will suffice. The case commenced on February 7, 1984, when a grand jury in the Eastern District of Pennsylvania indicted five officials of Teamsters' Local 929, including the appellants Schurr and Rosetsky (the president and business agent respectively of Local 929). The indictment charged Schurr and Rosetsky, three named coconspirators, and "persons unnamed," with conspiring to accept payments from several employers, among them Valley Fish Co., in exchange for guarantees of labor peace, in violation of 29 U.S.C. § 186(a).
Although it appeared that all five defendants would be jointly tried, the day before the trial began the other three named, indicted coconspirators either pled guilty or had their trials severed from that of Schurr and Rosetsky. See United States v. Schurr, 775 F.2d at 552. Schurr and Rosetsky proceeded to trial as joint defendants.
At trial, the government presented copious evidence of weekly payments ("periodic payments") from Valley Fish through various intermediaries to Schurr and Rosetsky designed to secure labor peace. The periodic payments were between $125 and $250, and ran from 1972 through 1979.*fn1 The government also introduced evidence of payments to Rosetsky from other employers and of larger payments from Valley Fish to Schurr. These other payments are discussed below.
The jury convicted Schurr and Rosetsky of substantive crimes and of conspiracy. As we explained in our previous opinion, the conspiracy the government proved at trial was a much narrower one than it had alleged in the indictment because the conspiracy proven at trial had only two members, Schurr and Rosetsky, rather than the five members named in the indictment, see United States v. Schurr, 775 F.2d at 554, and the conspiracy proven at trial related only to payments from Valley Fish not from any other employer as had been alleged in the indictment. The appellants argued that the difference between the indictment and the proof created a variance fatal to their conviction. We held, however, that although there was a variance between indictment and proof, the variance was neither prejudicial nor material. Id. at 555.
The appellants further argued that the breadth of the indictment had permitted the government to introduce evidence that was unrelated to the conspiracy proven at trial, and that the "spillover evidence," had been extremely prejudicial. See id. at 556. Specifically, defendants argued that the broad indictment had permitted the government to introduce evidence concerning the following transactions that were unrelated to the conspiracy finally proven at trial: (1) payments to Rosetsky from three employers, Finer, Wasserman, and Silverman, unrelated to Valley Fish; and (2) three relatively large payments from Valley Fish to Schurr, (a) $2,500 in early 1979, (b) $2,000 in 1980, and (c) $1,500 in 1981.
We agreed that the payments to Rosetsky from employers other than Valley Fish, and two of the three relatively large payments from Valley Fish to Schurr, were beyond the scope of the conspiracy proven at trial:
On account of the breadth of the indictment, the government was able to introduce evidence about the payments to Rosetsky from Finer, Wasserman, and Silverman. It is inconceivable, however, that Finer's, Wasserman's[,] and Silverman's payments to Rosetsky had any ...