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United States v. Hickerson

decided: April 26, 1984.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERT J. HICKERSON, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 82 CR 30092 -- J. Waldo Ackerman, Judge.

Cummings, Chief Judge, and Eschbach and Flaum, Circuit Judges.

Author: Eschbach

ESCHBACH, Circuit Judge.

A jury found Robert Hickerson guilty on one count of converting union funds and on one count of conspiring to convert union funds, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 371. The district court sentenced Hickerson to three years imprisonment on count one and to five years probation on count two. Hickerson appeals from these convictions and we affirm.

I.

Viewing the evidence in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), the jury could have found the following facts. In 1979, Hickerson was the business agent of Laborers, International Union of North America, Local No. 919 ("Local 919"), located in Quincy, Illinois. Members of Local 919 worked at heavy construction jobs such as highway and bridge construction. As the business agent, Hickerson was a member of Local 919's Executive Board. Other members of the Board in 1979 included Louis Hindbaugh, Harry Hill, Marion "Buddy" Ballinger, Steve Ballinger, Frank Baumgartner, and John Becks.

Work was scarce for Local 919 members in the summer of 1979 because nonunion contractors were being awarded the majority of contracts. This situation, viewed by the members of Local 919 as a serious problem, was a topic of discussion at a series of Executive Board meetings convened in July and August. At the first of these meetings, Hickerson proposed that the Board give him $5,000 for a Las Vegas vacation. Rather than take a vacation, however, Hickerson informed the Board that he would use most of the money to "deal with" the problem of nonunion contractors. This plan was never put to a vote. At a subsequent meeting, Hickerson put forward a second plan. According to this plan, three union delegates would be sent to a union convention in Springfield, Illinois. Each delegate would be given $700 in expense money. However, off the record, it was decided that each of the delegates would kickback $500 of his expense money to Hickerson to finance his plans to combat the nonunion contractor problem. By secret ballot, the Board approved this plan on August 7.

Buddy and Steve Ballinger were chosen to be two of the three delegates (Hickerson was the third). The Ballingers testified that on August 13 and 14 they each indorsed checks made out for $700, but they received only $200 apiece from Hickerson. The Ballingers and Hickerson did subsequently attend the convention in September. Harry Hill testified that in late September, or early October, Hickerson told him that $300 had been spent on vandalism. At that time, Hickerson also informed Hill that one of the companies target was Sparks & Wiewel Construction Company. Louis Hindbaugh testified to a conversation he had with Hickerson shortly after he heard reports concerning damage to nonunion contractors' equipment. Hindbaugh stated that Hickerson asked him "did you see it, or did you hear about it." Hindbaugh assumed that "it" was the report of vandalism. Frank Baumgartner also testified that Hickerson "reported [after the money was appropriated] that he got the job done." Agent Michael Ernst, of the Illinois Department of Law Enforcement, testified that acts of vandalism had occurred at a Sparks & Wiewel construction site on September 6 and September 11, respectively. As part of its proof, the government also introduced a photograph that highlighted a "Molotov cocktail" with a road paver in the background.

On the basis of this evidence, the jury returned a verdict of guilty on both counts of the indictment. Hickerson appeals.

II.

Hickerson contends on appeal that it was error for the district court to allow into evidence the testimony and the photograph concerning damage to nonunion contractors' equipment. Before we address the merits, however, we must first determine whether Hickerson has preserved the issue for appeal.

During the trial, defense counsel never objected on relevance grounds to the admission of the photograph or to any of the testimony relating to the damage done to nonunion contractors' equipment. Absent plain error, such an objection is necessary to preserve the issue for appeal. See Fed. R. Crim. P. 51, 52(b); United States v. Sentovich, 677 F.2d 834, 837 (11th Cir. 1982); United States v. Kopel, 552 F.2d 1265, 1274 (7th Cir.), cert. denied, 434 U.S. 970, 54 L. Ed. 2d 459, 98 S. Ct. 520 (1977). Hickerson asserts that he did not object at trial because his objection to this evidence had previously been noted and denied at a hearing on his motion in limine.

Hickerson's motion in limine requested the district court to order the government not to present "any evidence at the trial of this cause regarding any facts not directly related to the issue being tried." This motion, by itself, was far too broad to pinpoint the objectionable government evidence. The nature of the defense's objections did become apparent at a hearing on the motion in limine. With respect to the photograph's admissibility, the district court stated, "We will argue about that when it comes up." Since the only objection made when the photograph was admitted concerned its authenticity (i.e., who took it, the lens speed, etc.), Hickerson clearly waived this issue unless admission of the photograph was plain error.

Whether Hickerson preserved an objection to the testimony concerning damage to the nonunion contractors' equipment is more problematic. With respect to this testimony, the ...


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