United States v. Robert Ronald Boucher

Leventhal, Minneapolis, only poster testified that he knew of in Larry B. hometown, Robbinsdale, defendant’s Minn., appellant. for Minnesota, poster and such was located Anderson, Jr., U. S. Asst. H. Thorwald in the second floor office of the Local Minn., appellee. for Minneapolis, Atty., Board of the Selective Service. OOSTERHOUT, Senior Before VAN prosecution presented no direct evidence ROSS, and Judge, BRIGHT and Circuit that knowledge Boucher actual of had Judges. Circuit registration requirement prior to the time registration of any nor back- BRIGHT, Judge. Circuit ground relating information the de- to from appeals Robert Ronald Boucher fendant might aid a factfinder trial court a after his conviction inferring that Boucher became aware of register with refusing to knowingly the obligation register prior to in violation System Service Selective date of his registration. actual ar 462(a).1 Boucher App. 50 U.S.C. § to failed (1) the Government gues that prove a by the engaged in The district court determined that evi- required as “knowing” violation of publicity requirement dence of the statute, (2) the Government and registration for the was sufficient draft pros discriminatory selective to establish probability of defend- amend fifth of his in violation ecution ant’s knowledge reg- of his to the first on reverse rights. We ment ister and satisfied the Government’s obli- the second. reach issue and do not gation prove a “knowing” violation. trial, established the Government At pros- similar a recent disagree. We In Selec registered that Boucher F.2d ecution, United States July System on tive Service denied, F.2d Cir.), (8th rehearing months and one-half eight approximately the con- 1974), reversed we seven birthday or about 18th after his reg- had not who viction of a defendant 30-day beyond one-half months years aft- two until istered for the draft by law to grace period allowed determi- birthday er his 18th because birthday.2 The after an individual’s on 18th intent “rested nation of defendant’s presented of the proof presumption, not on necessary public program existence of a knowledge relations essential fact of informing young requirement at 582. men of the sustain the conviction.” 500 registration period during here, the time relied as the Government pro ongoing relevant to re- registration this case. This publicity of the on draft gram me press included releases to on quirement prove throughout posters dia and facts displayed part of the defendant. only wit substantially Minnesota. The ness, identi- present in Klotz are Abrahamson, Major Deputy John case. Our cal to those shown in this System Director appear of the Service holding Selective thus in Klotz would however, However, Minnesota, testified, require a reversal here. special he one arti only could recall specifically Government maintains actually Act, subject cle on the registration provision of the appearing He further newspaper. a different App. 465(a), requires U.S.C. § provides any 1. That section tered with who the Selective Service. 32 C.F.R. knowingly 1611.1(b)(1) (1974) 30-day registration grants grace “evades or refuses * * * shall, period. regulation service in the armed That reads: forces conviction in district court present Citizens of the shall United States competent jurisdiction, United States of be day they themselves punished by imprisonment more than anniversary day attain the 18th years $10,000, five or a fine of not more than days period their birth or within a of 60 , imprisonment both such fine commencing days before date * * App. 462(a).] * * [50 U.S.C. App. requires 50 U.S.C. § all males ages regis- between the of 18 and 26 to be section case. That in the instant result law, criminal Congress incorporates that reads: rule of evidence in the same section of (a) Every person shall be deemed criminal statute that defines the sub- See, of this g., stantive have notice crime. e. Turner v. * upon publication title 396 U.S. or other 24 proclamation (1970); Leary L.Ed.2d 610 President of a v. United any States, 6, a time for public fixing 1532, notice 395 89 U.S. S.Ct. 23 (1969); 3 L.Ed.2d registration under section 57 v. States Ro- [Section * * * mano, 136, 279, 382 86 453 U.S. S.Ct. 15 ]. (1965); L.Ed.2d 210 this sec- that prosecution The contends Gainey, 63, 754, 380 85 U.S. S.Ct. presenting duty it of tion relieves (1965); States, L.Ed.2d 658 Tot v. United a defendant’s any relative to 463, 1241, 319 U.S. 87 L.Ed. 1519 registration require- knowledge of the (1943). Thus, example, Tot, for in prosecution for failure ment in a 2(f) was called interpret § The timely for draft. Act, former Federal Firearms to the presented this issue 902, U.S.C. § which made it unlawful for petition rehearing in on a for court any person convicted of a crime of vio- had not Klotz. Because the Government lence to receive any firearm which had this statute at argued or relied on shipped been transported in interstate we con- appeal, trial or on that Klotz 2(f) commerce. provided further Section untimely presented the issue as sidered that possession of a firearm rehearing. and denied the United States felon “presumptive should be evidence” (8th 503 F.2d 1056 Cir. that shipped firearm had been however, case, In this conten- the instant transported or received such in consid- properly tion is us for our before vein, violation of the In a Act. similar eration. the Court Gainey and Romano con- citing prosecution, Kaohelau 5601, sidered 26 U.S.C. which declares § States, (9th 389 F.2d 495 lii v. United unlawful operation unregister- anof 1968), v. United Cir. and Silverman ed still distilling apparatus. This 1955), con section of the specifically pro- statute knowl guilty cedes that “willfulness or vides any that in prosecution posses- edge an of the offense” of is element sion of still, an unregistered “pres- ar register. failure to gues The Government ence of the defendant the site of the [at 465(a) imposes upon the de that § shall be deemed sufficient evidence still] he knew of presumption fendant a conviction, authorize the de- unless obligation timely register fendant explains presence * * and, therefore, draft shifts to the de satisfaction jury *.” [26 proving fendant lack burden U.S.C. 5601(b)(1).] Leary § and Turner cites no knowledge. The Government deal with containing a narcotics statutes statutory history supportive cases or of presumption in a format similar to the any this contention. Nor does it cite statutes referred to in the above cited authority assumption its cases. 465(a) applies prosecution to a criminal § 462(a) 465(a) are Sections 462(a). under § parts of the Military Selective Service Act, analyzing App. seq. U.S.C. 451 et Crimi § it well to note position, we think nal sanctions Act for all violations of the can the courts legislature as well as are 462, found in but 462 does § § in a apply evidence to establish rules of contain language creating any presump States, criminal case. Tot v. United tion. 465(a), although The language of § 87 L.Ed. reciting S.Ct. U.S. every person “deemed” is creating Ordinarily, in (1943). notice the federal part rule of evidence as laws, Selective refer- contains no section, penalties ence to the offense and question second in Edwards was 462. The Government does not offer § whether the trial court erroneously in- any justification for its view that non structed the jury in terms a presump- specific language of a noncriminal sec tion of knowledge, rather than an infer- (§ 465) change tion of a can statute ence of knowledge. In the context of applicable rules of evidence to a criminal the court found no error of the charge arising completely differ trial court in instructing jury (§ 462) ent section of the statute. It is aof presumption terms since the law logical 465(a) conjunc more to read “plain, was definite, settled, and well App. tion with 50 U.S.C. which want of its re- creates a citizen’s to register quirements resting a fact peculiar- [was] Together for the draft.3 these sec two ly within the knowledge of the defend- legal duty tions create the every ants Id. at 367. male ages between the of and 26 to Edwards holds that the Government register for the draft in accordance with may prove by knowledge willfulness or proclamation the of the President and relating circumstantial to a de- evidence regulations promulgated pursuant to or activities. But the fendant’s conduct 453. The failure to comply with that facts in present Edwards dif- entirely an duty, however, necessarily does not make the now be- ferent situation than facts the guilty individual of a crime in the Here, no fore us. we have proof absence knowing of of a failure to upon con- bearing whatsoever Boucher’s register proof as that required by is preced- or the duct activities in months 462. ing birthday the next his 18th or for question in Arguing that the statute registra- several months until his actual adopts well-recognized general rule the facts which to draw tion. No exist the person presumed that a is to knew his inference that Boucher of knov^ law, the Government cites Edwards during period register to this States, (5th Cir. 334 F.2d 360 give does not registration and his actual banc), view 1964) (en support in of its knew the rise to an that he of inference be the conviction should sustained. duty register during preceding to engaged in Edwards defendants months. We conclude that decision oper- gambling through the business no assistance Edwards case offers pros- ation of lotteries. position here. to willfully ecuted fail- the defendants here indicates some ing The record register pay gambling to for and validity required by doubt as of Govern tax as federal law. The proposition that in late 1972 and of ment’s prosecution no direct evidence offered mind, early young most men knew did the defendants’ state of but timely duty register their to the defend- offer evidence that into draft. The defendant introduced experience ants in the had considerable pages evidence several Selective lottery that the defendants business and men records for operations. Service classification had tried to conceal their 1954, year a the defend birth this circum- The court concluded that year. ant’s birth These records list stantial evidence was sufficient to allow registra names and dates birth and to jury the- infer the defendants regis tion of 76 men in 1954 who a born obligations pay were aware of their to with the local tered defendant’s Selective wagering tax. at 364—365. Id. 3. Section 453 reads as tration, follows: ages eighteen is between the and twenty-six, present Except sub- provided himself and as otherwise title this *, mit at time or times duty every it shall be the male place manner, places, or and in such as citizen every of the United oth- by proclamation shall be determined er male now or hereafter in the by regulations pre- States, who, President and rules and day days on scribed hereunder. any subsequent regis- fixed for the first have all competent year olds of 1973 and March Board between Service registered men All of these April requirement beyond days e., birthday. than 30 (i. more reaching late his 18th draft on as registered birthday) 18th their reversed recognize I this In- later than the defendant. late or Judge holding in United States Neville’s Di- Deputy deed, testimony, the in his Cir.), rehear- 500 F.2d 580 for Min- rector denied, (8th Cir. ing 503 F.2d Abrahamson, conceded nesota, Major be- that case rehearing I voted for 1973, early during 1972 and late erroneously decided cause I felt it was about 18-year olds were confused some an it to be panel. I still believe registration requirements. this as in incorrect decision. In here, shown Under the circumstances circumstantial there was sufficient necessarily does not rational connection evidence to show defendant’s (failure proved reaching the fact exist between duty register upon sought to fact register) and the ultimate birthday. 18th (that was inten- proved this failure be government presented might States, supra, tional). Tot Cf. v. United produc- stronger case circumstantial L.Ed. U.S. S.Ct. ing evidence Service’s that the Selective California, 355 U.S. 1519, and Lambert v. ac- ongoing program had public relations (1957). 2 L.Ed.2d 228 com- tually defendant’s reached into the say Congress We do not However, appeal munity or school. en- might not appropriate circumstances our the determina- role is not to reverse fail- the mere penalties for act criminal merely tion of the because trier of fact the draft register ure a citizen to government’s than was weaker case of intent. Suf- requiring proof without Rather, it we must might have been. congres- say, fice it to we find no suf- ascertain was whether the evidence the enactment sional determination in light most ficient when viewed in 465(a). guilty verdict. United favorable to the Accordingly, consistent Gaskill, States v. 580, we 500 F.2d supra, States it light, this When viewed reverse this conviction. general is clear of the that the evidence Reversed. program is public relations state-wide in- Judge Larson’s support sufficient to (dissenting). ROSS, Judge Circuit have known ference that Boucher must of the judgment I would affirm the registration requirement. Judge Larson’s trial court on the basis of ig- logically Additionally, cannot found opinion. He well reasoned Boucher be- nore obvious fact had, of cir- government by means the end shortly came 18 before evidence, established cumstantial register did not fighting in Vietnam and citing the 462(a), knowing violation of § after the end until several months opinion district court’s and after the announcement war (D.Minn., No. 4—73-Criminal inductions there would be no more 7, 1973) Judge Neville Nov. which Act. said: Court, determining This Klotz and government to show was able extremely this it has made difficult general publicity given to government requisite to show the media through intent in failure to cases. While dis- posting bulletins [of] may time, this at it be critical this through seminating information will very important become if and when this high not strain schools. It does it necessary becomes to resume induc- rea- beyond thinking find court’s tions under the Selective Service laws. knew as sonable doubt that defendant

Case Details

Case Name: United States v. Robert Ronald Boucher

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 23, 1975

Citation: 509 F.2d 991

Docket Number: 74--1533

Court Abbreviation: 8th Cir.