Medina, Kaufman and Hays, Circuit Judges. Medina, Circuit Judge (concurring). Kaufman, Circuit Judge (dissenting).
Appellant appeals from a judgment of conviction for violation of 42 U.S.C. § 1400s(a) which provides:
"(a) Whoever makes a false statement or representation of a material fact knowing it to be false, or knowingly fails to disclose a material fact, to obtain or increase for himself or for any other individual any payment under this subchapter shall be fined not more than $1,000 or imprisoned for not more than one year, or both."
Appellant was sentenced to imprisonment for ninety days and fined $6000.
The offense for which appellant was convicted was the making of false statements on claim forms in order to obtain benefits under the Temporary Extended Unemployment Compensation Act of 1961, 42 U.S.C. § 1400l et seq.
In relevant part Question 9 on the claim form reads, "During the week claimed * * * did you work or earn wages of any kind?" Appellant answered this question "No."
The government presented evidence to show that appellant was employed as executive vice-president of the National Exhaust Purifier Company at a salary of $250 a week during the period for which he claimed unemployment benefits. The evidence on this issue was ample to support the jury's verdict and if this were all there was to the case it would be unnecessary for us to consider it further. But during the same period appellant also received payments for certain days of service as an Air Force reserve officer. The judge charged the jury that they should convict the appellant if they found that he had made false statements with respect to either the payments made to him by National Exhaust or by the Air Force. If the two issues had been submitted to the jury separately, as, of course, they could have been, see Rule 49, Federal Rules of Civil Procedure, there would now be no difficulty with the verdict. But since the two issues were presented in the alternative, it is impossible to ascertain the exact basis for appellant's conviction. The jury may have found him guilty only with respect to the Air Force payments. In order to uphold the result in the lower court we must find, therefore, that the conviction is supportable on the ground that appellant's statements with respect to the Air Force payments were violative of the statute. Stromberg v. People of State of California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931).
Appellant lived in Yonkers, New York and filed his claims for unemployment compensation with the Yonkers office of the New York State Department of Labor. Payments were made, however, and eligibility determined by the State of Connecticut where appellant had been most recently employed at the time he applied for unemployment compensation.*fn1 The claim forms that appellant filled out and submitted were forwarded to Connecticut.
The first issue that we must consider is whether the jury could properly find that appellant's periods of military service were "work" and the payments received by reason of such service were "wages" earned within the meaning of Question 9 on the claim forms. The meaning of these terms is not, for the purposes of this case, to be found in a dictionary definition or in any technical or legal usage. What we are interested in is the meaning that Robbins was justified in attaching to them. "To work" is, in general usage, to have employment, to have a job. But no one, we believe, would be likely to reply affirmatively to the question whether he was employed or had a job if his only "work" consisted of a few hours a month of reserve duty. In everyday speech "wages" are earned by reason of employment. One is paid wages if he "works" and has a "job." Robbins might well not have considered payments received for reserve service as wages earned.*fn2 The vagueness or ambiguity of the question makes it impossible, in our opinion, to hold that Robbins' answers were knowingly false.
As a matter of fact it appears that in Connecticut (as well as in New York) there is a serious question as to whether payments for service in the reserves would have made appellant ineligible for unemployment compensation. We cannot say, on the basis of the material available to us, that they would have. If such payments would not have made appellant ineligible, then his negative answer to Question 9 is not material as far as payments for reserve service are concerned. Therefore, by failing to establish that revealing the payments for reserve service would have resulted in ineligibility, the government has failed to establish one of the express requirements for a finding of violation of the statute under which conviction was had.
Moreover, if the assumption adopted in the last paragraph is mistaken and if Connecticut would have held appellant ineligible for unemployment compensation by reason of the payments he received for reserve service, appellant's answer to Question 9 still could not be held to be knowingly false. Even the authorities available to us leave us completely in doubt as to the position Connecticut would take. If the question be read, as it should be read, to ask whether the claimant had done any work or earned any wages which would change his eligibility for unemployment compensation, the government has failed to establish that appellant's answers are knowingly false with respect to reserve service and payments therefor, because appellant could not know or ascertain whether payments of this type would make him ineligible, nor could the jury, on the testimony submitted.
We conclude, therefore, that the conviction must be reversed.
In view of our disposition of the case, we need not pass upon the other points ...