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UNITED STATES v. SOMERSTEIN

July 21, 1997

UNITED STATES OF AMERICA,
v.
STUART SOMERSTEIN and MARIANNA SOMERSTEIN, Defendants.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 The defendants, Stuart Somerstein ("Stuart") and Marianna Somerstein ("Marianna," collectively the "Somersteins" or the "defendants"), the officers and principals of Somerstein Caterers of Lawrence, Inc. ("Somerstein Caterers" or "SCLI") were convicted after a jury trial of: (1) conspiracy; (2) mail fraud; and (3) filing false benefits reports. In addition, Stuart Somerstein was convicted of embezzling $ 155,000 from an employee benefit plan. The original indictment also charged Sylvia Bromley ("Bromley"), SCLI's former bookkeeper, and John Iacovetti ("Iacovetti"), SCLI's former manager, with related crimes. Bromley passed away before the trial commenced and the indictment against her was dismissed. John Iacovetti was acquitted on all counts.

 Presently before the Court are the motions by the Somersteins for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29, or in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33.

 I. Background

 The evidence introduced by the Government at the trial demonstrates the following facts. Somerstein Caterers is a New York Corporation engaged in the catering business. As part of this enterprise, SCLI employs waiters, waitresses, bartenders, cooks, dishwashers, limousine drivers and security and maintenance personnel. Stuart Somerstein is the president of Somerstein Caterers. Marianna Somerstein, Stuart's wife, is vice president. As stated above, Bromley, who is now deceased, was SCLI's bookkeeper. Iacovetti was the general manager until 1993.

 Somerstein Caterers employs both union and nonunion employees. These employees are also called "waitstaff." During the trial, the term "waitstaff" was defined as waiters, bartenders, captains and head waiters. Tr. 2184. The union employees are represented by the Hotel Employees and Restaurant Employees International Union, AFL-CIO ("HEREIU"), a labor organization whose members work in the culinary and hotel industries. Local 100 is the regional HEREIU chapter which includes as members restaurant and catering hall employees in the New York metropolitan area, including Long Island ("Local 100" or the "Union"). At all relevant times, Somerstein Caterers was a signatory to collective bargaining agreements with Local 100.

 On June 1, 1987, the "1987 collective bargaining agreement" between SCLI and Local 100 went into effect. Articles IX, XII and XIII of the 1987 collective bargaining agreement required the following benefit contributions be made to various employee benefit funds ("Benefit Funds" or "Funds"):

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