United States v. Sam John Deep

1316 plaintiff. majority in been

as a of this court did decided favor Fleming deliberately McEnany, supra, v. He to contest chose not counsel money right statutory rely paid here and in a sum of had a them fact jurisdiction view, law which had not settlement. our therefore nothing repealed replaced, has no claim. or declared 1983 There § by competent we there- court to determine and unconstitutional at the time it If counsel fore affirm. was utilized. protect

had failed to file the lien to

client, might exposed per- well be legislation liability. sonal is un- State increasing

der attack but constitutional successful, attorneys

until the assault ir. rely upon pre-

should be entitled to

sumption constitutionality. Certainly dependence upon

their a statute later equated found is not to vulnerable America, UNITED STATES of with malevolent to this intent basic Plaintiff-Appellee, particular tort, Prosser which Professor large recognized tells us is not even minority in a DEEP, Defendant-Appellant. Sam John Prosser, of states. Law of W. No. 72-1623. Torts, swpra, at 870. Appeals, United States Court of Aside from the unconsti claimed Ninth Circuit. statutes, tutionality of the there is noth May 10, 1974. jus complaint substance tify improper any inference of motive. urged appellant the material-

man’s in that did lien was defective comply pertinent time limita However, sig

tions in it is the statute. statutory (Conn.

nificant law provided 49-51)

Gen.Stat.Ann. § remedy opportunity an

contest the lien which he never exer

cised. He further claims that he never money owed he never established but

this in court he settled by payment.

the claim of mali The tort process requires

cious of civil also use action essential element that civil

giving rise to the tort claim termi plaintiff’s

nated in the favor. Restate Torts, supra, 677;

ment of ser, Pros W. § Torts, supra, This Law appellant failed to es of course has proce

tablish. The lien attachment merely employed dures here ancil

lary underlying claim. contractual never merits of claim have hearings en were denied on March banc was also denied a failure of a judges votes of 5-3. In Jackson Statler of the active to vote in favor of such Foundation, (2d 1974), reconsideration; 4-4, the vote was again rehearing case, a state action en banc at 636. (argued),

Alan Saltzman Saltzman Ange- Goldin, Merlino, Ronald & les, Cal., Los F. defendant-appellant. Campbell, Lawrence Asst. S. W. U. Elgin Atty., Nobles, (argued), Eric A. Attys., Edwards, Asst. U. S. C. William Cal., Keller, Angeles, Atty., D. Los U. S. plaintiff-appellee. MERRILL, CHAMBERS, Before DUNIWAY, KOELSCH, BROWNING, ELY, HUFSTEDLER, WRIGHT, CHOY, GOODWIN, TRASK, WAL- SNEED, Judges. LACE and Circuit OPINION Judge: WALLACE, Circuit Deep appeals of five his conviction charging counts of an him indictment with violations of the Service Selective Law and of a of 18 violation U.S.C. § first, second, third and fifth counts, using legal theories, es- different charged evading sentially mil- itary by knowingly making service false representations to the Selective Service System undergoing he “active treatment,” when in fact was not.1 charged Deep knowingly rep January falsely 1. Count one because on wilfully military disqualification System secured resented to the Selective Service January, examination in four Count 11, wearing 1971, May appliances. period April 13, As a result, knowingly 1971, Deep his local board failed “to classified 1-Y (not currently qualified for service in Local Board Selective Service alleged Forces). appli- such Armed Had the fact that wore unreported undergoing active or- facts been true and had he was not ances and regarding reported them, might treatment, board local a fact (available physical condition that have military for reclassified 1-A defendant’s service). might being placed a dif- in his in result ferent classification.” Viewing light the evidence in the most Deep the indictment moved to dismiss government, favorable to the Glasser v. including grounds, failure of on several 60, 80, United 315 U.S. 62 S.Ct. any the counts to state offense. 457, (1942), L.Ed. 680 the facts are He The motion was denied. also moved October, 1970, subsequent these: In judgment acquittal at for the conclu- passing preinduction physical his exam- government’s sion of the case-in-chief just prior ination Deep and date again and at the of the evi- conclusion induction, was to for Dr. Bernard Both motions were denied and a dence. Bender, dentist, Deep a examined and Deep guilty on found all counts. ordered and installed for him orthodon- We affirm. appliances. They eight tic consisted of four, charged Deep In count was bands two and arch wires. Four teeth report promptly failure to his local upper jaw in his and four in his lower change physical in his condi- banded; were the arch wires were at- being tion which in his re- result passed through tached loops to and in 1625.1(b). classified. See 32 C.F.R. § wires, these bands. There were no small Specifically alleged that, the indictment actually supply which the tension to the 1971, April May 11, from 13 to he failed appliances, available in Dr. Bender’s of- longer that he no ortho- wore fice at ques- time. It is at least appliances dontic and was no un- tionable whether were ever in- dergoing active orthodontic treatment. appeared stalled. had returned for two for his induction addition- uary 26, 1971, wearing then, appli- “that he was and in would be the fu- orthodontic “represented undergoing ances ture and orthodontic treat- that he active was then ment, not, undergoing and in in when and would be fact was future active undergoing future, treatment, in the not be such treat- orthodontic was found not acceptable for ment.” induction on basis January undergoing charged 26, treatment, Count two on active orthodontic consequence 1971, “knowingly 9, in 1971, [d] cause to be made March on improper physical false, the Local ex- Board and incorrect reclassified from 1-A [him] 1-Y, . . . Forces when in amination Armed Examination fact defendant was qualified [“AFEES”], and Entrance in that for Station service the Armed Forces reported undergoing any genuine and was examination then [he] for wearing appliances treatment, merely active induction on orthodontic had orthodontic but appliances placed represented had his orthodontic teeth he was un- on his purpose dergoing treatment, evading teeth active and in orthodontic service in ”

consequence accepta- thereof was found not Armed Forces . . . . induction, charged ble in fact defendant fifth count when know- ingly undergoing genuine “falsified, was not then concealed and covered merely false, material had had fact and made a but fictitious and appliances placed his on teeth statement” fraudulent in that he sent his evading purpose stating recently service board “a letter ” . . moved his Armed Forces . . due to an bands auto- accident, three on March mobile Count when in he did fact not re- knowingly caused to be made a move his orthodontic bands due to auto- “false, improper and incorrect classification mobile accident.” by reporting of himself” on to AFEES Jan- on count essary his conviction to sustain appointments; the last recorded al four. 12,1971. January States in an February On indistinguishable 1972), hospital- and was accident automobile four us. the case before rays to determine taken ized. X Ayala appear to be same counts At his skull. fractured whether case. in this four counts the first as There, too, government’s ortho- trial, a conflict there was raysX showed dontist testified that, four, affirming count evidence. the accident of the date of held: only wearing hospitalization, Deep was “conflicting . stories These eight neither bands and two to be question presented these He the arch wires. stated jury time passed upon at the possible no alone could serve two bands judge on the trial, by the trial purpose. v. Unit- Bush motion for new trial.” agents April 13, 1971, inter- FBI On Cir., 1959, 267 9 ed 485, why Deep he was viewed and asked him jury The there cited. and cases longer wearing Deep ad- no his braces. government’s wit- chose to believe the mitted that informed also Ay- If the believed nesses. changed required he was to early removed his braces ala had board. condition to his local reasonably December, 1970, it could response His to this advice was at that he was have inferred that time knew he do so because to receiving orthodontic treatment he had read the back of his classifica- any kind, knowingly failed (The card, tion Form 110. local board to inform his local board within Deep had sent classification cards ten-day period prescribed he was occasions.) four different longer receiving such treatment. F.2d at 466. May Deep appeared On before grand jury. federal The Unit- assistant It true that there was evidence attorney ed charge States of the in- might Deep which the believe vestigation noticed that gums But had bad and a malocclusion. wearing his braces and jury’s informed against that does not militate of that fact. finding necessary obvious of the facts for a conviction on count four. For this Finally, May 14, 1971, On Deep wrote there was As in sufficient evidence. stating his local that he had been reasonably Deep jury in an automobile accident and had have inferred that had removed his move his bands as a result. January braces some time between Count four of the indictment February (The only 1971. charged Deep knowing with a failure to date; Deep at issue is the exact admit- perform required duty during pe off.) ted that he himself took them The April riod May 13 to 1971. reasonably could also have conclud- Clearly, there was sufficient evidence for longer undergoing ed that was no Deep’s physical to believe that orthodontic treatment of kind. changed condition had in that at the time the accident he was no wear distinguish Ayala We cannot based ing any type braces; of effective upon testimony of an called change might this result in a reclassifi who stated that bands cation; duty had a can periods removed for as various change; this and that knew of this of orthodontic treatment. He stat duty. during His failure to do so ed on direct examination that an ortho period charged completes might nec- dontist periodically remove them x-ray years tongue- to clean or the teeth.2 in their He also formative with a thrusting that, problem stated on cross-examination result thumbsucking.3 hypothetical cases, few the braces be removed for or three two months to testimony expert’s does permit exercises; however, muscle those distinguish Ayala. this case from In or usually younger eases otherwise, der involve individuals to hold would have help Tlie particular doctor stated: tient seek the of this indi- long, If the bands left on too there vidual. very good possibility decay is a BY MR. SOMERS: things happening situations, like this underneath the Q. inSo several or some sit- during bands. least, So even full treatment uations at of active treat- years takes going two we like take the bands is the of braces and patient’s periodically off clean the type into some other of care? X-rays teeth, Immediately. take make sure the A. healthy teeth are in a condition or- you say? THE COURT: What did Immediately. THE WITNESS: go length wouldn’t any of time without regard testimony proper actual was as care. follows: Well, length THE COURT: of time Q. normally, expert, you Would it reasonable to state that say as an there are you several orthodontic cases involv- mean, braces on? if would be can ing patients question. you why, that bands and wires have peri- can’t, answer say If the put been on and a then removed for so. prescription time, od of a of certain long normally How braces on would type tongue gum exercises, of you and and before would conclude that that was appliance again putting then proper approach you on that or the and would type appliance? some other of take the for these muscle exer- braces off words, type In other this in- cises, of situation and so forth? volving types the removable and other of you long leave How would them on there adjustments just care, than other you before make that conclusion? would and braces? really very It THE is diffi- WITNESS: you’re bringing Well, A. I think a say, your of cult to Honor. could think hypothetical I’m and sure situation we hypothetical a few I have had situations could find one. my load, younger individuals case certain talking You are about the thrusting, tongue a who have we call patient sending speech braces and a to a problem sucking an- thumb that causes therapist tongue habits ? usually open These are terior bites. talking I’mQ. ac- about the method of actually years the that we can formative tive treatment orthodontists that used tongue, the train the that we can train tongue jaw involves certain and and mus- help Gen- muscles with our treatment. cle exercises assist in the correction erally speaking —(cid:127) malalignments. of BY MR. SOMERS: THE after COURT: You mean the tak- Doctor, this also— Q. isn’t ing off, are taken braces braces Wait a minute. Let THE COURT: purpose exercise, off for of that is finish. you that what mean? yet. by question answered You haven’t purpose MR. For SOMERS: Maybe you can’t. prob- when it is there is some determined really It : I can’t. THE WITNESS lem with working are braces really very me. difficult type right, using another of ac- of Would be matter THE COURT: tive orthodontic treatment. two or three months? Well, THE in most cases WITNESS: It could be. THE WITNESS: type you this of muscle exercise are talk- right. ahead. All Go THE COURT: conjunction about is with the used in BY MR. SOMERS: braces. Doctor, that considerable isn’t it true Q. progress made Many employ has been amount of of orthodontists use therapy types cer- speech speech pathologists therapists muscle certain period problems types in a short tain in their hand in hand with offices to work couple time, phase of months? such as them the active of treatment. right, you’re Well, certain imagine there are A. would be cas- would there type helped you with some es, you mentioned, eases that could where like have myo-therapy. pa- off and have the take the braces testimony, ala, of this 465 F.2d at err in that because would conclude We reasonably reversing jury’s not have conclusion inference, required since are draw all case as was drawn the inferences from in the evidence conflicts done in undergoing any type pre- “ac- in favor of the vailing party. have Glasser v. United tive” say that, regardless otherwise. We would testi- other U.S. required mony, seize charges five does not that count small cross-examination any offense and therefore his mo- State tion to dismiss should give expert, weight full grant- testimony acquittal; and to return an charge was ed. substance of the further, false state- made a material following reasonable, to find the to be in violation 18 U.S.C. § demonstrating acceptable and a contin- “stat- to his local board he wrote when ing (1) uation of orthodontic treatment: recently his ortho- removed Deep, than an rather orthodontist acci- bands due an automobile dontic spite moved his braces in own remove his dent, did not when in testimony only way they can an automobile bands due to taken should be tist; off is the orthodon- it is not He contends accident.” (2) he had removed braces due to the removal was material whether protracted period for some for ortho- part of not, that that an accident dontically-prescribed therapy muscular any action not influence statement (for evidence) which there nowas therefore, and, by the inaction therapy usually younger reserved for is immaterial. the statement prior history individuals with a thumbsucking (for which there was no materiality must is true that It evidence). disagree We pursu demonstrated for a conviction hypothetical to find such a Singh Paritem to ant section applied only situation to this case. Not 294 v. United Poonian require does the law not to 1961). (9th for deter The test Cir. 75 mining finding, make such a but it would be im- materiality is proper absolutely here because there was calculated the falsification support whether evidence to it. It is clear by an jury, induce action or reliance to agency inas could and did it one of the United States —is conclude that not re- “was influence the ex- ceiving affect or that could any orthodontic treatment of functions,— governmental kind, knowingly ercise and that he in- failed to tendency to in- have a form it natural does pre- his local board within the influencing capable ten-day period fluence or is scribed longer that he was no agency receiving Ay- decision[.] such treatment.” you were A. think answered in Q. Then some of these cases asking

may taking braces, me. involve the off of correct, put that have been on? provides: § 4. 18 U.S.C. jurisdic- any Whoever, Well, say within matter A. let me in- most department agency any put things or stances we tlo these before we tion willfully knowingly falsi- the braces on. United States any trick, up fies, or conceals covers you say you re- Q. When “we” who are fact, scheme, makes or a material or device ferring to? any false, statements fictitious fraudulent or A. Orthodontists. any representations, or uses makes or or knowing necessarily writing same Q. Not dentists? or document false any false, fraudulent necessarily. or fictitious A. to contain Not entry, not more fined or shall statement Pardon? Q. imprisoned $10,000 more than necessarily. or than A. Not please. years Continue, both. five Q. one, East, cuss Maryland, counts two or three. Benton United States 1969). (9th 395 U.S. 89 S.Ct. Cir. (1969); 23 L.Ed.2d 707 United States v. conjure up Although one 1971). Moore, 452 F.2d 576 argument how the isolated statement Affirmed. pertaining to the for removal was reason material, taking the statement as a KOELSCH, CHAMBERS, MERRILL, it was whole in the context WRIGHT, BROWNING, DUNIWAY, made it was us conclude that leads CHOY, TRASK, GOODWIN provides material. The statute Judges, SNEED, Circuit concur in who, punishment person a opinion. jurisdiction within the matter HUFSTEDLER, Judge, Circuit with government, up by “conceals covers ELY, Judge, concurs, dis- any trick, scheme, whom Circuit or device material senting : knowingly fact” false “makes up . covered statements.” disagreement my At the heart the fact that he removed the bands regarding count four is a himself, wires not because of automo- differing view of the that is nec- accident, bile but because the bands essary support a conviction under designed wires were prevent of a scheme majority opinion that count. The states service, his induction into the “[cjount four of the indictment no other reason wear charged Deep knowing with a failure to prior them and that removed them to perform required opin- duty”, and the attempt the accident. His to conceal duty ion indicates that the breach of by claiming and cover the real facts which it was that refers had failed that he removed the bands and wires that “he was no wear- due to an accident demonstrates the ing any type of effective braces ” materiality. quired If had actual- . ly removed the and wires bands charged Deep knowingly fail- of an active orthodontic that he had removed some would have had no reason to have con- part parts appliances, his dental cealed the fact that he had removed govern- but it did do Rather so. prior addition, them to the accident. had failed to re- suggestion that the bands and wires longer undergoing port that he was no had been removed due to an accident prove active orthodontic treatment. To tendency have would to influ- natural actually charged the offense in count ence the local to the believe that government four, prove the not had to necessitating ini- condition the only Deep undergoing that not ac- was tial orthodontic treatment still existed. April tive orthodontic treatment 11, Deep We conclude that both concealed a May to that but also material fact and made a material falsi- Deep undergoing knew that he not was sufficiency fication. The of count five such treatment.1 should be determined on the basis of a assuming arguendo jury Even that the practical approach, not technical consid- expert testimony infer could from the Hopper erations. Deep undergo that in had fact ceased to 1943). 184-85 giving treatment, active orthodontic and government’s the of evidence maximum Because concurrent sentences its force,2 jury imposed, unnecessary we cannot it is hold that a for us to dis- could necessary necessary the were meats was to sustain convic- These included as elements requested by of tion. the in an offense instruction given by the and the district ignore testimony Deep government, must, that court. favorable as it ac knowledges pe appeal was his to receive in consistent with efforts its brief its continuing rehearing view ele- must tition for that treatment because we these teeth that from his Deep the knew found that by Deep. not moved period was time that he relevant undergoing treatment. orthodontic active parts First, the fact that not jury could that the conclude To apparatus Deep’s had had knew properly that infer light not, record was the removed treatment, we active orthodontic ceased support that inference sufficient say jury the was not that need undergping that ac- he knew he was braces the to find Deep highly treatment. It is tive orthodontic scope or- of active within the was prop- questionable or not it whether was only treatment; con- we need on this record to conclude that er be- jury find could not that clude undergoing such in fact not was Deep knew that yond reasonable doubt reaching treatment,3 the conclu- the case. such was not that jury not, that sion was guidance expert largely several witnesses. be- find not so Nothing suggests record is a treatment active orthodontic cause given comparable was un- advice meaning of term art the Although constituted active orthodontic experts. even to clear might If a unable government argued treatment. term testimony expert infer even from “clearly orthodontist understood treatment, it using not under active any layman was dentist, com- surely beyond cannot a rea- sense,” testimony govern- be said mon of the person very lay doubt a at the expert sonable mean- about the ment’s witnesses beginning of orthodontic treatment otherwise. of the term indicates know that removal of a experts define was able to None parts appliances of his orthodontic so any precision; term none impaired quality attempted treatment agreed his definitions it ceased to be active orthodontic wit- If others. agree upon any defini- nesses tion of active testimony Second, from the that bands how could the have attributed generally only are removed terminology Deep knowledge what the might orthodontist, dentist reasonably knowledge meant and meant, that whatever Deep, have inferred receiving treat- appliances, his orthodontic ment? disobeying implied express or instruc- essence, tions from dentist.4 The inferential only two facts are asserted leap disobey- from the notion that support inference ed his dentist to the that his conclusion was aware that he thereby undergoing active orthodontic treatment treat- terminated, ; was and was known appliances were removed yond light un- a that not the record reasonable doubt it was in the most favorable to the government. suggesting that less there was some evidence it not. no such evidence. was There was Deep’s 3. The record in case clear that he is effect the These factors and their on what needed such orthodontic treatment and that jury reasonably regard to find with treatment the had been One of commenced. Deep’s knowledge his about the status of government’s experts testified that removal distinguish treatment this case from United periods of orthodontic bands for of various Ayala 1972) (9th v. States Cir. part time two or three months was of some kinds full treatment disobeying If, course, his was not and that for shorter times was bands, regular it would his dentist when he removed obviously impermissible correctly for the majority opinion be even more While the main- active ortho- to infer he knew that tains find that that was not the Deep’s type, had ceased. dontic treatment that it treatment was of this improper be- seems the find to allow however, record. cannot be made on this tion of 18 U.S.C. 1001 when he wrote § disobeyed patient “stating recently If a his board orthodontist’s the eating hard admonishment avoid removed his bands due to an might misalign appli- accident, foods ances, the automobile that when fact he did regularly auxil- remove or failed to wear not his orthodontic bands due to headgear, or, iary case, charge as in an automobile accident.” The this causing Materiality moved wires or bands that did not state an offense. discomfort, the an extreme it could be said false statement essential ele- is patient of an or- ment offense under section knew that his active (9th necessarily (United 1969) ter- States East Cir. treatment was 351; thereby. Singh most, At 416 F.2d Paritem Poonian minated it could be 1961) patient States inferred the that that knew 74.) impairing A statement material be is not unless to some extent naturally it of the treatment. affect influence effectiveness agency Deep’s action or decision. state- meaning phrase Because the of the ac- recently that he had removed his tive unclear orthodontic treatment is material, orthodontic bands was but it and because there is evi- insufficient falsity false. The was not claimed that, phrase dence to show whatever the stating that for the reason the remov- means, Deep that not re- knew he was al was automobile accident. That ceiving such that conclude statement, false, even if was not materi- Deep could not be convicted there al because is no decision or action charged record of the offense in count local board that it could Deep’s judgment four. motion have affected or influenced. acquittal granted should have been government’s case in close effort In an to sustain its conclusion chief.5 that a false statement of the reason concede, course, evidence material, the braces was support would report a conviction failure to argues majority intended appli- the fact that orthodontic thereby argu- to mislead The the board. Deep’s ances had been removed from materiality. ment fails to A establish However, teeth. is does immaterial not become with, nor instructed with registrant material because a an evil has regard charge to, failure. The stating determining motive it. knowingly had failed to that materiality, the state of mind that longer undergoing he was no or- board, relevant not of the thodontic treatment cannot translated registrant. further charge knowingly into a that he had argues misrepresentation failed to that he had removed tendency “a natural influence the lo- parts appliances. his board to believe cal government’s failure of cannot necessitating initial condition ortho- deciding cured fully proved treatment dontic still existed.” I am charge did to discern reasonable chain unable make. lead the inferences that could if I turn fifth to believe that removed to the count. The sub- charge for some other than stance of bands reason was that accident, he not need made a automobile did material false statement viola- 29(a) to sustain a 5. Rule of Crimi- the evidence is insufficient con- Federal Rules part, provides, pertinent nal of such offense offenses.” As for Procedure viction or determining general suffi- standard for a defendant “[t]he court motion of generally entry ciency evidence, or see 8 J. of its own motion shall order the judgment Moore, acquittal 29.06 at 29-18 Federal offens- Practice one or more j[ es indictment or information to 29-26. if closed after the evidence on either side important- More arguments, regard both ly, decision indicate what cannot have board could local of the action or by Deep’s al- influenced affected

been majori- falsification,6 leged nor does the log-

ty opinion supply facts set inferences ical decision,

properly conclude that such

action, have inaction was Deep’s statement induced I am his braces. reason any. supply unable would reverse. al., Plaintiffs-Appellees,

Roger KENT et RE- CALIFORNIA

The NORTHERN OF AMERICAN GIONAL OFFICE et FRIENDS COMMITTEE SERVICE al., Defendants-Appellants.

Roger al., Plaintiffs-Appellants, KENT et

The UNITED and the STATES Northern Regional California Office of the Amer- al., ican Friends et Service Committee Defendants-Appellees. 72-1093,

Nos. 72-1094. Appeals, States Court

Ninth Circuit.

May 10, 1974. .”). pliances if 6. The . . . Even notification attached alleged misrepresenta- apjdianees may attached indicated have desired the change prevent his classifi- have reexamination condition that would tion to required Deep’s cation, The local have done so. reevaluation classifica- it could not required tion, regulations, that, to be under board’s actions were regardless same, the reason doubtless termination braces, (he disqualification induction had ceased ap- be an “[individual]

Case Details

Case Name: United States v. Sam John Deep

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 10, 1974

Citation: 497 F.2d 1316

Docket Number: 72-1623

Court Abbreviation: 9th Cir.