Appeals from judgments of conviction against all defendants for conspiracy to file false claims against the United States, 18 U.S.C. § 371, and substantive counts in violation of 18 U.S.C. § 287 and § 2, following a jury trial in the United States District Court for the Southern District of New York, before the Honorable Milton Pollack, Judge.
Moore, Feinberg, Mulligan, Circuit Judges.
Appellants Bartholomew Buigues, Angelo Puig, Irma Anes, John Sammarco, and Susan Horowitz appeal from judgments of conviction entered on January 17, 1977. All were convicted by a jury verdict of conspiracy, Count One, to defraud the United States in violation of 18 U.S.C. § 371, and Counts Two and Three, of filing false claims against the United States in violation of 18 U.S.C. § 287 and § 2 (aiding and abetting).
Buigues received a sentence of two years' imprisonment with the condition that he spend three months in a jail-type institution; the balance of the sentence was suspended, and Buigues was placed on probation for two years following his term of imprisonment. Puig was sentenced to two years' imprisonment with the condition that he spend two months in a jail-type institution; the balance of the sentence was suspended, and Puig was placed on probation for two years following the term of imprisonment. Anes was placed on probation for one year and fined $1,500. Sammarco received a sentence of two months' imprisonment. Horowitz was placed on probation for one year and fined $1,000. Execution of the sentences of Buigues, Anes, Sammarco, and Horowitz have been stayed pending appeal. Puig has already served his term of imprisonment and is now on probation.
Because the facts pertaining to each defendant differ, particular attention must be given to the specific charges against each. Count One charges, in substance, a conspiracy to defraud the United States by the submission of false claims. 18 U.S.C. § 287. More specifically and as an object of the conspiracy, defendants are charged with agreeing to defraud the United States Department of Agriculture ("USDA"), by causing it to reimburse a non-profit corporation, Youth in Government ("YIG"), by which they were employed, for work "supposedly performed" whereas "said employees performed little or no work and were not entitled to the salaries paid them" and that defendants presented claims "knowing such claims to be false, fictitious, and fraudulent." Counts Two and Three are for violation of 18 U.S.C. § 287 and § 2 (substantive counts plus aiding and abetting).
THE OPENING, SUMMATION AND CHARGE
In the Government's opening, the prosecutor said that the case was "very simple": it was "about what are colloquially termed 'no show jobs'." (A. 7). In summation, the prosecutor inferred that defendants Horowitz and Sammarco were given "sham jobs and they had nothing to do". (A. 1105). In the charge, the Court said "Alleged unearned salaries are the keys to the contention involved herein". (A. 1206).
Against this backdrop the stage is set for presentation of a rather interesting scenario and an analysis of the parts each actor played therein. Insufficiency of the evidence necessary to convict is advanced by defendants as their primary contention.
The Congress, to benefit poor children during the summer when the regular school lunch program was not in effect, authorized the USDA to administer a Special Summer Food Service Program for Children ("Summer Lunch Program"). 42 U.S.C. § 1761. In New York City, non-profit corporations ("sponsors") were to distribute lunches at various feeding sites, to be obtained by the sponsors. The sponsors, in turn, were to obtain lunches from food vendors selected by a bidding process. The sponsors were to be paid for their cost of the lunches (maximum 75 1/4 cents per lunch), and a maximum of six cents per lunch for administrative costs.
Buigues was Chairman of the Board of YIG. Early in 1975 Buigues, together with Puig, conceived the idea of using YIG as a sponsor. At that time, YIG was inactive; it sponsored no activities and had no money. During the winter and spring of 1975 Buigues and Puig, Executive Director of YIG, enlisted the aid of friends Gary Gilchrist, Frank Rodriguez, Pedro Rodriguez, and Edward Rogers.*fn1 They worked on a volunteer basis part-time during this period (January to June, 1975) to help set up the program, which consisted of endeavoring to find sites such as churches, schools, day care centers and facilities of community organizations that were appropriate for serving luncheons to the children. Collectively, they secured some 63 sites, which on submission by YIG to USDA for approval, were reduced to 43.
As a makeshift office, YIG acquired a storefront at 2176 Amsterdam Avenue in Manhattan. [Parenthetically, at this point it would appear that the function and duties of the sponsor would be: (1) to oversee the quality of the luncheons at the source (i.e., the food vendor) and their shipment to their destination, the feeding sites; (2) to ensure the arrival of the luncheons at the feeding sites and their proper distribution to the children, together with prevention of misuse, namely, for ...