United States v. Bowen

• Decision Date: 28 July 1969
• Docket Number: No. 17409.,17409.
• Parties: UNITED STATES of America, Appellee, v. George Anderson BOWEN, Jr., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

414 F.2d 1268 (1969)

UNITED STATES of America, Appellee, v. George Anderson BOWEN, Jr., Appellant.

No. 17409.

United States Court of Appeals Third Circuit.

Argued January 23, 1969.

Decided July 28, 1969.

Rehearing Denied September 12, 1969.

Joseph R. McMahon, Lum, Biunno & Tompkins, Newark, for appellant.

Elliot Scher, Asst. U. S. Atty., Newark, David M. Satz, Jr., U. S. Atty., Newark, on the brief, for appellee.

Before HASTIE, Chief Judge, and McLAUGHLIN and STAHL, Circuit Judges.

OPINION OF THE COURT

STAHL, Circuit Judge

George Anderson Bowen, Jr., claiming to be a conscientious objector, was sentenced to five years imprisonment, the maximum term,¹ for failing to report for induction scheduled for December 29, 1965, in violation of 50 U.S.C. App. § 462.² A motion for a new trial or for a judgment of acquittal was denied. The following is a summary of the facts of this case:

April 27, 1962: Bowen registered with his local Selective Service Board. (Trial Transcript (TT) p. 5.)³

July 13, 1964: He was classified 1-A. (Minutes of Action (MA) contained in Appellant's Appendix; TT. pp. 6-7.)

June 18, 1965: After notice, Bowen appeared for and was given a preinduction physical. On the same date he was issued SSS Form 100, Classification Questionnaire, TT. p. 23, which he subsequently completed and returned. In that form Bowen signed his name after the following printed statement:

I claim to be a conscientious objector by reason of my religious training and belief and therefore request the local board to furnish me a Special Form for Conscientious Objector (SSS Form No. 150). (Appellant\'s Appendix.)

July 12, 1965: Bowen was mailed the first of two SSS Forms 150, necessary for the local board to consider his claim for conscientious objector status. (TT. pp. 12-13.)

November 22, 1965: Because the board believed that Bowen may not have received or overlooked the SSS Form 150 sent on July 12, it sent another one. (TT. p. 13.) Bowen testified that he did not receive either of the forms.⁴ (TT. p. 83.)

December 14, 1965: The board mailed Bowen an order to report for induction scheduled on December 29, 1965 (MA).

December 15, 1965: The board sent Bowen a notice informing him that he could attend a meeting of the board to be held on December 20, 1965 (TT. p. 37). No copy of this letter was adduced at trial. Bowen did not deny receipt of it. The Government's witness testified that the letter contained no specific reference to what the board might consider (i. e., Bowen's pending dependency claim or his claim for conscientious objector status), except to indicate that the board would meet "to discuss your case." (TT. p. 38.) Bowen did not appear at the December 20 meeting (TT. p. 38). Bowen testified that he felt all his papers were in order and therefore he need not attend. (TT. p. 84.)

December 22 1965: The board sent Bowen the following (form) letter:

Dear Mr. Bowen, Jr.

This will advise you the recent evidence submitted concerning your case has been reviewed by this local board but it does not justify the re-opening of your case and reconsideration of your present classification.

You will, therefore, be subject to further processing for induction. Notices will be mailed to you in due course.

Very truly yours /s/ Lois R. Reilly For the Chairman Local Board No. 44

(Emphasis added; see Appellant's Appendix and TT. p. 40.)

We pause at this point in the recitation of the facts to comment on this letter. It stated that the board considered "recent evidence submitted concerning your case." We have reviewed the entire record, including the Selective Service file of the appellant, and as the testimony of the Government's witness indicated, no new evidence was submitted to the board for its consideration. Moreover, the last paragraph of the letter is especially troublesome. It intimates that there will be "further processing for induction" and that further notices will be sent. No further processing appears to have been required and nothing else was in fact mailed to appellant.

Although not raised by counsel, we cannot help but note the confusing nature of this letter. Had Bowen claimed that as a result of the letter he was uncertain about the continuing validity of the notice of induction, it may have been a sufficient defense going to the willfulness of his conduct. Cf. United States v. Rabb, 394 F.2d 230 (3d Cir. 1968). Although this issue is not dispositive of the appeal, we mention it because it raises the disturbing question as to whether it would comport with due process of law to uphold a criminal conviction predicated on failure to perform a duty where the notice regarding such performance may have been ambiguous.

We continue with the facts. Bowen failed to report for induction on December 29, 1965. Almost a year later, on December 1, 1966, Bowen went to the office of the draft board (TT. p. 46), after being visited at his home by an FBI agent (TT. p. 85). At the board's office he requested an SSS Form 150 for conscientious objectors. The clerk refused to give him the form (TT. pp. 45-47). Instead, the clerk, upon telephonic instructions from the state office, handed Bowen a notice to appear for induction the following day (TT. p. 47). Appellant did not report for induction the next day as ordered. The prosecution and conviction here, it should be noted, were for failure to report on the first scheduled date for induction, i. e., December 29, 1965.⁵

While not controlling, we pause once more to observe that the failure of the clerk to give Bowen an SSS Form 150 was in violation of a mandatory duty imposed by 32 C.F.R. § 1621.11. United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir. 1969); United States v. William Kroll, 400 F.2d 923, 926 (3d Cir. 1968), cert. denied, 393 U.S. 1069, 89 S.Ct. 728, 21 L.Ed.2d 713 (1969).

A failure to give a registrant a requested SSS Form 150, on or prior to the scheduled date of induction, has been held to vitiate a conviction for failure to report for induction. Boswell v. United States, 390 F.2d 181 (9th Cir. 1968) (the request for the form was made following the notice of induction, on the day before the induction was scheduled); United States v. Stafford, 389 F.2d 215 (2nd Cir. 1968) (the request was made on the day of induction by means of a written statement handed to the induction officer at the induction station).⁶ Although United States v. McNeal, 1 Sel.Serv.L.Rep. 3227 (N.D.Cal.1968), held that a local board's failure to supply Form 150 after refusal to report for induction was fatal to a conviction, the Ninth Circuit, joined by the First Circuit, have subsequently ruled that despite a board's mandatory duty to furnish the form, failure to do so following a refusal to submit to induction does not remove the underpinning of a conviction for not reporting for induction. Palmer v. United States, 401 F.2d 226 (9th Cir. 1968); United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969).⁷ At any rate, we reverse on other grounds.

Regardless of the December 1, 1966, refusal to supply the Form 150 subsequent to the failure to report for induction, counsel for appellant has argued, and we agree, that the board obviously had a mandatory duty to supply Bowen with the form prior to the notice of induction, 32 C.F.R. § 1621.11, and that the failure to do so would vitiate his conviction. Boswell v. United States, supra. The Government asserts that the board fulfilled this duty by mailing blank SSS Forms 150 to Bowen on two occasions, July 12, 1965, and November 22, 1965, before issuing the order to report for induction. Bowen denied receipt of the form at either time and claimed, therefore, that the board had not complied with this mandatory duty.

On this issue the court below charged the jury as follows:

Admittedly all matters sent to the defendant were sent by ordinary mail. None of it was returned, as I recall, as undelivered by the postal authorities. There is no requirement in the law, ladies and gentlemen, that notices must be sent by certified mail, or registered mail, or in any special manner. It is perfectly proper to use ordinary mail. And the presumption is that mail so sent is received. Indeed, under a Selective Service Regulation the mailing of any order, notice, or blank form, to a registrant at the address last reported by him to his local board, shall constitute notice to him of the contents of the communication whether he actually receives it or not.

Of course, it is for you to determine and evaluate the facts of the case. But you are not to concern yourselves with the propriety of the defendant\'s classification as a 1-A registrant by his local board. * * * (Emphasis added; TT. pp. 113-114.)

The trial judge, in the italicized part of the charge, which the Government specifically requested, was referring to the Selective Service Regulation, entitled "Communication by Mail." 32 C.F.R. § 1641.3:

Communication by Mail. It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him of the contents of the communication, whether he actually receives it or not. (Emphasis added.)

From our reading of the charge, it is unclear whether the jury was instructed that the critical issue of receipt of the conscientious objector forms was governed by a rebuttable presumption,⁸viz., that mail sent is presumed to be received unless the jury believes the evidence to the contrary, or that under the applicable Selective Service regulation an "irrebuttable presumption" controlled. As we have no way of knowing which alternative instruction the jury selected or followed in its determination of appellant's guilt, we are required to review the validity of both aspects of the charge. If either ground is invalid, the conviction must be...