U.S. v. Corsino, 86-1239

• Decision Date: 25 February 1987
• Docket Number: No. 86-1239,86-1239
• Citation: 812 F.2d 26
• Parties: UNITED STATES of America, Appellee, v. Rafael CORSINO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 26

812 F.2d 26

UNITED STATES of America, Appellee, v. Rafael CORSINO, Defendant, Appellant.

No. 86-1239.

United States Court of Appeals First Circuit.

Argued Oct. 9, 1986.

Decided Feb. 25, 1987.

Antonio Bauza Torres, for appellant.

Ricardo R. Pesquera, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Appellant Corsino was convicted after a jury trial in the district court on charges of having aided and abetted in the making of a false statement in violation of 18 U.S.C. Sec. 1001 (1982). His co-defendant, Jose Diaz, was acquitted.

I.

Based on the evidence presented, the jury could reasonably have found the following:

During 1979 and 1980 the municipality of Juncos, Puerto Rico, received a Community Development Grant for $235,000 from the United States Department of Housing and Urban Development ("HUD") to provide materials to rehabilitate homes in two of its barrios, Cantagallos and Las Pinas. Sometime after HUD disbursed the funds to Juncos, HUD sought to audit the program but could obtain no information as to how the money had been spent. HUD requested the municipality to submit data detailing its use of the money, or, if this was not possible, to return the funds to HUD. The municipality did not respond. Three HUD officials, including Rafael Isern, Director of the Planning and Community Development Division, then visited Juncos and met with the mayor and other officials of the city, including co-defendant Diaz, who was working for the city as its director of federal programs. At that meeting, the city officials showed Isern some bulky case files, and Isern requested the mayor to provide him with "a list of each case, including the amount spent in each case, with the purpose of determining whether those files amounted to the sum indicated."

After this meeting, on instructions from Diaz, a subordinate, Maria Luisa Rijos, prepared a list of the purported beneficiaries of the aid and the amount of aid they allegedly received. Diaz then sent some of his employees out to obtain the signatures of those listed. Diaz told his employees,

That these were some persons who had benefited from the H.U.D. program, and it was a requirement in order to send it over to the H.U.D. program, and we had to go out to the field and collect some signatures.

The employees went out but were unable to obtain signatures from all the persons who appeared on the list. They returned and told Diaz what had happened. Diaz then directed several of the employees themselves to sign on the list the names of different persons that had been typed thereon, and the employees did so, varying their handwriting so as to make it appear that the same person had not signed each time. Diaz also signed some names himself. The individuals whose names were signed did not authorize the signatures.

Appellant, co-defendant Rafael Corsino, who was a sub-director of the Public Works Department, himself signed a number of names on the list and caused other employees of the municipality of Juncos whom he supervised to sign the names of persons on the list, in all instances without authorization of the persons whose names were signed. Two employees testified that they feared reprisals from Corsino if they did not sign. As one of them put it:

Well, if one did not do what Mr. Corsino would order one to do, well, he would have you suspended from the job.

The list bearing the unauthorized, purported signatures was eventually turned over to HUD with a cover letter signed by the mayor of Juncos. Thereafter, HUD conducted its own house-to-house investigation of a number of the persons listed to determine whether the $235,000 had in fact been used for rehabilitation purposes. The agency concluded that the funds had, in fact, been properly spent, i.e., for construction materials, the purposes for which they had been granted.

Diaz and Corsino were indicted by a federal grand jury, as aiders and abetters, for violating 18 U.S.C. Sec. 1001: ¹

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

The jury found Diaz not guilty and Corsino guilty. Corsino appeals, claiming essentially six errors.

II.

Corsino argues that it was not proven that he intended to deceive HUD. See United States v. Markey, 693 F.2d 594, 596 (6th Cir.1982) (" 'intent to deceive' is an essential element of the crime described in section 1001").

The elements of an offense under Sec. 1001 are the making (a) "in any matter within the jurisdiction of any department or agency of the United States," of (b) a false statement of (c) material fact with (d) fraudulent intent.

United States v. Race, 632 F.2d 1114, 1116 (4th Cir.1980). See also United States v. Lichenstein, 610 F.2d 1272, 1276 (5th Cir.1980); United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir.1985). To show he lacked fraudulent intent, appellant cites to testimony of some of the signing employees that they thought there was no intention to deceive HUD and they heard defendants comment to that respect. Corsino points out that the funds were in fact properly expended and that, therefore, he would have had no reason to want to deceive HUD as to the use of the funds.

In United States v. Lichenstein, the Fifth Circuit observed,

The statement must have been made with an intent to deceive, a design to induce belief in the falsity or to mislead, but Sec. 1001 does not require an intent to defraud, that is, the intent to deprive someone of something by means of deceit.

610 F.2d at 1276-77.

Earlier the Fifth Circuit said in United States v. Godwin, 566 F.2d 975, 976 (5th Cir.1978),

Intent to deceive and intent to defraud are not synonymous. Deceive is to cause to believe the false or to mislead. Defraud is to deprive of some right, interest or property by deceit. Since the purpose of 18 U.S.C. Sec. 1001 is to protect the government against those who would cheat or mislead it in the administration of its programs, a charge that includes specific intent to deceive along with the other elements mentioned above comports with 18 U.S.C. Sec. 1001.

False statements intended to manipulate and pervert agency functioning come within section 1001. United States v. Lichenstein, 610 F.2d at 1278.

While the entire business of the fake signatures seems like sheer foolishness, we think the record supports a finding of deceptive intent sufficient to convict under 18 U.S.C. Sec. 1001. The signatures added apparent verisimilitude to the sums listed as having been paid: the jury could infer an intent to mislead HUD into believing that each beneficiary had been approached and had personally verified receipt of the listed aid. Motivating this deception would be a desire to forestall further insistence by HUD that the municipality pay back the grant. ²

There was evidence not only that Corsino directed his subordinates to sign the alleged beneficiaries' names but that he told them the reason for doing this was that the list had to be submitted to HUD and there was not enough time to go house to house to obtain the signatures. That the employees' signatures were intended to look to HUD like actual signatures appears from the fact that they were written in a column headed "signature" and that Corsino induced different subordinates to sign, varying their handwriting so as not to have it appear that several signatures were by the same hand.

While many of the listed people whose purported signatures were inserted without their authority had indeed received aid, there was evidence that at least two had not. The parties stipulated that, if called, Carmen M. Rodriguez Morales and Margarita Santana would testify that they applied for aid to rehabilitate their house through the Community Development Grant but never received the aid. They would also say their names appeared on the lists submitted to HUD by the municipality of Juncos with signatures which were not their own and that they never authorized anyone to sign on their behalf.

The above supports a finding that Corsino deliberately used deceptive means to satisfy HUD that everything was fully accounted for, to forestall an attempt by HUD to force the municipality of Juncos to return the funds. This reflects an intent to cheat or mislead the government in the administration of its programs such as section 1001 proscribes. United States v. Godwin, 566 F.2d at 976; United States v. Lichenstein, 610 F.2d at 1278.

III.

Counsel for Corsino contends that the false signatures were not material. He points out that they had no actual effect on HUD's actions, and that there is no evidence HUD had ever requested that the signatures of those benefiting from the various home improvements be submitted to it.

"Materiality of the alleged misstatements is an essential element of offenses defined by 18 U.S.C. Sec. 1001." United States v. Radetsky, 535 F.2d 556, 571 (10th Cir.1976). "While materiality is not an explicit requirement of the second, false statements, clause of Sec. 1001, courts have inferred a judge-made limitation of materiality in order to exclude trifles from its coverage." United States v. Lichenstein, 610 F.2d at 1278. See also United States v. Ven-Fuel, Inc., 602 F.2d 747, 752 (5th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2987, 64 L.Ed.2d 854 (1980). The Fifth Circuit has said,

The charge of materiality requires only that the fraud in question have a natural tendency to influence, or be capable of...