United States v. Ronald James Clark

letter, appellant from ceived another ROSEN, GIBBONS, Before JAMES containing address. a California Judges. HUNTER, Circuit Appellant also contacted California and, using form draft given a California OF THE COURT OPINION change him, a formal filed Pennsylvania Local address with Judge. HUNTER, III, Circuit JAMES Board. Appellant Ronald James Clark Local Board was 20 the On November failing report for induc- convicted Head- instructed Selective Service forces, in into armed violation appellant in- quarters to “reorder” 462(a). appeal App. On U.S.C. By of that same duction. “letter order” conviction, alleges several from that appellant date, at his Cali mailed to grounds for reversal. address, ordered Board fornia Local in Erie for induction I. THE FACTS ap- . In the same letter on December 1. given specific pellant instructions Although many appellant has had deal- his in- if to transfer to follow he wished ings with his draft board he first since Appellant failed duction California. registered age eighteen, at our chron- on December 1. may begin ology of 1970. the summer Board 14 the Local July On December On the Local Board mailed appellant, ac- received a letter an order to for induction knowledging receipt or- the “letter August 4. The order was mailed to change-of- enclosing der” and another mailing current address file, address form. in his listed Service Selective the address his mother’s home Subsequently indicted Erie, Pennsylvania. Appellant failed August 10, 4. On 1, 1970, at Erie. however, the Local Board received let- be recounted Other facts will stating appellant, ter from in essence arguments specific below. nection with away that he had July 1970, from Erie since had called home “LET- II. OF THE VALIDITY had been informed of the induction order TER ORDER” and that he not return Erie un- would argues til “let which time he “give you not a would ter order” was invalid since was call come down and you.” postscript con see “I Form A was added: Selective Service get any you important do address for to inform tains notices rights, responsibilities, in contact with me.” of his pleted potential liabilities connection “final letter” a fourth date reg- induction order. was set for induction. When the date, istrant failed to on that Although the “letter order” alone failure to in- was the basis requirements met the would not have validity upheld dictment. The Court a valid induction order. C.F.R. § fixing of the “final letter” 1632.1, stand “letter order” for induction. order to re- Local Board’s alone. The proper port September 1 Form on was a In United States ex Luster Mc rel. v. challenge 252, Bee, (7th Cir.), does the not 422 F.2d 562 de cert. nied, validity Cooksey, 854, “letter or- of that order. The Luster v. 400 U.S. setting simply 74, (1970), der” was a means a 91 S.Ct. 27 L.Ed.2d 92 a valid report new date to accordance with Form 252 induction order was mailed existing registrant. date, induction the On the induction however, questions arose about the medi dissenting argues opinion acceptability cal registrant, which appellant may have been for a convicted only registrant’s were settled after the charged grand by jury. crime not doctor had submitted At statements. however, shows, The indictment that the letter, 252, time a not Forma was charged appellant with com- setting registrant, sent to the letter mitting a crime on December upheld new induction date. The Court obey specifically, or- with an registrant’s duty in accord der his Local Board to for in- ance with the letter. ap- duction on that date. The fact that pellant did fail for induction on In Swift v. Director of Selective Serv- ice, appeal. U.S.App.D.C. on date conceded this 145 448 F.2d 1147 only then, (1971), question, registrant, real is whether he several duty postponements, was under on reported December on induction depends upon specified, which in the amining turn whether date but because ex- properly the report capable Local Board ordered him per- center was not majority forming .then. The holds that certain medical he was tests properly was ordered to not on inducted that date. After a hos- pital on registrant not because “letter examination the was order” alone was a acceptable, sufficient induction found to be and he was there- order, upon setting but the “letter order” because mailed a letter a new date proper change means the date set for original his induction under the existing, compliance admittedly with Form 252 order. The court held that the valid, original induction order of 13.1 induction not can- celled, upholding regis- in effect That a draft board can fix a new date trant’s on the new date sending' induction without newa set for his induction. Form 252 induction order has been rec- ognized in several cases. In United mentioned, reg- In the three cases Ritchey, (9th States v. 1970), 423 F.2d 685 Cir. reported istrant had for induction on the registrant reported for induc- by date set the induction but tion date, on the set but the place ease induction did not take process completed date, Brunner, In that date. United States v. and a new date was set. On the new (9th reg- 1972), 457 F.2d 1301 Cir. registrant report. failed istrant, appellant here, like failed Subsequently set, a third port date was set his induction or- registrant report, time but Subsequently der. his local board sched- process again the not com- dates, uled five more on all questions point purely are was indicted and con legal; support it is difficult victed. do not hear defense counsel affirming assertion that we are on a hint he was misled. factual basis different from that on report. registrant order” used the Local Board failed “letter subsequent fail- the new a valid means of these to set date was For the fifth doing His convicted. so.3 ures the upheld. conviction was dissent, Contrary statements addition, many courts do not hold that committed In cases following recognized that, Simply postpone- because a appellant offense. existing continuing duty induction, induc- was under a ment reg- 2, supra, in effect and see note order remains letter, given necessarily may, by vio- mean that istrant does lating the order. committed con- date on which he has g., Whalen, tinuing person A has a E. United States offense. 1971); draft, (8th tinuing duty register United States for the Cir. 1971); (9th Jenson, yet 450 F.2d 1258 Toussie v. Watson, (1970) F.2d 1273 L.Ed.2d United States v. Evans, eight (8th register 1971); States v. for Cir. United that to held 1970); continuing (9th 32 years see of- F.2d not a 425 302 Cir. did constitute 1632.2(d). However, to C.F.R. fense.4 dissent seems § argue by stating a that there was that in indicate The facts this case continuing say duty therefore that we that Service authorities Selective offense, there was a especially careful to accord been opinion purposes for least at opportunity to appellant the maximum do not hold. duty in comply to for with his only opinion a This holds that where already Appellant failed had duction. in- for has failed in 4 set, his duction on the date draft board in first 252 Form accordance with pur- may set a new for his induction date order, response appel in duction but original order, he suant to that and from explaining his letter absence lant’s be informed of new date Pennsylvania induction new Form 252 here, order” that used “letter such as appellant After order was mailed. necessity of a new Form 252. without that report in with failed to accordance authorities, order,2 aft Service Selective III. APPELLANT’S C.O. CLAIM investigation, appellant gave more er Appellant three order, by contends that on set with the chance ting expressed separate he occasions beliefs his a new date for induction. setting Although mailed a “letter order” 2. failed to existing order, compliance specified in date date 252 order. Form he was thereafter under Although appellant day day in induction. California 1632.14(a); in at the time and was ordered 3 2 § C.F.R. Pennsylvania, specific Winer, 5 instructions were n. States given in- a transfer effectuate duction to in the that California event 3. that contended addition hardship be involved in return- would it “letter order” was invalid since ing Pennsylvania. Thus there was only days him be- mailed to eleven no caused the dis- unreasonableness reporting. Al- fore set tance factor. though requires 1632.1 now § C.F.R. Supreme specifically specified dis- that be Court holding thirty days avowed that 32 C.F.R. 1611.7 least the Form (c), imposed mailed, prior is to December register, only days’ required. Toussie was unauthorized. Thus ten time was would, supra, period eleven-day at 121 v. United not have regulation been n. 858. We have under S.Ct. unreasonable given no hold that reason to 32 C.F.R. if been mailed his had imposes 1632.14(a), a continu- first Form 252 induction ing duty period in- follows fortiori here, valid. where unreasonable right qualified now, just him for conscientious I ob- and that didn’t'be- jector knowledge status, his lieve violence. imputed statements Lo- should to his “Q. you And that could serve? Board, cal the Local Board should “A. Yes. him a have furnished Selective Service “Q. you And also indicate reopened Form 150 and his classifica- against you any him that form tion, and failure to do so invali- killing? dates his induction “A. Yes. The three statements were un- made “Q. question you And did ex- following der the circumstances: cessively your beliefs as to war (1) Examining Center. On June killing and the like? 1970, prior to date his induction or- “A. Yes. him, appellant ders were mailed to un- “Q. you very Did make it physical clear derwent an armed forces ex- your regard? During him beliefs amination. examination interviewed a “moral waiver (N.T. 91-2). Yes, “A. I think so.” prior clerk” about his record. criminal (3) Board. Accord- California Draft According appellant’s testimony ing appellant’s testimony, trial he vis- trial: Ana, ited a draft in Santa Cali- room, “Well, inside a fornia, during went October record, everybody she had a expressed visit there he views form tell out a and garding asked us to fill objection. (N.T. conscientious was, and wheth- 92-4). them what the record testify, Appellant did how- time, and er we arrested at that ever, specific about statements for. asked we were arrested She spoke. what he or he made to whom any if ob- some of we have us that none of We believe that in these three war, said, jection and I when to the knowledge appellant’s should of instances asked, I I didn’t believe she said imputed statements to his Local killing that, in or violence Board. go if I into the service that would not System The Selective Service is a com- (N.T. 89) I were called.” plex system. recog- administrative We Appellant further testified clerk proper functioning sys- nize that writing part of was what was down she upon registrant’s tem relies of use told. procedures present established his (2) Agent. to F.B.I. After Statement objections claims and to his local board. appellant failed to in expressed Where a his 1970, his file transferred to the was U. S. objection persons conscientious other Attorney, requested an F.B.I. inves- agents than or of his local the members tigation. On an F.B.I. October board, persuade impute a court agent appellant in Cali- interviewed knowledge of those statements According appellant’s fornia. testi- strong requires local board some factor mony agent trial, informed of strong or set of factors to countervail opposition his conscientious to armed functioning proper interest in forces service: system. present factors No such are “Q. you your And he ask did about here. regards fighting going views in The moral clerk waiver at the examin- Army? into the United States ing questioning appellant center was Yes. “A.. prior about his criminal record “Q. you explain And what purpose determining pri- whether his him? disqualified or record him for service Well, “A. him I told would not agent in the armed The forces. F.B.I. fight Army any in Army other questioning being Attorney’s VENUE V. requested to do so the U.S. appellant’s in connection with office crime, if Appellant his contends that Septem- in rather any, in committed California draft California ber venue Pennsylvania, than in by appellant, approached ac- had been in his been should have trial testimony, cording his in connection dis- We in California. federal courts his records to his wish transfer agree. instances, In these none California. ordered believe, to transmit was there Erie, Pennsylvania. He appellant’s Board statements Local ac no there. He took failed to Pennsylvania, nor do we believe that to Califor tion to his induction transfer any expecta- could be reasonable there in Penn nia. offense occurred Thus the be trans- tion that the statements would though sylvania, appellant himself to the Board. mitted time in California at the any do we other factor Nor prop set for induction. Venue imputing case warrant erly placed District in the Western knowledge appellant’s Board Local Pennsylvania. Johnston v. statements. Cf. United v. Staf- States 351 U.S. 76 S.Ct. 1968); ford, (2d 389 F.2d Cir. (1956); v. L.Ed. United States Holmes, United States F.2d 915 1970); Scott, (4th 424 F.2d 285 Cir. 1970), Cir. and remanded vacated (8th Pescor, Jones 169 F.2d 853 grounds, on other 402 U.S. note 29 L.Ed.2d judgment af- of conviction will be the same time firmed. allegedly statements, making these he wrote to his local board several oc- (dissent- GIBBONS, Judge Circuit casions, none those letters did ing). objector his conscientious indicate was indicted beliefs. report jury for induction to knowledge Because we believe that of 1, forces on December into the armed appellant’s statements not im- should be 1970, U.S.C.App. 462 50 in of § violation Board, puted to his Local and because (a). 462(a) series lists a whole Since § he never indicated otherwise his con- jury offenses, grand in- possible a of objector scientious views to his Local charging defendant dictment that the Board, unnecessary it to decide more, 462(a), obvious- without violated § expressed whether the would views have vague ly defendant would that the be so prima a constituted facie claim for con- charge he the not informed of would be objector status, scientious or re- whether against. Thus, mini- a to defend opening appellant’s of classification specify mum, what indictment must would be barred the decision in Ehlert alleged is to the defendant States, 99, v. United 402 U.S. 91 S.Ct. 7(c), Fed.R.Crim.P. violated. See Rule 1319, (1971). 28 L.Ed.2d 625 any specific Here not does refer it induction, but does order it IV. WILFULNESS registrant’s refer failure 1, port contends this that his fail take report, although ap- intentional, ure to mean that indicted not wilful since his statements show that his failure to conscientiously objects to the 20, armed 1970 letter from the November forces “and an directing evil mind is intent date. him to on that not manifested from such statements.” court Indeed trial the district (Brief, p. 10). proceeded This contention is with seems to have Government out Rabb, 20, See theory merit. United States v. November 230, 394 a valid induction letter was pursuant however, for induction appeal, the Government On- August 13, order, that 1970 induction 20 letter the November

concedes require- issue raises a fundamental met construction not have alone would legal sufficiency. In Toussie order. 32 as to its induction for a valid ments States, 112, 90 (1971). 397 U.S. S.Ct. now relies 1632.1 It C.F.R. § Supreme (1970), 858, August 13, 25 L.Ed.2d 156 U.S.C.App. considered order) di- Court whether 50 (the second construed, 462(a), properly a September created § rected continuing position offense. Court said: Government’s 1970. The expressly (which majority does not “Unlike other instances a espouse) under is that particular this Court held that a offense, statute describes a 1, 1970, September until time language Act there is no in this 32 C.F.R. 1642.- of indictment. See clearly contemplates prolonged a apparently, (1971). theory, On it true course conduct. While have committed must regulation explicit does day separate criminal offense registration terms refer to as a that he failed to sub- tinuing give duty, we cannot it mit Since December induction. making effect of this criminal offense day, appellant be can such one. such offenses Since charged in the offense convicted implied except are circumstances, not be limited difficul- indictment. There are several questions since approach ties with affirmance fundamentally limitations are matters of a criminal conviction. legislative not deci- administrative sion, regulation reading by any we think this is that fair first should charges upon effectively not relied the indictment it five-year pursuant stretch a of limita- November statute letter, 13-year pur- tions into one, failure to unless the itself, apart continuing duty arising regula- suant statute from the tion, justifies virtue of the 13 induction order. may conclusion.” 397 120-121, appeals (foot- The court U.S. at substitute at 863 omitted). 1642.15, pellate the § court cannot affirm statute which on a recon- it construed identically applicable is quite regula- struction of indictment the differ- to each by ent imposing from that considered of continuing duty. the trier a See facts in the district court. do not Figurell, United States v. been, know what the record would have 1082-1083, (3d n. 5 re- The or what the district court’s decision sult of the Toussie case was considered been, would have had the case been tried by Congress when it enacted on adopted theory, the Government’s on Military amendments to the Selective appeal, continuing Sep- aof Act of Service Pub.L. No. 92-129 tember (Sept. 28, 1971). Report The Senate Third, even if we were to free affirm states: a criminal on conviction a factual and pro- “The version House included a legal by basis other than that considered by vision recommended the Adminis- below, the trier of facts and if we even by adding tration a subsection new to free construe as the indictment charging failing 5(d) a will result of which overcome the offense registrant fails to States, a occurs when offense [397 v. United Toussie obey The clear [, 156] L.Ed.2d a valid 112,] opinion majority implication is interpreted the opinion (1970). That on otherwise, prosecuting for affirms a conviction it for the time toAct limit years alleging register a to an failure to five indictment fail to men port pursuant days birth- on a man’s 18th December an after five and language al- to re- directed the will day. Committee nonregistrant port September 1,1970. prosecution a on low the years birth- up after his 26th to five opinion, recogniz- majority while change statute day. does not It ing supra, States, v. United that Toussie any other violation for limitations espousal prevents explicit of the Gov- U.S.Code Service law.” of Selective position, ernment’s draws a distinction Cong., 1st Cong. Ad.News 1455 & “continuing a offense” and between Sess.) “continuing duty.” purports nar- It stating: holding by to, row its now referred amendment 462(d) holds, U.S.C.App. only appears opinion where § “This inapplicable registrant (Supp.1972), is for in- has failed to only (it by set, terms deals both its on draft duction register) may it because his in- with failure set new date for original long pursuant order, with events was enacted after duction charged. may appellant was But that he be of the informed nevertheless, significant by new date ‘letter order’ such as amendment Congress here, necessity concurred has for it shows that that used without interpreta- Supreme Court’s basic of new Form 252.” 462(a), U.S.C.App. as tion of 50 ipse dispose dixit does not Such System, authorizing the Service regis- Selective problem Toussie however. If a regulation, of- to create trant fails legislature.1 enacted fenses not fixing a letter a new is issued though registrant, reports continuing duty construc- Indeed the date, having on be indicted for indictment, and hence tion of the failed, interim, in the statute, the Govern- contended continuing duty specified presents extremely is- ment, troublesome in 32 C.F.R. 1632.14? Has the statute indicted If a defendant should be sues. running in mean- of limitations been pur- failing report on power time? Does the board’s issue duty, and should suant give power tried, a “letter order” reindicted, acquitted, may he be lengthen the statute limitations on the convicted, report? power initial Does failure to its November 30? give power “letter orders” issue it the report on December victed multiply the number of occasions separate 1. Did commit a offense report pur- which a fails every day 30, and November suant to a valid induction so, may and if hence number of offenses? The Su- separate indict him counts preme Court in Toussie v. United of those offenses? believe that rejected supra, a construction of 50 U.S. single we are constrained to hold that age. Cong. See U.S.C.App. draft Ad. 454(a) & U.S.Code 1. 50 makes certain Sess.) News, (90th Cong., registrants 1st who have failed to past liability It extends service continuously in liable litigation twenty-six by to those who duction “when This section available.” past age. postponed Id. does not create offense. 1333, 1346, for such But even 1353. It authorizes a new induction order persons is needed persons serving a new induction as those such a sentence report. trigger . complete their sentence still of while above, per- supra. I new and 462(a) And as said C.App. have which would by under System, indictment is different defective mitted the Selective Service supra. regulation specifying du- Toussie a ty, enlarge period statute would reverse conviction. of offenses. number limitations accept it did could but It have continuing duties distinction between ma- offenses which jority purports find authorized statute. the same point, more

But neither grand jury nor the court be- district COMPANY, WEATHER WISE Plaintiff- they dealing viola- Appellee, lieved with the continuing duty. tion of a The offense charged in and tried in the indictment AEROQUIP CORPORATION, Defendant- upon district court was bottomed Appellant. assumption that the No. 72-1348. imposed by was letter, the November Appeals, United States Court of and not Fifth Circuit. majority opin- As Nov. points was, out, ion there addition a July 17, 1970 induction order. haveWe many seen Selective Service files taining more than induction order. dealing case, We are with a criminal very it would seem that the minimum of process requires due that the indictment

refer possible to which of several induc- gave alleged duty. tion orders rise to the By adopting theory the indict- actually August 13, ment referred to the order, though

1970 induction it referred 1970 rather than majority purports a suffi- cient But on that construc- reference. grand of this indictment the

might referring as well have been July 17, Or, 1970 induction order.

perhaps, acquitted if Clark had been might reindicted under one

or the other induction orders. fact Government, matter grand jury the proceeded and the district court impres-

under the mistaken

sion that the November 1970 letter awas valid induction when it .theory not. on which the court appeals now affirms substitutes a new and different indictment for that

handed jury. down This a federal court not do. U.S.Const. Y, 1; amend. Stirone v. United notes a new and indictment for that different grand jury. handed down Toussie here, although controls Const, 1; V, amend. Stirone United continuing duty regis- considered the 270, 4 361 U.S. S.Ct. imposed ter 1611.7(c), in 32 C.F.R. § L.Ed.2d 252 continuing duty rather than the to re- port difficulty imposed second is that the in 32 C.F.R.

Case Details

Case Name: United States v. Ronald James Clark

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 3, 1972

Citation: 468 F.2d 708

Docket Number: 72-1242

Court Abbreviation: 3rd Cir.