Kaufman, Anderson and Feinberg, Circuit Judges. Feinberg, Circuit Judge (dissenting).
In 1968, Leo Kaufman was employed as a process server for one Max Shenghit, an attorney engaged in collection work for large New York City retail stores and other commercial companies. While in Shenghit's service, Kaufman signed numerous "affidavits" of nonmilitary service, which Shenghit subsequently filed in various courts in actions brought on behalf of his clients to comply with 50 App. U.S.C. § 520(1) of the Soldiers' and Sailors' Civil Relief Act, which provides:
"In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. . . ."
In these affidavits, Kaufman represented that he had personally spoken to the defaulting defendants and had determined that they were not in the military service. The appellant conceded at trial that these conversations never took place. In the course of the customary routine of the office, a fellow employee delivered the non-military affidavits, often in large batches, to Kaufman's desk for his signature; some contained the name of the subject defendant and others left a blank where the name was supposed to be. In either event Kaufman signed them all. When he finished, he returned the documents to the clerk from whom he had received them, or he took them personally to a notary public in the office. The affidavits were then stamped and signed by the notary, but, according to Kaufman and one of the office notaries who testified at the trial, no oath was ever administered even though each document concluded with the words "Sworn to before me this day . . ."
After an eight-day jury trial Kaufman was found guilty on 90 counts of violating the Soldiers' and Sailors' Civil Relief Act, 50 App. U.S.C. § 520(2),*fn1 which makes it a crime for any person to "make or use an affidavit required under this section . . . knowing it to be false . . .."
The defendant claims that he was improperly convicted under the statute because, although the documents he signed appeared to be affidavits, there was no proof that he swore to the truthfulness of the statements which he signed. He argues that because they were not written statements under oath, they did not come within any accepted definition of the word "affidavit" and that therefore there was no violation of the statute. Even if it is assumed, however, that Kaufman did not actually swear to the written statements, we conclude that as a matter of statutory construction, on the facts before us, the appellant violated the provisions of § 520(2).
The purpose of the Soldiers' and Sailors' Civil Relief Act is to prevent default judgments from being entered against members of the armed services in circumstances where they might be unable to appear and defend themselves, see In re Realty Associates Securities Corp., 53 F. Supp. 1015, 1016 (E.D.N.Y.1944). The Act requires that, before any plaintiff can obtain a default judgment, he must file an affidavit with the court stating that the individual being sued is not in the military service. The Act also provides penalties for those who mislead or seek to mislead courts into granting default judgments on the basis of false non-military affidavits.
The instruments signed by Kaufman represented that they contained true statements, sworn to as such by him before a subscribing notary public. On their faces they appeared for all intents and purposes to be fully and completely qualified as proper affidavits filed in compliance with the terms of the statute. Under these circumstances -- when a written instrument appears on its face to be an affidavit -- there is a presumption that the affiant swore to the truthfulness of the statements contained therein, United States v. Abraham, 347 F.2d 395, 397 (7 Cir. 1965); United States v. Lynch, 180 F.2d 696, 701 (7 Cir.), cert. denied, 339 U.S. 981, 70 S. Ct. 1029, 94 L. Ed. 1385 (1950); Hardy v. United States, 22 F.2d 153 (5 Cir. 1927). In the present case the documents were found by the courts to which they were presented to be affidavits, and they were unquestionably effective to show that 50 App.U.S.C. § 520(1) had been complied with and to obtain a default judgment against certain defendants in those courts. They therefore were effective in perpetrating the precise acts which § 520(1) and (2) were designed to prevent. We conclude therefore that they were affidavits for the purpose of § 520(2).
The appellant concedes that the affidavits were false in representing that he had talked with certain persons about their military status when in truth he had not, and presumably that, if the affidavits had in all other respects been true, he would have been properly found guilty. But, he points out, there was fortunately another huge falsification, superimposed upon the first, in that the written statement represented that it was sworn to when in fact it had not been. This, he asserts, proves that there was no real affidavit and shows that he was unlawfully charged. But the rule that penal statutes should be strictly interpreted is meant only to protect the defendant from unfair surprise. Certainly Kaufman, who testified that he knew he was signing documents which purported to be affidavits and that he expected the New York courts to give the documents the legal effect of affidavits, is hardly in a position to persuade this court that he was unfairly surprised by the district court's construction. The warning of the statute is fair and the line drawn by it is clear. McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816 (1931). It is difficult to suppose that a criminal would even hope, let alone believe, that if he induced a court to rely upon and use a written statement which he had represented to be under oath but which he knew was not, he could not be lawfully charged under the statute; nor did Congress intend that the whole thrust and purpose of the statute could be rendered nugatory by so simple an expedient. The fact that another Congress has in an unrelated statute proscribed use of "a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper or writing purporting to be such" concerning representations made in certain insurance applications, 38 U.S.C. § 787, creates no inference that only by the use of similar wording could Kaufman have been chargeable under 50 App. U.S.C. § 520(1) and (2). The former statute was enacted for an entirely different purpose and has no bearing on the construction to be given the latter.
The appellant has cited certain cases for the proposition that a written statement must actually be sworn to in order to qualify it as an affidavit, but those cases have no relevance here. They are distinguishable from the present case because they were concerned with the probative value of a written statement under oath as opposed to one that was not; the statements at issue were not in the accepted form of affidavits nor did they, on their faces, represent that they had been sworn to. For example, in Bradley v. United States, 218 F.2d 657, 659, n. 1 (9 Cir. 1954), rev'd, 348 U.S. 967, 75 S. Ct. 532, 99 L. Ed. 754 (1955), the court decided that a written statement not given under oath had less evidentiary value in a Selective Service hearing than an affidavit would have had, and in Williams v. Pierce County Bd. of Com'rs, 267 F.2d 866 (9 Cir. 1959), the court was of the opinion that a person should be allowed to proceed in forma pauperis only if he swore to the fact of his poverty. Of course, in any case, from the probative value point of view, a written statement purporting to have been made under oath, but not sworn to in fact, is worth no more than an unsworn statement.
The present case, however, concerns the construction of a statute forbidding false and fraudulent affidavits as applied to a situation in which an affidavit, though in the usually accepted form and regular on its face, represented that it had been sworn to when in fact it had not. This was part and parcel of the very falsification and fraud at which the statute was directed. To adopt the appellant's strict construction theory would place technicalities above common sense and unnecessarily frustrate the carrying out of the plain intent of Congress. Bell v. United States, 349 U.S. 81, 83-84, 75 S. Ct. 620, 99 L. Ed. 905 (1955).
The appellant's second claim is that the trial court erred in permitting the Government to introduce evidence of a prior crime he had committed but for which he had not been convicted. During the direct examination of the defendant, Kaufman admitted that he had signed the non-military affidavits and that he knew that they stated that the party was not in military service, but he steadfastly denied knowing that the statements were false or that he intended to deceive anyone. Kaufman attempted to portray himself as an unsophisticated employee who was merely doing what he was told to do when he signed the affidavits. At the conclusion of the direct examination, therefore, Kaufman's knowledge and intent were crucial issues in the case.
During cross-examination, Kaufman stated that he had incurred expenses, although infrequently, for witness and filing fees in the course of serving papers, for which he had been reimbursed. When asked whether he had claimed deductions for such business expenses in his tax returns, he said that he "didn't think so," and explained that the returns were prepared by a friend who "deducted the things he was supposed to deduct." At this point, the Government offered Kaufman's 1968 tax return as an exhibit and defense counsel objected. The Government justified further inquiry into the return as an attack upon the defendant's credibility and to show "what kind of documents and papers this witness is willing to put his signature on." The judge admitted the evidence and the Government questioned Kaufman briefly about a sizeable business deduction he had taken for "witness and filing ...