United States v. Belgrave

• Decision Date: 21 August 1973
• Docket Number: No. 72-2169.,72-2169.
• Citation: 484 F.2d 915
• Parties: UNITED STATES of America v. Lamount Maurice BELGRAVE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

484 F.2d 915 (1973)

UNITED STATES of America v. Lamount Maurice BELGRAVE, Appellant.

No. 72-2169.

United States Court of Appeals, Third Circuit.

Argued June 11, 1973.

Decided August 21, 1973.

Edward H. Weis, Defender Assn. of Philadelphia, Philadelphia, Pa., for appellant.

Robert E. J. Curran, U. S. Atty., James C. Sommar, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before GIBBONS, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from a judgment of sentence imposed after a verdict of guilty on an indictment charging that appellant Belgrave violated the Selective Service Act of 1967, 50 App. U.S.C. § 462, by knowingly failing to comply with a notice to report for an Armed Services physical examination on April 10, 1970. Appellant's first trial on the indictment resulted in a jury disagreement. At his retrial the Government's case consisted of introducing in evidence his selective service file and of establishing that he did not appear on April 10, 1970, at the place designated for the physical examination. Belgrave moved at the end of the Government's case for a judgment of acquittal. See Fed.R.Crim.P. 29. That motion was denied and the defense presented testimony. The motion for a judgment of acquittal was renewed at the end of the entire case, and after the jury verdict, and was in both instances denied, D.C., 351 F.Supp. 686. This court still adheres to the view that in considering an appeal from the denial of a motion for judgment of acquittal, if the defendant has presented testimony, we judge the sufficiency of the evidence by the entire case. United States v. Feldman, 425 F.2d 688, 692 (3d Cir. 1970).¹ Thus we must consider both the Government's evidence and that presented by Belgrave.

The selective service file contains a notation that on March 19, 1970, the local board mailed a notice, addressed to Belgrave at 413 Concord Avenue, Chester, Pennsylvania, directing him to report for a physical examination on April 10, 1970. This is the address furnished by Belgrave when he registered with the local board, and the file contains no other.² There was no other proof of mailing and no proof of return. Belgrave does not dispute that the selective service record, kept in the ordinary course of business, suffices to establish that the notice was regularly deposited with the U.S. Postal Service and was not returned to the sender.

When his motion for a judgment of acquittal was denied, Belgrave presented the testimony of his mother and his former wife. He testified on his own behalf as well. The defense testimony establishes, and the Government does not dispute, that in the spring of 1970 Belgrave was not living at 413 Concord Avenue. This was his mother's home, but he had married and was living with his wife at another address. His mother testified that Belgrave would visit her house no more than once a month. There was no testimony indicating that any such visit took place between March 19 and April 10. Belgrave testified that he never received the notice in question, although he had at other times received other mail from the Selective Service System at 413 Concord Avenue. His mother testified that she usually put mail addressed to her son on top of a china closet. Her testimony does not establish that the notice in question was actually received, was placed on the china closet, or was picked up by Belgrave. It establishes that younger children living at 413 Concord Avenue sometimes tampered with mail delivered there.

This was the entire case. The indictment does not charge, the Government does not contend, and the district court did not rule that after mailing of the notice Belgrave became subject to a continuing duty to report for a physical examination. Cf. Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L. Ed.2d 156 (1970); United States v. Figurell, 462 F.2d 1080, 1082-83 n.5 (3d Cir. 1972). The Government concedes that it had the burden of establishing beyond a reasonable doubt that Belgrave received actual notice, prior to April 10, 1970, of the order to report on that date. See, e.g., Fisher v. United States, 413 F.2d 1034 (9th Cir. 1969); Graves v. United States, 252 F.2d 878 (9th Cir. 1958). It concedes, too, that there is no irrebuttable presumption of notice to the registrant from mailing of the notice. United States v. Bowen, 414 F.2d 1268 (3d Cir. 1969); United States v. Simmons, 476 F.2d 33 (9th Cir. 1973); United States v. Smith, 308 F.Supp. 1262, 1263 (S.D.N.Y.1969). The question, then, is whether proof of regular mailing and nonreturn to an address at which the defendant at the critical time was not residing suffices to sustain the Government's burden.

No doubt the jury could properly infer that the notice did in fact arrive at 413 Concord Avenue within a day or so after March 19, 1970. See, e.g., Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Lee, 458 F.2d 32 (9th Cir. 1972) (per curiam). Perhaps, construing the testimony of Belgrave's mother in a manner most favorable to the Government, the jury could add to the inference of due receipt at 413 Concord Avenue the evidence of her practice of placing Belgrave's mail on the china closet, and infer that the letter reached the top of the china closet. At this point, however, there is a gap, for if the notice never got from the top of the china closet to Belgrave before April 10, 1970, then Belgrave could not wilfully have ignored an order to report for a physical examination on that date. And, of course, the burden of proving such wilfulness remained on the Government throughout the case.

Belgrave's own testimony furnishes some evidence from which the jury could find that on some occasions after he moved from 413 Concord Avenue he returned there and picked up mail from the top of the china closet. His testimony might even be stretched to the point of suggesting that it was his practice, when he visited 413 Concord Avenue, to pick up his mail from the top of the china closet. If there was any evidence that between March 20 and April 9, 1970 he visited that address the jury possibly might have been able to infer that he followed that regular practice. Possibly then the jury could add together the inference of due receipt, the inference that Belgrave's mother followed her regular practice, and the inference Belgrave followed his regular practice, and conclude on the basis of these triple inferences that Belgrave...