United States v. Falk, 71-1213.

Citation472 F.2d 1101
Decision Date18 October 1972
Docket NumberNo. 71-1213.,71-1213.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Stuart FALK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William J. Stevens, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Gordon B. Nash, Jr., Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, CUMMINGS and SPRECHER, Circuit Judges.

CUMMINGS, Circuit Judge.

In October 1970, a 4-count indictment was returned against the defendant. In the first count, he was charged with refusing to submit to induction into the Armed Forces. The second count charged him with failure to possess his registration card, and the next two counts charged him with failure to possess his 1968 and 1969 I-A classification cards, respectively. The conduct charged in each count was recited to be violative of 50 U.S.C. App. § 462. A pretrial motion to dismiss the card counts of the indictment on various grounds was denied without holding an evidentiary hearing requested to show an improper prosecutorial purpose in seeking the indictment. A jury found defendant guilty on all four counts, but the district court acquitted him on Count I on the ground that there had been no basis in fact for denying him classification as a conscientious objector.1 Defendant's motion for a judgment of acquittal on the card counts was denied. He was given consecutive 1-year sentences on these remaining three counts.

As to the registration card which was the subject of Count II, defendant mailed it to then Attorney General Ramsey Clark in December 1967 as a protest measure. He mailed his 1968 classification card, which was the subject of Count III, to a federal district judge in November 1968. Shortly after he received it in May 1969, he mailed his 1969 classification card, which was the subject of Count IV, to his local board. However, he retained in his possession and produced at trial an earlier I-A classification card dated May 5, 1967.

A month after his indictment, defendant appeared at the Selective Service office at 1819 West Pershing Road, Chicago, and requested duplicate draft cards, stating that he had turned in his cards to "proper authorities." Duplicates were not sent to him.

Defendant took the stand and testified that during the previous 18 months he had been a draft counselor in the office of the Chicago Area Draft Resisters. When he turned in his registration card, the United States Attorney in Chicago so advised the Illinois headquarters of the Selective Service System on May 21, 1968. Thereafter, he was sent a delinquency notice and an expedited induction order, but that induction order was cancelled, apparently pursuant to Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532. After he refused to submit to induction on May 14, 1970, the Selective Service System recommended his prosecution therefor.

During the presentation of defendant's case, defense counsel called the Government prosecutor as a witness, but the court sustained an objection to this tack. Subsequently the court allowed defense counsel to call the prosecutor as a witness on an offer of proof. The prosecutor then stated that he neither drafted the indictment nor presented it to the grand jury but was one of those involved in the decision-making as to whether or not to prosecute defendant. Defense counsel was then permitted to state what he expected to prove through the prosecutor's testimony. Thereupon he made an offer of proof that this Assistant United States Attorney was aware of defendant's activities as a draft counselor; that he thought the Government would not be able to prove unlawful counseling or evasion of the draft against defendant but "a good deal of their trouble in enforcing the Selective Service law had been coming from people like him"; that he considered it sometimes unusual to bring an indictment for non-possession of draft cards; that few such indictments were brought; that defendant's draft-counseling activity was one of the reasons why the prosecution for non-possession of draft cards was brought; that he was not sure of the strength of the Government's case on Count I; and that the Government would not seek to dismiss the remaining counts even should defendant agree to carry the cards.2 After the offer of proof was rejected, the prosecutor testified that defendant's file was in the office of the United States Attorney and the indictment was already drafted before the prosecutor joined the government staff. He explained that the indictment was presented to the grand jury by another Assistant United States Attorney. He concluded:

"It the indictment was approved by the Chief of our Northern District of Illinois Criminal Division, the First Assistant United States Attorney, the United States Attorney and the Department of Justice in Washington. I had very little to say about the actual decision of whether or not to prosecute."

Defendant first argues that he was entitled to acquittal on Counts III and IV, dealing with non-possession of his 1968 and 1969 classification cards, on the ground that he possessed a 1967 classification card. These counts charged defendant with willfully and knowingly failing and neglecting to perform a duty required of him under the regulations promulgated under the Military Selective Service Act of 1967, in violation of 50 U.S.C. App. § 462(a).

32 CFR § 1623.5 provides:

"Every person who has been classified by a local board must have in his personal possession at all times, in addition to his Registration Certificate (SSS Form No. 2), a valid Notice of Classification (SSS Form No. 110) issued to him showing his current classification, and upon entering active service in the armed forces, such person must surrender such Notice of Classification (SSS Form No. 110) to his commanding officer who shall dispose of it in accordance with the current orders of his service." (Emphasis supplied.)

In May 1967, defendant received a I-A classification card which he produced at the trial. Defendant contends that by possessing that card from May 1967 onward he complied with the regulation; since his classification I-A never changed, he argues he always had a card showing his current classification. However, the classification cards defendant was issued, more formally denominated SSS Forms 110 Notice of Classification, have an instruction portion explicitly providing "When a subsequent Notice of Classification is received, you should destroy the one previously received, retaining only the latest." Another Selective Service regulation charged registrants "with the duty of promptly and completely complying with such instruction or requirement." 32 CFR § 1606.51(a).3 It follows that defendant was required to retain his most recent classification card.4 And sensibly harmonizing the regulations, when the defendant dispossessed himself of his 1968 and 1969 classification cards, those were the cards "showing his current classification" within the meaning of 32 CFR § 1623.5 and thus the ones he was required to "have in his personal possession at all times." This construction is the only one that fully effectuates the purposes of the card possession requirement. For instance, one purpose is the facilitation of answering registrant's inquiries concerning his eligibility status at any given time and another is the promotion of just and efficient administration of the system in the event of a mix-up or mistake in a registrant's Selective Service file. United States v. O'Brien, 391 U.S. 367, 379, 88 S.Ct. 1673, 20 L.Ed.2d 672. Unless the registrant's card reflects the most recent action of the Selective Service System, these purposes may not be fulfilled even if the registrant's classification has not been changed. Issuance of new notices of classification are not issued pro forma at regular intervals in the ordinary course of administering the Selective Service System. See 32 CFR §§ 1625.1-1625.14. Each issuance has independent significance. In this regard it is noteworthy that the 1968 and 1969 classification cards were issued to defendant following appeal board decisions retaining him in I-A classification. Because the possession of the 1967 classification card did not satisfy the regulations, defendant's conviction on Counts III and IV was proper even though he had retained that card.

Defendant next asserts that he was not required to possess the I-A classification cards because (as the district court held) he should have been classified I-O as a conscientious objector and was not validly classified I-A. Since there was no basis in fact for denying him a I-O classification, he submits issuance of a I-A classification card was beyond the board's jurisdiction. In Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, on which defendant relies, the Supreme Court only held that in a selective service prosecution for induction refusal, the defendant may interpose the defense that the action of his local board in rejecting his claim of exemption as a minister of religion and classifying him as I-A was without basis in fact and therefore beyond its jurisdiction. That decision is of no significance here. The Court did not rule that a local board is powerless to mail out classification notices reflecting its action. Much less did it imply that the susceptibility of the substantive classification to attack in a criminal prosecution for refusing induction had any bearing on the registrant's duty to possess the cards issued to facilitate administration of the Selective Service System.

The two notices of classification in question precisely reflect what the local board did, namely, classify the defendant as I-A. This kind of card is "a legitimate and substantial administrative aid in the functioning of this registration system * * * and serves a...

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3 cases
  • United States v. Falk
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 19 d4 Abril d4 1973
    ...on the card-carrying counts. On appeal, a panel of this court affirmed Falk's conviction, one judge dissenting. United States v. Falk, 472 F.2d 1101 (7th Cir. 1972). A petition for rehearing en banc was granted, in which the principal issue was the alleged discriminatory prosecutorial purpo......
  • Tarkowski v. Robert Bartlett Realty Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 2 d3 Janeiro d3 1980
    ...Ellentuck v. Klein, 570 F.2d 414 (2nd Cir. 1978); Cook v. City of Price, 566 F.2d 699 (10th Cir. 1977). Cf. United States v. Falk, 472 F.2d 1101, 1108 (7th Cir. 1972). Although a private person is not engaged in state action when he merely lodges a complaint with the police, the prosecutor,......
  • Herald Company v. Seawell, 691-70
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 29 d5 Dezembro d5 1972
    ... ... Nos. 691-70, 692-70 ... United States Court of Appeals, Tenth Circuit ... December 29, 1972. 472 F.2d ... ...

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