Before BIGGS, Chief Judge, KALODNER, Circuit Judge, and FEE, District Judge.
JAMES ALGER FEE, District Judge.
Defendant was indicted for knowingly failing to do an act required of him under the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 301 et seq., and the rules and regulations pursuant thereto. There were two counts in the indictment, the first of which charged defendant, and the second charged one Aleli. The counts were vaguely interrelated, but the defendants were not charged jointly. On conviction of both, an appeal was taken to this Court, which reversed the cause and discharged Aleli on the ground that he was not the employer and was therefore under no duty to report the layoff of Lembo and remanded Lembo. United States v. Aleli and United States v. Lembo, 3 Cir., 170 F.2d 18. There is no indication that the unparalleled procedure of an indictment charging defendants, not jointly but each separately in different counts, was called to the attention of the Appellate Court.*fn1
Upon remand, there was a motion to dismiss the indictment.The duplicitous nature and confusing verbiage of Count I, which was commented upon by the Trial Judge here, was caused largely by the necessity for its interdependence upon Count II charging Aleli.*fn2 This motion was denied at the opening of the trial. The cause was tried before the Judge, sitting without a jury. The Court found that defendant was not guilty of preparing an application for deferment or of asking for deferment. The Court also found defendant was not guilty of the charge that he was not a full time employee at the time charged in the indictment up to October 6, 1944. But the Court found that he was guilty "of that part of the indictment which says that from October 6, 1944, to January 25, 1945, that he knew that the classification he then and there enjoyed was given him as a result of his being employed by Stout's 69th Street Service, and that he failed to notify the draft board of that change, * * * a fact that * * * would have changed his classification, * * *."
The elements of the charge of Count I of the indictment are distorted by the necessity of nexus with the charge against Aleli and are that defendant knew his draft status depended upon the certification by Stout's that he was a full time employee from June 22, 1944, to February 23, 1945, which certification, as he well knew, was false and fraudulent, and he failed to notify the Board that he was not a full time employee at 56 hours a week, but was chronically absent during all that period of time. There is a clause which suggests that he was not employed at all at Stout's from October 6, 1944, to January 25, 1945, but the charge of the indictment is not that he failed to tell the Board of this fact, but only of the alleged fact that he was not employed full time but was chronically absent during the whole period. It is also charged that he was accessory after the fact to a false and fictitious certification by Aleli.
The charge as laid was not proved. The Affidavit - Occupational Classification, filled out by Aleli in behalf of Stout's, the employer, on April 7, 1944, was the only document of record which in any way appertained to the situation on October 6, 1944, and from there on until the filing of another like affidavit on March 3, 1945. The part of the April 7 affidavit relating to employment is:
"Date employed Aug. 23, 1943 Date entered present job Aug. 23, 1943 Average weekly rate of pay $65.00
"Average hours worked per week 56"
This affidavit was true on its face. The defendant could not know it was false and fraudulent, because it was not. A similar statement as to hours worked, salary and date of employment, made upon February 27, 1945, was filed with the Board March 3, 1945, as above noted, but this falls beyond the limit of the indictment. Defendant could not know therefore that there was on file from October 6, 1944, to February 23, 1945, any representation or certification as to the work of defendant at Stout's between June 22, 1944, and February 23, 1945, in view of these facts. The Court found that defendant did not participate in filing of any statements as to the employment of the defendant, but that all this was done by Aleli in behalf of Stout's without participation of defendant.
Thus the Trial Judge held the indictment attempted to state two different crimes and was duplicitous. However, there was an attempt upon the part of the Court to cure this defect by finding unproved certain allegations of the indictment and finding the defendant guilty of another portion thereof only. The allegations of knowledge of and participation in the filing of a false and fraudulent certification of full employment without layoff during the whole period were essential for joinder of this count*fn3 to that which charged Aleli, and proof thereof was vital to conviction of defendant on Count I. It is hornbook law that all material allegations of an indictment must be proved.
The vice of this indictment, however, was failure to state a crime in definite terms so that the accused would know with what he was charged. The failure of the indictment in this regard was highlighted by a dramatic incident. During the final argument, the Trial Judge asked the Assistant United States Attorney upon what theory the government was proceeding. The Assistant United States Attorney then outlined the basis upon which the Trial Court finally founded judgment. The Trial Judge then pointed out the confusion caused by the unsatisfactory indictment, saying, "Well, that was not generally understood during the trial of this case." If the Court was so misled at this stage as to the indictment, fairness to the defendant requires a different result.
The Court also found that the government failed to prove that defendant was not a full time employee from June 22, 1944, to February 23, 1945, and failed to prove that he was chronically absent from the employment. This was the gist of the charge. The only fact proved, which might have had pertinency under a proper indictment, was that defendant was laid off from October 6, 1944, to some time in January, 1945.
The indictment would then have been sufficient if it had set out that between October 6, 1944, and February 23, 1945, defendant knowingly failed to perform a duty imposed upon him by the Selective Training and Service Act, and rules and regulations adopted pursuant thereto, in that, knowing that his classification depended upon continuous full time employment without temporary layoff at Stout's and knowing that he had been discharged by Stout's on October 6, 1944, he wilfully*fn4 failed to notify the local Board of the fact of discharge within 10 days from that date. This sentence contains the substance of a valid charge. See United States v. Peskin, 3 Cir., 173 F.2d 97.
However, even this proper charge was not proven. It was not shown that defendant knew that continuous or uninterrupted employment without layoff was essential to continued deferment from and after October 6, 1944. No Board member was asked this exact question. No one testified that a layoff of that length, due to a slackening of war orders, would have had an influence on reclassification. The implication is that the matter necessarily would have been referred to the State Board. The evidence in this respect is apparently different from that on the former appeal. United States v. Aleli and United States v. Lembo, 3 Cir., 170 F.2d 18. It results that the findings on which ...