Posted on 03/01/2011 7:57:00 PM PST by smokingfrog
U.S. v. DOUGLAS
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE/CROSS-APPELLANT, v. DONNY G. DOUGLAS (07-1695/1850) AND JAY D. CAMPBELL (07-1696/1851), DEFENDANTS-APPELLANTS/CROSS-APPELLEES.
Nos. 07-1695, 07-1696, 07-1850, 07-1851
United States Court of Appeals, Sixth Circuit.
Argued: January 20, 2011.
Decided and Filed: February 10, 2011.
ARGUED: N. C. Deday LaRene, LaRENE & KRIGER, P.L.C., Detroit, Michigan, Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellants.
Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: N. C. Deday LaRene, LaRENE & KRIGER, P.L.C., Detroit, Michigan, Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellants.
Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. Before: MARTIN and MOORE, Circuit Judges; BUNNING,
District Judge.* Pursuant to Sixth Circuit Rule 206
OPINION BOYCE F. MARTIN, JR., Circuit Judge.
Defendants-Appellants-Cross-Appellees Donny Douglas and Jay Campbell appeal their convictions under the Labor Management Relations Act and the Hobbs Act. The United States cross-appeals their sentences. This case is now in its eighth year of litigation. Some of the underlying events transpired over seventeen years ago. Our court, and this same panel, heard a first appeal in this case more than six years ago. United States v. Douglas, 398 F.3d 407 (6th Cir. 2005). For the following reasons, we AFFIRM Douglas's and Campbell's convictions, and although we would prefer to end these lengthy proceedings and give closure to the parties, we must REMAND for resentencing.
I. BACKGROUND
Donny Douglas and Jay Campbell worked as representatives of the United Auto Workers at the General Motors factory in Pontiac, Michigan. While negotiating with General Motors in the 1990s, they pressured General Motors several times to give highly skilled, "journeyman" jobs to two non-qualified relatives of Union members. These jobs paid as much as $150,000 per year, which was approximately double the salary of a production line worker. General Motors refused to comply each time. Acquiescing would have violated the hiring priorities set forth in the national and local agreements between the Union and General Motors. The pressure came to a head when the Union was on strike in 1997, costing General Motors millions of dollars each day. On the eighty-seventh day of the strike, Union leaders met with representatives from General Motors to attempt to resolve all their issues and end the strike within twenty-four hours. The parties successfully resolved every official issue and grievance between them within twenty-four hours, but Douglas informed James Rhadigan, a General Motors official, that the strike would not end unless the two unqualified relatives of Union members finally received journeyman jobs. Rhadigan relented, the non-qualified relatives received the journeyman jobs, and the strike ended. As a result, multiple qualified journeyman applicants filed grievances with General Motors for not adhering to the hiring priorities laid out in the national and local agreements. Two qualified applicants were eventually hired on top of the two non-qualified Union member relatives. The United States prosecuted Douglas and Campbell for violations of the Labor Management Relations Act and the Hobbs Act, claiming that they conspired to demand "things of value" and wrongfully used their labor positions to force General Motors to give jobs to two relatives of Union members. Douglas and Campbell appealed the sufficiency of their indictment to this Court, where this same panel found that the indictment sufficiently alleged the charges. Subsequently, Douglas and Campbell proceeded to trial and were convicted. They now appeal, arguing that their convictions are not supported by sufficient evidence. The United States cross-appeals their sentences.
II. DISCUSSION
Douglas and Campbell appeal their convictions on several grounds: (1) their actions do not constitute a violation of the Labor Management Relations Act, and the district court's jury instruction regarding the Act was an incorrect statement of the law; (2) violating a labor agreement is not a criminally "wrongful" use of a labor position under the Hobbs Act; and (3) the United States's Brady violation at trial warrants a new trial. Additionally, Campbell argues that the district court's jury instruction constructively amended his indictment to include activity not covered by the Labor Management Relations Act. The United States cross-appeals both sentences, claiming that the district court erred by: (1) using the Blackmail Sentencing Guideline, U.S.S.G. § 2B3.3, rather than the Extortion Sentencing Guideline, U.S.S.G. § 2B3.2; (2) failing to enhance Douglas's and Campbell's total offense level by calculating the loss to General Motors as zero; and (3) varying Douglas's sentence downward to match a departure that Campbell received due to his lung cancer. A. The Labor Management Relations Act The Labor Management Relations Act prohibits "any employer . . . to pay, lend, or deliver . . . any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce." 29 U.S.C. § 186(a)(1). It further forbids anyone to "request, demand, receive, or accept . . . any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section." Id. § 186(b)(1). Douglas and Campbell argue that their actions do not fall within the scope of the Act because: (1) they did not demand a "thing of value" for purposes of the Act; and (2) they did not personally receive any "thing of value." We review both questions of statutory interpretation de novo. United States v. Gagnon, 553 F.3d 1021, 1025 (6th Cir. 2009). Douglas and Campbell also claim that the district court incorrectly instructed the jury as to section 186(b)(1). We review de novo this claim as well. H.C. Smith Invs., L.L.C. v. Outboard Marine Co., 377 F.3d 645, 650 (6th Cir. 2004) (citing Fisher v. Ford Motor Co., 224 F.3d 570, 576 (6th Cir. 2000)). Lastly, we review constructive amendment claims de novo also. United States v. Budd, 496 F.3d 517, 528 (6th Cir. 2007).
OK, Frog, but who are Douglas and Campbell?
GM is a co-conspirator in violation of the law.
Sue them bastards and their owners!
It’s just a shame that the Feds didn’t get wind of the corruption within the local 594 union while Donny was our Prez.
14 years of tax free money from the 300 union appointees at the plant. appointed workers paid for their jobs cash each week that went into a slush fund for “The Don”
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