United States v. Cogwell

• Decision Date: 30 October 1973
• Docket Number: No. 72-1671,72-1672.,72-1671
• Citation: 486 F.2d 823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry W. COGWELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward BEY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 823 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Henry W. COGWELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward BEY et al., Defendants-Appellants.

Nos. 72-1671, 72-1672.

United States Court of Appeals, Seventh Circuit.

Argued September 14, 1973.

Decided October 30, 1973.

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James D. Montgomery, David Lowell Slader, John Powers Crowley, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., William T. Huyck, Gordon B. Nash, Jr., Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.

CASTLE, Senior Circuit Judge.

Defendants Bey, Cogwell, Fort, Jackson and Pugh¹ appeal their jury convictions for conspiring to make false statements to the Office of Educational Opportunity, to obtain fraudulently monies which were the subject of a poverty program grant, and to defraud the United States through falsification and concealment of material facts. Defendant Jackson also appeals his convictions for knowingly making false statements in contravention of 18 U.S.C. § 1001 by signing the time and attendance sheets of program trainees with the knowledge that they were neither at the training centers nor at job interviews (9 counts), and for misapplying grant funds by endorsing the names of trainees to stipend checks knowing that they received neither the checks nor the proceeds and causing the fraudulent endorsement of the checks in violation of 42 U.S.C. § 2703 (2 counts). Defendant Bey additionally appeals his conviction for knowingly making false statements, contrary to 18 U.S.C. § 1001, by signing check receipts with the knowledge that the trainees did not receive the checks or the proceeds (6 counts). Defendant Cogwell further appeals his convictions for knowingly making false statements, unlawful under 18 U.S.C. § 1001, by signing the time and attendance sheets of trainees with the knowledge that they were neither at the training centers nor at job interviews (2 counts) and by signing check receipts knowing the trainees neither received the checks nor the proceeds (4 counts). Cogwell also appeals his conviction for misapplying grant funds by endorsing the names of trainees to stipend checks and causing the fraudulent endorsement of them in violation of 42 U.S.C. § 2703 (4 counts).

Defendants were participants in a program funded by an Office of Educational Opportunity² (hereinafter O.E. O.) grant given in June 1967 to the Woodlawn Organization (hereinafter T. W.O.), a Chicago community organization. The program was designed to utilize existing gang structure and leadership to provide basic educational and vocational skills to gang members. The grant provided that T.W.O. would establish four manpower training centers, with two of the centers established for the benefit of members of the Black P. Stone Nation gang. The grant specified that center chiefs, instructors, assistant instructors, and staff members would be drawn from the hierarchy of the gangs and would be salaried. To induce participation, the grant provided daily stipends and carfare allowances for trainees. The O.E.O. grant required T. W.O. to maintain detailed records and accounts of the payment of stipends to the individual trainees, and it specified that payment was to be conditioned on verification of the trainees' attendance at the centers. T.W.O. operationalized this rule by requiring the trainees to sign time and attendance sheets at the centers on arrival and departure at both sessions on each day. The center chief was responsible for collecting these sheets at the end of each week and for returning them to T.W.O. Stipend checks payable to the trainees and based on the time and attendance sheet data were forwarded to the centers for distribution by the chief and his staff to the trainees each Friday afternoon. Attached to each check was a receipt to be signed by the trainee-payee, collected by the staff, and returned to T.W.O.

When the grant was approved, Jeff Fort was the leader of the Black P. Stone Nation, a conglomerate of several Blackstone Ranger gangs, whose leaders formed the Main 21 (the ruling body) of the Black P. Stone Nation and, essentially, the supervisory and teaching personnel of the two centers. Jeff Fort was the Center 1 chief from the inception of the program until his incarceration on an unrelated matter on October 25, 1967,³ when he ws succeeded by Fletcher Pugh, a Center 1 staff member. Henry Cogwell was Chief of Center 2. Charles Edward Bey was an assistant vocational educational supervisor at Center 2, where Robert Jackson was a community worker.

On this appeal, the defendants argue that the evidence is insufficient to support the jury verdict, that defendant Fort's right of confrontation was violated by the admission of inculpatory statements purportedly made by him to a codefendant who did not testify, and that the Chicago policemen's testimony based on observation of the program was the product of an unconstitutional search and was improperly admitted into evidence. For reasons set forth below, we affirm the convictions.

I.

Defendants contend that the evidence was insufficient to sustain the jury's findings. With respect to the substantive counts, it was stipulated that Bey and Cogwell had written names other than their own to check receipts, that Jackson and Cogwell had written names other than their own to time and attendance sheets, and that Jackson and Cogwell had written endorsements to checks payable to trainees. The trial court instructed the jury, with the approval of counsel, that the determinative facts of legal liability in this case were, under 18 U.S.C. § 1001, whether the trainees in question received either their checks or the proceeds and, under 42 U.S.C. § 2703, whether the trainees involved were not present at the center or at job interviews. Defendants Bey, Cogwell and Jackson claim the government failed to prove its case because it did not present direct evidence from the trainees whose names were signed by Bey, Cogwell and Jackson that they received neither their checks nor the proceeds, or that they were not in class or at interviews. Defendants argue that the direct testimony of Duffy and Hall, named payees on a check and receipt in question, respectively, failed to add any material evidence beyond the stipulation and was therefore of no probative value. Defendants further claim that even if direct testimony is unnecessary to finding a course of unlawful conduct at Center 1, it would still be improper to infer the occurrence of unlawful activity at Center 2, where Bey, Cogwell and Jackson were staff members. With respect to the conspiracy count, the defendants contend that the failure to show a course of conduct to support the substantive charges is equivalent to a failure to prove concerted action necessary to find a conspiracy. Upon our examination of the evidence, we find that the jury, after weighing the evidence, determining the credibility of the witnesses, and drawing reasonable inferences, had substantial support for its findings.

It is axiomatic in determining sufficiency of the evidence that an appellate court view the evidence and the reasonable inferences which can be drawn 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). This determination must be made considering all the evidence, including that of the defendants. United States v. Tubbs, 461 F.2d 43, 45 (7th Cir. 1972). However, this determination is not limited to a consideration of direct evidence, excluding circumstantial evidence of unlawful conduct at both centers. Circumstantial evidence is as pertinent as direct evidence to the establishment of guilt or innocence. Holland v. United States, 348 U.S. 121, 149, 75 S.Ct. 127, 99 L.Ed. 150 (1954). It is only required that circumstantial evidence be sufficiently relevant to have probative value. See, United States v. Delay, 440 F.2d 566, 568 (7th Cir. 1971); United States v. Lynch, 366 F.2d 829, 831 (7th Cir. 1966). This court has specifically stated: "Participation in a criminal conspiracy need not be proved by direct evidence . . . . The conspiracy may be shown by circumstantial evidence or permissible inferences or deductions from the facts. Such a showing is nonetheless substantial." United States v. Zuideveld, 316 F.2d 873, 877-878 (7th Cir. 1963); Blumenthal v. United States, 332 U.S. 539, 549-550, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Thus, it is unnecessary for the government to present testimony from the trainees named in the check endorsements and receipts and in the time and attendance sheets to sustain either the conspiracy or substantive counts, so long as the government presents sufficient, relevant circumstantial evidence to prove concert of action in the commission of unlawful acts, from which a common design can be inferred. United States v. Zuideveld, supra.

In demonstrating the operation of a sophisticated kickback scheme, the government concentrated on activities at Center 1, presenting testimony from instructors, assistant instructors, and trainees as well as police observers. Evidence of unlawful conduct in the signing of time and attendance sheets was overwhelming. Charles Hall, a trainee, identified four hundred forged signatures of his name in his time and attendance sheets for the period from March to May 1968. James Duffy, a trainee, identified almost five hundred unauthorized signatures in his sheets during the course of the program, while John Griffin identified ninety instances of forgery in his sheets. This practice occurred on a regular basis without authorization. Adam Battiste, a Center 1 instructor, identified over 1200 instances when he signed trainees' names to time and attendance sheets on the orders of Fort and others. On occasion, he would take entire...