U.S. v. Buigues

• Decision Date: 06 January 1978
• Docket Number: Nos. 181,s. 181
• Citation: 568 F.2d 269
• Parties: UNITED STATES of America, Appellee, v. Bartholomew BUIGUES, Angelo Puig, Irma Anes, Susan Horowitz and John Sammarco, Appellants. to 302 and 343, Dockets 77-1249, 77-1252, 77-1253, 77-1374 and 77-1386.
• Court: U.S. Court of Appeals — Second Circuit

Page 269

568 F.2d 269

UNITED STATES of America, Appellee, v. Bartholomew BUIGUES, Angelo Puig, Irma Anes, Susan Horowitz and John Sammarco, Appellants.

Nos. 181 to 302 and 343, Dockets 77-1249, 77-1252, 77-1253,

77-1374 and 77-1386.

United States Court of Appeals Second Circuit.

Argued Sept. 26, 1977.

Decided Jan. 6, 1978.

Jeremy G. Epstein, Asst. U. S. Atty. for the Southern District of New York, New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Robert J. Jossen, Asst. U. S. Atty., New York City, of counsel), for appellee.

Ernest H. Hammer, New York City, for appellant Buigues.

Daniel J. Sullivan, New York City, for appellant Puig.

Joseph I. Stone, New York City, for appellant Anes.

Richard E. Rieder, New York City (Dunnington, Bartholow & Miller, New York City, of counsel), for appellant Horowitz.

W. Paul Flynn, New Haven, Conn., for appellant Sammarco.

Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.

MOORE, Circuit Judge:

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.

THE INDICTMENT

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 advanced by defendants as their primary contention.

THE FACTS

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 751/4 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. ¹ 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 example, sale to others, consumption by adults, etc.; and (3) to obtain and to maintain proper records evidencing these procedures.)

On June 27, 1975, the week before the program was to begin, Puig introduced Sammarco and Horowitz to the four employees-to-be and told them that Sammarco and Horowitz would be supervisors in the program. Earlier both Pedro and Frank Rodriguez thought they would become supervisors at a higher rate of pay. At the meeting, Puig advised the future employees that salaries for their positions would be only $110 per week, instead of $150 per week, because of the reduction in sites and a cut-back in funding.

The program was for the months of July and August.

Sammarco's primary duty was to work with the USDA to determine if complaints existed and then to have them corrected. Anes acted as bookkeeper. Horowitz's duty was to visit the food vendor in the Bronx and supervise the loading of the food and make sure that the food that left the vendor's facility on time, was wholesome and properly packaged.

YIG was paid approximately $142,000 for its services during July and August of 1975. After payment, an audit was conducted where documents were examined including YIG's payroll book and cancelled checks. The auditor allowed in full the amounts paid to the employees, including $1600 paid to Anes and $880 paid each to Sammarco and Horowitz. Anes made the entries in the payroll book in which it was recorded that every employee worked seven hours per day, five days per week, for each of the eight weeks of the program. Both Rogers and Pedro Rodriguez were paid only four weeks' wages because of a dispute with Buigues. Upon complaining to Buigues concerning their pay, Buigues threatened them. Also, Rogers encountered Puig and others on the street shortly before the indictment was filed. At that time Rogers was threatened with bodily harm if he acted as a witness.

Because of the claims that unjust convictions have been obtained, the court has examined with meticulous care the entire 1262 pages of transcript of the trial and has reviewed it with respect to each individual defendant.

Buigues

On appeal, counsel for Buigues submitted an Anders ² brief in which he states that he has reviewed the 1262 pages of transcript and represents that "there exists (sic) no points upon appeal worthy of perfection for argument" in Buigues' behalf. Subsequently, Buigues submitted a brief pro se in which he claims that he, being a member of a so-called minority race, was a victim of selective prosecution and that (by adoption of the points of other appellants) the evidence was not sufficient to convict him. Because of Buigues' pro se brief, we have made an independent review of the evidence. We find no merit in his contention of selective prosecution and lack of evidence. Although employees of YIG were indicted for alleged violations of law in connection with the summer lunch program, no evidence was presented that indicated that the Government was prosecuting the case because of the minority status of the people in command. Furthermore, the issue was not raised in the trial below, and Buigues has waived this defense.

As to lack of evidence, there was ample evidence from which the jury could find and infer Buigues' conspiratorial involvement. He was Chairman of the Board of YIG, and involved in the selection of personnel. He helped set up the program, attended meetings, and visited the office several times during the summer. Anes, keeper of the payroll records, was the "girlfriend" of Buigues, and it was she who knowingly made the false entries in the payroll book of seven hours a day, for five days a week work for each employee. Buigues must have known or it could be reasonably inferred that he knew its contents. The evidence against Buigues was sufficient to convict him.

Puig

Puig argues that the Government failed to establish either conspiratorial intent or specific intent to make out a false claim. Puig was director of the program. The record indicates that at least some of the employees did not report regularly to work. In spite of this fact, Puig signed all payroll checks and reviewed all claims for reimbursement sent to...