UNITED STATES of America, Plaintiff-Appellee, v. James M. TODD, Defendant-Appellant

KRAVITCH, Senior Circuit Judge,

dissenting:

Because I do not believe that the district court’s evidentiary rulings in this case constituted an abuse of discretion, respectfully, I dissent.

Todd contends that the district court reversibly erred when it excluded, as irrelevant, testimony that: (1) Todd’s employees implicitly authorized his appropriation of their contributions to a 401(k) pension plan (“the Plan”); and (2) Todd’s employees earned high salaries. “Evidentiary rulings challenged on appeal will not be overturned absent clear abuse of discretion.” United States v. Veltmann, 6 F.3d 1483, 1491 (11th Cir.1993). It is not enough that we would have admitted this evidence had we presided over the case. “[Ujnder the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review.” In re Rasbury, 24 F.3d 159, 168 (11th Cir.1994).

Todd argues that the district court should have admitted this evidence because it was relevant to support his defense that he lacked the specific intent to deprive the Plan of assets. Specifically, Todd claims he believed in good faith that his employees implicitly authorized him to use their pension contributions to keep the company afloat. *1335Assuming that this theory constituted a valid defense,1 the proffered testimony regarding ratification2 was too limited and too equivocal to transform the district court’s ruling into an abuse of discretion. Todd had to show that he in good faith believed that all the Plan’s participants would ratify his actions. Evidence that certain, even most, of Todd’s workers earned excellent salaries would have had little probative value in establishing that Todd in good faith believed all participating employees would ratify his use of the Plan’s funds.

The proffered opinions of employees regarding ratification are of equally limited probative value. The majority notes that during questioning out of the jury’s presence, one witness answered affirmatively when asked if “the employees wanted [Todd] to do whatever it took to keep this good business going.” Majority Opinion at 1331 (emphasis added). It is not clear from this proffer whether all, or simply the majority, of the participating employees shared this belief, or that they knew exactly what they were ratifying. In another key passage cited by Todd, a witness proposed to testify that he “felt everybody was pretty much pulling for [Todd] to do whatever he [could] to get this company going....” R6:227 (emphasis added). These statements simply lack sufficient scope and clarity to support a ruling that the district court had to admit them.

Moreover, Todd acknowledges that employee pension contributions steadily plummeted as word of his actions spread. This fact shows that Todd’s employees did not support his use of their pension funds. Todd’s alleged belief that his employees would ratify his actions proved so wrong that it appears manifestly unreasonable, and thus, unlikely to have been held in good faith. See Cheek v. United States, 498 U.S. 192, 203-04, 111 S.Ct. 604, 611-12, 112 L.Ed.2d 617 (1991) (noting that where jury must find specific intent “the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury ... will find that the Government has carried its burden of proving knowledge”).3

In sum, the evidentiary restrictions imposed by the district court in this case do not appear to be of the same character or significance as those limitations enforced by the district court in the main case cited by Todd, United States v. Sheffield, 992 F.2d 1164 (11th Cir.1993) (reversing conviction where district court prevented defendant from impeaching key government witness with prior inconsistent statement and from introducing evidence to negate intent). “As we have stated previously, the abuse of discretion standard allows ‘a range of choice for the district court, so long as the choice does not constitute a clear error of judgment.’ [I] believe the district court’s decision was within its range of choice, although perhaps not by a wide margin, and that no clear error of judgment has been demonstrated.” Rasbury, 24 F.3d at 168 (internal citation omitted).

*1336Accordingly, I would affirm Todd’s conviction.

. The parties cite several cases decided under the union fund embezzlement statute, 29 U.S.C. § 501(c), in discussing this purported defense. Given the dearth of caselaw on pension fund embezzlement, courts previously have considered union fund embezzlement decisions in ruling on pension fund cases. See, e.g., United States v. Butler, 954 F.2d 114, 119 n. 2 (2d Cir.1992). Because union funds legitimately may be used in a number of ways, but pension funds generally only may be used for investment or payment of benefits and administrative costs, I question whether judge-made rules from the union cases regarding authorization or ratification ought to apply to pension cases.

. Because Todd began diverting pension funds before his employees knew all of the facts about his actions or the company's financial condition, the employees could not authorize, even implicitly, Todd’s tactics. As a result, at most, Todd could have had a good faith belief that once the employees learned of the situation, they would ratify his actions.

.Todd also asserts that the salary evidence was relevant to rebut the government’s claims that he diverted funds from the Plan for selfish reasons. Evidence that Todd generally paid his workers well would not show an absence of greed. To the contrary, Todd acknowledged that he paid high employee salaries so that he could recruit and retain quality workers; Todd, therefore, paid high salaries not because he was generous, but rather because he needed good employees in order to run a profitable company.