U.S. v. Jennings

• Decision Date: 23 January 1984
• Docket Number: No. 83-4426,83-4426
• Citation: 724 F.2d 436
• Parties: 14 Fed. R. Evid. Serv. 1625 UNITED STATES of America, Plaintiff-Appellee, v. Melvin R. JENNINGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 436

724 F.2d 436

14 Fed. R. Evid. Serv. 1625

UNITED STATES of America, Plaintiff-Appellee, v. Melvin R. JENNINGS, Defendant-Appellant.

No. 83-4426.

United States Court of Appeals, Fifth Circuit.

Jan. 23, 1984.

Rehearing Denied Feb. 29, 1984.

Walls, Buck & Irving Ltd., Robert E. Buck, Greenville, Miss., for defendant-appellant.

James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE and GARWOOD, Circuit Judges, and EAST ^*, District Judge.

GARWOOD, Circuit Judge:

This is an appeal from a judgment of conviction under 18 U.S.C. Sec. 287 ¹ for making false claims to an agency of the United States government. The claims involved were those on behalf of an organization known as South People, Inc. (SPI) presented to the United States Department of Agriculture (USDA), through the Mississippi State Department of Education (SDOE), for reimbursement for meals served to children under the Child Care Food Program, see 42 U.S.C. Sec. 1776. Appellant Melvin R. Jennings was charged in a twelve-count indictment with making, presenting, and causing to be made and presented these allegedly false claims for each of the twelve months beginning in October 1979 and continuing through September 1980. At trial, the jury found Jennings guilty on four of the twelve counts and acquitted him on the other eight. ²

On appeal, Jennings raises a number of evidentiary and procedural issues. Because we find no prejudicial error in the conduct of the trial below, Jennings' conviction is affirmed. Jennings also argues that the trial court erred in summarily suspending him from practicing law in the federal courts of the Southern District of Mississippi. We decline to disturb the order of suspension.

I.

Jennings, a licensed attorney in the State of Mississippi, served as general counsel for SPI, a nonprofit corporation in whose formation Jennings played the principal part. In August 1979, SPI entered into an agreement with SDOE whereby SDOE agreed to reimburse SPI for certain meal expenses incurred by the day care centers under SPI sponsorship. ³ Under the sponsorship arrangement, each of the centers sponsored provided SPI with the information necessary to submit the monthly claim for reimbursement to SDOE. This information was brought to Jennings' law office by the various centers. Jennings' office personnel would then total the figures from the individual centers into a blanket claim for reimbursement which was submitted by SPI to SDOE. SDOE would process the claim and forward a monthly check payable to SPI which Jennings would deposit in his escrow account. ⁴ SPI charged each of the day care centers ten percent of the reimbursement funds for administrative costs. When the check from SDOE arrived, Jennings or his staff would determine what each of the centers was entitled to receive for that particular month, deduct ten percent, and forward the remainder to the centers.

The false claim alleged in each count of the indictment pertained to that part of the claim for reimbursement involving the Tottsville Child Care Center which was owned and operated by Jennings. The principal witnesses against Jennings at trial were three women who served as his legal secretaries during the period of time from October 1979 through September 1980. The first of these was Evelyn Henry, who began working for Jennings in September 1975. She testified that at some point prior to October 1979, Jennings told her that she had been elected president of SPI, and she subsequently signed the October 1979 SPI claim for reimbursement from SDOE. Henry stopped working for Jennings, however, in the latter part of the same month, but at that time Jennings requested and received from her a power of attorney authorizing him or his representative to sign her name to SPI documents.

According to the government's evidence, Jennings instructed the secretaries who followed Henry to sign Henry's name to the monthly claims for reimbursement submitted to SDOE. He explained to them how to compile the information from the individual day care centers to complete the master claim. One of these secretaries, Jackie Hart, testified that while the figures for the other centers needed to complete the master claim came from those centers, the figures for Tottsville came directly from Jennings. According to Hart, regarding the preparation of the work sheets reflecting the meal count from Tottsville, either Jennings would prepare the work sheets himself, taking the figures "from the top of his head," or he would show Hart how to complete the work sheets. Jennings told her that the meal count had to be within a certain range, that she should never be consistent in completing the work sheets, and that she should not use the same number of meals too often. Jennings also told Hart to represent herself as Henry if asked who she was when submitting a claim to SDOE.

The government's evidence showed that Jennings had instructed Helen Knight, the director of the Tottsville center from 1978 to 1981, to inflate the number of meals purportedly served at the center when she filled out the work sheets from which Tottsville's claim for reimbursement was completed. Jennings explained to her that "he didn't have any money coming in and the only way we were going to be working is we had to inflate the numbers so we'd have some money." The director testified that during the school year from September 1979 through May 1980 the average attendance was approximately thirty-five students; during the summer the average dropped to twenty-five. The claims for reimbursement for the Tottsville center for this period, however, consistently represented that more students had been in attendance. The government's evidence further demonstrated that the disparity between the number of children actually attending Tottsville and the number represented by the claims for reimbursement was not unknown to Jennings since he had stopped by the center almost every day and had seen the number of children in attendance.

The government also introduced the testimony of the SDOE area supervisor for the Child Care Food Program who had on two occasions visited the Tottsville center and observed the number of children eating a particular meal. The supervisor's report concerning a visit made on November 16, 1979 indicated that forty children had eaten breakfast at the center. The November 1979 work sheet for Tottsville showed that reimbursement for sixty-four breakfasts had been sought for the same date. The supervisor's report on an April 4, 1980 visit indicated that thirty-two children had been served an afternoon snack. The April work sheet sought reimbursement for sixty-four children on that date.

From October 1980 through February 1981, Pace and Shelton, an independent firm, conducted an audit for SPI's activities regarding the Child Care Food Program. Jennings complained to SDOE about the results obtained by Pace and Shelton, and subsequently the matter was transferred to USDA for resolution. Auditor McDonald of USDA was assigned to conduct another audit of SPI. After reviewing SPI's records and discovering possible program violations, McDonald referred the matter to the investigations section of USDA's Office of Inspector General. In the course of McDonald's audit, he had copied some of the SPI documents and eventually turned these copies over to the Investigations division, although none of the copies were introduced at trial. Investigator Brewer, who testified for the government at trial, ⁵ proceeded to visit Jennings' office where he identified himself as being a part of an investigation separate from auditor McDonald and the Pace and Shelton audit. He did not, however, disclose to Jennings that he was conducting a criminal investigation. Jennings subsequently provided Brewer with the records pertaining to the period from October 1979 through September 1980. As a result of Brewer's investigation, the instant indictment was ultimately returned.

II.

Jennings' first claim of error concerns the government's use of certain summary charts at trial. Twelve of these charts consisted of summaries of the meals claimed to have been served by the day care centers under SPI sponsorship for each of the months beginning with October 1979 through September 1980. Government exhibit 49A (against which, together with government exhibit 51A, Jennings' major complaints are directed) presented a comparison of what the government asserted was the actual number of meals served at the Tottsville center during twenty-two days ⁶ with the meals claimed for reimbursement for those same days. Government exhibit 51A consisted of a presentation, based on an extrapolation of the average number of meals served at Tottsville during the twenty-two days summarized in exhibit 49A, of the amount of reimbursement Tottsville was actually entitled to for the twelve months in question.

Federal Rule of Evidence 1006 provides that "[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation." Recognizing the possibility for misuse of summary charts, this Court has previously cautioned that a trial judge must carefully handle their preparation and use. Myers v. United States, 356 F.2d 469, 470 (5th Cir.), cert. denied, 384 U.S. 952, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966). We here reiterate that caution. Jennings argues initially that the documents involved in this case were not so voluminous as to allow the use of summary charts. Nevertheless, insofar as the documents underlying these summary charts include almost two hundred pages of material and substantial amounts of mathematical calculations, we cannot find that the trial court abused its discretion in allowing their use for the convenience of the jury. These documents included...