United States v. Bruce Ogilvie Irwin

DUSEN, Before VAN HUNTER WÉIS, Judges. Circuit III, HUNTER, Judge: Circuit JAMES appeal This from a conviction 462(a) willfully for under 50 military for knowingly The trial court excluded certain induction. relating to defendant’s motives for denied defendant’s re- reporting and “willfully.” Finding no quested error, affirm. reversible I. received from his Ogilvie Irwin

Bruce a letter dated November local draft board 7,1972, ordering him to for induction days A few after 1972. letter, receiving Irwin was arrested Bridgewater, Jersey, New police local allegedly disorderly having participated October, night one in late conduct arrest, Irwin was morning after The Judge Esposito, municipal arraigned by Bridgewater Town- magistrate court ship. magistrate explained The that Irwin released on bail and that a notice would be informing mailed him of the date would be required he would be magistrate told the Irwin the court. draft notice and had to received his he had respond- magistrate Army. go into first;” care of this have to take ed “You “Well, suppose this doesn’t inquired, Irwin for indue- up before I am scheduled come know, he did not that he had replied that Judge 8.” Tr. tion, is December in- clerk no further forgotten. have to made Irwin would replied that Esposito 11,1973, Irwin was indict- township charge first.1 On June quiries. care of the take willfully failing and appear knowingly and fact, was not summoned ed on De- appear neglecting sometime the magistrate until in violation of U.S.C. cember following year. 462(a). App. § re- after the relevant event The second relating at- court excluded evidence was Irwin’s The trial draft notice of his ceipt magistrate’s Navy, which three incidents—the the to these enlist in tempt statement, rejection by Navy, and half the the during the second sometime occurred telephone call the draft Navy follow-up recruiter ex- The the of November for ruling the that Irwin’s motives enlisting in for board plained procedure clerk— appearing were irrelevant.3 already scheduled induc- not to an Navy prior that, year guilty; a verdict of two advised Irwin Army, and returned tion suspended, and Irwin of December sentence was prison his induction date light of in hurry. probation years As it for three and placed have to was would Irwin out, uncovered recruiter fined $1500.00. turned charges and ad- pending criminal Irwin’s II. charges those made him vised Irwin Navy. for enlistment unacceptable U.S.C.App. violation of 50 establish a To not advise Irwin that the did The recruiter induction, 462(a) report failure to for for duty report his on his charges nullified 1) Irwin must show that government date. induction scheduled induction; report for an order received knowingly report. failed to 2) Irwin arrived, Irwin When wording Military Selec- precise report for induction. He had not did Act of tive Service any reason he his draft board notified is, pertinent part: 462(a) reporting. had for not Con- might have Any member of Selective Service called cerned, from the draft board a clerk charged as any person or other appear system days after his failure to a few Irwin provided duty carrying with the herein why he had not come. asked Irwin title, provisions of this any of the explain did not that he out Irwin Even then regulations rules or made charges pending against him. . or the had criminal thereunder, given who shall have or directions replied Irwin he did not Instead knowingly neglect perform or such Esposi- “Mr. fail he was told report because shall, upon conviction duty have to take care of he would to” first, court of the United States of that he was in district matter” “the court jurisdiction, punished by be competent The clerk trouble.” Tr. 158. “some kind of five trouble, for not more than imprisonment kind of but Irwin him what asked the statement “You have to 1. We realize included in its 3. The court belief, ambiguous: may could Mr. Irwin’s of this first” whatever take care been, magistrate anything may meant that Irwin would or assume have been told pending criminal by anyone able to avoid not be other than his Selective Service army; may charge by joining Irwin Board about obliged whether or not he was interpreted to mean that he need the statement induction cannot be con- draft, ordered, until for the not even by you sidered in this case. charges township been settled. Even if had latter, attempt See, g., Belgrave, he made no Irwin believed e. complication. of this to inform his draft board this court reversed a so, this suit would in all likelihood Had he done government had not because conviction have arisen. never establishing beyond a reason burden of met its that defendant had received actual able doubt public by the was also a local defender 2. There report for induction. Id. of his order to notice Esposito, have confused name of at 917. clerk. the draft board $10,000, tempts testimony, to introduce that such as than of not more or a fine years following colloquy: imprisonment such fine by both Irwin,

Q. you go . did Mr. induction on the 8th of Decem- down for 462(a). U.S.C.App. § ber? was to Irwin’s No, A. I didn’t. liability his criminal on December Q. Why not? having knowingly per- failed to arises Well, of two reasons. A. because One The indictment duty. form that I' because was told not to down. having “knowingly wilfully Irwin appear whom, induc- Q. By failed sir? [his scheduled] clearly failed to tion.”5 Bridgewater By A. induction, deciding whether the trial but in Township. excluding bearing erred court jury it out. The The Court: Strike reporting, not reasons for Irwin’s disregard the answer. will required the mental state determine must Q. there Was another reason? report knowing and willful failure to in a Navy recruiter Because refus- A. induction. for ed me. history provides no clue Legislative fail,”6 meaning “knowingly so we

to the Objection sustained. The Court: U.S.C.App. law under on case rely will be The jury The answer stricken. matter, 462(a). knowing a threshold a As § disregard it. will requires clearly failure more willful Tr. 140-41. or inadvertence. carelessness mere than exchange supports our view that Irwin This Rabb, v. 394 F.2d 230 Cir. States United seeking introduce to evidence of his allegation by is no 1968). Here there he had not failed to acci- motives: 8, report on December forgot to he dentally inadvertently or had reasons —he contrary, any evidence con reporting. for not magis with the cerning the conversations only person’s report recruiter under A motives for trate 8, are irrelevant in a convic ing Irwin’s awareness of December scores 462(a). 1972, U.S.C.App. date on which he was under 50 United as the ordered tion Boardman,7 (1st Despite v. report. ruling the trial court’s to States denied, 991, 1969), testimony relating to cert. those conversa U.S. inadmissible, 1124, (1970), approv- there were at- cited would be tions failure, requires only knowing a The statute 5. Id. at 113-14. indictment but the Couming, also United States v. See “willfully” “knowing- as well as refer both ly.” denied, (1st Cir.), 556-57 cert. (1971). 30 L.Ed.2d 266 92 S.Ct. Figurell, 462 States v. F.2d See United Bowen, In United F.2d 193 J., 1972) (Aldisert, dissenting). (3d Cir. the Fourth Circuit did reverse the trial for its refusal to allow court defendant to Boardman, involving knowing a case also a In explain reporting further his reasons for not induction, failure to willful why Defendant had been induction. asked instructed the he court follows: trial report; did not he answered that he did tempts, induces or Motive army. person to be in the He a want was not a to commit crime. Intent is allowed to moves explain why purpose mental or state which the he did not army. want to be in the Now, person does the act. members of the has The case not been followed. motive, jury, matter how laudable or no notes, Wigmore testimony concerning As a be, praiseworthy that motive cannot person’s “only intent or motive is receivable negative specificate intent to commit a [sic] assumption that the intent or motive is a person spe- has a Where crime. proved permissible fact under the bring sub- a result about which the intent to cific law involved in the prevent, stantive case. what induces him to law seeks act, motive, Hence, is immaterial. if for reason of substantive law the Malinowski,8 phone instructed me—he made a call to ingly in United States Cir.), cert. U.S. New Brunswick and instructed me to F.2d 850 (1973). All there, 36 L.Ed.2d 693 so I did. I went right 93 S.Ct. down down proof that the defend necessary is I talked to an officer down there and deliberate, report was con failure to ant’s there. in scious, knowing, not accidental and not (emphasis supplied). This conversa- Tr. 157 Benson, 469 United States advertent. credibly claiming Irwin from tion bars Indeed, F.2d magistrate’s thought comments re- remarked that a mere in Benson court on De- him from the lieved that he was not registrant statement Thus we find that cember 8 induction. for induction would be suf going evidence, exclusion of this even if it had Id. a criminal conviction. support ficient error, preju- create did not substantial been Rabb, supra, In United States at 1362. dice. prove in order to a violation of we held argues in addition to the above Appellant 462(a) government evidentiary that the trial claims erred knowledge legal obli “must establish refusing purpose” “bad include voluntary action or omission gation and “evil motive” in his instruction on willful perform such purpose with the persuaded are not that one of ness. We Id. at 233. obligation,” phrases must be included. In those case, very evidence that Bishop, 412 93 S.Ct. as irrelevant insofar as it was excluded Court, (1973), Supreme 36 L.Ed.2d 941 good faith motives for not related to Irwin’s holding in that tax misdemeanors as well as cogent reporting would also have been evi require proof willfulness, tax felonies of finding jury’s to reinforce the that dence “willfully” “voluntary, as a described inten was deliberate. Irwin’s failure legal duty.” violation of a known tional Id. attempted to enlist When 360, 93 S.Ct. at 2017. There is at no re receiving his order to Navy, after quirement phrase purpose” that the “bad Army, into the he demonstrated induction “evil motive” be included. As we said in in fact that he had not believed Greenlee, (3d 517 United States v. F.2d 899 remark, “You have to magistrate’s local 985, 391, Cir.), cert. denied 423 U.S. 96 S.Ct. first,” meant Irwin was care of this take (1975), 46 L.Ed.2d 301 when the trial court from his for his relieved purpose” include “bad did trial, Irwin induction. At testi scheduled purpose” the use of terms such as “bad fied imply government does must my local in I went to recruiter prove more than that the defendant acted questions, he asked me and Somerville mind, e., guilty voluntarily with a i. and go I was and I told him that scheduled with the deliberate intent to violate the drafted, Army, got got my I into We think the instruction here ade- law. notice, “Well, draft said when quately conveyed concept that liabili- supposed in?” and I told you were ty only can be based . . on a this was pretty— him “December 8” and “specific something intent to do was like the second half of Novem- the law forbids. “Well, you get He said have to all ber. (emphasis Id. at 904 supplied). testing your papers your papers, your Court, signed Supreme ten squared away days writing per all cu 8, case, so he said he —he in riam a recent tax evasion United all, person’s provable upheld charge intent or motive is not sion case the Court testimony.” provable 2 “[g]ood it is not such J. motive alone is never a defense where 581, 1940). p. Wigmore, Evidence 721 ed. done or omitted is a crime.” act Pomponio,-U.S. States v. See also United 8. The defendant Malinowski was -, -, 12 97 50 L.Ed.2d S.Ct. with willful evasion of federal income taxes. (1976) curiam), (per a willful tax eva-

1053 III. Pomponio,-U.S.-, 97 S.Ct. 22, (1976), 50 L.Ed.2d 12 reversed the Any claim that Irwin was excused from holding “willfully” Circuit’s re Fourth pending because he had reporting against finding purpose of bad or evil quires charge easily disposed a criminal of. him Supreme Court held that motive. registrant case where the extreme In an holding, of in- Appeals trial, so the Court awaiting already but was just

[i]n assumed that the reference to correctly he was ordered at the time prison motive” in United v. Bish- an “evil States Tenth Circuit confirmed his con- report, the something op, prior 462, meant saying cases 50 under viction excuse, specific jail more than the intent to violate being in was no he could board, the law . draft since he written to the per day. one letter United was allowed not, however, We hold did 376, Ebey, 424 F.2d States [“willfully”] requires proof term than an motive other intentional legal duty. of a known violation unacceptable A belief that one is to a army is no defense know See, ingly failing for induction. e. contrary, as the other On Shriver, 436, g., United States v. 473 F.2d appeals to consider the courts Medina, 1973); United States v. recognized, willfulness in this con 1110, 1972); 462 F.2d simply voluntary, means a text intention Goodman, 439 F.2d 810 United States of a legal duty. al violation known Unit (9th Cir.), cert. denied 404 92 S.Ct. U.S. Pohlman, ed 522 F.2d States (1971). Nor is the fact that 1975) banc), (CA8 (en cert. 423 charges pending against are one. S.Ct. L.Ed.2d Benson, (7th Cir. McCorkle, United States v. 511 F.2d ; States, 1972) Nickerson v. United (CA7 1975) (en banc), 484—485 cert. de (10th Cir.), cert. denied 392 U.S. nied, L.Ed.2d 2061, (1968); and S.Ct. L.Ed.2d 43; Greenlee, United States v. 517 F.2d States, (8th Doty v. United 218 F.2d 93 Cir. 899, (CA7 1975), denied, cert. 423 U.S. 1955). 96 S.Ct. 46 L.Ed.2d United Likewise, any belief Irwin have Hawk, 497 F.2d 366-369 obey he did not have to the order had that (CA9 1974), cert. regis report is no defense. Even when 42 L.Ed.2d 65. specific relied on advice from their trants -, Id. at 97 S.Ct. at 23-24 (emphasis they comply need attorneys that with supplied). judice, In the case sub the court induction, report for courts have an order charged recognized this reliance as a defense. act is done knowingly, if it is done [a]n in by the Circuit United As stated Second voluntarily intentionally and and not be- Mercado, 478 F.2d 1108 Cir. States cause of mistake or accident or other , just 1973) application this is another innocent reason. An act wilfully is done the settled rule that erroneous belief if voluntarily done and intentionally invalid, induction order is even if that an specific and with intent either to do counsel, based on the advice is not a something which the law forbids or to fail prosecution refusing in- defense to a something to do which the law requires. duction, that one who refuses induc- and (emphasis Tr. 176 supplied).9 We find no the basis of such a belief acts at tion on charge. error in that peril. his Compare charge the “willful” by disregard, in reversed marked careless whether or not Rabb, which added word is “[t]he also em- right so to act.” one has United States v. ployed thing to characterize the Rabb, done without 1968). Cir. ground believing it is lawful or conduct First, Id. (emphasis supplied). at lili The testimony striking quoted by in the rejected Fifth and Ninth Circuits have also majority opinion page at by re- cases. United in induction such a defense jecting the offer proof described in note Steiner, (5th States 469 F.2d 760 Cir. 1 of this dissent. Jacques, 1972); United States F.2d majority opinion page As indicates at (1st 1972); and United States v. panel of this a unanimous court said Wood, Rabb, States in F.2d

231-33, construing 50 U.S.C.App. 462(a): IV.- applying “The federal cases this statute exclusion of no error We find court’s or in the defendant who

disputed evidence to a have considered We “willfulness.” neglecting knowingly raised defendant contentions other place time and de- for induction judg- merit. The without find them scribed an induction order have held will be affirmed. trial court ment culpa- prove Government must ble, criminal In Graves v. United intent. DUSEN, (dissenting): Judge VAN Circuit States, 252 F.2d the court stated Government dissent respectfully majority’s I from the prove ‘willfully must the accused holding that the district court committed no ** * neglected to exercise excluding the [his] error in defendant’s testimo- his failure to for in- ny explaining duty.’ ‘Manual on Uniform Jury In- 8, 1972, on December in accordance duction structions Federal Criminal Cases’ of with the order of local Selective Service the United District Court for the testimony Illinois, Board.1 was excluded both Northern District of' 33 F.R.D. per- your why bail was asked the defendant he did continue 1. When ‘I will “. get you on December that when recognizance’ not the sonal testimony given by following him get was you a notice your know— notice— 140-41): judge (N.T. the trial stricken court. through when the mail that I him report, I informed I have Well, of two reasons. One “A. because Army. service, I into the go into have told not to down I was me and he said my notice got Bridgewater Township. draft judge in this matter care of you take ‘Well, suppose doesn’t first, I said “Q. there another reason? Was induction, up I am scheduled come recruiter refused “A. Because 8,’ have to ‘You and he said December is that me.” ‘Okay’ first’, I said so of this care take judge granted the trial defense Thereafter counsel the any to to notice got . . . I never then opportunity to make an offer of [1973].” until . Court. proof by questioning the defendant under oath resisting Ultimately in 1973 indicted he was jury concerning presence these out of the of the arrest. by given for not two the defendant reasons reporting (N.T. 150-59). for induction on December Also, he tried to enlist he testified that when Navy by he was told in November in the that in defendant testified October “you have a court case com- recruiter friends had been told to move on he and some by you accept ing up into we can’t and ... they congregating policeman when were Navy” (N.T. Bridgewater Township public place in in a by When he was called the Clerk of the Draft away policeman. He run from the he had Board, inquired why report, who he did not subsequently charged loitering with and resist- and a by her “I didn’t told have to because I was told D^4) (see ing Exhibits D-3 and arrest Esposito Mr. that I had to take resisting care of the on arrest for his arrest warrant court matter first and that I was in was served on him at the some kind misdemeanor ” (N.T. 158). Judge Esposito police him at the told of trouble This offer of station. 155): (N.T. by arraignment proof judge (N.T. 159). was denied the trial perform obliga- such purpose (1963), language contains this 4.06): (§ tion. Mathes, “2 ‘Jury in the See, also, “wilfully” as used C. word Hon. William ‘The for Federal Criminal and Forms Instructions (or act means charged crime 7.11, (1961), Cases,’ 27 F.R.D. Section omitted) (or omission) was committed language is used: where this with knowl- voluntarily, defendant by done, “wilfully” if done to act is ‘A failure law, and by prohibited it was edge specific purposely, voluntarily and -with the requires to be law, violating the the law fail to do what purpose intent with done; say, purpose either to with bad is to mistake, good or in accident ” 2 disregard disobey the law.’ or to faith.’ omitted.) (Footnote 1 “on or about The indictment mind in which a state of is “Wilfulness December, 1972 . day of 8th obliga- of his fully aware defendant being required by law un- defendant] [the for induc- the order comply tions 7,1972 November order dated a written der intention, requires Wilfulness tion. for induction . failure, re- an inadvertent than rather 8, 1972, knowingly and will- part. the defendant’s port appear neglected failed and fully of 50 violation U.S.C. such induction [in language United States v. Vi- “This found the defendant jury § 462].” tiello, 1963), charge in the indict- above of the guilty applicable to this record: equally ment.3 * * * * * * ‘It was error thoroughly demolished the Wigmore has might find instruct * * * adopted past by some courts position “willfulness” conduct testify to his own party could not by merely characterized careless disre- mind, pointing state of out that intent or legal obligation or in gard of acts that jurisdiction still only one United States capricious merely justified or not were Wigmore view. on Evi- adopts this See legali- reasonable belief in their by any page 714 ed. dence § ty-’ Supreme of the United States decisions case, the page “In that court said at of the United States Courts of Court 242: pocket cited in note Appeals are which define an act as ‘Instructions States, v. United Crawford part. ground “without when done willful 53 L.Ed. 465 lawful”, when believing it is “mark- Court said: (1909), the disregard careless whether or not ed act”, right has the so to have been testimony one have been some “There improper trial, this court as rejected dilu- from which infer- during the time required by scienter of the section possibly tions have been drawn as might ences [Citing motive or intent with which cases.] [the but, instead testimo- affirmative statements defendant ‘Our acted] might inferences which such meaning ny of “willfulness” in section drawn, the defendant was enti- predecessor clearly or its exclude have been type negligence, directly of carelessness or oath to state tled was, however inexcusable.’ intention and what were that what induced him to which motives [act]. the “The Government must establish imagine a knowledge legal hardly possible to case obligation of the “It is voluntary necessary was in re- greater action or omission care with where the rely proofs repeated which fail to show be able to This same instruction is in 1 Devitt Blackmar, Jury amending Federal Practice and without at least & Instruc- of mind such a state 1970), tions ed. 16.14. See also 16.13 § § a so verdict that the the indictment referring to 16.13. 51.13 charge some notice of the has defendant upon to refute. that, he is called appear the Government It would willfulness, charges a defendant with should induction for because he did not want and ad- to proper of the exclusion to

gard get army; into the he was not allowed in the case before than evidence missible said, entirely opportunity explain the why. it was to When weAs us. was asked if he possible jury might the defendant refused to that believe . wilfully, prosecutor’s objection report per- that the defendant was sustained, question was fectly innocent. proper No material and upon ruled that was one evidence issue court should have excluded, determined from solely and the error of law to be been committed not, interrogation Further of opinion, clearly was in our shown facts. defend- point been harmless.” this ceased. ant at “Although replete the record is significant during It is the course of its part of wilfulness on the evidence of de- judge sent the trial deliberations a report induction, fendant message concerning testimony given by the think that he should not have been morning4 and the “judge’s defendant it, opportunity deny of the relating deprived willfully instruction failed” any possible explanation (N.T. 182). The to offer for his judge repeated his charge short, (N.T. 183) right conduct. while the on willfulness and the foreman question posed of the asked him to reread that answer the may him (N.T. 185). Hence, little, a third time have availed him he record should not that the jury right; makes clear was denied that troubled con- have been and his con- cerning proof the Government’s can thus not be req- of the viction allowed to uisite state of mind of the defendant be- stand.” reasonable doubt. yond a majority opinion itself concedes in footnote 1 that the statements made to the Bowen, In United States v. defendant the state could have the court made clear affected his mental state on the date that defendant with a willful appear induction, he failed to using this failure to for induction is entitled to language: offer of his state of per- mind in “1. We realize that the statement forming alleged criminal act or omis- ‘Youhave to take care of this first’ could sion, using language page at 197: ambiguous: we assume magistrate “The one contention that we find meri- meant that Irwin would not be able to torious is that at trial defendant was his pending avoid criminal charge by join- deprived right of his to defend himself. ing army; have interpret- charge against

“The essence of the de- the statement ed mean that he need fendant was a wilful failure to draft, not even for the as ordered, At trial induction. the defendant was township until the charges had been set- permitted to state that he did (Emphasis supplied.) tled.” accurately pages 1051-1052, See indicates. the second 4. The date October opinion, pages majority 1058-1059 day two-day below. trial. of 6. The footnote also indicates that if the defend- agree paragraph 5. 1 do not with the second had informed his Draft ant Board that he was majority, attempting footnote to brush relying judge, on the statement of the state aside Bowen case with the comment “this suit would all likelihood never have (majority “the case has not been followed” nothing support arisen.” I find the record to opinion p. 1051), right because of ((Selective such an inference. The evidence testify defendant as to his intent or reasons System Report Information, Service dated alleged for action at the time of an criminal act (SS 119) Form Exhibit G- or omission has been so well established as a 1)), that the defendant did tell shows the Clerk requirement process of due in criminal cases Board, Draft when she called him after infrequently appeal. it is an issue on See explanation, December 8 for an that he was _pages text above at 1055-1056. In the same [report told “that he didn’t have to for induc- footnote, majority suggest by seems to its Although tion on the 8th of December].” Wigmore p. citation to § that intent apparently judge refer did not to a as the necessary information, is not a element of 50 source of his I note that under the 462(a). case, majority Judge § This is not the as opinions the of Freedman in United States v. spite of this concession and the burden belief, In may “Mr. Irwin’s whatever it have beyond been, prosecution prove anything may the a rea- or he have been told by anyone other than his re- Selective doubt that defendant failed to Serv- sonable ice Board about whether or not he was voluntarily induction and with port obliged to report for induction cannot be prohibited knowledge that his omission was you by considered in this case.”7 purpose violating of law and with the by above), (see page trial Defendant law contends the fact-finder can (N.T. 178): judge infer the intent with which he failed and Turner, 1970), Judge conglomerate peculiar and a nature of to itself. Craig, Intent, then, Maris in United States v. (3d F.2d 888 . . . The idea of criminal appears unlikely partakes usually deliberateness, it that Irwin of knowl- object, edge, like; have had a trial this case. These would its absence often personnel by mistake, faith, and its good cases hold that the Board indicated the ideas of registrants belief, should not treat as adversaries with reasonable and the like. far So as try affirmatively straight- concerned, counsel but should of evidence emotion, it is the evidence of registrant knowledge, information en out secured from the design of or of has a equivocal. bearing only emotion, it is Confusion arose here knowledge, so far as or judge Espo- design by the state court because was named or enter the criminal law as con- public a words, sito and defender had the same name. of stituents criminal Intent. In other thought special (with The defendant the Draft Board Clerk there is no evidence of Intent referring Judge Esposito exception mentioned) apart when she to be from Esposito (Public Defender) Emotion, Knowledge, asked him “did Mr. of of of De- (see sign. have him in his office” above). SS Form 119 If those elements affect criminal Intent (as they usually do), then whatever evidence prove would serve to those elements would counsel, at 7. Defense the conclusion of the receivable, peculiar princi- be but no new or charge, objected to this instruction and ple of evidence would be involved. permit judge of the trial failure is, however, “There one element in Intent Form described in note or receive previously above, which is distinct from of those (N.T. 181). excluded evidence De- may have to be thus shown different objected ruling fense counsel to this of the trial of evidence. This is the element deliberate- throughout at N.T. 119 trial: wilfulness, negative ness or of inadvert- —the ence, Thus, incorrectly “. the Court has concluded that accident. one who pre- figures evidence of what the defendant it is writes the may of addition a column of say by Municipal inadvertently intentionally; sumed will was told do so or one recruiting Magistrate or lamp can- who knocks over [officer] and sets fire to a may inadvertently received not be in evidence that neither house so or do deliberate- possible ly. item nor the fact of his arrest and This element is distinct from that of unacceptability ignorance, through ignorance for induction constitute a de- (i. or mistake guilt e., knowledge). instance, fense of or of innocence the absence of For of may for induction. one who utters a counterfeit bill appropriate counterfeit, may are pay These matters are known it to be by but it out inadvertence, having a court to take into account on sentence and drawn from the wrong part pocket-book. So, do not to the issue trial here.” of his on the judge’s hand, the trial Both of statements were incor- one who other sells tainted milk does Wigmore 242, accident, though rect a matter of law. See 2 ignorant as not sell he is 38-39, following pp. wording: quality. words, which has the may of its bad other one Principle. knowledge yet of deliberately, “§ General state lack act or accompanies may knowledge yet mind which an act is often of one act inad- legal consequence ingredient vertently. forming as an “Thus, necessary of for the attachment certain con- this distinct element in criminal In- sequences. voluntary tent consists not alone “(1) (i. action), Criminal Intent. state mind of the movement muscles e. in nor accompanying frequently yet knowledge act, a forbidden act is in a nature of two, an element material to make the spe- act crime. but in the combination the —the act, mind is “. . This also to be state cific will to i. e. the volition exercised distinguished design plan, which, or as with conscious reference to whatever knowl- aim, already purpose edge subject noted . is a or the actor has on the of the act. necessarily considered with reference to its future fulfil- “We do not show this in show- ing and, knowledge; conversely, ment. find Intent, crimes, may “The notion of this conceded and still have to show criminal also, sense, pur- knowledge.” in a broad that of ultimate pose object, regarded simply (Footnote omitted.) but it is act, co-existing mind state of with the See also id.

1058 Decem majority’s on The analysis report that the to exclusion neglected of the state court by of the offered defendant the statements from ber 8 justified by alleged the to him.8 rule recruiting officer that “motives the judge for not reporting for induction an im are may have had irrele- conversations These vant” (page 1051 of opinion) failed seems to me with which intent the on pact incorrect principle9 on and inconsistent Whether induction. to with this court’s holding that issues not constitute a to sufficient impact this raised in the district court may not be con- matter charge was a the criminal defense appeal, sidered particularly in a case the facts jury from all by the inferred such as this where an instruction on this reasonably would circumstances point, as stated in 1 Devitt & Blackmar v. Morissette mind. See state of his show 13.05, § could so easily have given been States, 342 U.S. 246, 274-76, 72 S.Ct. United jury the if either party had requested it in is true that (1952). It 288 240, 96 L.Ed. the district court.10 the broad within question relevancy is upon United majority’s reliance The to decide. the trial discretion Boardman, (1st 110 Cir. 419 F.2d the intent was the defendant’s case Malinowski, 1969), and United States one. was a close issue only case), 1973) (a (3d federal tax Cir. F.2d circumstances, jury was the these Under inapplicable by appellant, are relied it which facts before all to have entitled it is cases In both case. facts of this of the defend on the state reasonably bore permitted were the defendants evident mind. ant’s by rejecting “good was also shown de- state of mind 8. Such While the defense of a faith to the Draft Board fendant’s statement Clerk belief’ on the facts of the case then before above). (see note December 18 courts, however, them, sug- noted or several gested possibility of such defense federal instructions state 9. The standard See, g., appropriate e. United States v. case. of the accused is immaterial that “the motive Mercado, 1973); (2d 478 F.2d Cir. may except as aid in insofar evidence of motive Medina, 462 F.2d cf. United States (em- of state of mind or intent" determination cases, 1972). (10th In two the de- supplied). phasis 1 Devitt Blackmar See & they testify 13.05, 1970). Wigmore fendants were allowed to had p. 276 ed. Dean § Medina, supra clearly pointed See in his discussion of talked to a recruiter. out has ., “conceiving 1111; Ebey, supra an emotion . motive at 377. action, appropriate ensuing probability majority as the defendant’s contends always (emphasis it is relevant recruiter “bars conversation with Wigmore p. original). see also § credibly claiming thought that he [him] 119; Wigmore 300 & §§ §§117 magistrate’s him from comments relieved duty (majority opinion majority III of the decisions cited Part equally viable An view is at 1052. that the judge may opinion that a trial do not hold a belief recruiter’s statements reinforced testimony portions reject of a defendant’s lawfully magistrate’s that the order defendant have established reasons for which would him the until the state relieved good faith failure to for induction and This criminal action had been settled. observa- negated the “intent” element of emphasizes my tion conclusion that these 462(a). Most of the cases cited are con facts that should have been statements were intent under the defendants’ cerned with part pattern in the only 462(a), in terms of whether there but reasonably which could fabric of circumstances sup evidence on the record was sufficient port See, g., to show his state of mind. See be considered e. United States the verdict. Morissette, 1970). Ebey, supra. In most of 424 F.2d 376 If the defendant was not majority, appears alleged cases cited in his belief truthful order testify were allowed to as to defendants postponed report was due to the state criminal invalidity of the induc honest belief their charge, this was a matter to be established See, appear. reasons for failure to or their tion adversary process of cross-examination. Goodman, g., States v. e. See, g., Advisory Note to F.R. e. Committee’s Cir.), cert. 611(b) and cited therein. Evid. authorities (1971) (attorney allowed to Dansker, medically 10. United testify belief he was as to honest invalid). disqualified induction order was testify concerning their beliefs or mo- tives, see Malinowski at 855 and Boardman 114; thus, the precise issue in this case

was before the court in either of those important

cases. most Second—and —the legal question in those cases did not concern

a contention the defendant that he mis-

understood what law required, thus

negating specific the element of intent.

Rather, before the court

both cases was the statutory whether ele-

ment of “willfullness” mandated that

prosecution prove only that the defend-

ants knowledge acted with the they were

breaching the but statute also that they did purpose.”

so with a “bad or evil See also Pomponio,-U.S.-,

United States v.

--, (1976) (per

curiam).11 reasons,

For foregoing I would re- judgment

verse the of district court and

remand the case for a new trial. NEELY,

Virginia Dare Executrix of the Neely, Deceased, A.

Estate of Charles on behalf of all

his behalf and members similarly situated, Appellant,

of a class of

UNITED STATES America.

No. 76-1113. Appeals,

United States Court Circuit.

Third

Argued Sept.

Decided Dec. jury not have note 1 11. The defendant would committed set forth in above. The voluntary, permitted violation of a intentional known le- was never to hear this testimo- duty ny, gal though he had no if he believed even the defendant entitled to pending until he had taken care state have the determine his intent at the time charge, presence report. as he testified outside of the

Case Details

Case Name: United States v. Bruce Ogilvie Irwin

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 6, 1976

Citation: 546 F.2d 1048

Docket Number: 76-1359

Court Abbreviation: 3rd Cir.