Appendix — Gibson v. United States

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APPENDIX A

United Court of Appeals

eae ene

No. 80-5280

Unrrep States or AMERICA,

Plaintiff-Appellee,

v.

Joun F. Crsson,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO.

Before: Mensur and Martin, Circuit Judges; and

Puitups, Senior Circuit Judge.

Decided and Filed April 20, 1982.

Borce F. Marna, Jn., Circuit Judge. This is a direct

criminal appeal from embezzlement and conspiracy convic-

tions. John F. Gibson was found guilty by a jury of misappro-

priating union property in violation of 29 U.S.C. § 501(c).'

Gibson is the General Secretary-Treasurer of the Hotel and

Restaurant Employees’ and Bartenders’ International Union

(“The International”). In March, 1979, a Gray d Jury sitting in

the Southern District of Ohio returned an 18~ ount indictment

against Gibson, alleging numerous acts of en ezzlement from

the Union. The counts that concern us ch: :ged that Gibson

* 29 U.S.C. § 501 (c) provides that:

Any person who embezzies, steals, or unlawfully and wilfully

oF converts to his own use, or the use of another. any of the

monevs. funds securities, Or other assets of « labor

tion of which be isan officer, er by whish bee employed, dntaty

indirectly, shall be fined not more than $10,000 or imprisoned for not

more than five years, or both. i

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has misused the Union’s jet airplane for person travel. Gibson

was also charged with conspiring with James Stamos and

Herbert Schiffman to misuse the Union jet for a fishing trip.*

After a jury trial on all but two of the original counts, Gib-

son was convicted of one count of overstating unreimbursed

employee business expenses on his tax returns. The jury acquit-

ted Cibson of another tax count; one unauthorized travel

count; and all unauthorized salary counts. The jury was

unable to reach verdicts on six other counts. Accordingly, the

trial judge declared a partial mistrial.

Gibson was retried in May, 1980. he was convicted of misus-

ing the Union jet for pleasure trips to Caspe, Canada and

Sacramento, California. He was also found guilty of con-

spiracy. The jury acquitted Gibson of the other charges. The

District Court sentenced Gibson to serve three concurrent

four-month terms.

Gibson now appeals, raising four contentions. First, he

challenges the sufficiency of the evidence supporting the guilty

verdicts. Second, he contends that he was prejudiced by an

I. SUFFICIENCY OF THE EVIDENCE be

Gibson contends that his Rule 29 motions for a judgment of

acquittal were improperly denied. He argues that the govern-

ment’s proof of the personal nature of the Gaspe and

Sacramento trips was circumstantial and insufficient to war-

rant submission to the jury.

* 18 U.S.C. §371.

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To establish a violation of section 50i(c) the government

must prove that a defendant embezzled, stole, or unlawfully

or wilfully abstracted or converted to his own or another's use,

the funds or property of a labor union. United Sta'es v. Di-

brizzi, 303 F.2d 642 (2d Cir. 1968); United Stat.s v. Harmon,

339 F.2d 354 (6th Cir. 1964), cert. denied, 380 U.S. 944

(1965). The language of section 501(c) imposes the “broadest

possible fiduciary duty upon union officers.” United States v.

Bane, 583 F.2d 832 (6th Cir. 1978), cert. denied, 439 U.S.

1127 (1979). In enacting the statute, Congress created a new

criminal penalty to prevent the following evil:

[O}fficers and other union representatives may not act

adversely to their organization or to the members as a

group or acquire a personal interest which is contrary to

the interests of the organization. Being trustees the offi-

cers must subvert their own personal interests to the

lawful mandates and orders of the organization.

United States v. Goad, 490 F.2d 1158, 1162 (8th Cir.), cert.

denied, 417 U.S. 945 (1974), quoting Johnson v. Nelson, 325

F.2d 646, 650 (8th Cir. 1963).

Section 50l(c) cases can be brought on either of two

theories: one theory involves unauthorized expenditures or use

of property, and the other involves authorized expenditures or

use of property for a wrongful purpose. Gibson was prose-

cuted under the latter theory.’ The essential elements of an

authorized use case are: (1) proof that the defendant had a

fraudulent intent to deprive the Union of its funds; and (2)

proof that the defendant lacked a good faith belief that the ex-

penditure or use was for the legitimate benefit of the Union.

* It is clear that authorization was not a defense available to Gibson. The

record shows that Gibson was one of only two in the Union who could

authorize the jet’s use. The only other person similar authority was In-

ternational President Edward Hanley.

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United States v. Bane, 583 F.2d at 836.‘ See also United States

v. Santiago, 528 F.2d 1130 (2d Cir.), cert. denied, 425 U.S.

972 (1976); United States v. Boyle, 482 F.2d 755 (D.C. Cir.),

cert. denied, 414 U.S. 1076 (1973). See generally United States

vy. Marolda, 615 F.2d 867 (9th Cir. 1980), later app., 648 F.2d

623 (1981).

To constitute a violation of 29 U.S.C. Section SOl(c)

where the expenditure of union funds is not authorized,

there are four essential elements which must be proved

beyond a reasonable doubt: One, the embezzlement,

theft or unlawful and willful abstraction or conversion to

his own use or the use of another of; two, the moneys,

funds or other assets of; three, a labor organization of

which; four, the defendant is an officer or employee.

Where tae expenditure of union funds was authorized,

the United States must in addition prove beyond a

reasonable doubt: First, a fraudulent intent by the defen-

If the primary purpose was to conduct union business the

‘ stipulated that the remaining elements were satisfied: (1)

“the moneys, funds, securities, property, or other assets (2) of « labor

a

‘

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On the other hand, if the primary purpose of a trip was to

provide enjoyment or social entertainment for the defen-

dant, the fact that union business was incidentally trans-

acted does not excuse a violation of the statute.

Your determination of the primary purpose of each trip in

question must be based upon the evidence, these instruc-

tions and your ow knowledge and experience.

In connection with the Gaspe trip, you may take into

consideration the fact that the defendant paid part of the

expenses.

The burden is upon the United States to prove beyond a

reasonable doubt that the primary purpose of each trip

was the enjoyment and social entertainment of the defen-

dant.

Before reviewing the government's evidence to determine

whether the prosecution met its burden, we briefiy state the

rules governing our inquiry. In deciding whether evidence is

sufficient to withstand a motion for an acquittal, we must

view the evidence and all reasonable inferences in the light

most favorable to the government. E.g. United States v. Col-

lon, 426 F.2d 939 (6th Cir. 1970). If the evidence is such that

we must conclude that a reasonr sJle mind might fairly find

guilt beyond a reasonable doubt, the issue is one for the jury. If

we conclude that a reasonable doubt is raised, we must ‘everse

a denial of an acquittal motion. Id, We cannot weigh the

evidence or judge credibility independently in deciding

jury. Glasser v. United States, 315 U.S. 60 (1940) cited in

United States v. Nell, 526 F .2d 1223 (5th Cir. 1976). Applying

these principles to the record before us, we hold that th: court

below correctly refused to direct a verdict in Gibson's fa or.

We turn to describe the evidence adduced by the government,

which amply supports the jury's verdict. ;

Pia

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A. Sacramento Trip.

Gibson was charged with misusing the Union's airplane to

transport Helene Hallett, an intimate friend, from Oakland,

California to Sacramento for a one-night dinner date in

November, 1975. No one disputes the facts that Hallett trav-

elled to Sacramento in the Union plane, that she dined alone

with Gibson that evening, that she spent the night with him,

and that she returned to Oakland the next morning in the

Union plane. Rather, the disputed issue is whether Hallett’s

trip was for union or personal purposes.

The government relied exclusively on Hallett to show that

Gibson's purpose in bringing her to Sacramento was strictly

personal. Hallett testified that she and Gibson had dated occa-

sionally and had developed an intimate relationship before her

trip. Sometime in November, Gibson called Hallett and asked

her to accompany him on a three-day trip to visit three local

unions and to attend their installation dinners. Hallett de-

clined the invitation at first because she was unable to leave

her job as acting office manager of Local 28, a branch of Gib-

son's International. Apparently Hallett’s supervisor, Ray

Lane, was not in town at the time. Gibson then invited her to

join him for dinner for one evening in Sacramento. Hallett told

Gibson that she would ask her superior for permission to leave

the office early when he called from out of town. After Ray

Lane gave his consent, Hallett agreed tu go when Gibson

called her again. Gibson told her that he would arrange to

send the Union plane to meet her.

In describing the events of the Sacramento evening, Hallett

stated that the trip was purely social, both in design and ex-

ecution. She testified that although she and Gibson had a few

drinks before dinner with several Union officials, including

International President Hanley, no one discussed union

business with her. She and Gibson eventually left the union

group and dined by themselves in a restaurant. Hallett

described their dinner conversation as “social” and “general.”

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According to Hallett, her relationship with Gibson was “strictly

social.” She also testified that she did not discuss union

business that night, although she gladly would have

volunteered to Gibson information about Loval 28's problems.

After dinner, Hallett and Gibson retired to Gibson's hotel aud

spent the night together. The following morning they ate

breakfast at the hotel and drove to the airport.

On cross-exan. nation, defense counsel probed the fact that

Local 28 had serious problems involving dishonest activities of

Ray Lane, Hallett’s supervisor. Lane was.reportedly falsifying

union minutes with Hallett’s knowledge. According to the

defense, International President Haniey had ordered Hallett’s

trip to Sacramento to interrogate her subtlely about Lane and

the Local’s problems. Hallett admitted that initially she had

not complained about Lane’s activities to anyone in the Union.

Eventually she did complain and gave incriminating informa-

tion to Jack Kenneally, an International official. Steve

Revilak, another officer of the Local, also confided in Ken-

neally and other International officials about Lane’s conduct.

Hallett was eventually fired for signing a petition to remove

Lane from office. Although defense counsel attempted to

estabiish that Hallett hid her relationship with Gibson from

Lane, Hallett testified that she asked Lane for permission to

fly to Sacramento to see Gibson. When asked whether she had

discussed any union business during her trip, she replied that

Union man Medeiros had “pumped” her for information about

her Local on the journey to Oakiand.

On redirect, Hallett testified that neither Gibson nor any

other official questioned her about Ray Lane and Local 28's

administrative internal problems. Hallett recalled that only

Medeiros had questioned her about her Local. However, his

questions involved an impending merger between Local 28

Medeiros the information he sought on the merger. Finally,

Hallett reléerated thet Medeiros did ‘not Inquire shout Ray

Lane’s conduct or Loca} 98's internal problems.

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We must measure the denial of Gibson's Rule 29(a) motion

against Hallett’s testimony, the government's case in chief o..

the Sacramento count. If the jury believed Hallett’s testimony ,

as they apparently did, the evidence established beyond dy.axt

that the purpose of her trip was to provide an amusing cven..g

for Gibson at Union expense. Admittedly the governmen\'s

case was circumstantial, as is any case where purpose and in-

tent are essential elements of a crime. However, we find no

merit in Gibson's assertion that Hallett’s testimony, standing

alone, was insufficient to send the Sacramento count to the

jury.

We also find no merit in Gibson’s assertion that his Rule

29(c) motion for acquittal should have been granted. From our

review of the record, we conclude that the evidence strongly

supports the jury’s finding that Gibson sent the plane for

Hallett with pleasure rather than business in mind. The

defense relied on International President Haaley to discredit

Hallett’s assertions about the purpose of her trip. According to

Hanley, he suggested that Gibson fly her to Sacramento for

questioning about Lane’s misconduct. He stated that he told

Gibson: “Why don’t you get her over here and— She seems to

be the kind that wants to talk about it, and get her over here

and see if we can find something out.” On the stand Hanley re-

counted the Local’s problems at length. When asked on cross-

examination why he never spoke to Hallett about these prob-

lems in Sacramento, Hanley replied that he did not question

her himself because he might ultimately review any charges

brought against Lane. Hanley also testified that he ordered a

special audit of Local 28 as a direct result of Hallett’s trip. This

audit revealed that Lane had bought a life insurance policy for

himself without authorization, and that the Local’s finances

were askew. The government cross-2xamined Hanley exten-

sively on this issue, asking him to explain why his earlier

testimony and correspondence with Lane indicated that he

had discovered the life insurance problem in October, one

month before he supposedly ordered the special audit of Local 28.

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Hanley could not explain the discrepancy in dates. He also

could not explain why Steve Revilak, a Local 28 officer who

had openly complained about Lane and the Local's affairs,

was not invited along to Sacramento for fact-finding.

Viewing the evidence and all possible inferences in the light

most favorable to the prosecution, we are satisfied that the

evidence was sufficient to establish guilt beyond a reasonable

doubt.

B. Gaspe Trip.

Gibson contends that the government also failed to prove

beyond doubt that the purpose of Gibson's trip to Caspe,

Canada, a remote fishing resort, was personal rather than offi-

cial. Viewing the following evidence in the light most

favorable to the government, we reject this contention as well.

No one disputes that Gibson and two Union officials, James

Stamos and Herbert Schiffman’ travelled in the Union plane

to Gaspe, Canada for the last weekend in June, 1975. Gaspe is

a resort in northern Quebec famous for excellent salmon

fishing. The sole dispute is whether the government's evidence

established that the trip was a social fishing jaunt, planned as

such in advance by three old friends.

The prosecution called several witnesses to establish that the

three men went to Gaspe only to fish for salmon and to relax.

First the government called Nick Petri, Administrative Assist-

ant to the General Secretary-Treasurer, who is responsible for

paying Gibson’s bills. Petri routinely kept a monthly memoran-

dum of Gibson’s travels as a record of Gibson’s whereabouts.

Petri had no actua) knowledge whether any particular trip was

personal or official, nor was he in a position to monitor whether

Gibson conducted business on a particular trip. Petri stated that

he always assumed that Gibson was on Union business whenever

~* Both were indicted as co-conspirators. At the time of Gibson's trial,

Stamos had not yet been tried for charges stemming from the Gaspe trip.

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he travelled on the Union plane. Petri routinely reviewed all

bills submitted by hotels and restaurants on Gibson's behalf. If

Petri thought thr expenses were proper, he would pay the

various establishments that submitted vouchers. Gibson had

an absolute right to charge the Union for all hotel and meal ex-

penses incurred during Union business trips. According to

Petri, Gibson's travel memorandum for June, i975 showed

that he was in Montreal, Canada on the last four days of the

month. Expense sheets for the Union's pilots and for James

Stamos showed that these men were in Gaspe, Canada from

June 27 through June 30, 1975.

Next, the government called Lawrence Maloney, the owner

of the small lodge in Gaspe in which the three stayed that

weekend. Maloney testified that he and Stamos lunched

together in April, 1975, at which time the two discussed

salmon fishing in Gaspe. Based on his luncheon conversation

with Stamos, Maloney began to make preparations for a

salmon fishing weekend at his lodge in Gaspe. He opened the

lodge for the occasion, rented two salmon rivers and guides,

purchased food supplies and hired a staff of four. Maloney

testified that he understood that the trip was planned as a

salmon expedition, based on his April conversation with

Stamos. Accordingly, he reserved two entire salmon rivers.

Maloney further stated that the best time to fish for salmon is

between June 7 and mid-July.

Maloney was on hand to greet the thee men when they ar-

rived in Gaspe. Gibson was the only one who brought his own

fishing gear, most of which was unsuitable for salmon fishing

except for a fly rod. Maloney arranged for proper fishing gear

for Gibson and the others. According to Maloney, fishing was

poor that year because the rivers were extremely low. Gibson

nevertheless attempted to fish every day, although Stamos and

Schiffman, less experienced and enthusiastic than Gibson,

gave up in apparent frustration and played golf. Maloney re-

counted that on the day after the group arrived, he drove all

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three men to the airstrip where they met three ladies and a

ma named Cretier. The group returned to the lodge and had

drinks and dinner together. Although Maloney ate and fished

separately from the union group, and thus was not with Gib-

son the entire weekend, Maloney testified that when Gibson

was in his presence he never heard the three discuss union

business. Finally, Maloney testified that Gibson, Stamos, and

Schiffman each paid him in cash for their hotel, bar, and

fishing expenses, after some dispute about the cost of renting

the rivers and guides.

Gary Garavaglia, one of the Union's pilots, took the stand.

The government called this witness to establish the personal

nature of the trip. According to Garavaglia, Gibson ordered

him to fly to Quebec City on Saturday morning to pick up

several passengers and bring them back to Gaspe. In Quebec

City, two women wearing “evening” clothes boarded the

plane along with another woman dressed casually and an

unidentified man. The two ladies left the neat day after an ap-

parent argument with Cibson, Stamos, and Schiffman.

Although the pilot did not spend much time with Gibson that

weekend, he did observe Gibson and the others fishing. He

also observed what he described as “social activity.” The

government submitted that the pilot’s inference was compe-

tent, based on his long association with Gibson and the events

he observed in Gaspe.

Viewing this evidence and all reasonable inferences in the

government's favor, we conclude that a reasonable mind could

fairly find Gibson guilty beyond a reasonable doubt of mis-

using the Union plane for a personal fishing trip to Gaspe. In

our view the government presented ample evidence in its case

in chief to send these counts to the jury. The evidence clearly

invi_.s and permits the inference that Gibson, Stamos and

Schiffman planned a weekend fishing trip together at the

height of the salmom season. Gibson is an avid fisherman and

the three are old friends. The evidence supports the govern-

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ment'’s theory that Gibson tried to conceal the fact that he took

the plane to Gaspe: Petri’s records show that Gibson was in

Montreal from June 27 to June 30. Furthermore, Gibson paid

his own lodging and fishing expenses in cash, and he never

sought reimbursement from the Union, although he had a

right to be reimbursed for all business expenses. If the jury

credited the testimony of Petri, Maloney and Garavaglia, the

evidence was sufficient to establish that Gibson consciously

misused the Union plane for his personal benefit, and that he

planned this misuse with his two friends.

Our assessment of the evidence is not altered by the

testimony of the defense witnesses. Gibson called Hanley and

Stamos, a co-conspirator and President of the Local in Mon-

treal, to describe the official nature of the Gaspe trip. Hanley

stated that the International was then facing organizational

problems in Canada due to the Separatist movement in

Quebec which gathered strength in the spring of 1975. In

January of that year, the International's Executive Board

discu:sed in great detail the Canadian problem at a meeting

attended by Hanley, Gibson, and Stamos. Hanley testified

that he asked Gibson to travel to Quebec tw investigate this

and related union problems. Finally, Hanley testified that he

“received some information” from Gibson after the Gaspe

trip.

Stamos corroborated H anley’s testimony about the topic of

the January meeting. According to Stamos’ version of history,

Gibson called him in May, 1975 to say that he was “author-

ized” to travel to Canada to talk about the Union’s problems.

Stamos then notified Maloney to open his lodge in Gaspe.

Stamos testified that he and Gibson discussed the Quebec

situation on the night of arrival, and that the three men spent

approximately “sixty to sixty-five” percent of the weekend

discussing union matters. Gibson ordered Stamos to bring a

man named Cretier to Gaspe. Cretier was the Union’s business

representative in Quebec City. Accordingly, Stamos called

Cretier from the lodge on Saturday morning and invited him

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for the weekend. Later that day Cretier arrived on the union

plane. All three men picked him up at the airstrip. According

to Stamos, Gibson “got mad” when he saw that Cretier had

brought twe extra women with him. Gibson reportedly said

“who are these people” and ordered the women to leave on a

commercial flight the next morning. On cross-examination

Stame: was unable to explain why all three men paid the air-

fare to send the women back to Quebec City, if the three had

not in fact known in advance that the women were coming.

The prosecution reminded Stamos that he had testified at Cib-

son's first trial that Cretier had brought the women along for

“entertainment.” When the prosecution asked why Gaspe had

been chosen for a business meeting, Stamos responded that

Gibson came to Gaspe to “get closer” to the Quebec problem.

However, Stamos also stated that Gibson could not travel to

Quebec City or Montreal, where the union actually operated

because Gibson had to be insulated from the “source of the

trouble.” Stamos was extremely vague when cross-examined

about specific topics he, Gibson, and Schiffman discussed at

Gaspe. He mentioned that they discussed the provisions of cer-

tain collective bargaining agreements in detail, but he could

not identify them. Furthermore, Stamos was not able to ex-

plain why not one of the three brought along any documents

or working papers that Stamos claims they discussed.

We conclude that the government's evidence was not only

sufficient to warrant submission to the jury, but that it was

also sufficient to establish Gibson's guilt beyond a reasonable

doubt. Direct proof of each element of a section 501(c) viola-

tion is not necessary to convict. United States v. Vitale, 489

F.2d 1367 (6th Cir. 1974). The jury was entitled to draw

adverse inferences from the testimony of the government's

witnesses and to discredit the testimony of Hanley and Stamos,

a highly inte: ested witness. On balance, the evidence substan-

tially supports the jury’s finding of guilt beyond a reasonable

objection as inadmissible hearsay.

Gibson now argues that the exclusion of Smieca’s statement

was reversible error because: (1) the utterance was not hearsay

because it was not offered for the truth of its contents; (2) the

statement would have corroborated Hanley’s earlier testimony

to the same effect; and (3) the statement was relevant to Gib-

son’s state of mind at the time he invited Hallett to journey to

Sacramento. We agree with Gibson that Smieca’s statement

should not have been excluded as hearsay. However, we con-

clude that the improper exclusion was harmless error.

We have no doubt that the statement should have been

received. First, the hearsay rule bans in-court repetition of

extra-judicial utterances only when they are offered to prove

the truth or falsity of their contents. The rule does not apply to

statements offered merely to show that they were made. E.g.

United States v. Miriana, 422 F.2d 150, 153 (6th Cir.), cert.

denied, 309 U.S. 910 (1970); United States v. Press, 336 F.2d

1003 (2d Cir. 1064), cert. denied, 379 U.S. 965 (1965).

Smieca’s proffered statement was not hearsay under Federal

Rule of Evidence 801(c): it was not offered to show that the

substance of Hanley’s utterance was either true or false.

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Indeed, a suggestion or an order is not subject to verification at

all because such utterances do not assert facts. Gibson offered

the utterance solely for the fact that it was made by Hanley

and heard by Gibson. Smieca’s account of Hanley’s suggestion

was testimony about a circumstantial utterance, which could

have been received properly on the issue of Gibson's belief or

state of mind in consequence of the utterance. See United

States v. Herrera, G00 F.2d 502 (Sth Cir. 1979); United States

v. Rubin, 591 F.2d 278 (Sth Cir.), cert. denied, 444 U.S. 864

(1979); United States v. Wilson, 532 F .2d 641 (8th Cir.), cert.

denied, 429 U.S. 846 (1976); United States v. Chason, 451

F.2d 301 (2d Cir. 1971), cert. denied, 405 U.S. 1016 (1972).

See also, VI Wigmore on Evidence § 1789 at 235 (3rd ed.

1940); McCormick on Evidence § 225 at 460-463 (1954 ed.).

We conclude that the District Court’s error was harmless

beyond a reasonable doubt and that it did not affect Gibson’s

substantial rights. First, Smieca’s testimony would not have

provided the jury with any new information about Gibson's

purpose or belief in transporting Hallett to Sacramento.

wee vy

ve

a

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vy. Chason, 451 F.2d 301 (2d Cir. 1971), cert. denied, 405 U.S.

because he was denied the opportunity to bolster Hanley's

credibility. It is always within the discretion of the trial judge

to deny a party the opportunity to present cumulative

evidence bearing solely on credibility. United States v. Dennis,

625 F.2d 782 (8th Cir. 1980); United States v. Medical

Therapy Sciences, Inc., 583 F.2d 36, 41 n.6 (2d Cir. 1978),

cert. denied, 439 U.S. 1130 (1979). See also United States v.

Hoffa, 349 F.2d 20 (6th Cir. 1965), aff'd, 385 U.S. 293 (1966);

Boeing Airplane Co. v. O'Malley, 329 F.2d 585 (8th Cir.

1964); Harvey v. United States, 23 F.2d 561 (2d Cir. 1928).

Furthermore, Hanley was not impeached on cross-examina-

tion about whether he had in fact made such an utterance to

Gibson, nor did the government directly or impliedly suggest

that Hanley’s testimony was a recent fabrication. Therefore

Smieca’s statement was not essential to rehabilitate Hanley.

Hanley’s credibility would not have been bolstered by mere

repetition. Repetition simply does not ensure veracity:

When the witness has merely testified on direct examina-

;

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Because Smieca’s testimony was cumulative and repetitious,

and would therefore not have influenced the jury’s verdict, its

exclusion was harmless error beyond a reasonable doubt.

Ill. SEQUESTRATION ORDER

We reject Gibson's third contention that the District Court

establish through Hanley’s testimony that Hallett’s trip hed

been the catalyst for a special internal audit of Local 28.

for himself. To corroborate his testimony,

Hanley produced a letter to Lane written in October, 1975,

November.

The defense maintains that Hanley was merely confused

about the number and dates of the audits because he was

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Federal Rule of Evidence 615 provides that: “at the request

of a party the court shall order witnesses excluded so that they

cannot hear the testimony of other witnesses.” The witness

rule has been part of our iaw for centuries, and has its origins

in the English common law. As Wigmore notes sequestration

“already had in English practice an indenendent and con-

tinuous existence, even in the time of those earlier modes of

trial which preceded the jury and were a part of our in-

heritance of the common Germanic law.” VI Wigmore on

Evidence § 1837 at 348 (3rd ed. 1940) quoted in Geders v.

United States, 425 U.S. 80, 87 (1976). The rule serves two

salutary purposes: (1) it prevents witnesses from tailoring

testimony to that of other witnesses, and (2) it aids in detecting

false testimony. United States v. Warren, 578 F.2d 1058 (Sth

Cir. 1978) (en banc) on reh. 612 F.2d 887 (en banc), cert.

denied, 446 U.S. 956 (1980).

Our review of the District Court's action is limited to

whether the court abused its discretion in denying Gibson's re-

quest to call Clair. The decision whether a witness who fails to

obey a sequestration order may subsequently take the stand is

undoubtedly one for the trial court. United States v. Kiliyan,

456 F.2d 555 (8th Cir. 1972); United States v. Marson, 408

F.2d 644 (4th Cir. 1968), cert. denied, 393 U.S. 1056 (1969);

United States v. Johnson, 345 F.2d 457 (6th Cir.), cert.

denied, 382 U.S. 836 (1965); Spindler v. United States, 336

F.2d 678 (9th Cir. 1964), cert. denied, 380 U.S. 909 (1965).

The controlling principle in this Circuit is that violation of an

order directing that witnesses be separated does not

automatically bar a witness’ testimony. United States v.

Bostic, 327 F.2d 9863 (6th Cir. 1964). We have always heeded

the following pronouncement of the Supreme Court:

If a witness disobeys the order of withdrawal, while he

may be proceeded against for contempt and his testimony

is open to comment to the jury by reason of his conduct,

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Holder v. United States, 150 U.S. 91, 92 (1893) (emphasis

added). See also United States v. Brooks, 303 F.2d 851 (6th

Cir.), cert. denied, 371 U.S. 889 (1962). Most authorities agree

that “particular circumstances” sufficient to justify exclusion

of a witness are indications that the witness has remained in

court with the “consent, connivance, procurement or

knowledge” of the party seeking his testimony. United States

v. Kiliyan, 456 F.2d at 560; Taylor v. United States, 388 F.2d

786 (9th Cir. 1967); United States v. Bostic, 327 F.2d 983 (6th

Cir. 1964); United States v. Schaefer, 299 F.2d 625 (7th Cir.),

cert. denied, 370 U.S. 917 (1962).

Applying this test to the facts, it is clear that the court did

not abuse its discretion in excluding Clair. First, we note the

government requested a Rule 615 order in open court without

. Second, Gibson concedes that Clair remeined in

quite specifically that Gibson instructed Clair to “take a good

look at Local 28's books” and “to do a good job on them and

it’s to be an in-depth audit.” Gibson thus had an adequate

opportunity to correct the mistakes Hanley had made in his

testimony. In our view the District Court properly excluded

Clair from the stand.*

IV. CONCLUSION

We find no merit in Gibson's final contention that the prose-

cutor’s closing arguments constituted misconduct. Accord-

ingly, we affirm the judgment below in all respects.

* Had Clair been the only witness available to testify, our conclusion on

this issue might have differed. See Calloway v. Blackburn, 612 F.2d 201 (Sth

Cir. 1980). See also United States v. Davis, 639 F.2d 239 (Sth Cir. 1961).

ia

*s

United States Court of Appeals

No. 80-5280

UNITED STATES OF AMERICA,

PLAINTIFF- APPELLEE,

oD.

JOHN F. GIBSON,

DEFENDANT-APPELLANT.

Before: Mennrrr and Martin, Circuit Judges; and

Puitups, Senior Circuit Judge.

Order 2

On receipt and consideration of the petitions for rehearing

and suggestion for rehearing en banc in the above-styled case;

and

No judge in active service in this Court having moved for

rehearing en banc and the motions therefore having been

referred to the panel which heard the case; and

The panel having noted nothing of substance in said mo-

tions for rehearing which had not been carefully considered

before issuance of the court's opinion;

Now, therefore, the motions for rchearing are hereby

denied.

ENTERED BY ORDER OF THE COURT

s/Joun P. HeHmMAN

Clerk

bea

Articie V

No person shall be held to answer for a capitai, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in the time of War or

public danger; nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty or property, without due pro-

cess of law; nor shall private property be taken for public use

without just compensation.

Arricte VI

In ali criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an imyariial jury of the

State and district wherein the crime shall ‘save been commit-

ted; which district shall have been previously as ertained by

law, and to be informed of the nature and cause of the accusa-

tion; to be confronted with the witnesses against him; to have

compulsory process for obtaining Witnesses in his favor, and to

have the Assistance of Counsel for his defense.