United States v. Abraham Glantzman, in 18875 Appeal of Irwin H. Meltzer, in No. 18899 , 447 F.2d 199 ( 1971 )

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Abraham Glantzman, owner of an employment agency, and Irwin H. Meltzer, head of the agency’s unskilled labor department, were found guilty by a jury of falsifying government documents in prosecutions brought under 18 U.S.C. § 1001 and 18 U.S.C. § 2.¹ Although several reasons for reversing these convictions were submitted and have been considered,⁸ we have concluded that only the question of sufficiency of evidence merits discussion.

It is conceded that the Department of Labor and the Immigration and Naturalization Service were furnished false information on Labor Department Form 575 A, which were processed by the employment agency in behalf of three aliens, Newman, Quamina and Martin. The forms represented that each applicant was seeking employment as a hospital orderly and had the requisite qualifications and experience for the position. The requested position was one certifiable by the Labor Department as available for aliens. None of the three aliens in fact possessed the necessary prerequisites for the position. The question devolves, therefore, to whether there was sufficient evidence presented for a jury to conclude that Glantzman and Meltzer knowingly participated in filing the false statements.

Conceding that Glantzman did not personally prepare the 575 A forms in question, the government emphasizes his overall supervision of the employment agency and his promulgation of its standard operating procedures. These included having the alien sign the 575 A form in blank at the time of the interview, the assignment of duties to the various employees, numbering from 15 to 25 during the period in question, and instructing the employees that job specifications on form A must always conform to the job description contained on form B supplied by the prospective employer.^{2 3}

In the three specific job applications involved in these proceedings, the prospective employer was the Hilltop Nursing Home. Its director, Frank M. Hill, executed form B, the appropriate requisition, for the position of hospital orderly.⁴ The completed forms were submitted to the Labor Department, but were rejected in May, 1968. Glantzman conceded that on May 23, 1968, he personally transported thirteen applications to Washington, including those of Newman, Quamina and Martin, for the purpose of obtaining reconsideration. Glantzman categorically denied, however, that he had personal knowledge of the false information contained therein.

The government contends that proof of personal knowledge was established by a series of four letters between Glantzman and the New Jersey State Employment Service. One is a carbon copy of a letter from the manager of the state service stating that the position of kitchen worker requested for Newman was non-certifiable.⁵ A second letter from the same manager disclosed that the application form for a new position for Newman and another showed alterations, thereby requiring “you to submit new forms ES 575 A & B signed by the respective parties.” ⁶ The other two are mimeographed form letters from Glantz-man enclosing “an application for Alien Employment Service” for Newman ⁷ and Quamina.⁸

To the totality of its evidence the government would have us apply the teaching of Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949), in which, despite no direct evidence tying the manager to the false documents submitted to the government by his business office, there was evidence that he had been “the promoter of a long and persistent scheme to defraud, [and] that the making of false invoices was a part of that project.” The Court held that there was sufficient circumstantial evidence to convict him as an aider and abettor. Glantzman, however, argues that his personal activity and that of his agency cannot be equated with the facts of Nye & Nissen, and at best amounted to “mere suspicious circumstances” rejected by this court in United States v. Heithaus, 391 F.2d 810 (3rd Cir. 1968), as an insufficient quantum of proof to sustain a conviction.

Although the issue is close, we conclude that it must be resolved in favor of the defendant Glantzman. The size of the employment office operation with the large number of employees utilized in processing applications militates against imputing constructive knowledge to the owner. Although the correspondence to and from the state employment service indicates that he had personal knowledge of the processing of Newman’s and Quamina’s applications, it was incumbent upon the government to prove that Glantzman also knew of the applicants’ lack of qualifications for the orderly positions. Those facts were not apparent on the face of the final forms. Absent such proof it is as plausible to conclude that Glantzman believed the applicants did possess qualifications for the hospital orderly positions as it is to charge him with knowledge of the fraudulent circumstances.⁹ At best, all the government proved was that Glantz-man knew, or should have known, of prior applications for uncertified positions.

We hold that the government failed to meet its burden of establishing the elements of the crime by proof beyond a reasonable doubt. The judgment of conviction against Glantzman will not be permitted to stand.

Meltzer does not stand in the same position, for there was evidence he knew that the applications of Newman and Quamina were defective. Newman testified to two meetings with Meltzer at which he told Meltzer that he had neither previous work experience nor the skills required for the hospital orderly position. There was also correspondence over Meltzer’s signature attempting to certify Newman as a kitchen worker, and not hospital orderly, with the state employment service.

Quamina said Meltzer was introduced to him as the “boss,” that he discussed with Meltzer a position of laundry worker, and not hospital orderly. It is a reasonable inference that, having interviewed the applicant, Meltzer was apprised of the information contained in his office’s blue form — a job application filled out by the applicant as the first step in the office procedure — which disclosed that Quamina’s previous work experience was that of porter in Port of Spain, Trinidad, that he was applying for the position of porter and, indeed, his second choice position was also that of porter.

In contrast with Glantzman’s role, Meltzer’s participation was not limited to that of executive; his duties included the interviewing of at least two of these three applicants, and this he did more than once. The circumstances of his personal involvement with Newman and Quamina are sufficient to impute knowledge of their lack of qualification. To this essential ingredient the government added evidence that Meltzer was in charge of all applications of unskilled workers for permanent residence, that he was responsible for the completion of 575 A and B forms for unskilled applicants, and that his secretary typed substantially all unskilled job applications.

We have concluded that there was sufficient evidence supporting the government’s theory that Meltzer knew the information set forth on Forms 575 A and B at a time when he also knew that information concerning Newman’s and Quamina’s qualifications. Under these circumstances, there was sufficient evidence to support a conviction as an aider and abettor under the four counts involving these two aliens.

The evidence supporting the remaining two counts, which relate to Meltzer’s participation with the alien Martin, is not commensurably incriminating. Some correspondence between Meltzer and the alien’s prospective employer was disclosed. But we find the record devoid of sufficient evidence to impute to Meltzer the requisite knowledge of Martin’s lack of qualifications. Absent such proof there can be no conviction on either count VI and VII.

The judgment of conviction against appellant Glantzman will be reversed. The judgment of conviction against appellant Meltzer on counts III, IV, V and VI will be affirmed and the judgment of conviction in counts VII and VIII will be reversed.

1 . 18 U.S.C. § 1001 provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. § 2 renders aiders and abettors liable as principals:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The indictment contained eight counts. Appellant Glantzman was charged on all eight; appellant Meltzer was charged on counts III through VIII. Counts I and II were severed and subsequently dismissed. The jury returned verdicts of guilty as to Glantzman and Meltzer on all six remaining counts.

2 . Glantzman criticized certain of the court’s instructions to the jury.

3 . Forms ES-575 A and B contain two conspicuous warnings. The forms are headed by the following notice :

READ THIS NOTICE BEFORE EXECUTING FORMS ES-575A AND B. To knowingly furnish any false information in the preparation of this form and any supplement thereto or to aid, abet, or counsel another so to do is a felony punishable by $10,000 fine or five years in the penitentiary, or both (18 U.S.C. § 1001). Any alien, prospective employer or any person acting on behalf of such alien or employer, who knowingly makes any misrepresentation concerning the alien, or his prospective employment including such matters as wages, hours, or the occupation in which an alien will be employed, or any person who falsely represents, in the execution of this form, that he is offering the alien employment as the prospective employer of such alien, will be prosecuted to the fullest extent of the law.

The form requires the alien to “[d]e-clare that all of the statements made in this document are true, complete, and correct to the best of my knowledge and belief.” Under the place for signature, the form again contains the warning: “Severe penalties are provided by law for knowingly and willfully falsifying or concealing a material fact or using any false document in the submission of his APPLICATION FOR ALIEN EMPLOYMENT CERTIFICATION” (U.S. Code, Title 18, Sec. 1001).

4 . Frank M. Hill, the director of Hilltop, was also named as defendant in counts III through VIII of the indictment. He was convicted on counts IV, VI, and VII, and did not appeal.

5 . Government exhibit 18.

6 . Government exhibit 21.

7 . Government exhibit 23.

8 . Government exhibit 22.

9 . [T]o warrant a conviction on circumstantial evidence the facts and circumstances established by such evidence must be of such a character as to produce a moral certainty beyond a reasonable doubt, but need not be absolutely incompatible with innocence. However, guilt must be proved and not be conjectural, and cannot rest solely on suspicion or surmise. Commonwealth v. Feinberg, 211 Pa.Super. 100, 234 A.2d 913, 919 (1967). See United States v. Heithaus, supra, 391 F.2d at 811.