U.S. v. Pappas, 78-1569

• Citation: 611 F.2d 399
• Decision Date: 19 December 1979
• Docket Number: No. 78-1569,78-1569
• Parties: 5 Fed. R. Evid. Serv. 1329 UNITED STATES of America, Appellee, v. Peter PAPPAS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 399

611 F.2d 399

5 Fed. R. Evid. Serv. 1329

UNITED STATES of America, Appellee, v. Peter PAPPAS, Defendant, Appellant.

No. 78-1569.

United States Court of Appeals First Circuit.

Argued Sept. 5, 1979.

Decided Dec. 19, 1979.

Richard K. Donahue, Lowell, Mass., with whom Donahue & Donahue, Lowell, Mass., was on brief, for defendant, appellant.

Kevin J. O'Dea, Asst. U. S. Atty., Boston, Mass, with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, KUNZIG, Judge, U. S. Court of Claims, ^* and CAMPBELL, Circuit Judge.

KUNZIG, Judge.

Peter Pappas, an employee of the Massachusetts Division of Employment Security, appeals from his conviction on all counts of a 21-count indictment charging his involvement in a scheme to defraud the Federal government through misuse of funds intended for programs funded under the Comprehensive Employment and Training Act (CETA).

Appellant Pappas challenges his conviction on three fronts: (1) that the District Court erred in denying his motion for judgment of acquittal at the close of the Government's case; (2) that the court below erred in admitting into evidence (as an exception to the hearsay evidence rule) testimony of an alleged co-conspirator damaging to Pappas; and (3) that the District Court improperly denied his motion for mistrial based on improper remarks made in the jury's presence by the prosecution.

After carefully reviewing all of Pappas' arguments, we can find no error in the proceedings below and accordingly affirm the judgment of the District Court.

I. The Facts

On August 4, 1978, Pappas and two co-defendants, Armand Archambault and Ann Gemmelaro, were named by a Federal grand jury in Boston in a 21-count indictment. The indictment charged each with participating in a conspiracy to misappropriate funds intended for CETA training and employment programs. ¹ After a week-long trial before a jury, guilty verdicts were returned on all counts against Pappas and Archambault. Gemmelaro was acquitted. Pappas was later sentenced to one year in prison (execution of which was suspended), two years probation, and a fine of $1,000.

Pappas was a job developer for the Massachusetts Department of Employment Security at its Lowell office. Archambault was the owner of Lowell Window Shade, Inc., and until January 1976 the co-owner of Pelletier Home Decorators of Salem, Massachusetts. Gemmelaro was a secretary, clerk and bookkeeper for Pelletier and Lowell Window Shade. The involvement of Pappas, Archambault and Gemmelaro in the CETA employment of three individuals at Lowell Window Shade and Pelletier Home Decorators led to their indictment.

Under the CETA program, Federal funds were provided by the U.S. Department of Labor to the City of Lowell, Massachusetts CETA Consortium. The Consortium was to administer CETA programs in the area. As part of the administration, funds were in turn given to the Massachusetts Division of Employment Security to develop jobs for residents of Lowell and the surrounding area.

The particular individuals whose employment led to Pappas' indictment were Raymond Labbe, employed with CETA assistance at Pelletier Home Decorators; Roger Houle, employed at Lowell Window Shade; and Henry Suprenant, also at Lowell Window Shade. At trial, the evidence related largely to Pappas' role in getting each man on the CETA rolls and his subsequent activities in seeing that their respective companies were reimbursed for the "employment" of each with CETA funds. The evidence concerned Pappas' alleged falsification of documents relating to employment of the three, his false certifications of the work they did and the training they received, and his conspiracy with Archambault and Gemmelaro to effect such falsification and then cover it up.

While with Pelletier Home Decorators from April to the middle of November 1975, Raymond Labbe worked as an installer of awnings. Normand Houle, who in early 1976 bought out co-defendant Archambault's interest in Pelletier, testified at trial that in early 1975, while Labbe was laid off from his job due to a lack of work in the winter, Archambault proposed bringing Labbe back to work with the aid of CETA funds. Labbe testified at trial that he never filled out a CETA application and was never aware of being involved in the program. Nonetheless, "CD-12" forms, which were required to be submitted monthly to certify that work was being performed, were filed on Labbe's behalf. The forms purported to show that Labbe worked at Pelletier receiving on-the-job training. Subsequently, reimbursement payments with CETA funds were made to Pelletier by the Division of Employment Security. Pappas conceded that it was his responsibility to cause preparation of records such as the CD-12 forms certifying Labbe's employment at Pelletier.

Roger Houle, the brother of Normand Houle (part owner of Pelletier) began working at Pelletier on a regular basis as early as February 1976 but was not on the payroll until August of that year. Roger Houle testified that at the suggestion of Archambault he went to see Pappas. The "client intake form" that resulted from Houle's meeting with Pappas stated that Houle was "unemployed," though Houle testified that he told Pappas otherwise during his interview at the DES office. According to Houle, Pappas told him at that time that he would be working for Lowell Window Shade but loaned out to Pelletier.

Subsequent to that meeting, two CD-12 forms were submitted for Roger Houle, both of which were approved by Pappas. Each certified that Roger Houle was employed by and was receiving on-the-job training at Lowell Window Shade, even though Houle himself testified that he did nothing for that company. Nonetheless, Lowell Window Shade was reimbursed for Houle's employment with CETA funds. At trial, Roger Houle testified that Archambault talked with him and asked him to respond to any inquiries by saying that he had been working at Lowell Window Shade. Houle also testified that Archambault asked him to file an amended tax return showing that he had income from Lowell Window Shade. Houle added that Pappas and Archambault together visited him at Pelletier and told him to tell all who inquired that he was indeed in the CETA program. He further stated that Pappas told him to say he had filled out an application at the CETA office with a girl asking him appropriate questions.

Henry Suprenant is the third CETA employee whose employment led to Pappas' conviction. Suprenant began at Lowell Window Shade in April 1975 as a salesman. Again at Archambault's suggestion, Suprenant went to the CETA office to speak with Pappas about the possibility of participating in an employee training program.

Introduced at trial was Suprenant's "Applicant Information Record," which contained information discussed at Suprenant's interview with Pappas. That form contained erroneous information, including a South Lowell address for Suprenant, who lived in Wilmington, Massachusetts. ² Listing the proper Wilmington address would have made Suprenant ineligible to participate in programs funded by the Lowell CETA Consortium. Testimony tended to show that it was Pappas' responsibility to compile the form.

II. Denial of Motion for Acquittal

Pappas first challenges his conviction on the ground that his motion for judgment of acquittal, made at the close of the Government's case, was improperly denied. When failure to grant a motion for acquittal is urged as error on appeal, the sufficiency of evidence against the appellant becomes a matter of law for us to consider. McDonough v. United States, 248 F.2d 725 (8th Cir. 1957). Accordingly, we must summarize and measure the relevant evidence presented against Pappas.

"In reviewing the denial of a motion for judgment of acquittal, the pertinent question is whether the trial court had reason to believe that there was sufficient evidence on which reasonable persons could find guilt beyond a reasonable doubt." United States v. Leach, 427 F.2d 1107, 1111 (1st Cir. 1970), Cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970). As we assess the sufficiency of the evidence, the court must examine it as a whole and draw all legitimate inferences therefrom in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978). After examining the evidence with the appropriate standard in mind, we are led to conclude that there is indeed sufficient evidence to uphold Pappas' conviction.

Count One of Pappas' indictment charged him with conspiracy in violation of 18 U.S.C. § 371 (1976), the general conspiracy statute.

The evidence indicating his participation in a conspiracy is plentiful. There was evidence that Pappas had overall responsibility for the CETA contracts of Houle, Suprenant, and Labbe. He personally prepared the applications of Houle and Suprenant, and those applications contained false information which, if truly stated, would have made them ineligible. He was also repeatedly responsible for approving documents with false information, particularly the CD-12 forms certifying tht Houle and Labbe had performed on-the-job training. Further, there was testimony that Pappas and Archambault together urged Houle and Labbe to state falsely to investigators that they had been in the CETA program and were checked periodically by Pappas. As part of the conspiracy, Archambault urged Houle to file a tax return reflecting income from Lowell Window Shade, though Houle testified at trial he never worked there or received training there. ³

We believe that the evidence of this activity on Pappas' part was basis enough from which a reasonable person could find Pappas involved in a scheme to defraud the Government.

In addition to conspiracy charges under 18 U.S.C. § 371, Pappas was charged under three other statutes, 18 U.S.C. §§ 2, 1001, and 66...