*2 judge they charged Leisure, Peter K. Atty. Asst. U. S. appellant they should found (Robert convict the Morgenthau, Atty., M. U. S. for that he made false statements with York, Southern Dist. of New Max Wild respect either made Obermaier, and Otto G. Asst. U. S. by him National Exhaust or the Air Attys., City, brief), York New on the Force. If the two issues had sub- appellee. as, jury separately, of mitted to the Steinberg, City Harris B. New York they course, been, see Rule have (Stanley Arkin, City, S. New York 49, Procedure, Rules of Federal Civil counsel), appellant. difficulty no with there would now be MEDINA, Before KAUFMAN and the two issues the verdict. But since HAYS, Judges. Circuit presented alternative, it is were impossible to ascertain the exact basis HAYS, Judge: Circuit jury may appellant’s conviction. The Appellant appeals judgment from a guilty only respect found him with conviction for violation of 42 U.S.C. § payments. In order to Air Force 1400s(a) provides: which uphold the result in the lower court “(a) find, therefore, Whoever makes a false state- must that the conviction representation supportable ground ap- or ment mate- knowing false, pellant’s respect rial fact it to or statements with knowingly fails to a ma- Air Force violative disclose were fact, Stromberg People terial to obtain or increase for statute. State California, himself or for other U.S. individ- S.Ct. any payment (1931). subchap- ual under this L.Ed. 1117 Yonkers, vagueness Appellant New York earned.2 The lived ambi guity impossible, filed claims makes opinion, compensation our to hold office that Robbins’ an the Yonkers knowingly Department swers York of La were false. the New State Payments however, made, bor. were appears As a matter of fact it that in eligibility determined the State (as York) well as in New *3 appellant of Connecticut had where question there is a serious as to whether recently employed most at the time he payments for in the reserves applied unemployment compensation.1 for appellant ineligible would made have for appellant The claim forms that filled out unemployment compensation. We cannot and submitted were forwarded to Con say, on the of the basis material availa- necticut. us, they ble to that would If have. such payments appellant would not have made The first issue that we must consider negative ineligible, his to then answer is whether find Question pay- is not far material as as appellant’s periods military that serv- ments for reserve service are concerned. payments ice were “work” and the re- Therefore, by failing to establish that re- by ceived “wages” reason such service were vealing payments for reserve service meaning earned within the ineligibility, would in have resulted Question 9 on the claim forms. The government has failed to one of establish meaning not, of these terms is for the express requirements finding for a purposes case, of this to found in be a violation the statute under which dictionary any definition inor technical conviction was had. legal usage. or are What we interested justi- Moreover, assumption adopted in is the that Robbins was if the in attaching paragraph fied in to them. “To work” and if last mistaken is, general usage, employment, appellant in to have Connecticut would have held job. one, believe, ineligible unemployment compensa- to But no for likely reply affirmatively payments to to tion reason of the he re- question service, appellant’s employed whether he or an- ceived for reserve job only Question had a his “work” consisted swer to could not be held still duty. knowingly a few hours a month of author- to false. Even the be everyday speech “wages” completely In are earned ities to us leave us available employment. paid position reason of One is in doubt to the as “job.” question read, as he “works” and has a would take. If the might read, Robbins well not ask whether the have considered it should be to payments any work or reserve service claimant had done earned * * * (c) provides 1. him Title 42 in I asked U.S.C. 1400m “The Witness: part: why his relevant in to submit he hadn’t come before, and he said “[T]he terms and conditions of the State week claim the * * * Robins Air law individual to which an that he had traveled recently rights Georgia get back on in to most exhausted his shall Force Base apply duty temporary I recall it —as his is as to claim for extended active —this unemployment compensation and to the Air Force colonel. an payment thereof.” explained in colonel that he was a He get trying Force, he was the Air My dissenting colleague relies extensive- duty, rea- and that was the on active ly any on the words “other in in. he didn’t come son phrase “any in and form” ROOM, BOARD I asked TIPS, any In course of the interview or OTHER PAY- military pay, pay for language any him if he received MENTS in form.” The service, no.” suggests and he said used me that “other any quite intended, in clear that the wit- form” is like board and to me It seems paid tips, goods to refer to or serv- whether he was room ness asked Robbins money. traveling base Air Force ices received lieu of practically testimony my Georgia Dwyer, cer- and back. It is to which dis- colleague senting refers, to this is in relevant tain that Robbins’ answer part as truthful. follows: any wages change eligi- which would formation booklet which he admitted bility reading. compensation, part, In it stated: government has failed to establish you report Each time to file a claim appellant’s knowingly answers are you any inform MUST the clerk of respect false reserve service and you which EARNINGS payments therefor, appellant because you the week or weeks for which are pay- could not know or ascertain whether claiming benefits. This includes type ments of this igible, would make him inel- wages, any addition to BOARD jury, on nor could the the testi- ROOM, TIPS, PAY- OTHER mony submitted. MENTS in which re- form conclude, therefore, having (Empha- con- We ceive worked. added.) be reversed. sis viction must case, disposition In of our view response infor- *4 pass upon points need not the other “During mation claimed form: the week ’ * * appellant. * raised did work or of earn any kind?”; Reversed and remanded. he answered “No.” Question falsely Robbins answered MEDINA, Judge (concur- Circuit within the of 42 U.S.C. 1400s ring) : (a). ques- Robbins was aware from the solely ground that, I concur but tion asked and the information he legislation providing in the context of given that the authorities were unemployed, per- benefits for the the seeking to determine if he had sufficient military of formance reserve is service disqualify other income to him from re- not “work” and the ceiving unemployment compensation. “wages reason of such are not of agree dictionary IWhile that is no Therefore, kind.” the answers were military compensation to tell us if not “false statements” within the mean- paid “work,” is it to me seems that ing U.S.C., 1400s(a). of 42 Section This given purpose the broad disclosure my true, opinion, remains if even Robbins, of he must asked New York or Connecticut administrative exception understood of that the agency applicant ruled that an was or very exemptions, limited he was directed disqualified receiving was not to be from report than all of his income other received, benefits he had gifts. period question, money sums of performance military of reserve serv- Furthermore, negative Robbins’ re- ice. I see no distinction between sponse merely 9 was not military performance service and the of false, materially it was false. Under the again Serving juries, reserve service. on applicable law, it is unclear legislation providing in the context of duty payments disquali- whether reserve unemployed, benefits is not fy recipient unemployment from “wages “work” nor are fees compensation. may It well it be that kind.” preferable for the Connecticut Moreover, having a conviction for authorities to this with final- determine made a false that turns out statement ity; but, Robbins’ false statement elim- stand, not to be false cannot even inated this from consideration issue thought person convicted statement application processed. when his was he false when made it. Robbins’ misstatement was therefore ma- terial; deprived Connecticut De- KAUFMAN, Judge (dissent- Circuit partment opportunity of Labor ing) : decide, assessing eligibility, wheth- I would affirm. military payments disqualify ap- er an applied unemploy- plicant obtaining When Robbins from compensation, given compensation. ment he an in- govern withholding any payments, Moreover, no income or when we view the matter what their source. We are ment’s in its most favorable evidence dealing light, appeal, with a case the casual omis- United as we must “jury Robbins, (2d fee.” F.2d 684 Cir. sion v. States Kahaner, 1965); v. United States denied, (2d Cir.), 375 U.S. F.2d cert. (1963), L.Ed.2d 84 S.Ct. pattern takes of Robbins’ evasiveness meaning. relevant, on real It there fore, Dwyer, unemploy an to note examiner in the
ment insurance claims New York State
Yonkers office that, Labor, Department testified “In him asked of the interview I course Appellant, BARTLETT, Irvin B. military pay, if he received [Robbins] service, pay he no.” said for this America, UNITED STATES negative (Emphasis added.) re This Appellee. Dwyer’s question sponse demonstrates No. 18019. conceal firm determination Robbins’ Appeals Court United States despite fact these Eighth Circuit. Dwyer pertinent considered so them *5 Jan. addition, specific inquiry. In at to merit ap
trial, government shattered what flagrant attempt decep
pears to be a testimony Despite on direct
tion. employee of National
examination of an Company pay
Exhaust Purifier but
ments to Robbins were cross, “loan,”
made in satisfaction acknowledged typing
she minutes meeting containing
Board of Director’s Rob G. B.
the resolution that “Colonel * * * payroll put bins * * corporation light evidence, I believe
is unfortunate but not fatal in this case charged to determine guilt
Robbins’ on the basis of two fail- report earnings being ures to without
required specify whether he lied as only both or one. convicted Robbins on ei- ground. ther There is abundant evidence demonstrating his effort conceal $3,000 salary
excess of at a time when receiving
he was also in- the less than
significant sum of over active $400 duty. facts
and inactive These preconceived,
confirm the existence of a plan perpetrate
deliberate common upon
this not insubstantial fraud Department Labor