Lumbard, Moore and Smith, Circuit Judges.
Both defendants are appealing from judgments of conviction under 18 U.S.C. §§ 242 and 2. Defendant Wiseman was charged in separate counts with thirty-five violations of these statutes, and defendant Rick was charged with seven. The jury found Wiseman guilty on sixteen counts and Rick guilty on three. Wiseman was sentenced on June 18, 1969 to a one year suspended sentence. Rick was sentenced on February 25, 1970 also to a one year suspended sentence.
Defendants had been employed by Nathan Lindsay as professional process servers. They admit that they routinely signed blank forms entitled "affidavit of service" and that such affidavits were completed with false information stating that persons who were never served had in fact been served. These affidavits were filed in the Clerk's Office and on the basis of such affidavits, default judgments were entered against the persons named as defendants in the suits to which the affidavits of service related. In some cases, such judgments served as a basis for income executions which were effected against such persons. A number of people testified that an income execution against them led them to discover that a judgment had been entered against them. Others indicated that their credit rating was adversely affected by the fact that such judgments had been entered.
Defendants did not contest this evidence but instead stated that they did not know or intend that their signatures on the blank forms entitled "affidavit of service" would be used except after they had given information indicating that service had actually been made on a certain individual. They stated that at no time were they aware of the fact that the signature in an affidavit must be sworn to, and thus, they never swore to the correctness of any of the blank "affidavits of service." Thus, these forms, although entitled "affidavit of service" did not constitute proper affidavits because they were unsworn.
To rebut the inference that the defendant Wiseman was unaware that his signature was being used fraudulently, the government cross-examined him as to whether he had previously been asked by Lindsay to appear in court, pretending to be a fictitious process server created by Lindsay. Wiseman admitted that such a scheme had been proposed except that he stated that he thought he was to go to court to say that "Lloyd Cahn" could not be present. The government then introduced testimony by Abraham Kalkin, an attorney, who testified that Wiseman had told him that Lindsay had asked him to pretend to be "Cahn." It is not contended that Wiseman consented to this scheme; he clearly did not.
Defendant was convicted under 18 U.S.C. § 242 and § 2. Section 242 provides in part:
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * [shall be guilty of a crime]."
The "under color of * * *" clause has a meaning identical with that given the term "state action." United States v. Price, 383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966). Section 2(b) provides that:
"Whoever wilfully 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 state action doctrine has often been invoked in the last several years but this is the first time this court has been called on to decide whether and to what extent this doctrine applies to "private" process servers, either directly under § 242 or as aiders and abetters under § 2(b).
There is no doubt that the Clerk of the New York City Civil Court, New York County, is an employee of an agency of a subdivision of New York State, and acts "under color of state law." Thus, as to the aiding and abetting charge, there is state action, even though defendants themselves are not state employees. United States v. Price, supra. Defendants argue that without the Clerk's knowing participation in this scheme, § 215 is inapplicable. This contention is refuted by the reasoning of United States v. ...