United States v. Wiseman

274 F. 3d 1235 (2001)

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United States v. Wiseman

United States Court of Appeals for the Ninth Circuit
274 F. 3d 1235 (2001)

RW

Facts

The federal government (plaintiff) prosecuted Marvin L. Wiseman and William D. Mett (the pair) (codefendants) for embezzling funds from a pension fund subject to the Employee Retirement Income Security Act of 1974 (ERISA), in violation of 18 U.S.C. § 664. The trial evidence established that Wiseman was the president, and Mett the vice president, of a Hawaii art gallery. The pair also served as trustees of the gallery's employee pension fund. The loss of the gallery's reputation due to the pair's conviction for felony art fraud, combined with a downturn in Hawaii's economy, devastated the gallery's finances. Without informing gallery employees or federal regulators, the pair withdrew $1.6 million from the pension fund and deposited the money in the gallery's general operating accounts. In their trial testimony, the pair characterized the withdrawal as a "loan" for the benefit of gallery employees who otherwise would have been laid off. The pair argued that the employees implicitly authorized the withdrawal, or would have done so had they known about it. The pair was initially tried and convicted by a jury, but then they were granted a bench retrial, which also ended in their conviction. Wiseman and Mett appealed to the Ninth Circuit Court of Appeals.

Rule of Law

Issue

Holding and Reasoning (Hall, J.)

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