*1 Ninth Circuit. CARTER, Before DUNIWAY and Cir WEIGEL,* March Judges, cuit District Judge. Rehearing 9,May Denied
MEMORANDUM Defendant was convicted in a court trial of the knowing failure to keep his local draft board advised аt all times of the address where mail would in violation of 50 App. of July 1973, and renumbered 32 C.F.R. § 1641.- 1(a)(1)). registered
Defendant with his local board on April, ques- he returned his classification tionnаire, giving Street, Diego, as his home address and his grandmother’s name and in Na- hunta, Georgia, as the name and address always who would know his address. May
On defendant moved from 4274 Toch San Diego, to 6451 Salizar Court in the same city. His testified she left a forwarding address for him at post office. On June years later, local board defendant at the Toch Street address an order for him to a physical examination on 1972. The letter was returned unopened, “Moved, marked not forward- able.”
On letters were then stepfather mailed to defendant’s Toch grand- Street Georgia mother at her address. The let- ter to his stepfather returned un- opened grandmother and the letter to his was not returned or answered. Judge, California, Northern District of Weigel, * Stanley A. Honorable designation. sitting *2 that on mother testified Defendant’s passage en the time ... I the board and 14 she called loсal August any saying don’t have at trouble all the board she had re- person a at told doubt, mailed to her mother the letter ceived is guilty that he as to count 3.” at the board her gave person the and addition, judge not the trial did place the where defendant testimony de- credit of the giv- was be reached. address could concerning cаll fendant’s mother her to she was early in the conversation and en the local on 11 or and been the it had recorded not sure why the further testi- board. She looking for her son. (the defendant) told her son to fied she of her board’s records much contradicted to him at her expect the board contact The trial her testimony. judge observеd address. stand, had the board’s records the report did not for his defendant him, before and entitled to disbe- was examination physical lieve her. until not located about was He 1973, year Although requesting the letter a later. physical fendant to a was for mailed June defendant’s This case is controlled not call Au- mother did until upon appeаl hornbook rule that of a con 14, 1972, gust to three weeks 11 or in a viction criminal case the evidence after the date set for the defendant to light must be considered fаvor report (July 1972), and after a government findings and the able had been sent second batch letters (or judge jury) may of fact of a trial not out. clearly be set aside unless erroneous. called, Even after no line III, was on Count of communication with defendant alleging “From June to established, had been for the defendant 1972 . . . Glover . way attemptеd in no to ascertain did knowingly fail and neglect to per- . was for him. Either a duty form required of in him that he for being sought he knew that he was a
then and there failed to his local physiсal avoiding and was communica- board advised of his current ad- board, the “line com- tion with the or presented dress.” The case simple is- munication” from his dress, ad- sue of fact. mother, inade- quate. The case was tried without a jury.
Among other the time of time regis- From the the defendant conviction, the trial judge found: tered on defend- “(cid:127) n any advisеd the local board ant never merely just defendant address, proceeded change of or that he could no in a casual disre- longer receive mail at thе address of gard obligation that he might just California. didn’t to notify bother Nor did he advise the United States anybody about anything. forwarding of a Postal Service “The defendant knew peоple were might him.1 where mail contacted, faced. He never the Selec- judgment is affirmed. Service, tive even though he had that WEIGEL, Judge (dissenting). mother; information from his and
think, circumstances, these giv- I dissent. places 36 F.R. 23383 effective December dissent substantial reliance (1971). Chudy, The events in the States v. our decision However, subsequent 1973). the revocatiоn occurred Cir. F.2d point. 1642.41(b). therefore not 1642. 41(b) was revoked as noted regulation constitute violation majority opinion, Under the with actions stand is left Munns, F.2d 271 which he are not a сrime A is not indicted. report his every move to know- the board. He is required keep his local ing failure means for mail would of the address *3 States, the board. v. Bartchy 26, June during him 484, 1206, 319 U.S. 63 S.Ct. 87 L.Ed. failurе The 1972. (1943); 1534 Ebey, United States v. of 50 in violation be charged to § and 32 C.F.R. App. § 1070.) F.2d at renumber- 1973 and as of There is not a scrap of evidence to 1641.1(a)(1). Neither C.F.R. § ed show that grandmoth- his own find- triаl court’s nor the evidence Georgia, er in as by furnished appellant, guilty appellant that establish ings was not a suitable means for his Indeed, the evi- failure. any such board fоr reasons findings demonstrate those dence never clarified record, in the elected to establishing guilt proof the absence send only one communication to that ad- doubt. dress. That communication, seeking in- evidence ample is agree that there as formation to appellant’s whereabouts, failed appellаnt that finding support on August 1972. It result- changes his local board only ed not appellant’s mother period of home address in his calling but How- 26, 1972, August 1972. June appellant’s being advised of it.1 The sup- does not suffice ever, this failure able trial court so found. under the conviction port 1641.3, is uncontroverted because § The defendant knew people werе board with furnish the appellant did that that his faced. He never contacted the Selec- furnishing him. The would reach mail tive Service, even though he had that advice of аn address —not such information from his mother. what is re- in home address —is changes (R.T. 89.) quired. Thus, the uncontradicted evidence and by the deci- is relevant law made The the trial court’s оwn findings demon- Chudy, 474 F.2d in United States sion strate that the board’s communication, 1973), which, reversing (9th Cir. sent listed as 1641.3, stat- 32 C.F.R. § ed: dress, did in fact reach him. is This the draft to furnish that failure is to warrant a reversal. does not with a home address supra.2 mother testified she called the Chudy reversed the conviction in that case (R.T. 61-62.) there, here, because did fur- secretary The board’s that tеstified the call nish an address where mail would reach him. days (R.T. 23.) made three earlier. The same result should be reached here for the same reason. majority opiniоn (at p. asserts n. Chudy 1642.41(b), court cited which 1) that point because the imposed upon boards, duties as the ba- criticizing sis for failure the draft board 1642.41(b), prior which was revoked to given in that case to send tomail the address events in the case. registrant pursuant to § 1641.3. In the particular It is true that that Section was so bar, there was no such failure. Even revоked. It is also irrelevant. 1642.41(b) effect, if § had still been in it could applicable section to both cases is have made no difference. 32 C.F.R. § 1641.3. It is this Section alone chargе bottomed the in both and which conviction was based in both. of irrele- scattergun assortment cites In addition informing appellant that for affirmance. facts as the basis vant his draft his grips to come to with those fails It telephoned the board. The ma- relevant, controlling, and un- are jority opinion makes much of the undis- And, prevails, if it it re- contradicted. puted right of the trial court to resolve a disturbing denial of the sults conflict between what the mother testi- rights pro- which should elemental (e. fied she told the g., against conviction for a tect the board was look- commit. he did not ing son) crime for her and the records of that ' body. course, Of resolution was should be reversed. within province judge. triаl point, relevant apparently disregard- ed the majority, is this: Regardless
of what the mother may or may not *4 said, it is undisputed that
board’s communication sent to the ad- provided by
dress appellant did come to
his attention. The situation here readily distin- guishable from that in United Read, al., et W. HANNA Russell There the letter sent thе draft board Plaintiffs-Appellants, had listed as dress was returned marked “Address un- DROBNICK, Building Commis- Robert known”. al., Defendants-Appellees. sioner, et apparent It is from its actually the trial сourt appel- Appeals, lant for his “failure” to call his local Court United States Sixth Circuit. why they order to ascertain were for him an indefi- April nite after 1972. How- ever, blameworthy that failure may have
been, charge against, it was not the not, itself, any
fendant and was viola- Appellant
tion of law. charged failing
with address, failing
not with to call his
board. No order to was sent to
appellant’s grandmother’s address. Had
the board sent such an order to that had that order been disre-
garded by appellant, the case would be very different. - appear conduct does and, forthcoming
have been less than
therefore, Still, justify disapproval. day has not come—and I trust disapproval
never will—when a court’s
may properly be substituted for ev- solid requisite
idence to conviction for a crime majority opinion, I am conclude, reluctantly
forced most re-