                                  No. 95-3033



United States of America,         *
                                          *
              Plaintiff - Appellee,   *
                                          *   Appeal from the United States
     v.                                   *   District Court for the
                                          *   Southern District of Iowa.
Donald G. McKee,                          *         [UNPUBLISHED]
                                          *
              Defendant - Appellant. *




                     Submitted:   March 12, 1996

                         Filed:   June 5, 1996


Before MAGILL, FLOYD R. GIBSON, and HEANEY, Circuit Judges.

PER CURIAM.

     A jury convicted appellant Donald G. McKee of illegally converting
union funds in violation of 29 U.S.C. § 501(c) (1994), and the district
court1 sentenced him to twenty-two months of imprisonment.       McKee appeals
his convictions and sentence, and we affirm.


I.   BACKGROUND


     The charges in this case stem from McKee's association with the
American Federation of State, County and Municipal Employees ("AFSCME").
AFSCME is organized in a three-tier system.       At the top of the pyramid is
AFSCME International, headquartered in




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      The HONORABLE CHARLES R. WOLLE, Chief Judge, United States
District Court for the Southern District of Iowa.
Washington, D.C.     The second tier is comprised of the AFSCME State
Councils, which exist in each state where AFSCME has members.     The third
tier includes the individual locals which are affiliated with the state
councils in their respective states.


     Between 1982 and 1994, McKee served as president of AFSCME's State
Council 61, located in Iowa.    In addition, he became an executive vice-
president of AFSCME International in 1984.      On November 16, 1994, the
United States returned an indictment charging McKee with sixty-five counts
of violating 29 U.S.C. § 501(c) by embezzling funds belonging to a labor
union.   The Government alleged that, over a four year period, McKee had on
numerous occasions converted to his personal use resources rightfully owned
by State Council 61.    McKee carried out this scheme in two primary ways.
First, he would regularly use the union's business credit card for personal
expenditures.    Also, he would obtain double reimbursement for certain
business trips by procuring remuneration from both State Council 61 and
AFSCME International.


     Before trial, the district court granted McKee's oral motion in
limine and agreed to exclude evidence concerning an extramarital affair
between him and a woman named Lynn Pothast.   Nonetheless, because Pothast
had personal knowledge of the nonunion character of certain purchases McKee
made with union funds, the court allowed her to appear as a Government
witness.    The court emphasized, however, that her testimony would be
strictly limited to the nature of the transactions in question.


     The jury subsequently returned convictions on sixty-four of the
sixty-five counts.      For reversal, McKee asserts that the Government
presented insufficient evidence to support his convictions.   He also claims
that the district court erroneously permitted the introduction of evidence
violative of the motion in limine.       In addition, McKee challenges the
district court's failure




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to give a separate instruction defining "fraudulent intent" for the jury.
Finally, McKee argues that the court committed sentencing error when it
enhanced McKee's base offense level for more than minimal planning.             We now
consider these allegations.


II.   DISCUSSION


      A.      Sufficiency of the Evidence


      To obtain a conviction under 29 U.S.C. § 501(c), the Government must
prove that the defendant union official "possessed fraudulent or criminal
intent to deprive the union of its funds."            United States v. Welch, 728
F.2d 1113, 1116 (8th Cir. 1984).          The prosecution satisfies this element
by demonstrating that the defendant "was sufficiently aware of the facts
to know that he acted wrongfully and in contravention of the trust placed
in him by the union and its members."           United States v. Long, 952 F.2d
1520, 1524 (8th Cir. 1991)(quotations omitted), cert. denied, 506 U.S. 905
(1992).


      McKee contends that there was insufficient evidence at trial to
support the jury's finding that he possessed fraudulent or criminal intent
to deprive State Council 61 of its funds.            In evaluating the sufficiency
of evidence, we view the evidence in the light most favorable to the
Government.      United States v. Nelson, 984 F.2d 894, 898 (8th Cir.), cert.
denied,    508    U.S.   966   (1993).    Furthermore,   we   draw    all   reasonable
inferences       and   resolve   all   evidentiary   conflicts   in   favor    of   the
Government.        Id. at 898-99.        "[T]he evidence to support a criminal
conviction is sufficient, as a matter of law, if any rational trier of fact
could have found the elements of the crime beyond a reasonable doubt."              Id.
at 899 (quotation omitted).


      Viewing the evidence against McKee under this standard, we easily
conclude that it was sufficient to sustain the jury's




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finding     of    fraudulent    intent.         The   Government   introduced    ample
circumstantial evidence indicating McKee knew that he was wrongfully
betraying the union's trust by using council money for personal purposes.
See United States v. Roenigk, 810 F.2d 809, 813 (8th Cir. 1987)("[I]ntent
and   guilty     knowledge   may   be   proven   by   circumstantial     evidence,   and
frequently cannot be proven in any other way.").              While McKee presented
contradictory evidence which, if believed, could have convinced the jury
that he subjectively thought his conduct to be proper, the jury, through
its verdict, flatly rejected this theory.              "It is not our function as a
reviewing      court   to    reverse    based    on   a   recognition    of   alternate
possibilities."        United States v. Bates, 77 F.3d 1101, 1105 (8th Cir.
1996)(quotation and alteration omitted).


      Moreover, the question of intent is an issue peculiarly within the
province of the factfinder, and "[a]ny uncertainty concerning the willful
intent to commit the act is for the jury to resolve."              Long, 952 F.2d at
1525 (quotation omitted).       With these principles in mind, we conclude that
there was sufficient evidence to support McKee's convictions for violating
29 U.S.C. § 501(c).


      B.       Evidentiary Rulings


      McKee maintains that the district court committed reversible error
when it allowed the prosecution on two occasions to introduce evidence
prohibited by the pretrial motion in limine.              We disagree.


      The first incident involved a question posed by the Government during
redirect examination of Diana Kouri, the bookkeeper for State Council 61.
While cross-examining this witness, McKee attempted to raise an inference
that he had abided by normal union practice when he ordered flowers for
Lynn Pothast.       In response, the Government asked Kouri whether she was
"aware of any relationship between Mr. McKee and Lynn Pothast."                 McKee's
attorney promptly objected to this question, and the court, following a




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bench conference, sustained the objection.             Significantly, the witness
never answered the query and was immediately excused.              McKee, however,
asserts that the introduction of this inflammatory "evidence" unduly
prejudiced the jury and requires reversal.


     By styling this contention as an evidentiary challenge, we feel that
McKee misapprehends the true nature of his claim.             Because Kouri never
answered     the   question   asked   of   her,   no   evidence   was   introduced.
Accordingly, McKee would have been better served by presenting this ground
for reversal as a claim of prosecutorial misconduct.               Construing the
allegation as such, we hold that this single question, an isolated incident
during the course of a seven day trial, does not represent the type of
misconduct which we have previously found to justify relief.            See United
States v. Brown, 903 F.2d 540, 542 (8th Cir. 1990)("This court has
previously found prejudicial error lacking where the prosecutor's question,
though inartful, was never answered, and the weight of the evidence
supported the defendant's conviction.").          Moreover, McKee did not ask the
judge to grant a mistrial or give a curative instruction relating to the
prosecutor's question, and the district court did not commit plain error
in failing to take these measures.


     McKee also maintains that the district court committed error when it
allowed Pothast to testify about a number of McKee's expenditures to which
she was privy.     According to McKee, the nature of some of this testimony,
especially     given   the    prosecutor's     above-mentioned    reference   to   a
relationship between McKee and Pothast, had the potential to prejudice the
jury against him.       Our examination of Pothast's statements, however,
reveals that she merely elaborated upon the nonunion character of the
purchases in question; the Government in no way attempted to elicit
evidence solely for the purpose of showing that McKee and Pothast were
involved in an extramarital affair.        Pothast's testimony was probative of
counts contained the indictment, and the district court did not abuse its
discretion under Rule 403 by allowing her




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to appear as a Government witness.       See Fed. R. Evid. 403; Roenigk, 810
F.2d at 815 ("This court will not disturb the district court's admission
of evidence over objections absent a showing of abuse of discretion.").


     C.      The Jury Instructions


     McKee asserts that the district court committed error when it
neglected to give a separate instruction defining "fraudulent intent."
There is no showing in the record that the defense requested an instruction
explaining this term, and we therefore review this claim under the plain
error standard.     United States v. Watson, 953 F.2d 406, 410 (8th Cir.
1992).    Taken as a whole, the district court's instructions adequately
conveyed to the jury that it could not convict McKee absent a finding that
he subjectively believed his actions to be wrongful.      Thus, we cannot say
that the court committed plain error.


     D.      More than Minimal Planning


     Finally, McKee alleges that the court committed error when it
enhanced his base offense level for more than minimal planning.       We will
reverse the district court's application of this enhancement only for clear
error.    United States v. Wilson, 955 F.2d 547, 550 (8th Cir. 1992).


     The jury convicted McKee of committing sixty-four separate acts of
embezzlement over a four year period.     We have previously stated that "the
repetitive nature of the criminal conduct, by itself, may warrant this
adjustment [for more than minimal planning]."    Id.   The district court did
not commit clear error when it found that McKee had engaged in more than
minimal planning.




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III. CONCLUSION


     For the reasons discussed above, we affirm McKee's convictions and
sentence.


AFFIRMED.


     A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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