United States v. Eppinette
| Decision Date | 03 October 1973 |
| Docket Number | No. 73-1362.,73-1362. |
| Citation | 488 F.2d 365 |
| Parties | UNITED STATES of America, Appellee, v. William Charles EPPINETTE, Jr., Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Deborah G. Mailman, Raleigh, N.C. court-appointed counsel, for appellant.
Malcolm J. Howard, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., for the E. D. N. C., on brief), for appellee.
Norman B. Smith and Smith, Patterson, Follin & Curtis, Greensboro, N. C., on brief for amicus curiae, North Carolina Civil Liberties Union Legal Foundation, Inc.).
Before CRAVEN, BUTZNER, and RUSSELL, Circuit Judges.
William Charles Eppinette, Jr. appeals from a judgment of conviction for failure to keep his selective service registration certificate and classification notice in his personal possession. We reverse the judgment and remand the case to the district court with instructions to enter a judgment of acquittal because nonpossession of these forms is not a crime punishable under § 12(b)(6) of the Selective Service Act of 1948, 50 U.S.C. App. § 462(b)(6) (1970).
On December 13, 1971, Eppinette returned his registration certificate and notice of classification to his local selective service board as a protest against the Vietnam War. In response, the board sent Eppinette a letter advising him that the law required him to keep the cards in his personal possession. The board also enclosed a form for requesting new cards. When Eppinette advised the board that he did not want any new cards, he was indicted for violating § 426(b)(6),1 convicted, and sentenced to two concurrent one year prison terms.
The section of the Act that the government accused Eppinette of violating provides:
"Any person . . . who knowingly violates or evades any of the provisions of this title or rules or regulations promulgated persuant thereto relating to the issuance, transfer, or possession of a Selective Service certificate, shall, upon conviction, be fined not to exceed $10,000 or be imprisoned for not more than five years, or both." 50 U.S.C. App. § 462(b)(6) (1970).
The United States does not contend that Eppinette violated any of the specific prohibitions in the Act. Instead, it asserts that Eppinette violated § 462(b)(6) by failing to comply with selective service regulations that require a registrant to have his registration certificate and notice of classification in his personal possession at all times.2 The government claims that the statute makes failure to comply with these regulations a crime punishable by imprisonment or fine. In support of this contention, it cites recent decisions upholding similar convictions based on indictments brought under § 462(a).3 We decline to follow the decisions on which the government relies because they do not accord with our interpretation of the statutes and the regulations. See generally Dranitzke, Possession of Registration Certificates and Notices of Classification by Selective Service Registrants, 1. Sel.Serv.L.Rptr. 4029 (1968).
Section 462(b)(6), as the general clause which follows the description of five specific crimes, must be construed in light of the statute of which it is a part. See Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 600, 83 S.Ct. 926, 10 L.Ed.2d 1049 (1963); Jarecki v. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). This canon of statutory construction is particularly applicable to § 462(b)(6) because the section is part of a criminal statute that must be strictly construed. Cf. United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); Rewis v. United States, 401 U.S. 808, 812, 1056, 28 L.Ed.2d 493 (1972). The first five subsections of § 462(b) outlaw fraudulent transfers of registration certificates, fraudulent possession of a certificate that has not been duly issued to the person possessing it, alteration or destruction of a certificate, fraudulent printing of a likeness of a certificate, and knowing possession of a forged or altered certificate.4 All five of the subsections are concerned with the destruction or fraudulent use and possession of certificates; none of them mention any requirement that a registrant possess certificates that have been duly issued to him. Therefore, the natural construction of the sixth subsection is that it reaches frauds which the statute did not expressly cover, but it does not punish the nonpossession of a validly issued certificate when no fraud has been committed.
This construction of § 462(b)(6) accords with the congressional intent as expressed in the legislative history. Statutes enacted prior to the Selective Service Act of 1948 contained no statutory provisions analogous to § 462(b). The Senate Report of the 1948 Act explains the new provision as follows.
S. Rep.No.1268, 80th Cong., 2d Sess., 2 U.S.Cong.Serv. 1989, 2008 (1948).
There is no suggestion in the report that the Senate intended the Act to punish simple nonpossession of draft cards when no fraudulent conduct is involved. The House version of the Act did not have a provision similar to § 462(b), but the conference committee accepted the Senate version. The conference managers of the House explained the conference bill as follows:
Our interpretation of § 462(b)(6) is also consistent with the regulations that the government accused Eppinette of violating.5 At the outset, we observe that the provision that a registrant "must" have in his personal possession certain documents does not require us to interpret the regulations as mandatory. Dependent upon the context, verbs that ordinarily denote the imperative sometimes should be construed as directory only. Because the administrative history of the regulations evidences an intent to limit criminal penalties to fraudulent use or possession of certificates, we believe the requirement that registrants have their draft cards in their personal possession is directory, not mandatory. Cf. United States v. Reeb, 433 F.2d 381, 383 (9th Cir. 1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1391, 28 L.Ed.2d 654 (1971); Thompson v. Clifford, 132 U.S.App.D.C. 351, 408 F.2d 154, 158 (1968).
The administrative purpose is most explicit with regard to the regulation requiring possession of registration certificates, which provides:
The regulation on its face refutes any intention to make nonpossession a criminal violation. The title indicates that the regulation is designed to explain the effect of nonpossession of a registration certificate, and the second sentence of the regulation says that nonpossession is prima facie evidence of failure to register. There is no warning that nonpossession is a violation of the regulations punishable by criminal penalties. The omission of an explicit statement that nonpossession is a violation is especially significant because a predecessor regulation contained a provision making nonpossession a violation,6 but this portion of the regulation was later repealed7 Moreover, a parallel regulation, which prohibited fraudulent use of certificates, contained a "violation" clause,8 and the current regulations expressly make fraudulent use of a notice of classification a violation.9
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