(dissenting) :
I would affirm.
When Robbins applied for unemployment compensation, he was given an information booklet which he admitted reading. In part, it stated:
Each time you report to file a claim you MUST inform the clerk of any EARNINGS which you had during the week or weeks for which you are claiming benefits. This includes in addition to wages, any BOARD and ROOM, TIPS, or any OTHER PAYMENTS in any form which you receive for having worked. (Emphasis added.)
In response to Question 9 on the information form: “During the week claimed * * * did you work or earn wages of any kind?”; he answered “No.”
Robbins answered Question 9 falsely within the meaning of 42 U.S.C. § 1400s (a). Robbins was aware from the question asked and the information he had been given that the authorities were seeking to determine if he had sufficient other income to disqualify him from receiving unemployment compensation. While I agree that there is no dictionary to tell us if military reserve compensation is paid for “work,” it seems to me that given the broad disclosure purpose of the question asked of Robbins, he must have understood that with the exception of very limited exemptions, he was directed to report all of his income other than gifts.
Furthermore, Robbins’ negative response to Question 9 was not merely false, it was materially false. Under the applicable Connecticut law, it is unclear whether reserve duty payments disqualify the recipient from unemployment compensation. It may well be that it would be preferable for the Connecticut authorities to determine this with finality; but, Robbins’ false statement eliminated this issue from consideration when his application was processed. Robbins’ misstatement was therefore material; it deprived the Connecticut Department of Labor of the opportunity to decide, in assessing his eligibility, whether military payments disqualify an applicant from obtaining unemployment compensation.
*745Moreover, when we view the government’s evidence in its most favorable light, as we must on appeal, United States v. Robbins, 340 F.2d 684 (2d Cir. 1965); United States v. Kahaner, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963), the pattern of Robbins’ evasiveness takes on real meaning. It is relevant, therefore, to note that Dwyer, an unemployment insurance claims examiner in the Yonkers office of the New York State Department of Labor, testified that, “In the course of the interview I asked him [Robbins] if he received pay, military pay for this service, and he said no.” (Emphasis added.) This negative response to Dwyer’s question demonstrates Robbins’ firm determination to conceal these payments despite the fact that Dwyer considered them so pertinent as to merit specific inquiry. In addition, at trial, the government shattered what appears to be a flagrant attempt at deception. Despite the testimony on direct examination of an employee of National Exhaust Purifier Company that payments to Robbins were not wages but made in satisfaction of a “loan,” on cross, she acknowledged typing minutes of a Board of Director’s meeting containing the resolution that “Colonel G. B. Robbins * * * be put on the payroll of the corporation * *
In light of this evidence, I believe it is unfortunate but not fatal in this case that the jury was charged to determine Robbins’ guilt on the basis of two failures to report earnings without being required to specify whether he lied as to both or only as to one. The jury could have properly convicted Robbins on either ground. There is abundant evidence demonstrating his effort to conceal in excess of $3,000 in salary at a time when he was also receiving the less than insignificant sum of over $400 for active and inactive reserve duty. These facts confirm the existence of a preconceived, deliberate and common plan to perpetrate this not insubstantial fraud upon the Connecticut Department of Labor by withholding any income or payments, no matter what their source. We are not dealing with a case of the casual omission of a “jury fee.”