United States v. Epp, Crim. A. No. 82-10077-01.

• Decision Date: 12 June 1984
• Docket Number: Crim. A. No. 82-10077-01.
• Citation: 587 F. Supp. 383
• Parties: The UNITED STATES of America, Plaintiff, v. Charles Robert EPP, Defendant.
• Court: U.S. District Court — District of Kansas

587 F. Supp. 383

The UNITED STATES of America, Plaintiff, v. Charles Robert EPP, Defendant.

Crim. A. No. 82-10077-01.

United States District Court, D. Kansas.

June 12, 1984.

Benjamin Burgess, Jr., U.S. Atty., D. Kansas, Jackie N. Williams, Asst. U.S. Atty., D. Kansas, Wichita, Kan., for plaintiff.

Eric Bruce, J. Michael Lehman, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

THEIS, District Judge.

This is a prosecution for failure to register with the Selective Service System SSS, 50 U.S.C.App. § 462(a). Defendant Charles Robert Epp, a concededly sincere Mennonite, moved to dismiss the indictment on a number of grounds during November of 1982. Epp alleged that the selective service regulations and the Presidential Proclamation implementing the duty to register had been illegally promulgated, Dk. No. 7; that the indictment failed to allege a crime because no continuing duty to register exists, Dk. No. 9; that the indictment contained a duplicity of counts, Dk. No. 10; and that he had been a victim of impermissively selective prosecution, Dk. No. 11. After very extensive briefing, this Court found, on May 3, 1983, that Epp had taken the issue of selective prosecution past the frivolous stage by making a prima facie showing that he was selectively prosecuted, and a full evidentiary hearing on that issue was ordered.

Prior to the evidentiary hearing, the Court examined in camera an extensive collection of government documents, most of which proved to be completely irrelevant to Epp's motions. Those documents with some relevance were provided to Epp. The evidentiary hearing was held on May 23, 1983. Three witnesses were called by the defendant: Edward A. Frankle, formerly Special Assistant to the Director for Compliance in the SSS and currently Associate Director for Policy Development and Administrative Legal Systems with the SSS; David A. Cox, formerly Associate Director for Information Systems for the SSS; and David J. Kline, Senior Legal Advisor, General Litigation and Legal Advice Section of the Criminal Division of the United States Department of Justice. Numerous exhibits were introduced during the hearing, and the Court had the opportunity to personally assess the credibility of the witnesses.

At the conclusion of the evidentiary hearing, the Court took all of the pending motions under advisement. Epp requested, and the Court granted, twenty days following his receipt of a transcript of the evidentiary hearing in which to file his post-hearing brief. The transcript was filed on October 20, 1983. After numerous extensions of time and other assorted delays, the last of the post-hearing briefs was filed on May 16, 1984. The Court is now ready to rule on all of the pending motions in this case.

As a preliminary matter, the Court feels constrained to note that the leisurely pace of this particular case has permitted several other selective service cases to proceed much further through the judicial process. Although this Court might have written on a clean slate shortly after the indictment in this case was filed, such is certainly not the case now. Most of the contentions that Epp is pressing here have now been considered by the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits, and the United States Supreme Court granted certiorari, on May 29, 1984, in the case of Wayte v. United States in order to review the Ninth Circuit's disposition of that case. This Court has, of course, fully considered the opinions generated in these other cases, and the Court has found that the vast majority of this authority runs counter to Epp's position. Furthermore, this Court is persuaded by this authority, and will not burden this opinion with a mere recitation or restatement of it.

I. Illegal Promulgation The Courts that have considered the legality of the promulgation of the selective service regulations and the Presidential Proclamation implementing the date, time and place of registration have uniformly concluded that both were legally promulgated. See United States v. Wayte, 710 F.2d 1385 (9th Cir.1983), cert granted, ___ U.S. ___, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984); United States v. Martin, 557 F.Supp. 681 (N.D. Iowa 1982). This Court agrees, and must, therefore, decline to dismiss Epp's indictment on this ground.

II. No Continuing Duty to Register The Courts that have considered this contention have either held that a continuing duty to register exists, see United States v. Eklund, 733 F.2d 1287 (8th Cir.1984) (en banc); that the continuing-duty language is surplusage that may be stricken from an indictment without invalidating it, United States v. Martin, 557 F.Supp. 681 (N.D. Iowa 1982); or that the question is irrelevant so long as the initial registration period is covered by the language in the indictment, United States v. Sasway, 730 F.2d 771 (9th Cir. Unpub., 1984). Epp's indictment would be valid under any of these holdings, with which this Court agrees. The Court must, therefore, decline to dismiss the indictment on this ground.

III. Duplicity of Counts This argument does not appear to have been raised in any of the other cases. In a nutshell, Epp's argument is that the language of his indictment, which charges that he "did knowingly fail, neglect and refuse" to register, jumbles together several distinct violations expressed in 50 U.S.C. App. § 462(a) under the rubrics of "knowingly fail or neglect," "evades or refuses," and "knowingly fail or neglect or refuse." Epp attempts to draw an active and passive distinction between the various statutory expressions and argues that these alternative criminal concepts might lead to a conviction by a non-unanimous verdict. This Court finds no merit in this argument.

At the most, the United States has placed an unnecessary burden on itself with the conjunctive language in the indictment. Under the statute, Epp could be convicted on evidence...