The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge:
Defendants Antonio Panepinto and Peter Nanfria are charged in Count One with conspiring to embezzle assets of employee welfare benefit funds, 18 U.S.C. § 371, in Count Two with embezzling such assets, 18 U.S.C. § 664, in Counts Three through Six with making false statements in documents required by the Employee Retirement Income Security Act of 1974, 18 U.S.C. § 1027, in Counts Seven through Ten with mail fraud, 18 U.S.C. § 1341, and in Count Eleven with bribing a union official by giving a son a "no-show" job, 29 U.S.C. 186.
Defendants move for dismissal of the first ten counts of the indictment and for a Bill of Particulars.
In an Introduction and in Count One the indictment alleges, in substance, the following background facts and embezzlement scheme.
Bivona Coat and Suit, Inc. (Bivona) and Valentino Via Venetto, Inc. (Valentino), two garment contracting corporations, are members of the American Cloak and Suit Manufacturers' Association, Inc. (the Association). The wife of Panepinto nominally owns Bivona. Panepinto's father-in-law nominally owns Valentino.
The Association and the International Ladies' Garment Workers' Union (the Union) have entered into a collective bargaining agreement (the Agreement) which, among other things, governs payments to be made to three employee welfare and benefit funds (the Agreement Funds) and two funds created under a trust indenture (the Indenture Funds) (collectively, the Funds).
The Agreement establishes two basic rules regarding contributions to the Funds. When a participating garment contractor (such as Bivona and Valentino) performs work for a manufacturer that also participates in the Agreement, the manufacturer must make contributions to the Funds. But when a participating garment contractor performs work for a non-participating manufacturer, the garment contractor must make contributions to the Funds.
The Agreement also provides that a subsidiary or firm affiliated with a participating garment contracting firm shall be bound by the Agreement. The Agreement provides that a determination of whether a firm is an affiliate shall be guided by:
Facts tending to establish any significant connection or interest between [the Employer and any subsidiary or affiliate firms] or tending to establish a plan, scheme, or device by an Employer to avoid or evade the provisions of this agreement by or through such subsidiary or affiliate, directly or indirectly.
Bivona and Valentino are "employers" within the meaning of this section.
Count One states that Panepinto and Nanfria created RO-IG Coat and Suit Corp. (RO-IG) and caused it (rather than Bivona and Valentino) to perform garment contracting work for manufacturers not parties to the Agreement, thereby evading the making of the requisite contributions to the Funds.
Count One alleges that by devising this scheme to evade making contributions to the Funds, defendants conspired to embezzle the assets of an employee welfare benefit fund. Count Two alleges that defendants ...