United States v. George Anderson Bowen, Jr.

many years guilty initiated until proof later. We verdict. The was sufficient holding prior considering adhere to our there is without this evidence. appellant’s no basis for that this claims Appellant complains involuntary statement constituted incriminatory appellant’s court’s reference to “demean- in statement violation of general appearance,” or and in view rights appellant’s Fifth Amendment appellant the fact that did take was an search and in unlawful seizúre agree stand. We with the district court violation of the Fourth Amendment.16 that, “The trier’s observation non-witness defendant’s demeanor and IV general appearance may be—and almost Finally, appellant complains of invariably is—considered him in eval judge, first the conduct of trial uating evidence introduced at the trial * * * “refashioning indispensable (citing cases).” Judge Moreover, Wein proof element in the formulation “ specifically stein stated that charges.” first indictment In the guilty conclusion that defendant was trial, upon the Government relied beyond a reasonable doubt was reached “presumption arising from innocence” solely on the record.” pre-indict the failure file returns in Affirmed. years. ap ment proach This court held this judge improper, trial

properly called this conclusion following

Government’s attention. suggestion (362

the 829-830) this court at district did not abuse court

its discretion. UNITED America, STATES of appellant’s merit Nor is there Appellee, contention a fair trial that was denied ref- the “infection of the record with alleged George erence to his criminal notorious BOWEN, Anderson Jr.,

background.” Appellant. supra, appellant As noted resisted the motion to Government’s No. 17409. withdraw its consent to trial without United States Appeals Court of jury. by rea- motion was denied Third Circuit. son of the trial court’s conclusion Argued Jan. 1969. danger

there was “a substantial July severely Decided prejudiced defendant will if (44 jury” he is tried before a at F.R.D. Rehearing Sept. 12, Denied large part upon based in the tes- timony suppression hearing

respect to defendant’s criminal activities.

In an order entered October

Judge granted appellant’s mo- Weinstein appellant’s to strike all references to alleged background activities, of illicit saying part: “The Court will

base its decision on defendant’s crim- background, any.” inal if We find no gave evidence that the trial

weight appellant’s to the evidence of arriving

criminal activities appellant given 16. The cases relies cases were in connection with the factually distinguishable investigation are in that of the accused. statements under consideration in those Joseph McMahon, Lum, R. Biunno &

Tompkins, Newark, appellant. Scher, Atty., Newark, Elliot Asst. U. S. Satz, Jr., Newark, Atty., David M. U. S. brief, appellee. HASTIE, Judge, Before Chief and MC STAHL, LAUGHLIN and Circuit Judges. OPINION OF THE COURT STAHL, Judge Circuit George Bowen, claiming Jr., Anderson objector, to be a conscientious sen years imprisonment, tenced to five term,1 failing maximum induction scheduled for December App. in violation of 50 U.S.C. 2462 A motion for a trial or for new judgment acquittal denied. following summary The is a facts of this case: April 27, 1962: registered with (Trial his local Selective Service Board. Transcript (TT) p. 5.) Fallon, transcript Appellant’s part 3. The trial See United pages Cir.), Appendix. transcript separately 23 L.Ed.2d 220 are numbered. appellant’s 2. This was second trial. jury. hung in a resulted first one papers 1-A. were in order and July classified therefore He was 1964: (TT. p. 84.) (Minutes (MA) he need not attend. contained of Action 6-7.) pp.

Appellant’s Appendix; TT. December 22 1965: The board sent following notice, (form) Bowen Bowen letter: After June 1965: given preinduc- appeared for and was Bowen, Dear Mr. Jr. physical. he was same date tion On the you This will advise the recent evidence 100, Classification Form issued SSS concerning your submitted case has Questionnaire, p. sub- he TT. been reviewed local this board but sequently completed returned. and justify re-opening it does not signed name after his that form Bowen your your case and reconsideration following printed statement: present classification. objector I to conscientious claim be will, therefore, subject You be to training my religious reason processing induction. No- further request and therefore belief you tices be to will mailed in due Special local board to furnish me course. Objector (SSS Form for Conscientious truly yours, Very 150). Ap- (Appellant’s Form No. Reilly Lois R. /s/ pendix.) For the Chairman July 12, mailed 1965: Bowen Local Board No. 150, necessary Forms first of two SSS added; Appellant’s Ap- see claim for the local board consider pendix p. 40.) and TT. objector (TT. status. for conscientious pause point We at this the recita- 12-13.) pp. on of the facts to comment 22,1965: the board November Because It con- letter. stated that the board may re that Bowen not have believed con- sidered “recent evidence submitted Form 150 or overlooked the SSS ceived cerning your We have case.” reviewed July one. sent on it sent another including record, the entire the Selective (TT. 13.) he p. Bowen testified appellant, as the Service file receive either forms.4 testimony of the witness Government’s 83.) (TT. p. indicated, no new evidence was sub- mailed mitted the board its consideration. December 1965: The board Moreover, paragraph report of the let- for induction the last Bowen an order to (MA). especially inti- ter troublesome. scheduled December pro- mates that there will be “further sent 1965: board December cessing for induction” and that further informing him that he Bowen a notice proc- sent. No further notices will be meeting could attend a the board essing appears required have been (TT. p. held on December nothing ap- in fact mailed to else was 37). copy of adduced No this letter was pellant. deny receipt of at trial. Bowen did not counsel, Although testified raised we it. witness The Government’s confusing help specific na- cannot but note the the letter contained might con- ture of this letter. Had Bowen claimed reference to what the board (i. e., pending dependency un- that as result the letter sider Bowen’s continuing validity of ob- certain about claim or his claim for conscientious induction, may jector status), except to indicate that the notice your going to the discuss been a sufficient defense the board would meet “to ap- (TT. 38.) p. of his conduct. did case.” Bowen willfulness Cf. meeting Rabb, (TT. pear 394 F.2d 230 States v. at the December 20 Although 1968). is not issue p. he felt all Bowen testified deny pointed other forms Bowen did not It should be out that the local board. 1968), appeal, dispositive mention it Cir. disturbing question L.Ed.2d 713 it raises

because comport with it would whether give A failure uphold a criminal process of law to due quested prior 150, on or per- predicated on failure to conviction induction, the scheduled has been date of regarding the notice form a where held to a conviction for vitiate failure ambigu- may performance such report Unit- induction. Boswell v. ous. 1968) ed 390 F.2d (the request made the form was with the facts. We continue following induction, on the for induction on Decem- notice of failed later, scheduled); day year before the induction was Almost a ber Stafford, to the United Bowen went States v. December (2nd (the (TT. p. 1968) request made office of the draft board by day by being on home means after visited his induction agent (TT. p. 85). At the a written statement to the induc- board’s handed FBI station).6 requested for tion he Form 150 officer at the induction office SSS Although McNeal, objectors. re- 1 The clerk United conscientious States v. give (TT. pp. (N.D.Cal.1968), Sel.Serv.L.Rep. 45- form fused to him the 3227 Instead, clerk, upon telephonic sup- held that a local failure to board’s office, ply report hand- from the state Form to for instructions refusal 150 after conviction, appear for induc- ed to induction was fatal to a Bowen notice (TT. 47). Ap- following day p. Circuit, joined by tion Ninth First Cir- cuit, despite report subsequently pellant induction did not for ruled day prosecution mandatory duty next ordered. The board’s to furnish as noted, here, form, following a re- it should be failure to do and conviction so report not for on the fusal to to induction does were failure submit first e., induction, underpinning for i. Decem- a convic- scheduled remove date 29, reporting for for induction. 1965.5 tion not ber Palmer v. United 401 F.2d controlling, pause we While (9th Stop- 1968); Cir. United States v. the failure once to observe more 1969).7 pelman, (1st F.2d Cir. give Form Bowen an the clerk to rate, grounds. on At other we reverse mandatory of a 150 was violation ,1966, 1, by Regardless duty imposed 1621.11. of the December 32 C.F.R. § Stoppelman, supply 406 F.2d Form 150 subse- United refusal States 1969) ; 127, quent report (1st for induc- Cir. to the failure to argued, tion, Kroll, (3d appellant has counsel v. William pass Thus, not need to on return the executed 5. we do and he did not report validity second notice of induction form until the refusal after report application appellant December on induction. The court held the issued to objector for conscientious status should 1966. by For the board. considered States, 407 F.2d 1397 In Blades v. United facts, a like on similar decision 1969), refused to fol- the court lying Stafford, see United States similarly appellant where low Stafford Blaisdell, F.Supp. (D.Me.1968). a statement induction officer handed Stoppelman, 406 F.2d In United States v. day mailed he had on the of induction that 1969) (see (1st text 131 n. night before. 150 to his board Form infra), First con- at note Circuit receive the form until The board pre-refusal-of-induc- sidered Blaisdell as a day scheduled induction. after type case. Hinch, F.Supp. States v. Kroll, (W.D.Mo.1968), in which the court Cf. United States William Stafford, a notice to 925-926 followed January 11, 1968, was issued induction January 22, 1967. On L.Ed.2d December appellant requested received the agree, obviously judge, part the board The trial in the italicized mandatory supply duty charge, had a which the Government prior specifically referring requested, with the form of in- the notice duction, 1621.11, Regulation, and that 32 C.F.R. Selective Service entitled by the failure do so would vitiate “Communication Mail.” 32 C.F.R. § conviction. 1641.3: Boswell supra. The Government asserts Communication Mail. It shall be mailing duty by the board fulfilled this registrant keep of each blank SSS Forms 150 to Bowen on two his local board at all times advised occasions, 12, 1965, July and November the address where mail him. will reach issuing to re- before the order mailing any order, notice, port induction. Bowen denied re- blank the local board to a form ceipt of the form at time and either reported at the address last claimed, therefore, had board by him to the local shall con- board complied mandatory duty. with this stitute notice to him contents charged On this issue the court below communication, whether follows: actually (Em- receives or not. Admittedly all matters phasis added.) ordinary defendant were sent mail. reading From our recall, returned, None of Ias is unclear whether in postal as undelivered au- structed that the critical issue of requirement thorities. There is objector of the conscientious forms was law, gentlemen, ladies and that governed by presumption,8 a rebuttable mail, notices must be sent certified viz., presumed that mail sent is to be registered mail, any special or or in jury received unless the the evi believes perfectly proper manner. It is use contrary, dence to the or that under the ordinary presumption mail. And the applicable regulation an Selective Service is that mail so In- is received. “irrebuttable controlled. deed, Regu- a under Selective Service way knowing As we have no of which notice, mailing any order, lation the of jury alternative instruction the selected form, registrant or blank at the ap or followed in its determination reported by address last to his pellant’s guilt, required re we are board, local shall constitute notice validity aspects view the of both him the contents the communica- charge. invalid, ground If either is actually it whether he receives Leary conviction must be reversed: v. or not. States, 1532, 6, United 395 U.S. 89 S.Ct. course, you Of it is for to determine 9 (1969); 23 L.Ed.2d 57 Street v. New and evaluate facts the case. But York, 1354, 576, 89 22 U.S. you yourselves are not to concern with (1969); L.Ed.2d 572 York Times New propriety of the defendant’s clas- Sullivan, U.S. sification as a 1-A 710, (1964); 11 L.Ed.2d 686 Yates v. local add- board. 298, ed; 113-114.) pp. TT. 354 U.S. 77 S.Ct. charge Instructing Jury Upon Presumptions 8. We note that nowhere in the did explain operative Proof, the court effect of and Burden of 47 Harv.L.Rev. 59 presumption. required (1933). When it is that jury presumptions, be told about long lias been settled that “It when ordinary supposed be should not case is submitted to the on alterna- juror complexity understands of that unconstitutionality tive theories Presump legal Soules, term of art. See any requires of the theories the con- Bay.L.Rev. Cases, tions in Criminal See, be g., viction set aside. e. Strom- (1968) ; Mathes, Jury 277, Instruc berg California, 359, 283 U.S. 51 S.Ct. tions Forms for Federal 532, Criminal (1931).” 75 L.Ed. 1117 395 U.S. Cases, ; Morgan, 39, (1961) 31, F.R.D. 89 S.Ct. at 1545. notice, (1957);10 volved the issue of 1064, Cramer critical 1 L.Ed.2d 1356 regulation cannot 36 n. stand. We believe regulation (1945); Wil- be unconstitutional as viola L.Ed. 65 S.Ct. Carolina, tive of the due of the Fifth U.S. clause North liams v. (1942); purports Amendment insofar 87 L.Ed. 63 S.Ct. California, presump establish such an Stromberg irrebuttable tion. 367-368, L.Ed. agency, No administrative nor [(cid:127)4] judge was the trial seem would Since legislature, may proof even a make charge with in accordance required to proof of one fact conclusive another (or regulation, find the mail criminal, any proceeding, fact or civil legal in- regulation subject to a private party.13 to the detriment of a determine), ultimately firmity as we regulation especially Such a is offensive stringent part the more since this was disproof when the “fact” latter it now.11 we examine may be critical the establishment prosecution. defense a criminal This n regulatio creates in effect our ease. presump or conclusive “irrebuttable prove If could Such Bowen is received. mail sent tion” then irrelevant would make of defendant-appellant did mandatory duty board did not fulfill its did prove he might it, nullifying validity supply offered fer thus if we were charged Even forms. not receive the of the induction notice in dealing ignored. to have If reached “* proper rule wholly think existence [W]e fact’s immaterial requires a applied purpose proponent’s case; is that provide where in cases aside to he set and to [footnote omitted] verdict ground, supportable but on one is to make a rule of substantive verdict impossible to another, apportioning is and it not a rule the not on burden of persuading ground propositions selected. the as to certain tell which ” * * * 312, varying at coming 77 U.S. or the forward 354 * * * Wigmore, with evidence. 9 1073. 1940). (3d Evidence 2492 ed. objection trial was made 11. While Wigmore, In deference to Professor we construc of the because court’s quotation have surrounded with marks it, lan place “we think on presump- term “irrebuttable or conclusive ‘plain charge er guage constituted tion,” illegitimate an unwanted and child sort, prejudicial re which a a ror’ of viewing relationship conceived from the illicit be- may should correct court tween the rules of rules evidence savings Rule clause of authorized of substantive law. See discussion of Pro 52(b), of Criminal Rules Federal Donnan, Heiner v. infra. * *." * Vitiel v. States United cedure 1966). 240, Cir. lo, 243 F.2d 363 every do not We hold that “conclusive States, 404 v. United Proctor See necessarily is unconstitu 1968) ; (D.C.Cir. 819, United 822 F.2d only pre tional. so when such a (6th Rybicki, 599 Cir. F.2d 403 v. adversely States sumption rights affects States, 1968). 409 Howze Cf. private parties. may The Government (9th 27, Cir. F.2d policy binding have valid reasons for it Wigmore agree pre self to a We with Professor when conclusive or irrebuttable sumption, says: Jones, see States v. 278, (9th strictness, be such cannot F.2d there 288-289 or a In presumption.” pre thing statute the form of a conclusive “conclusive as a may sumption prop said another is be fix fact intended to from one Wherever conclusively presumed, er rule of substantive see Bowers v. to be absolutely States, (5th opponent 226 F.2d 424 United 1955) ; sense any City showing by Richey evidence of New Port Fi precluded v. from exist, delity Deposit Co., 348, 351, not & fact does second that, 1939); providing really where the 123 A.B.R. 1352 Ann rule is ot., exist, 1138, (1965). the second 13 L.Ed.2d is shown first fact Annot., (1943); aspect S.Cal.Rev. 245 13 L. based its decision (1965); Annot., charge 162 A.L.R. Ed.2d 1138 patterned the Selective Ser- after receipt of regulation governing the vice mail, prohibited con- from nature A rational connection of this sidering claimed defense Bowen’s may here, very present there well be but forms, if even he did between an immeasurable difference they him. to believe inclined were operative of a effect rebuttable absolutely sumption dealing bars “irrebut and a rule that here areWe party presenting evidence are from presumption”; therefore we apply proc applying on an issue whatsoever. To the due precluded from give legisla- governing same test to both test would connection ess rational agency presumptions.” test re or an administrative That ture “rebuttable power deprive statutory pre defendant a criminal quires criminal “that a litigant day in on regarded or civil of his sumption as ‘irration must be probability of a rational ‘arbitrary,’ unconstitu basis hence or al’ tional, connection.14 least be said with unless it can at presumed assurance substantial today are make observations we likely from not to flow more than fact is penned Lurton new. Justice made to proved which it fact these oft-cited words: ” * * Leary v. United depend. legislative That a 89 S.Ct. 395 U.S. may Romano, one from of another fact 1548, (1969); v. United States not constitute a denial of due 15 L.Ed.2d 86 S.Ct. pro- equal Gainey, of law denial (1965); United only tection of the it is essential law 13 L.Ed.2d U.S. con- rational there shall some (1965); Tot proved and the fact nection between 87 L.Ed. presumed, and that the ultimate fact Margeson, 259 (1943); United States proof from the inference one fact (E.D.Pa.1966); Gov F.Supp. Torres, unreason- of another shall not be so Virgin ernment of Islands arbitrary purely man- V.I.1958) able as to be (opinion (D. F.Supp. 699 not, So, also, under it must date. Judge Morgan, Maris); Observa Some presentation Concerning Presumptions, guise regulating tions Morgan, preclude evidence, operate (1931); Fur Harv.L.Rev. 906 right Presumptions, present party Ms ther Observations from position Leary, reiterated his takes In Justice Black 14. Justice Black support position, saying, any presumption for which lends * ** constitutionally imper- system separa- Under our a is a conviction powers Congress just institutional as in- with the tion of missible interference jury competent judge power determine and the to alone to instruct Gainey, Black In Justice in an American court evi- a case. what facts of enough said, dence is for conviction as * * * Congress policies consti- it flaunts the courts are to tell I think what juries they adopt writing power criminal of courts must tutional congressional presumption, Congress “shall be them what laws. The to tell therefore, to authorize violates constitutional deemed sufficient Congress right not could to And if of a defendant be tried conviction.” upon judge’s directly up in a court set in accordance with the encroach thus right jury’s what to declare commands of the Constitution. It clear- exclusive prove ly deprives right the facts a defendant of his not evidence is sufficient conviction, punished necessary not it should be convicted for a crime * ** merely by labeling process law, without due to do so be allowed “presumption.” Leary 6, 395 U.S. encroachment a its * * * Gainey, 55, 1532, 1558, (1969) (con- v. 89 S.Ct. (1964) curring opinion). 63, 77, 85 S.Ct. U.S. (dissenting opinion). main thus in this provide manner fact defense arbitrary sumed. power, exercise of so as to deprive person day a of his in court legislative provision If not un- a rights. to vindicate his And the law prescribing rule reasonable in itself absolutely which closes his mouth when evidence, in either criminal or civil same, into comes court is the in ef- cases, party not shut out from the does fect, deprives as the law which opportunity affected a reasonable ** * day of his in court.’ Clear- jury in all of submit to the his defense ly, legislature what cannot do it- bearing issue, upon the there the facts self is ultra vires an administrative proc- ground holding that due is no body delegated only legislative denied him. Mo- ess of law been has power. bile, Turnipseed, 219 R. & K. R. J. C. Schlesinger Wisconsin, In 35, 43, U.S. U.S. S.Ct. added.) (1926), (1910). 70 L.Ed. 557 L.Ed. 78 Supreme (See Manley Georgia, Court held state inheri- “conclusively pre- tance tax statute which 1, 5-6, L.Ed. 575 gift sumed” that made within six (1929).) years of the donor’s death was made McLaugh Products Co. v. Carolene contemplation death, and therefore 447, 450 (1936), lin, 365 Ill. 5 N.E.2d subject tax, unconstitutional Supreme un the Illinois Court declared process violative of the due clause of the provision of state constitutional Fourteenth Amendment. “conclusively pre Filled Milk Law which taxing provision A similar federal fraud elements of the seller’s sumed” the held to violate the Fifth Amendment the described whenever adulteration process due clause. It was not “material Supreme product The Illinois sold. the Fourteenth Amendment in Court stated: Schlesinger Case, volved instead Legislature possess the does Amendment, of the Fifth as here. The power be con- declare what shall imposed legislation restraint as such of a fact clusive evidence process due clauses the two amend an invasion a declaration would be ” ** * ments is same. Heiner * judiciary. power Donnan, 312, 326, creating statute [A] 76 L.Ed. 772 Justice deny oppor- operates fair Sutherland, Court, speaking for the com tunity the due rebut it contravenes argument mented Heiner the Fourteenth clause of legislature power has the to enact Amendment the Federal Constitu- “conclusive ac which is tion. tually a rule of substantive law: decision, Juster In another state [Wjhether presump- Christgau, 7 N.W. 214 Minn. Bros. v. tion be treated as a rule of evidence (1943), Supreme Court 2d or of substantive constitutes an unconstitutional of Minnesota held attempt, by legislative fiat, enact compensation unemployment into existence a fact which here does prov employer prohibited from which not, to, cannot and be made -exist disqualification un ing any employee’s same, actuality, and the result is the employer, at the time if the der the act ready unless we are to overrule notify separation, em to failed Schlesinger not; case, as we are grounds disqualifi ployee such case dealt a conclusive court The said: cation. presumption, and held court legislature regard ques- itself does invalid without to the Even shall power to what tion of its declare technical characterization. contrary This court has held once be conclusive more than * legislature creating presumption can- a statute ‘The fact. case, deny oppor- predicated directly operates to a fair the instant which proc- regulation, tunity it violates the due mail to rebut Selective Service Amend- C.F.R. of the Fourteenth 1641.3. § ess clause ment. DeNarvaez, nonjury trial, In de- body pow- receiving legislative fendant denied If a without number of no- rule evidence a sent er as a tices at different addresses enact right litigant denying as he and moved from time to statute traveled case, certainly prove facts of his time back and from forth emerge power cannot made to America. court South said guise receipt putting the enactment defendant’s denial of the_ rule law. U.S. various letters of a of substantive the local board credibility, “an at 362.15 was court, issue the trial 52 S.Ct. it, uniquely situated resolve is de- wish to make clear that what We could find that his claim was untrue.” mail fective about Selective Service 407 F.2d at 188. The court said fur- 1641.3, regulation, is that 32 C.F.R. § letter, only “If ther: there were one conclusive. perhaps we could the claim that credit Griffin, F.2d 899 United States astray. above, it went But as indicated 1967), (2d the Govern- cited many are there too notices unaccounted ment, inapposite. There the ” * * * for. Id. mail- relied ing The court DeNarvaez Unit relied Questionnaire of the Classification Davis, supra, Hagner ed States v. known constitutes address last to the States, U.S. support- unless information notice that (1932). Hagner, 76 L.Ed. 861 follow ing exemption within received ing Walker, infra, Rosenthal note be clas- will certain time articulated the rebuttable 1622.1(c). In C.F.R. sified 1-A. 32 Griffin, (cid:127) properly rule that a letter actually mailed was however, the defendant person received to whom' receiving deny questionnaire. the mailed addressed and that the burden is cases other selective service Several contrary. on the addressee to show the predicated on were convictions 430-431, 285 U.S. at 52 S.Ct. 417. receiving, defendants denied notices the Davis, supra, In also United States v. DeNarvaez, United States jury case, a non asserted defendant 1969), petition (2d for cert. failed his classifica- 1969) (May filed, 37 U.S.L.W. tion notice and other notices Davis, (No. 1417); United States should be an indictment defense (D.Conn.1967), per aff’d F.Supp. 920 curiam, 390 F.2d 879 comply for failure to with an order to Cir.), physical for a examination. defense, disposing the district Whitney v. (1968); L.Ed.2d 137 court said: distinguishable. Each gives are The Court also no credence to the rebuttable relied on the eases defendant’s these presumption contention he did mail, see ceive notice of his classification and infra, on the “irrebut and not note 17 his administrative remedies. de- the dis presumption” history contained fendant’s of inordinate indif- jury in many instructions ference trict court’s board’s orders require Although prompt “con- here with a we deal will their elimina- by regu- established clusive tion. United States v. Provident Trust Co., lation, law we note that common subject similarly (Emphasis added). sumptions (1934) to con- are L.Ed. 793 See newly vigilance Leary if established and stant United 395 U.S. (1969). ex- from their “clearest facts detract 89 S.Ct. 1532 policy,” pediency due and soundest

1277 alone, Communications, adequate is appeal as in the we have under finding. justification al- for this See consideration.16 so, (1962), 32 1641.3 Selec- C.F.R. § wrong nothing There would be with a * * * Regulations. tive Service regulation today’s based human ex- F.Supp. at 922. perience which would establish the re- buttable presumption mail that sent cited the the court Selective While received.17 portion Thus the of the low- regulation here mail which we Service charge stating er court’s pre- that “the improper part of hold have been * * * sumption is that mail apparent it is the district court’s received,” standing alone, would not opin- from an of court’s examination charge render the defective. in it ion that since refers to Davis defendant, credibility Having it did of improp- determined it that was rely on “irrebuttable er for charge the lower court to cite its rather 1641.3 but created 32 C.F.R. § regulation, Selective mail Service presump- rebuttable law 1641.3, way clearly common C.F.R. in a concerning of mail. made it seem to be an irrebuttable sumption, compelled we are to reverse the Hagner Whitney v. United followed possibility conviction because States, supra, therefore must be portion charge may this of the presumption classified as rebuttable jury’s Leary at the root of the verdict. case. supra 9; States, v. United note Yates v. It can thus seen none States, supra United note 10.18 the Selective above cases was Service Following conviction, appellant utilized form had mail judgment charge for a moved new trial or presumption in a an irrebuttable Supreme In Rosenthal Court said: other 16. From and the cases and Griffin 1622.1(c) reading is well that if a rule settled letter C.F.R. §§ from a of 32 properly proved recognize 1641.3, directed is been the under put post regula either office or de- mail into behind the standable reason postman, presumed, reg try livered to it is make sure that tions is to from the business keep known course of their local hoards informed istrants post department, changes office Yet there should of address. regular enforcing reached at its destination means be other effective time, person creating policy and was received invalid “irrebut without * * * that, case, presumptions” whom it was addressed. as in Huntley Whittier, 105 Mass. 391. work the detriment Selective by Gray, J., system. As was said in the case last Cf. Kokotan Service cited, presumption arising (10th 1969), States, “the so 408 F.2d upholding but conclusive for failure conviction to com fact, ply mere inference of founded notice of induction where the with a probability gov keep the officers in had failed to board defendant ernment and the will do their his current address and formed of business, usual and when had course of the hoard done all court concluded opposed by reasonably required evidence that letters that was determine received, weighed registrant’s never were must be whereabouts. all the other circumstances States, Hagner 17. See case, determining (1932) ; L.Ed. 861 question whether the letters were actu Walker, 111 (1884) Rosenthal v. ally or not.” received ; Charlson 28 L.Ed. added.) 193-194, U.S. at Realty States, Co. United ; (1967) 181 Ct.Cl. 262 National 18. Cf. Newark v. Terminal Con Boswell v. United State Bank of Corp., F.Supp. (D. selective service struction nonjury case, curiam, N.J.1963), per where in a a conviction aff’d F.2d 315 1964) ; Co. v. trial was struck because possible Borden down grounds F.Supp. (D.N.J.1957) ; not clear on which of two Presumptions: Lawson, judgment, Law A where one based its Kentucky Confusion, Style, grounds Look at was erroneous. Ky.L.Rev. 7, 40 jury acquittal. do not it was received unless the We believe believes contrary, deny the relief. Because evidence to the or that under latter error regula- applicable motion for Selective of the defective Service granted.19 presumption’ con- tion an ‘irrebuttable trial should new trolled.” Appellant’s conviction will be reversed judge charged The as follows: and the case remanded to the district opin- court for action consistent this “Basically, justify his he seeks ion. religious of his conduct on basis scruples his he was and the fact that McLAUGHLIN, Judge (dis- support. Circuit admitted mother’s He sole senting) ceiving question- . the classification naire; appear and the notice to majority opinion concludes that also admits for induction. He charge jury lower court’s meeting receiving attend a a notice to holding vitally Basically, the defective. board, he that but of his local draft plain error is that lower meeting. not did attend said charge court to cite in its the Selective way however, regulation1 denies, mail “in a Service “The defendant clearly it seem to be irrebuttable ob- made he the conscientious received presumption.” forms, jector The entire foundation 150. No. opinion proposition that be- is the “Admittedly to the all matters sent cause this “irrebuttable ordinary by mail. defendant were considering jury precluded from recall, returned, I of it was as None he not Bowen’s claimed defense that did postal authori- as undelivered (conscientious ob- SSS requirement There ties. majority jector).2 issue the On that gentlemen, that notices ladies and states that: reg- mail, or must be sent certified “ js mail, any special manner. ^ unclear whether or in istered ordinary perfectly proper the critical was instructed that use It is receipt ob- is that issue of conscientious mail. And Indeed, governed by jector a rebut-' under forms was is received. mail so sent omitted) (footnote Regulation presumption, mail- Service Selective form, presumed any to be ing order, mail sent is or notice blank viz. pro- may now the Government as follows: While 1641.3 reads 1. 32 C.F.R. § believe, try appellant anew, ceed to It shall be “Communication Mail. alternative, keep registrant' it would not be of each oppor- inappropriate to afford him the all advised at times local board tunity the conscientious ob- to execute mail will him. The address where reach jector form, mailing order, notice, and to it in blank reg- with the Selective Service form board accordance local reported by Here is man who had indicat- ulations. him to the address last in his local board Classification notice ed board shall constitute the local he to claim Questionnaire desired of the commuuni- to cation, of the contents objector actually but status whose conscientious whether he receives point claim has never reached con- or not.” may the merits. be that sideration on here, proper charge under instruc- on tions, facts on the issue of guilty appellant importance primary be would found is made a particular again. stage, however, majority At the local since the contends taken, mandatory duty supply has under the view we have he not board had ap- properly (32 1621.11) not been It would convicted. to Bowen form C.F.R. pear and, therefore, prove inconsistent with Selective if Bowen could form, to let Bowen fill out Service laws did receive the then the board objector rno.ndatory duty form conscientious for whatever “thus did nullifying fulfill may validity in its consideration local board of the induction existing regula- give charged ignored.” it under discretion notice Bowen is to have tions. reading re- registrant last A common sense of at the address the to a board, opposed interpretation by shall strained local the of ported him his part it, contents the isolated of notice indicates unmistak- constitute of ably jury he actu- whether that the was not misled. Even the communicator of regulation standing if ally it or not. the alone could receives possibly misinterpreted, you course, to deter- is it “Of for overriding simple the court mandate of evaluate the mine and of facts jury was find out what pp. Appellant (Appendix for case.” receipt by fact was as Bowen of the supplied). 114) (Emphasis fairly form. The court the evi- outlined the refer opinion centers The court correctly receipt dence on the issue of regulation (32 1641. C.F.R. § ence jury. for framed that issue The lat- order, mailing any notice 3) of that way “prohibited ter in no from con- registrant form to a blank or sidering that he Bowen’s claimed defense notice reported constitutes last address forms communi the contents to him of of regulation has The been in effect since actually or he receives cation whether During now, that all until time irrebut opinion calls this not. Said any pretension there has been never receipt presumption of or conclusive unconstitutional; any it was never the- majority The Bowen. of the forms orizing up it set a mandate that involving by a line of cases confronted mailing any produced plenary of order defend notices based convictions assumption receipt of there to which receiving, those that in finds ants denied appears no defense. That contention for presumption was a rebuttable decisions time, twenty years later, the first over single however, on, instance in this relied amazing, majority pro- offhand major unexplained reáson some Impartial nouncement which so claims. pronouncement that an ity flat makes a analysis operative of effect receipt presumption of irrebuttable regulation affirmatively shows that DeNar created. See United States comprehends attempt whatsoever (2 1969), petition vaez, F.2d 185 Cir. create a conclusive of re- (May filed, cert. U.S.L.W. ceipt mailing from the of the communi- 1969), (No. 1417); States v. ruling cation. As I see it com- is (D.Conn.1967), F.Supp. Davis, pletely unwarranted. Cir.), (2 curiam, per aff’d regulation directive is that Whitney v. (1968); mailing of L.Ed.2d 137 communication constitutes (5 actually Cir. notice 328 F.2d 888 of its contents whether regulation 1964). is in the received or not. The Nowhere does say imply mailing assertion. Nowhere that the there such an or is absolute any receipt receipt the com particular hint that evidence of there com- disputed. registrant. could not munication munication And the precise judge’s sole al reason in the trial issue for this before us regulation, un stated form lusion he and not Bowen the latter’s registrant mailing knowledge to a it “the sumed der the contents (See con constitute notice to him shall communication. Footnote communication, whether While there is a tents wealth of miscellaneous judge actually majority or opinion not.” receives citations there immediately specifically in deciding regu- thereafter is not one cited as course, question mailing as follows: lation in structed makes the “Of you to and evaluate unimpeachable it is determine the communication sup garding receipt. this case.” its Nor there Se- facts ques plied). important history fact The most lective Service administrative whether tion for the was to decide there mentioned found me which suggests support majority did receive the communication. view. imposed The sentence years confinement. Under

was five provisions parole there Federal liberal undoubtedly ac- much less time

would be Having obvi-

tually in mind the served. by this revealed situation ous factual appeal, reasonable. the sentence in- for unwarranted

offers excuse court. interference

direct From substantial fully justified in de-

appeal, the ciding received that Bowen McQueary, 408 150. See (9

F.2d 493 affirm the conviction.

I would SUPPLY ELECTRIC

WESTINGHOUSE Westinghouse COMPANY, Division Appellant, Corporation, Electric COMPANY

WESLEY CONSTRUCTION al., Appellees. et

No. 25410. Appeals

United States Court Circuit. Fifth 19, 1969.

Aug. 6, 1969.

Rehearing Denied Oct.

Eugene Heiman, C. Richard E. Reckson, Miami, Crary, Fla., & Heiman appellant. Trammell, Clyde Wesley Carey, Jr., G. Perse, Kanner, Edward A. Miami, Fla., Patton & appellees, Wesley Const. Co. and Aetna Cas. & Sur. Co. Carey, Dwyer, Austin, & Sel Cole wood, Miami, Fla., for Continental Cas. Co. SIMPSON,

Before AINSWORTH and Judges, SINGLETON, Circuit Dis Judge. trict

Case Details

Case Name: United States v. George Anderson Bowen, Jr.

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 12, 1969

Citation: 414 F.2d 1268

Docket Number: 17409_1

Court Abbreviation: 3rd Cir.