United States v. Haug, 365.

• Decision Date: 16 July 1945
• Docket Number: No. 365.,365.
• Citation: 150 F.2d 911
• Parties: UNITED STATES v. HAUG.
• Court: U.S. Court of Appeals — Second Circuit

150 F.2d 911 (1945)

UNITED STATES v. HAUG.

No. 365.

Circuit Court of Appeals, Second Circuit.

July 16, 1945.

Jacob J. Rosenblum, of New York City, for appellant.

John F. X. McGohey, U. S. Atty., of New York City (K. Bertram Friedman, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The appellant, Haug, was convicted upon two counts of an indictment, found under § 311 of Title 50 — War Appendix, U.S.Code Annotated. The first count charged him with failing from October 16, 1942, until January 15, 1944, "to keep his Selective Service Local Board, * * * advised at all times of the address where mail would reach him," in accordance with § 641.3 of the Regulations. The second count charged that he failed "to fill out, complete and return his Selective Service questionnaire," in accordance with § 621.2 of the same Regulations. The cause came on to be heard before a judge and a jury, and the prosecution called one, Hallett, a special agent of the Bureau of Investigation who had twice interviewed Haug and taken down statements of what he said. The substance of these was as follows. Haug, a Norwegian sailor, knew that he was required to register under the Selective Service Act, when it was passed on October 16, 1940; but he had not done so until August 24, 1942, because he had no intention of complying with the Act, and would not serve in the United States Army under any circumstances; he registered only because, having lost his seaman's certificate, he supposed it necessary to do so in order to get a new certificate which would allow him to serve on an American ship. When he did register he gave as his address the Seamen's Church Institute, at 25 South Street, New York, where he lived at the time, and where he stayed for a week, after which he went to Brooklyn. On September 9, 1942, he sailed from New York, came back on January 20, 1943; stayed in New York for about a week at an address on 25th Street, near Eighth Avenue, and later at other addresses which he could not remember. Soon thereafter he went to Hoboken, where he got a job in a dry dock and lived at a boarding house on Williams Street in that city. On April 24, 1943, he shipped again on an American vessel and did not come back until December 30th. Thereafter he stayed at rooming houses or hotels in New York. He had however, gone to the Seamen's Institute twice in September, 1942, and once he had inquired for his mail; if he had received any notices from the local board, he would have paid no attention to them. He went to the Institute to check his baggage on January 25, 1943, but at that time he did not inquire for any mail.

When Haug appeared before his board on August 24, 1942, and registered, he received a registration certificate signed by him in his correct name, but containing on the body of it, as his name: "Ivar Heuj." At that time the Board issued, and kept on its files, a green registration card containing his name, "Iver Heuj," his address, "25 South Street, New York City," the place and time of his birth, and certain other details. This card also he signed correctly: "Ivar Haug." On October 16, 1942, the local board sent a questionnaire addressed to "Mr. Ivar Hang, 25 South Street, New York City," which was returned unclaimed on April 19, 1943. On April 13, 1943, it sent him a "notice of delinquency," addressed to "Iver Heuj, 25 South Street, New York City," which was returned on October 12, 1943. On December 29, 1943, it sent him a post card, classifying him as "I-A," addressed to "Mr. Ivar Haug (alias Iver Heuj), 25 South Street, New York City," which was returned unclaimed on April 3, 1944. Finally, on January 7, 1944, it sent him an "order to report for induction," addressed to "Iver Heuj, 25 South Street, New York City," which was returned at the same time as the notice of classification. He was taken into custody shortly before January 17, 1944, and the indictment was filed on April 24.

Haug put in evidence showing that mail sent to the Seamen's Church Institute, and addressed to "Ivar Hang," or "Iver Heuj," would be put in a different pigeon-hole from that addressed to "Ivar Haug"; and that if he had called for such mail, it would not have been delivered to him. He also proved that, beginning with June 1940, he had been in this country only between the following dates: October 1, 1940, to November 15, 1940; about December 15, 1941, till the end of that month (during which time, however, he had lived on the boat); March 20, 1942, to June 1, 1942; June 11, 1942, to September 15, 1942; January 27, 1943, to April 24, 1943; December 29, 1943 until he was arrested, about January 17, 1944. (The foregoing is not quite accurate in that he reached New York some time before March 20, 1942, but lived on the boat until that date: also in that he left Newport News upon a ship early in July, 1942 and did not get back until late in August of that year.) At no time had he been ashore in this country for ninety days on end. We reserve consideration of the judge's charge, because that will come up more properly, when we come to consider whether the conviction under the first count can stand.

Haug raises three points upon this appeal: (1) That he was exempt from the Act; (2) that he did keep his local board advised of an address where mail would reach him; (3) that the notice which the board posted to him did not impose upon him any duty to execute and return the questionnaire sent to him. Section 302 of Title 50 — War Appendix, makes it "the duty of every male citizen * * * and of every other male person residing in the United States * * * to present himself for and submit to registration." Congress had power to draft all persons "residing" within the borders of the United States, and Haug does not dispute that the definition of "residence" in the Regulations was valid. On August 24, 1942, the relevant regulation — § 611.13(a) — provided that "a male alien who is now in or hereafter enters the United States, who has not declared his intention to become a citizen of the United States, is not * * * within section 2 or section 3 * * * (6) if he has entered, or hereafter enters, * * * and does not remain in the United States * * * for more than 3 months following the date of his entry." Subdivision (b) provided that such an alien, who "hereafter enters * * * and remains * * * for more than 3 months following the date of his entry" was subject to the Act unless he filed "an Alien's Application for Determination of Residence." Section 611.21 at that time provided that an alien who entered after February 16, 1942 — as Haug had done — and who wished to procure such a "determination" might file with his local board an application for it within three months after his entrance, whether he had registered or not. From this it appears that the exemption was not automatic, but that the local board must determine it, upon an application, which might precede, or follow, registration. When Haug registered on August 24, 1942, he did not therefore lose his privilege of exemption, but he was not automatically exempt as a "non-declarant alien"; and he lost his privilege three months after his entry. He never did apply for a "determination" until after January 17, 1944, and although § 611.13 was twice amended before then (on September 14, 1942, and July 8, 1943), neither amendment gave him an automatic exemption. There was thus nothing to submit to the jury upon this issue, and much of the discussion and most of the requests to charge were irrelevant.

It does not however follow, because Haug was not exempt, that he was guilty upon either of the counts of the indictment. Section 311 of the Act makes it a crime to "neglect to perform any duty required" by the regulations, when the accused fails to do so "knowingly"; and it would not have been a crime for Haug to fail to...