*1 KALODNER, DUSEN Before VAN Judges. ALDISERT, Circuit THE COURT OPINION OF Judge. ALDISERT, Circuit Glantzman, owner of an em- Abraham Meltzer, ployment agency, and Irwin H. agency’s de- head of the unskilled labor guilty by partment, Dusen, Judge, were found Circuit concurred Van falsifying part documents filed dissented brought prosecutions opinion. under 18 U.S.C. § *2 Although devolves, therefore, question 2.1 sev- to whether and 18 U.S.C. § presented reversing there these convic- was sufficient evidence eral reasons for jury and to conclude that Glantzman were have been tions submitted knowingly considered,8 only participated in and Meltzer concluded that we have filing sufficiency statements. question of the false the merits discussion. Conceding did not Department of It is conceded that the personally prepare forms in the A575 Immigration the and Natural- Labor government emphasizes question, his the ization Service furnished false supervision employment overall of the Department formation on Form Labor agency promulgation its and his A, by processed which em- the procedures. operating standard These ployment agency al- in behalf three having sign A included the alien the 575 iens, Newman, and Martin. inter- form in at the blank time appli- represented that The forms each view, assignment to the the duties seeking employment hospi- cant as a was numbering employees, various from orderly requisite qualifi- the tal had during period question, and the in to 25 experience posi- cations the speci- instructing employees job the requested position tion. The one always con- on form must fications by Department certifiable the Labor description job on contained form the available for None of three aliens. the by prospective supplied the necessary form B possessed aliens in fact position. prerequisites employer.2 provides: § 18 U.S.C. A and B contain two Forms ES-575 Whoever, any conspicuous warnings. in matter are within the jurisdiction any department agency following or headed notice : knowingly of the United States READ NOTICE BEFORE THIS willfully falsifies, up or AND conceals covers FORMS EXECUTING ES-575A by any any trick, scheme, knowingly furnish false in- or device a ma- B. To fact, any false, preparation terial of this or makes ficti- in the formation repre- any supplement or tious statements or form thereto or fraudulent sentations, any aid, abet, is or or uses another to do makes false or counsel so writing knowing felony punishable by $10,000 or fine or document same any years penitentiary, false, to contain fictitious or or both fraud- five pros- entry, (18 1001). Any alien, ulent statement or shall be fined § U.S.C. imprisoned any person $10,000 pective employer acting than or or on years, employer, not more than five or both. or who behalf of such alien any knowingly misrepresentation 2§ U.S.C. renders aiders and abet- makes principals: alien, prospective concerning tors liable as or (a) including matters as Whoever commits an offense such aids, occupation abets, wages, hours, States or or the which United any per- counsels, procures commands, employed, induces or an will be or alien punishable falsely represents, commission, prin- its the execu- is as a son who cipal. offering form, that he is tion of this willfully prospective (b) em- Whoever causes an alien act directly performed by alien, prosecuted ployer will be be done if such or another would be an offense to the fullest extent of law. punishable requires “[d]e- the alien to The form principal. as a the statements made clare that all of true, eight complete, and The indictment contained counts. are document charged my knowledge Appellant Glantzman was on all correct to the best charged place signature, eight; appellant Meltzer was belief.” Under warning: again III counts contains VIII. Counts I and the form subsequently penalties provided II law for are severed and dis- “Severe willfully falsifying knowingly or con- missed. The returned verdicts of any guilty cealing using or false as to and Meltzer all material fact remaining of his six in the submission counts. document EM- FOR ALIEN APPLICATION (U.S. 2. Glantzman criticized certain of the court’s PLOYMENT CERTIFICATION” jury. Code, instructions to Title Sec. job specific tying three direct In the to the pro- gov- proceedings, in these false documents submitted to the involved Hilltop spective office, employer Nurs- ernment his business there Hill, director, pro- Its Frank M. Home. was evidence that had “the been requi- long B, appropriate persistent executed form moter of a scheme to *3 hospital sition, position defraud, making the of that of false [and] orderly.4 completed project.” forms were The invoices was a of that Department, the Labor but The held submitted to Court that there was sufficient rejected May, 1968. Glantzman circumstantial evidence to convict him May per- Glantzman, conceded as an aider and abettor. argues transported applications however, sonally personal thirteen activi- that his including Washington, ty agency to of New- those and that of cannot be man, Martin, pur- Nye Nissen, equated for the with facts of pose obtaining suspi- of reconsideration. amounted to “mere best denied, however, categorically rejected by Glantzman cious circumstances” knowledge personal Heithaus, of the that he had court in United States v. (3rd false information contained therein. F.2d 810 Cir. as an insuffi- quantum proof cient of to sustain a con- proof The contends viction. knowledge personal of was established close, Although the issue we by a series of four letters between conclude that must be resolved in fa it Jersey Glantzman and the New State vor of the defendant The Glantzman. Employment is a One carbon Service. operation size of the office manager copy of a letter of the from large employees uti with the number of stating position of state service applications processing lized in militates requested kitchen worker for Newman knowledge imputing constructive was non-certifiable.5 A second letter Although correspond to owner. from disclosed that the same ence and from state application for a form new personal that he had service indicates Newman another showed altera- knowledge processing New of tions, thereby requiring “you to submit Quamina’s applications, it man’s and signed by A B new forms 575 & ES upon was incumbent respective parties.” two are other prove of also knew mimeographed form from letters Glantz- qualifications applicants’ for the lack of enclosing application man “an for Alien orderly positions. not Those facts were Employment Service” apparent face of the final forms. on the Quamina.8 plausible proof it is as Absent such gov- totality To the of its evidence the ap conclude believed apply ernment would have us teach- possess qualifications plicants did Nye & Nissen v. United orderly positions it is hospital 613, 619, 766, 770, knowledge charge 336 U.S. him with best, At all despite fraudulent circumstances.9 (1949), which, L.Ed. no Hill, Hilltop, on circum- 4. conviction [T]o 9. warrant a Frank M. the director of the facts and circum- stantial was also in counts named as defendant evidence must such stances established III VIII He indictment. produce a IV, VI, VII, be such character was convicted on counts beyond certainty appeal. reasonable did moral absolutely doubt, incom- not be but need exhibit 18. Government However, guilt patible with innocence. conjectural, proved exhibit 21. Government must be solely suspicion or rest and cannot 7. Government exhibit 23. Feinberg, 211 Commonwealth surmise. Pa.Super. A.2d 8. Government exhibit 22. supra, Heithaus, See at 811. 391 F.2d government proved charge was that Glantz- of all of unskilled knew, known, residence, man or should have workers for prior applications posi- responsible completion for uncertified he was for the appli- tions. A and B forms for unskilled cants, secretary typed and that his sub- government failed We hold that the stantially job applications. all unskilled establishing meet its the ele- burden beyond proof ments of the crime have concluded suf- We that there was govern- supporting of con- ficient reasonable doubt. theory viction Glantzman will not be ment’s that Meltzer knew the permitted to formation stand. set forth on Forms B at a time when he also that in- knew stand in the Meltzer does not concerning formation Newman’s and position, *4 same for there he was evidence Quamina’s qualifications. Under these knew that the of Newman circumstances, there was sufficient evi- Quamina and defective. Newman support dence to a conviction as an aider meetings testified to Meltzer two with under abettor the four counts had nei told Meltzer that he volving these two aliens. experience previous ther work nor the supporting The evidence the remain- hospital orderly required skills counts, two which relate to Meltzer’s position. correspondence There was also Martin, participation the alien with signature attempting over Meltzer’s commensurably incriminating. certify worker, Newman as a kitchen correspondence Some between Meltzer hospital orderly, and not with the state prospective employer alien’s employment service. disclosed. But find the record de- we Quamina said Meltzer was introduced impute void of sufficient evidence to “boss,” to him as the that he discussed requisite knowledge Meltzer the of Mar- position laundry with Meltzer a work- qualifications. tin’s lack of Absent such er, orderly. hospital It is a rea- proof there can be no conviction on ei- having that, sonable inference inter- ther count andVI VII. applicant, ap- viewed the Meltzer was against judgment of conviction prised of the information contained in appellant Glantzman will reversed. be job application his office’s form—a blue judgment against ap- of conviction by applicant filled out as the first pellant III, IV, Meltzer on counts andV step procedure in the office dis- —which judgment VI will be affirmed and the Quamina’s previous closed that ex- work conviction in counts VII VIII will perience porter was that of in Port of be reversed. Trinidad, Spain, applying DUSEN, Judge (concur- position and, Circuit porter indeed, VAN ring dissenting part). his second choice was also that porter. I concur in the affirmance role, against In contrast judgment with Glantzman’s of conviction Meltzer participation Meltzer’s not limited on III-VI and in reversal Counts executive; to that of judgment included duties of conviction interviewing of at dissent, least two of these on re- Counts VII VIII. applicants, three only and this he did spectfully, from the reversal of than once. The circumstances of his of conviction Glantz- personal involvement majority with Newman man on Counts III-VIII Quamina impute are sufficient ground knowl- “the edge qualification. of their lack of establishing To failed to meet its burden ingredient this essential by proof the elements of the crime be- added evidence that Meltzer was yond a this reasonable doubt.”1 As See, particularly, testimony (N.T. ff.), (N.T. of witnesses 188 (N.T. 44-112), (N.T. 310-343), ff.), ff.), Bell (N.T. Mark Martin 424 Gordon consistently held, “Q you the evidence do mean What court has that? light most favor must be viewed Yes, they they “A would—that this issue. to the Government able committing a breach of im- Carlson, 359 F.2d See migration regulations, laws or some- Cir.), 592, (3d nom. cert. denied sub thing They like that. were commit- 879, U.S. Bonomo United ting a breach. (1966); L.Ed.2d 106 S.Ct. “Q you ? Who instructed Provenzano, 334 F.2d United States v. Oh, “A Mr. Glantzman made denied, (3d Cir.), cert. 683-684 quite clear. L.Ed.2d 544 U.S. “Q you That were to advise these people? individuals Mark that most testified “A IYes. was to advise them. proprietor- applying sole Glantzman’s “Q To effect? Foreign Employment ship known F.E.S.), (hereinafter in order “A Yes.” Service residence, approved for testimony In un- addition and had Indies the West were from der Glantzman’s instructions visas, country to this on visitors’ come signed regularly by al- using language at N.T. 311-12: iens in filled in then blank “Q Now, you discuss the did ever though employees,3 they did F.E.S. even *5 majority people these fact that jobs not describe which the alien could with Mr. a visitor’s were here on visa perform, that nev- testified he ? Glantzman signed er 575 form submitted guide- yes. Well, Oh, yes, 358, (N.T. “A F.E.S. on his behalf 359 & you know, me, 366), lines laid down to and which taken to De- were was mostly C., people partment Washington, would be visi- that these of Labor at D. tors, handling it expedite make clear that I should Glantzman to its (N.T. Furthermore, to it clear should make is 44-49). to them—I there they ac- he them that as visitors evidence that Newman told F.E.S. working orderly risk. cepting their own a at was as an but as not 659, (N.T. ff.), (N.T. 666 & Butler a such he was visitor and as was 472 (N.T. ff.), employment. permitted accept Hill Glantzman not (N.T. ff.), (N.T. 965, Meltzer you Did tell “THE COURT: ff.). applicant? yes. Oh, “THE WITNESS: pages 2. At Mark testified: getting said, That “THE COURT: to me “As I he made it clear that job job accepted people it a if he would be who came as visitors were these work, per- permitted Immigration not laws? a violation accept employment, Yes, and there- mitted to it Yes. “THE WITNESS: very clear fore I make that should violation. be a would process two-fold, them was because him that? You told COURT: “THE one that our to them —the was service Yes.” “THE WITNESS: agency’s was service to them two- testimony See, also, 110 of Mr. N.T. job, fold, find them a and sec- one to Department Supervisor Bell, re- Labor ondly put papers their viewing alien purpose getting resi- that been denied have certifications dence. regional offices. pro- 871, 666, * * * This 1086-87. 3. See N.T. is, going to seek That we were though adopted respon- the form even cedure was them but that a employ- signatory accepting specified sibility is, declared that —that say true, his, ment, that he it] was is [on all statements “that doing risk, there was a it at complete, was testified Meltzer correct.” procedure involved. breach this initiated of what? A breach “THE COURT: (N.T. 1086-87). Immigration : The “THE WITNESS Regulations mean, visitor. 388).4 language Similarly, 379, (N.T. this from this &380 kitchen worker Provenzano, supra, decision in ample from court’s evidence Similarly, is there 692): (334 applicable F.2d at F.E.S. seems jury find that could Glantzman, knew proprietor, its sole “In the instant case the evidence es- employed to work par- essential Provenzano’s tablished * * * porter as an laundry but or ticipation in a scheme. 263, orderly (N.T. 217, Exhibit 29 to con- There was sufficient 992). N.T. as Castellito nect Communale as well of sec- in a violation with Provenzano say poli- final had the Compare Nye v. & Nissen tion 1951. 780-81). 689, He (N.T. cies at F.E.S. States, 613, 619-620, United 336 U.S. prepared his of- conceded 769, 770, 766, L.Ed. 69 S.Ct. prepared “in accordance with fice were * * * jury enti- (N.T. 928) and my and order” direction any reasonable inference tled to draw operating proce- he established from the evidence favor (N.T. dures for F.E.S. United circumstances, I believe these Under Provenzano.” Nye language Nissen 336 U.S. (1949), applicable: L.Ed. 919 * * “* is circumstantial [T]here support wholly adequate finding Mon- com- in the aided and abetted charsh COMPANY, MAURICE PINCOFFS there Thus Plaintiff, those offenses. mission promoter is evidence long persistent scheme ST. PAUL FIRE AND MARINE INSUR *6 ** making *, of false COMPANY, Defendant- ANCE project, of that voices Appellee, false invoices were the makers Company, Home Assurance American subordinates, Moncharsh’s Defendant-Appellant. * * -x- the chief owner [he] No. 30760 business, Summary Calendar.* * * * charge of it, that he had Appeals, United States Court of invoices were office where Fifth Circuit. out. made July 19, 1971. through- extended “Those activities Rehearing Sept. Denied 1971. period when the substantive out * * * committed. crimes were ex- therefore no reason see “We

culpate abettor.” him as an aider and co-owner, dited. cial majority, dictment was based to a did not the defendant Glantzman (see In Also, urging N.T. 451 and (3d Martin testified to the same effect take the defendant believe that Cir. States v. 1968), their sole forms on Exhibit Heithaus, proprietor, approval relied on (Heithaus) had which the in- record shows significantly awas expe- F.2d offi- * ^[1] prises, 2d Heithaus New York to Heithaus. of conviction Rule foregoing (3d knowledge Inc. v. Citizens Part Cir. (Selikoff, et I. was affirmed. 5th case disclosed al., of the false statements See United Cir.; 5th Cir. appellant), where than the record see Casualty was available Isbell Enter 431 F. Co. F.2d