Kalodner, Van Dusen and Aldisert, Circuit Judges. Van Dusen, Circuit Judge (concurring in part and dissenting in part).
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.*fn1 Although several reasons for reversing these convictions were submitted and have been considered,*fn2 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.*fn3
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.*fn4 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.*fn5 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."*fn6 The other two are mimeographed form letters from Glantzman enclosing "an application for Alien Employment Service" for Newman*fn7 and Quamina.*fn8
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.*fn9 At best, all the government proved was that Glantzman 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 ...