United States v. Ronald James Clark

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Appellant Ronald James Clark was convicted for failing to report for induction into the armed forces, in violation of 50 U.S.C. App. § 462(a). On appeal from that conviction, he alleges several grounds for reversal.

I. THE FACTS

Although appellant has had many dealings with his draft board since he first registered at age eighteen, our chronology may begin in the summer of 1970. On July 17, the Local Board mailed appellant an order to report for induction on August 4. The order was mailed to appellant at the current mailing address listed in his Selective Service file, which was the address of his mother’s home in Erie, Pennsylvania. Appellant failed to report on August 4. On August 10, however, the Local Board received a letter from appellant, stating in essence that he had been away from Erie since July 1970, that he had called home and had been informed of the induction order and that he would not return to Erie until September 1970, at which time he would “give you a call or come down and see you.” A postscript was added: “I do not have any address for you to get in contact with me.”

On August 13, 1970, despite the letter received from appellant, the Local Board mailed appellant another order to report for induction, this time on September 1. This second order, which was a Selective Service Form 252, was also mailed to appellant at his mother’s home in Erie. Appellant again failed to report.

After the second failure to report, appellant’s selective service file was forwarded by the Local Board to Selective Service Headquarters and subsequently was forwarded to the U. S. Attorney, who requested an F.B.I. investigation.

In the meantime, the Local Board received from appellant another letter, this one containing a California address. Appellant also contacted a California draft board and, using a California form given to him, filed a formal change of address with the Pennsylvania Local Board.

On November 20 the Local Board was instructed by Selective Service Headquarters to “reorder” appellant for induction. By “letter order” of that same date, mailed to appellant at his Cali fornia address, the Local Board ordered appellant to report for induction in Erie on December 1. In the . same letter appellant was given specific instructions to follow if he wished to transfer his induction to California. Appellant failed to report on December 1.

On December 14 the Local Board received a letter from appellant, acknowledging receipt of the “letter order” and enclosing another change-of-address form.

Subsequently appellant was indicted for failing to report for induction on December 1, 1970, at Erie.

Other facts will be recounted in connection with specific arguments below.

II. VALIDITY OF THE “LETTER ORDER”

Appellant argues that the “letter order” was invalid since it was not a Selective Service Form 252, which contains important notices to inform the registrant of his rights, responsibilities, and potential liabilities in connection with the induction order.

Although the “letter order” alone would not have met the requirements for a valid induction order. 32 C.F.R. § 1632.1, the “letter order” did not stand alone. The Local Board’s order to report on September 1 was a proper Form 252, and appellant does not challenge the validity of that order. The “letter order” was simply a means of setting a new date to report in accordance with the existing induction order.

The dissenting opinion argues that appellant may have been convicted for a crime not charged by the grand jury. The indictment shows, however, that the grand jury charged appellant with committing a crime on December 1, 1971, specifically, with failing to obey an order of his Local Board to report for induction on that date. The fact that appellant did fail to report for induction on that date is conceded on this appeal. The only real question, then, is whether he was under a duty to report on December 1, which in turn depends upon whether the Local Board properly ordered him to report .then. The majority holds that appellant was properly ordered to report on December 1, not because the “letter order” alone was a sufficient induction order, but because the “letter order” was a proper means to change the date set for compliance with the existing, admittedly valid, induction order of August 13.¹

That a draft board can fix a new date for induction without sending' a new Form 252 induction order has been recognized in several cases. In United States v. Ritchey, 423 F.2d 685 (9th Cir. 1970), the registrant reported for induction on the set date, but the induction process was not completed on that date, and a new date was set. On the new date the registrant failed to report. Subsequently a third date was set, at which time the registrant did report, but the induction process was again not completed and by “final letter” a fourth date was set for induction. When the registrant failed to report on that date, the failure to report was the basis of his indictment. The Court upheld the validity of the “final letter” fixing a new date for induction.

In United States ex rel. Luster v. McBee, 422 F.2d 562 (7th Cir.), cert. denied, Luster v. Cooksey, 400 U.S. 854, 91 S.Ct. 74, 27 L.Ed.2d 92 (1970), a valid Form 252 induction order was mailed to the registrant. On the induction date, however, questions arose about the medical acceptability of the registrant, which were settled only after the registrant’s doctor had submitted statements. At that time a letter, not a Form 252, was sent to the registrant, the letter setting a new induction date. The Court upheld the registrant’s duty to report in accordance with the letter.

In Swift v. Director of Selective Service, 145 U.S.App.D.C. 224, 448 F.2d 1147 (1971), the registrant, after several postponements, reported for induction on the date specified, but because the examining center was not capable of performing certain medical tests he was not inducted on that date. After a hospital examination the registrant was found to be acceptable, and he was thereupon mailed a letter setting a new date for his induction under the original Form 252 order. The court held that the original induction order was not can-celled, in effect upholding the registrant’s duty to report on the new date set for his induction.

In the three cases mentioned, the registrant had reported for induction on the date set by the induction order, but in each ease induction did not take place on that date. In United States v. Brunner, 457 F.2d 1301 (9th Cir. 1972), the registrant, like appellant here, failed to report on the date set by his induction order. Subsequently his local board scheduled five more induction dates, on all of which the registrant failed to report. For the fifth of these subsequent failures the registrant was convicted. His conviction was upheld.

In addition, in many cases courts have recognized that, following a postponement of induction, the existing induction order remains in effect and the registrant may, by letter, be given a new date on which to comply with the order. E. g., United States v. Whalen, 451 F.2d 755 (8th Cir. 1971); United States v. Jenson, 450 F.2d 1258 (9th Cir. 1971); United States v. Watson, 442 F.2d 1273 (8th Cir. 1971); United States v. Evans, 425 F.2d 302 (9th Cir. 1970); see 32 C.F.R. § 1632.2(d).

The facts in this case indicate that the Selective Service authorities have been especially careful to accord appellant the maximum opportunity to comply with his duty to report for induction. Appellant had already failed to report for induction on August 4 in accordance with the first Form 252 induction order, but in response to appellant’s letter explaining his absence from Pennsylvania a new Form 252 induction order was mailed. After appellant failed to report in accordance with that order,² Selective Service authorities, after investigation, gave appellant one more chance to comply with the order, by setting a new date for his induction. The “letter order” used by the Local Board to set the new date was a valid means of doing so.³

Contrary to statements in the dissent, we do not hold that appellant committed a continuing offense. Simply because appellant was under a continuing duty to report for induction, see note 2, supra, does not necessarily mean that by violating that duty he has committed a continuing offense. A person has a continuing duty to register for the draft, yet Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) held that failing to register for eight years did not constitute a continuing offense.⁴ However, the dissent seems to argue that by stating that there was a continuing duty we therefore say that there was a continuing offense, which at least for the purposes of this opinion we do not hold.

This opinion holds only that where a registrant has failed to report for induction on the date set, his draft board may set a new date for his induction pursuant to the original order, and that he may be informed of the new date by a “letter order” such as that used here, without the necessity of a new Form 252.

III. APPELLANT’S C.O. CLAIM

Appellant contends that on three separate occasions he expressed beliefs that qualified him for conscientious objector status, that knowledge of his statements should be imputed to his Local Board, that the Local Board should have furnished him a Selective Service Form 150 and reopened his classification, and that the failure to do so invalidates his induction order.

The three statements were made under the following circumstances:

(1) Examining Center. On June 1, 1970, prior to the date his induction orders were mailed to him, appellant underwent an armed forces physical examination. During the examination he was interviewed by a “moral waiver clerk” about his prior criminal record. According to appellant’s testimony at trial:

“Well, I went inside a room, and everybody who had a record, and she asked us to fill out a form and tell them what the record was, and whether we were arrested at that time, and what we were arrested for. She asked some of us that if we have any objection to the war, and I said, when she asked, I said that I didn’t believe in killing or violence and that, and that I would not go into the service if I were called.” (N.T. 89)

Appellant testified further that the clerk was writing down part of what she was told.

(2) Statement to F.B.I. Agent. After appellant failed to report in September 1970, his file was transferred to the U. S. Attorney, who requested an F.B.I. investigation. On October 20, 1970, an F.B.I. agent interviewed appellant in California. According to appellant’s testimony at trial, he informed the agent of his conscientious opposition to armed forces service:

“Q. And did he ask you about your views in regards to fighting and going into the United States Army?

“A.. Yes.

“Q. And what did you explain to him?

“A. Well, I told him I would not fight in the Army or any other Army right now, and that I just didn’t'believe in violence.

“Q. And that you could not serve?

“A. Yes.

“Q. And did you also indicate to him that you were against any form of killing?

“A. Yes.

“Q. And did he question you excessively to your beliefs as to war and killing and the like?

“A. Yes.

“Q. Did you make it very clear to him your beliefs in that regard?

“A. Yes, I think so.” (N.T. 91-2).

(3) California Draft Board. According to appellant’s trial testimony, he visited a draft board in Santa Ana, California, in October 1970, and during the visit there he expressed his views regarding conscientious objection. (N.T. 92-4). Appellant did not testify, however, about the specific statements that he made or to whom he spoke.

We believe that in none of these three instances should knowledge of appellant’s statements be imputed to his Local Board.

The Selective Service System is a complex administrative system. We recognize that proper functioning of the system relies upon each registrant’s use of established procedures to present his claims and objections to his local board. Where a registrant has expressed his conscientious objection to persons other than the members or agents of his local board, to persuade a court to impute knowledge of those statements to the local board requires some strong factor or set of factors to countervail the strong interest in proper functioning of the system. No such factors are present here.

The moral waiver clerk at the examining center was questioning appellant about his prior criminal record for the purpose of determining whether his pri- or record disqualified him for service in the armed forces. The F.B.I. agent was questioning appellant after being requested to do so by the U.S. Attorney’s office in connection with the appellant’s failure to report for induction in September 1970. The California draft board had been approached by appellant, according to his testimony, in connection with his wish to transfer his records to California. In none of these instances, we believe, was there a duty to transmit appellant’s statements to the Local Board in Pennsylvania, nor do we believe that there could be any reasonable expectation that the statements would be transmitted to the Board.

Nor do we find any other factor in this case to warrant imputing to the Local Board knowledge of appellant’s statements. Cf. United States v. Stafford, 389 F.2d 215 (2d Cir. 1968); United States v. Holmes, 426 F.2d 915 (2d Cir. 1970), vacated and remanded on other grounds, 402 U.S. 969, 91 S.Ct. 1644, 29 L.Ed.2d 134 (1971). We note that at the same time that appellant was allegedly making these statements, he wrote to his local board on several occasions, and in none of those letters did he indicate his conscientious objector beliefs.

Because we believe that knowledge of appellant’s statements should not be imputed to his Local Board, and because he never otherwise indicated his conscientious objector views to his Local Board, we find it unnecessary to decide whether the views expressed would have constituted a prima facie claim for conscientious objector status, or whether reopening of appellant’s classification would be barred by the decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

IV. WILFULNESS

Appellant contends that his failure to report, although intentional, was not wilful since his statements show that he conscientiously objects to the armed forces “and an evil mind or intent is not manifested from such statements.” (Brief, p. 10). This contention is without merit. See United States v. Rabb, 394 F.2d 230, 232 (3d Cir. 1968).

V. VENUE

Appellant contends that his crime, if any, was committed in California rather than in Pennsylvania, and that venue for his trial should have been in the federal courts in California. We disagree.

Appellant was ordered to report for induction in Erie, Pennsylvania. He failed to report there. He took no action to transfer his induction to California. Thus the offense occurred in Pennsylvania, even though appellant himself may have been in California at the time set for his induction. Venue was properly placed in the Western District of Pennsylvania. Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956); United States v. Scott, 424 F.2d 285 (4th Cir. 1970); Jones v. Pescor, 169 F.2d 853 (8th Cir. 1948).

The judgment of conviction will be affirmed.

1 . The questions on this point are purely legal; it is difficult to find support for an assertion that we are affirming on a factual basis different from that on which appellant was indicted and convicted. We do not hear defense counsel even hint that he was misled.

2 . Although appellant failed to report on the date specified in the induction order, he was thereafter under a continuing duty from day to day to report for induction. 32 C.F.R. § 1632.14(a); United States v. Winer, 456 F.2d 566, 568 n. 5 (3d Cir. 1972).

3 . Appellant has contended in addition that the “letter order” was invalid since it was mailed to him only eleven days before the date set for reporting. Although 32 C.F.R. § 1632.1 now requires that the date specified for induction be at least thirty days after the Form 252 is mailed, prior to December 10, 1971, only ten days’ time was required. Thus the eleven-day period would, not have been unreasonable under the regulation even if appellant had been mailed his first Form 252 induction order, and it follows a fortiori that the period was not unreasonable here, where appellant was mailed a “letter order” setting a date for compliance with an existing Form 252 induction order.

Although appellant was in California at the time and was ordered to report in Pennsylvania, specific instructions were given to effectuate a transfer of the induction to California in the event that hardship would be involved in returning to Pennsylvania. Thus there was no unreasonableness caused by the distance factor.

4 . The Supreme Court specifically disavowed holding that 32 C.F.R. § 1611.7 (c), which imposed a continuing duty to register, was unauthorized. Toussie v. United States, supra, 397 U.S. at 121 n. 17, 90 S.Ct. 858. We have been given no reason to hold that 32 C.F.R. § 1632.14(a), which imposes a continuing duty to report for induction, is invalid.