Appeal from a judgment of the District Court for the Southern District of New York entered on September 29, 1978, by Judge Mark A. Costantino after a jury trial, convicting appellant of three counts charging that he had by fraud obtained from Community Sponsors Inc., Young Mothers Training Program, monies that were the subject of federal financing under the Economic Opportunity Act of 1964, as amended, in violation of Title 42 U.S.C. § 2703 and Title 18 U.S.C. § 2. Affirmed .
Before Moore, Mansfield, Circuit Judges, and Wyatt, District Judge.*fn*
William Ruffin appeals from a judgment of the District Court for the Eastern District of New York entered by Judge Mark A. Costantino on September 29, 1978, following a jury trial, convicting Ruffin of three counts charging that he and his co-defendant Olga Defreitas had obtained by fraud from Community Sponsors Inc., Young Mothers Training Program (YMP) monies that were the subject of federal financing under the Economic Opportunity Act of 1964 as amended, all in violation of 42 U.S.C. § 2703. Ruffin was acquitted of a fourth count charging him and Defreitas, YMP's director, with conspiracy in violation of 18 U.S.C. § 371 to obtain the monies by fraud. A fifth count, charging both defendants with a substantive violation of § 2703 was dismissed before the case was submitted to the jury. Appellant's co-defendant Defreitas was acquitted of the four counts submitted to the jury.
The central issue raised on this appeal is whether a person incapable of personally committing a specified crime (in this case because he was not an officer, director, agent or employee of an agency receiving federal financial assistance) who causes an innocent agent meeting the capacity requirements to engage in the proscribed conduct may be punished as a principal under 18 U.S.C. § 2. We hold that he may and affirm.
Title 42 U.S.C. § 2703 provided in pertinent part that
"Whoever, being an officer, director, agent, or employee of, or connected in any capacity with, any agency receiving financial assistance under this chapter embezzles, willfully misapplies, steals, or obtains by fraud any of the moneys, funds, assets, or property which are the subject of a grant or contract of assistance pursuant to this chapter, shall be fined not more than $10,000 or imprisoned for not more than two years, or both."
The statute was part of the Economic Opportunity Act of 1964, as amended, 42 U.S.C. § 2701 (the "Act"), an omnibus anti-poverty law designed to provide several types of aid programs to be administered at state and local levels with massive federal fund assistance. The Act provided for the funding of Urban Community Action programs, called "community corporations" and their independent components or delegate agencies (42 U.S.C. §§ 2701, Et seq.). Federal and local funds were allocated and distributed to these community corporations and agencies in New York City through an administrative hierarchy (Office of Economic Opportunity, Human Resources Administration, and Community Development Agency).
In the present case the fund grants were at all relevant times channeled through a community corporation known as Bedford-Stuyvesant Young in Action Community Corporation (BSYIA) to delegate agencies, including YMP, which had entered into contracts with the New York City Human Resources Administration to provide medical, educational and economic assistance to young pregnant unwed women in the Bedford-Stuyvesant district of Brooklyn. In order to function YMP required headquarters and housing, which led to the frauds forming the basis of the prosecution of Defreitas and Ruffin.
Olga Defreitas was the executive director of YMP. William Ruffin was her close personal friend. From October 1970 to August 1974 they arranged to have YMP lease from Rugore Associates, Inc., of which Ruffin was the sole stockholder and president, an unused, uninhabitable, condemned, unsafe building at 1402 Bedford Avenue, Brooklyn, to be used by YMP after the building had been renovated according to the lease agreement and architect's specifications. In 1969 Ruffin had purchased the run-down premises for $35,000 after persuading Defreitas that it could be renovated and leased by YMP. By a separate agreement BSYIA community corporation, of which YMP was a delegate agency, then engaged a private contractor to renovate the premises on the understanding that Ruffin would pay one-half the cost. However, the contractor was unable to complete the project and ceased work by January, 1970.
Notwithstanding the condition of the 1402 Bedford Avenue premises and the cessation of renovations, Ruffin, although he knew that the renovation would not be completed and that the building was doomed to be demolished, influenced Defreitas to obtain the necessary rubber-stamp authority from YMP's Board of Directors to continue leasing the premises from October 1970 through August 1974 from Rugore Associates, for which Ruffin received rentals totalling $115,000. The rental checks, which amounted to 25% To 35% Of YMP's total yearly program budget during this period, were paid to Ruffin and deposited by him in his personal bank accounts. During the same period Ruffin made various payments to Defreitas personally or for her account, totalling approximately $30,000.
The four substantive counts of the indictment charged that at various times from December, 1970, to October, 1974, Defreitas and Ruffin obtained by fraud and misapplied monies which were the subject of a contract of assistance under the Act, causing the monies to be paid by YMP to Ruffin as rent for the 1402 Bedford Avenue building, although they both knew that the building was not in fact occupied by YMP, was "in an uninhabitable condition," and was never "rendered habitable" in accordance with obligations undertaken by Ruffin. Although Defreitas was the only defendant who was a "director" and "employee" of an agency receiving federal funds, each of the substantive counts charged that the two defendants jointly, without distinction between them, engaged in the alleged conduct in violation of 42 U.S.C. § 2703 and of 18 U.S.C. § 2, which provides as follows:
"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
"(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
After reading both of the foregoing sections to the jury as part of his instructions to the jury, the trial judge instructed the jury:
"In other words, every person who wilfully participates in the commission of a crime may be found to be guilty of that offense. Participation is wilful if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.
"Accordingly, you may find the defendant William Ruffin guilty of the offense charged in Counts Two, Three and Four if you find beyond a reasonable doubt that the defendant Olga Defreitas committed the offenses with which they were charged in those counts and that the defendant William Ruffin aided and abetted her. Otherwise, you must acquit.
"In order to aid and abet another to commit a crime it is necessary that the accused wilfully associate himself in some way with the criminal venture, and wilfully participate in it as he would in something he wishes to bring about; that is to say, that he wilfully seek by some act or omission of his to make the criminal venture succeed."
The words "Otherwise, you must acquit" had not been requested by either side,*fn1 nor did the Government's request suggest that Ruffin's guilt was dependent on Defreitas' guilt. To the contrary, the Government asked the court to instruct the jury that "A defendant may be convicted as an aider and abettor even though the person charged as principal is acquitted. United States v. Lugo-Baez, 412 F.2d 435, 440 (8th Cir. 1969)."
Apparently confused by the court's instruction on the subject the jury, after deliberating for a short while, sent a note to the judge inquiring "Four (sic) counts 2, 3 and 4, is it possible to find one defendant guilty and the other not guilty." In a long colloquy with the court (Tr. 1535-1590) regarding the note, during which jury deliberations were suspended, the Government took the position that the jury could under 18 U.S.C. § 2(b) find Defreitas not guilty on the substantive counts and hold Ruffin guilty on those counts. Ruffin's counsel took the contrary position, that Ruffin could not be found guilty unless Defreitas was also found guilty. Numerous decisions and authorities on the issue were cited, quoted in part, and read by the trial judge, including United States v. Wiseman, 445 F.2d 792, (2d Cir. 1971); United States v. Lester, 363 F.2d 68, 73 (6th Cir. 1966), Cert. denied, 385 U.S. 1002, 87 S. Ct. 705, 17 L. Ed. 2d 542 (1967); United States v. Bryan, 483 F.2d 88 (3d Cir. 1973); and United States v. Grasso, 356 F. Supp. 814 (E.D.Pa.), Affd., 485 F.2d 682 (3d Cir. 1973). The Government specifically pointed to the amendment of § 2(b) in 1951 as showing that a person may be convicted as a "causer" even though not legally capable of personally committing the act forbidden by a federal statute and even though the agent willfully caused to do the act was herself guiltless. After a detailed review of the authorities in open court, Judge Costantino decided that his earlier instruction on the subject of aiding and abetting had been too limited but that it was "not harmful to the defendants" but "harmful to the Government." He thereupon decided to send a note to the jury on the subject, stating:
"Of course, it's under that case (United States v. Wiseman, 445 F.2d 792 (2d Cir. 1971)) and all the other cases that have been reviewed by the Court and all the arguments that have been proffered before the Court that the Court comes to the following determination that it will submit to the jury the following answer to the question submitted to the Court as follows:
" "It is possible to find one defendant guilty of Counts 2, 3 and 4 and not find the other defendant guilty of those counts.'
"Signed Judge Constantino (sic). It's Court Exhibit 4."
Neither side requested a more detailed or amplified statement in response to the jury's note.
The jury acquitted Defreitas on all counts. It acquitted Ruffin on the conspiracy count (Count One) and found him guilty of the three substantive counts (Two, Three and Four). From the judgments of conviction on these counts Ruffin appeals.
To the extent that Ruffin was charged under 18 U.S.C. § 2(a) as an "aider" and "abettor" of Defreitas' alleged criminal conduct, he could not be found guilty unless Defreitas as a principal had violated 42 U.S.C. § 2703. It is hornbook law that a defendant charged with aiding and abetting the commission of a crime by another cannot be convicted in the absence of proof that the crime was actually committed. Shuttlesworth v. Birmingham, 373 U.S. 262, 265-66, 83 S. Ct. 1130, 10 L. Ed. 2d 335 (1963); United States v. Cleary, 565 F.2d 43, 46 (2d Cir. 1977), Cert. denied, 435 U.S. 913, 98 S. Ct. 1469, 55 L. Ed. 2d 506 (1978); United States v. Giordano, 489 F.2d 327, 330 (2d Cir. 1973); United States v. Deutsch, 451 F.2d 98, 118-19 (2d Cir. 1971), Cert. denied, 404 U.S. 1019, 92 S. Ct. 682, 30 L. Ed. 2d 667 (1972); Giragosian v. United States, 349 F.2d 166, 167 (1st Cir. 1965); United States v. Cades, 495 F.2d 1166, 1167 (3d Cir. 1974); United States v. Shuford, 454 F.2d 772, 779 (4th Cir. 1971).
The failure to prosecute or obtain a prior conviction of a principal, such as where he may have been granted immunity or pleaded to a lesser offense, does not preclude conviction of the aider and abettor, as long as the commission of the crime by a principal is proved. See, e. g., United States v. Deutsch, 451 F.2d 98, 118-19 (2d Cir. 1971), Cert. denied, 404 U.S. 1019, 92 S. Ct. 682, 30 L. Ed. 2d 667 (1972); United States v. Bryan, 483 F.2d 88, 93-94 (3d Cir. 1973) (en banc); United States v. Musgrave, 483 F.2d 327, 332-33 (5th Cir. 1973); United States v. Kelly, 258 F. 392, 402 (6th Cir.), Cert. denied, 249 U.S. 616, 39 S. Ct. 391, 63 L. Ed. 803 (1919); Pigman v. United States, 407 F.2d 237, 239, (8th Cir. 1969); United States v. Azadian, 436 F.2d 81, 82 (9th Cir. 1971); United States v. Coppola, 526 F.2d 764, 776 (10th Cir. 1975); Gray v. United States, 104 U.S. App. D.C. 153, 260 F.2d 483, 484 (D.C.Cir. 1958); cf. Model Penal Code, § 2.06(7). Indeed the Third Circuit has recently held that the prior acquittal of the principal in a separate trial does not bar conviction of the aider and abettor if the second jury finds that the principal committed the crime. United States v. Standefer, 610 F.2d 1076 (3d Cir. Aug. 12, 1979, Dkt. 78-1909) (en banc).
It is equally clear that under 18 U.S.C. § 2(b) one who Causes another to commit a criminal act may be found guilty as a principal even though the agent who committed the act is innocent or acquitted. United States v. Wiseman, 445 F.2d 792, 794-95 (2d Cir. 1971); United States v. Kelner, 534 F.2d 1020, 1022 (2d Cir.), Cert. denied, 429 U.S. 1022, 97 S. Ct. 639, 50 L. Ed. 2d 623 (1976) ("It is a general principle of causation in criminal law that an individual (with the necessary intent) may be held liable if he is a cause in fact of the criminal violation, even though the result which the court condemns is achieved through the actions of innocent intermediaries"); United States v. Ordner, 554 F.2d 24, 29 (2d Cir.), Cert. denied, 434 U.S. 824, 98 S. Ct. 71, 54 L. Ed. 2d 82 (1977); United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976), Cert. denied, 430 U.S. 931, 97 S. Ct. 1551, 51 L. Ed. 2d 775 (1977); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.), Cert. denied, 393 U.S. 963, 89 S. Ct. 391, 21 L. Ed. 2d 376 (1968); United States v. Grasso, 356 F. Supp. 814, 819 (E.D.Pa.), Affd. 485 F.2d 682 (3d Cir. 1973); United States v. Lester, 363 F.2d 68, 72 (6th Cir. 1966), Cert. denied, 385 U.S. 1002, 87 S. Ct. 705, 17 L. Ed. 2d 542 (1967).
The guilt or innocence of the intermediary, therefore, becomes irrelevant in determining whether a person charged as a co-principal under § 2(b) may be found guilty. The rationale behind this rule was explained by the court in United States v. Lester, supra, 363 F.2d at 72:
"This doctrine is an outgrowth of common law principles of criminal responsibility dating at least as far back as Regina v. Saunders, 2 Plowd. 473 (1575); and of principles of civil responsibility established, by force of the maxim Qui facit per alium facit per se, at least as early as the 14th century. (See: United States v. Gooding, 25 U.S. (12 Wheat.) 460, 6 L. Ed. 693 (1827); Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930))."
Applying these principles here, the acquittal of Defreitas by the same jury which convicted Ruffin precludes a finding under 18 U.S.C. § 2(a) that Ruffin aided and abetted her commission of the alleged crime, since the jury's verdict amounts to a finding that she had not been proven beyond a reasonable doubt to have knowingly and wilfully committed it. Had Ruffin acted alone, without using Defreitas as an intermediary, he obviously could not have been found guilty of violating 42 U.S.C. § 2703, since he was never an "officer, director, agent or employee of, or connected in any capacity with, any agency receiving financial assistance," the only category of persons to whom the criminal sanction of § 2703 directly applies. However, the record in this case would permit an inference that Ruffin Caused Defreitas, a person within this category, to engage in the alleged criminal conduct. The issue before us, therefore, narrows down to whether one who would be incapable of violating that law if he acted alone (i. e., Ruffin) may nevertheless be found guilty where he causes the prohibited conduct to be committed by another who has the capacity to violate it (in this case (Defreitas) but who has been acquitted. We are persuaded that such a "causer" may be found guilty under § 2(b).
One purpose of 18 U.S.C. § 2 is to enlarge the scope of criminal liability under existing substantive criminal laws so that a person who operates from behind the scenes may be convicted even though he is not expressly prohibited by the substantive statute from engaging in the acts made criminal by Congress. See S.Rep.No.1020, 82nd Cong., 1st Sess. (1951) U.S.Code Cong.Serv. p. 2583. Where the principal is found guilty of a criminal offense, for instance, it is undisputed that a person may be convicted as an aider and abettor under 18 U.S.C. § 2(a) even though he may lack the capacity to violate the substantive criminal statute. See, e. g., United States v. Giordano, supra; Giragosian v. United States, supra. We see no logical reason why a person who causes an innocent agent having the capacity to commit a criminal act to do so should not likewise be held criminally responsible under 18 U.S.C. § 2(b) even though the causer lacks the capacity.
Indeed Congress in 1951 amended 18 U.S.C. § 2(b) to insure that a person who manipulates another may not escape criminal responsibility because the manipulator lacks capacity. Prior to 1951 Title 18 U.S.C. § 2(b), as it had been enacted in 1948, read as follows:
"(b) Whoever causes an act to be done, which if directly performed by him would be an offense against the United States, is also a principal and punishable as such."
The House Report accompanying this 1948 provision explained that its purpose was (a) to permit the deletion from many criminal provisions of words such as "causes or procures" and (b) to remove any doubt that one who "causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal" in accord with such decisions as United States v. Giles, 300 U.S. 41, 57 S. Ct. 340, 81 L. Ed. 493 (1937); H.Rep.No.304, 80th Cong., 1st Sess. 2448-49 (1948). In Giles the Supreme Court affirmed the conviction of a bank teller for violating a statute prohibiting a national bank employee from making false entries in its books, holding that although he had not personally made any false entries he could nevertheless be found guilty on the basis of evidence that he had permitted such entries to be made by innocent intermediaries.
Despite Giles and the 1948 enactment of § 2(b) in its earlier form, some continued to argue that a person who causes someone with capacity to commit the crime (e. g., an officer or employee of a bank or government agency) to do so could not be held criminally liable unless he personally had the capacity to commit the offense. Congress, however, removed any doubt about such a person's criminal responsibility by adopting the Act of October 31, 1951, ch. 655, § 17b which, in part, amended, 18 U.S.C. § 2(b) to add the words "or another" so that it now reads:
"(b) Whoever willfully causes an act to be done which if directly performed by him Or another would be an offense against the United States, is punishable as a principal." (Emphasis added).
If there were any question about Congress' intent to enlarge the scope of 18 U.S.C. § 2 it was removed by the Senate Report accompanying the proposed amendment, which explained (1951 U.S.Code Cong.Serv. 2578).
"This section is intended to clarify and make certain the intent to punish aiders and abettors Regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted. Some criminal statutes of title 18 are limited in terms to officers and employees of the Government, judges, judicial officers, witnesses, officers or employees or persons connected with national banks or member banks.
"Section 2(b) of title 18 is limited by the phrase, "which if directly performed by him would be an offense against the United States,' to persons capable of committing the specific offense. Section 2(a) of such title, while not containing that language, is open to the inference that it also is limited in application to persons who could commit the substantive offense. If regarded as a definitive section, the section makes the aider and abettor a "principal.' It has been argued that one who is not a bank officer or employee cannot be a principal offender in violation of section 656 or 657 of title 18 and that, therefore, persons not bank officers or employees cannot be prosecuted as principals under section 2(a).
"Criminal statutes should be definite and certain." (Emphasis added).
The addition of the words "or another" is therefore significant for present purposes because they render criminally liable a person causing another to commit criminal acts where the other, even though innocent, has the capacity to do so and the defendant does not.*fn2 Prior to the 1951 amendment of § 2(b) it could be argued that in such a case the person causing the criminal act (in this case Ruffin) to be committed by such an innocent agent (in this case Defreitas) could not be punished as a principal for the reason that the act, "if directly performed by him," would not "be an offense against the United States" since he did not fit the description of those persons expressly covered by the substantive statute (i. e., he was not a director, officer or employee). As amended, however, the phrase "which if directly performed . . . By another would be an offense against the United States" (emphasis added) covers the present case since the criminal act, if committed by "another" (i. e., Defreitas), would be such an offense, even though the other lacked the intent to commit the crime.
The foregoing construction is not only consistent with Congress' intent in broadening § 2(b) in 1951 but follows the interpretation we have given to that section in United States v. Wiseman, supra. There the defendants, Private process servers, were charged under 18 U.S.C. § 2 with violation of 18 U.S.C. § 242, which prohibits state agents or employees (i. e., those acting "under color" of state law) from depriving citizens of their rights. The charge was based on the defendants' having caused the Clerk of the New York City Civil Court, a state employee, to enter judgments against third persons without his knowing that the judgments were fraudulently procured by the defendants' invalid service of process. In rejecting the defendants' contention that they could not be found guilty of violating the substantive statute because, not being state employees, they lacked the capacity to commit the crime, Judge Moore stated:
"This contention is refuted by the reasoning of United States v. Lester, 363 F.2d 68 (6th Cir. 1966), Cert. denied, 385 U.S. 1002, 87 S. Ct. 705, 17 L. Ed. 2d 542 (1967). Before 1951, § 2(b) read:
" "Whoever wilfully causes an act to be done which if directly performed By him would be an offense against the United States, is punishable as a principal.'
"In 1951, this section was amended by adding "or another' after "by him' (see above). The phrase "or another' includes the Clerk of the Civil Court. Thus if defendants "wilfully caused' the Clerk to enter such judgments, defendants would be culpable to the same extent as the Clerk would be assuming (contrary to the record therein) the Clerk had the same knowledge as was possessed by defendants as to the falsity of the papers."
This reasoning applies with equal force to the present case.
Our decision in Wiseman was presaged by that of the Sixth Circuit in United States v. Lester, supra, wherein the convictions of persons causing police officers acting "under color" of law to violate 18 U.S.C. § 242 were upheld even though the officers were acquitted and the appellants lacked the capacity to act under color of law. After analyzing the effect of Congress' 1951 amendments of 18 U.S.C. § 2(b) the court stated:
"It has been beyond controversy, then, at least since the 1951 amendment to 18 U.S.C. § 2(b), that the accused may be convicted as causer even though not legally capable of personally committing the act forbidden by a Federal statute, and even though the agent willfully caused to do the criminal act is himself guiltless of any crime." 363 F.2d at 73.
We have cited this decision with approval not only in Wiseman, supra, but in Kelner, supra, as well. Absent this sensible interpretation of § 2(b), as thus amended, we do not find any logical reason, nor has one been offered by appellant, for the addition of the words "or another" to that section in 1951. It is a cardinal principle of statutory interpretation that words inserted in a statute will be given their normal meaning and effect in the absence of a showing that some other meaning was intended. United States v. Public Utilities Commission, 345 U.S. 295, 315-16, 73 S. Ct. 706, 97 L. Ed. 1020 (1953); 2A Sutherland Statutory Construction § 46.07, at p. 65 (1973). Here no such showing has been made. Indeed it would be rather incongruous to hold that one lacking the capacity to commit a crime may be held criminally responsible as an "aider and abettor" under 18 U.S.C. § 2(a) but not as a "causer" under § 2(b). In both instances the person committing the criminal act may provide the necessary capacity, whether or not that person has the Mens rea. In causing an innocent intermediary to commit a criminal act, the causer adopts not only the intermediary's act but his capacity. Moreover, if the causer were required to possess the capacity fixed by the substantive statute, the addition of the words "or another" to § 2(b) would be meaningless surplusage, see United States v. Menasche, 348 U.S. 528, 538-39, 75 S. Ct. 513, 99 L. Ed. 615 (1955), since the language of the statute before the 1951 amendment would always have been sufficient to hold him criminally responsible for causing the commission by an innocent intermediary of an act "which if Directly performed by him would be an offense against the United States." (Emphasis added).*fn3
There remains the question of whether the conviction of Ruffin must, notwithstanding the foregoing analysis of § 2(b), be reversed on the ground urged by our esteemed colleague Judge Wyatt, namely, that the case was not submitted to the jury on legal principles that would permit a conviction of Ruffin under § 2(b). It is true that the jury was instructed primarily on the theory that Ruffin was charged under 18 U.S.C. § 2(a) as an aider and abettor of Defreitas' conduct. This instruction, of course, was appropriate for the reason that there was evidence from which the jury could infer that Defreitas as a principal violated 42 U.S.C. § 2703. The trial judge, apparently acting on his own, added to his instruction on aiding and abetting, "otherwise you must acquit." This, of course, was error, since there was evidence permitting a conviction of Ruffin as a "causer" under § 2(b), which was also charged to the jury.
We do not, however, believe that this error precluded a finding that Ruffin was guilty under § 2(b), since the Government may seek a conviction under § 2(a) or, in the alternative, under § 2(b), which was the case here. As our dissenting colleague notes, "There has been much confusion . . . because of the indiscriminate application of the term "aider and abettor' to one against whom either Section 2(a) or Section 2(b) is invoked." Since the addition of the words "otherwise you must acquit" was an error in favor of Ruffin, he was not prejudiced by the jury's disregarding it after being properly instructed by the court, in response to its note, that it was "possible to find one defendant guilty of Counts 2, 3 and 4 (the substantive counts) and not find the other defendant guilty of those counts." The jury had already been properly instructed in the language of § 2(b) that "Whoever wilfully causes an act to be done, which if directly performed by him or another would be an offense against the United States, is punishable as a principal." Thus the jury was armed with a correct statement of the applicable legal principles,*fn4 and after an exhaustive review of pertinent authorities on the subject, including Wiseman and Lester, the court was satisfied that § 2(b) permitted a conviction of Ruffin, even though Defreitas might be acquitted.
The evidence, moreover, justifies the conclusion that the jury properly applied § 2(b) to the evidence and that there was no inconsistency in its acquittal of Defreitas and its conviction of Ruffin. Concededly the proof against Defreitas, at least on paper, appears to have been strong, warranting a conviction of her. On the other hand, there was evidence indicating that she may have been dominated or manipulated by her close friend Ruffin, that the fraudulent plan was his idea rather than hers, that he may have known more than she did about the lack of any real prospect for the renovation of the 1402 Bedford Avenue building, and that he received and personally retained most of the fraudulently obtained rentals totalling some $115,000 under the leases. This evidence would permit the jury to have concluded that Ruffin was guilty beyond reasonable doubt but that Defreitas lacked the necessary criminal intent.
We find no merit in any of the other contentions urged by Ruffin. The court properly charged all of the essential elements which the Government was required to prove in order to establish a violation of 42 U.S.C. § 2703, including intent. There was ample evidence to permit the jury to conclude that Ruffin did not intend to renovate the 1402 Bedford Avenue building, since he knew it was unoccupied and would be unoccupiable during the life of the leases. There was also evidence that the monies which Ruffin ...