                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3877
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Anthony Davis

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: December 18, 2015
                            Filed: February 10, 2016
                                 ____________

Before MURPHY, BENTON, and KELLY, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

      A jury found Anthony Davis guilty of embezzling union funds in violation of
29 U.S.C. §501(c). He appeals, attacking the sufficiency of the evidence and
claiming the district court1 should have submitted one of his proposed jury

      1
       The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
instructions, improperly admitted checks and invoices into evidence, and placed time
constraints on the jury that violated his right to a fair trial. Having jurisdiction under
28 U.S.C. §1291, this court affirms.

       Davis, a United States Postal Employee, was President of the National Postal
Mail Handlers Union, Local 314. He had authority to make disbursements for Local
314. According to the evidence, Davis created invoices from (mostly non-existent)
cleaning, catering, maintenance, and computer-equipment companies. He also
reimbursed himself for hotel travel expenses, after Local 314 had directly paid the
hotel bill. The unauthorized reimbursements total $40,659.07. The court admitted
checks and invoices into evidence, some attached to a reimbursement form, while
others were not.

       The trial began with 12 jurors and one alternate. Trial lasted longer than the
expected end on Friday, September 5. One juror was excused at the end of Friday due
to other obligations. Another juror lost a family member over the weekend. Rather
than proceed with only 11 jurors, the court postponed the trial until Thursday,
September 11. Davis did not object. After the close of the evidence, Davis moved
for a judgment of acquittal, which was denied. The district court also denied his
proposed Jury Instruction 13.

                                            I.

      This court reviews the denial of a motion for judgment of acquittal de novo,
“viewing the evidence in the light most favorable to the guilty verdict, resolving all
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences supported by the evidence.” United States v. Thompson, 533 F.3d 964,
970 (8th Cir. 2008). This court will overturn a jury verdict only if “no reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” Id.



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        Davis was charged with unlawfully and willfully embezzling funds from Local
314, in violation of 29 U.S.C. § 501(c). A conviction under § 501(c) requires misuse
of union funds with fraudulent intent. See United States v. Welch, 728 F.2d 1113,
1116 (8th Cir. 1984) (“To prove ‘willfullness’ under section 501(c), the government
must show that the union officials possessed fraudulent or criminal intent to deprive
the union of its funds.”). Davis contends the government must prove that his
appropriation of money “was unauthorized or that he did not have a good faith belief
that it had been authorized.” However, neither a lack of union authorization nor a
lack of good faith belief that the expenditure was for the legitimate benefit of the
Union is an essential element of a section 501(c) violation. See United States v.
Thordarson, 646 F.2d 1323, 1335 (9th Cir. 1981).

       There was sufficient evidence for the jury to conclude that Davis had the
fraudulent intent to deprive Local 314 of its money, funds, property, or other assets.
True, a co-worker testified to a “common practice” for union employees to create
invoices in order to be reimbursed for out-of-pocket cash expenditures. To the
contrary, the government presented evidence of 56 times, that for services never
rendered to Local 314, Davis received payment for fictitious invoices. The Local’s
treasurer testified that, beginning in 2008, Davis’s reimbursement requests increased.
On his computer Davis had multiple templates for fictitious invoices. Three
companies testified that, although they provided services to Local 314, the invoices
Davis submitted from them were fictitious, for services never performed. With
respect to cleaning expenses, many Local 314 members cleaned the union hall.
Although Davis’s brother testified that he cleaned and “made $75 here, $100 here and
change,” the reimbursement forms submitted by Davis indicated cleaning payments
for far greater amounts. Davis also testified that the date on the invoices he created
did not always correspond to the date of the alleged service. United States v. Plenty
Chief, 561 F.3d 846, 854 (8th Cir. 2009) (“It is the sole province of the jury to weigh
the credibility of a witness.”). Viewing the evidence most favorably to the verdict,


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and accepting all reasonable inferences, the district court properly denied Davis’s
motion for judgment of acquittal.

                                          II.

       At trial, Davis objected to Instruction 13 defining “unauthorized expenditure.”
He proposed language including the requirement that he “lacked a good faith belief
that the expenditure was for the legitimate benefit of the Union.” The court rejected
Davis’s language.

       This court reviews a district court’s rejection of a defendant’s proposed jury
instruction for abuse of discretion. United States v. Robinson, 781 F.3d 453, 462-63
(8th Cir. 2015). This court affirms if the instructions “fairly and adequately submitted
the issues to the jury.” United States v. Hansen, 791 F.3d 863, 870 (8th Cir. 2015).
“A conviction will be reversed based on a district court’s instructional error as to a
particular instruction only upon a finding of prejudice to the parties.” United States
v. Brede, 477 F.3d 642, 643 (8th Cir. 2007).

      The relevant part of the court’s instruction read:

             If you find the defendant’s expenditure . . . was unauthorized and
      that the defendant knew the expenditure was unauthorized, then you
      may consider this as evidence of the defendant’s fraudulent intent to
      deprive National Postal Mail Handlers Union, Local 314 of the money
      alleged in the Indictment.
             An unauthorized expenditure is one which is done without the
      permission of the union and its members as a whole even if it is
      approved by a superior union official or group of officials. That is,
      permission of the union is lacking if the expenditure is outside the scope
      of the fiduciary trust placed in a defendant by the union.




                                          -4-
       Leaving the first paragraph largely intact, Davis proposed deleting language
in the second paragraph and substituting the italicized words:

             An unauthorized expenditure is one which is done without the
      permission of the Union and its members as a whole. That is, permission
      of the Union is lacking if the expenditure is outside the scope of the
      fiduciary trust placed in the Defendant by the Union as a whole, the
      Defendant acted with fraudulent intent, and lacked a good faith belief
      that the expenditure was for the legitimate benefit of the Union.

The district court rejected Davis’s “good faith” language because, “in . . . determining
his fraudulent intent, the jury can consider whether the defendant knew that the
expenditure was authorized—or rather knew it was unauthorized.”

       The district court did not abuse its discretion in rejecting Davis’s instruction.
His would require a lack of good faith belief before an expenditure is unauthorized.
This would defeat the reason for the instruction—allowing the jury to consider union
authorization to determine Davis’s fraudulent intent. See United States v. Cantrell,
999 F.2d 1290, 1292 (8th Cir. 1993) (“[U]nion authorization is evidence bearing on
‘fraudulent intent.’”). Further, a lack of a good faith belief that the expenditure was
for the legitimate benefit of the Union is not an essential element of a section 501(c)
violation. Thordarson, 646 F.2d at 1334. See generally Cantrell, 999 F.2d at 1292
(“[L]ack of union authorization is not necessarily an essential element of a section
501(c) violation.”). The instruction fairly and adequately submitted the issues to the
jury.

                                          III.

      Davis contends the district court improperly admitted irrelevant checks and
invoices into evidence. This court reviews a district court’s ruling on the
admissibility of evidence for abuse of discretion. United States v. Thetford, 806 F.3d

                                          -5-
442, 446 (8th Cir. 2015). Evidence is relevant if “(a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action.” Fed. R. Evid. 401.

        Throughout trial, the court admitted reimbursement forms and the attached
fictitious invoices, along with the corresponding Local checks issued to Davis. Other
checks do not have a corresponding reimbursement form. However, the memo line
on these checks reference identical or similar services as on the fictitious
reimbursement forms. The court also admitted un-submitted invoices not attached
to a reimbursement form, which were found in Davis’s vehicle and office.

        The district court did not abuse its discretion in admitting these checks and
invoices. The checks show that Local 314 often paid Davis for identical services,
making it more probable that the services were never rendered. The un-submitted
invoices from non-existent vendors make it more likely that Davis provided the other
fictitious invoices to Local 314.

                                          IV.

       Davis argues that the three-day trial delay unfairly prejudiced him. This court
reviews this claim for plain error. Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not brought to the court’s
attention.”). Davis must show, (1) an error, (2) that was plain, (3) affecting
substantial rights, and (4) seriously affecting the fairness, integrity or public
reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 731-36
(1993).

     The district court did not err in delaying the trial by three days to ensure a full
12-member jury. The evidence remaining was minimal, with little chance the trial
would last into the third week (as Davis speculates). Before the delay, the court

                                          -6-
instructed the jurors not to discuss the case with anybody, not to conduct any
independent investigation, and to keep an open mind until the end of trial. Davis was
not unfairly prejudiced by the short delay. See United States v. Thomas, 451 F.3d
543, 546-47 (8th Cir. 2006) (finding objected-to 24-day continuance was not an abuse
of discretion after defendant declined to proceed with only eleven jurors, since court
was faced with several emergencies and conflicts, and instructed the jurors not to
discuss the case and keep an open mind until the case concluded).

                                    *******

      The judgment is affirmed.
                     ______________________________




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