United States v. Johnson, 30656.

• Decision Date: 20 March 1973
• Docket Number: No. 30656.,30656.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Edward JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.2d 1251 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Edward JOHNSON, Defendant-Appellant.

No. 30656.

United States Court of Appeals, Fifth Circuit.

March 20, 1973.

COPYRIGHT MATERIAL OMITTED

Fred L. Banks, Jr., Jackson, Miss., Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for defendant-appellant.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Daniel E. Lynn, Joseph E. Brown, Jr., Asst. U. S. Attys., Jackson, Miss., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The only thing unusual about this direct criminal appeal from conviction for failing to obey a lawful order of a Selective Service Board (a violation of 50 U.S.C.A. App. § 462), is that the Defendant here overcame the well-established presumption of regularity and validity normally attaching to official acts of Selective Service Boards¹ and created a jury issue where usually there is none—and in fact, there really was none in this case (see note 21, infra). Since the Government was not relying exclusively on the presumption and offered other probative evidence that the Defendant had not been ordered to alternative service in lieu of induction into the Armed Services out of sequence, and because we reject other arguments less strenuously urged by the Defendant, we affirm the judgment of conviction based on a jury finding of guilt, but remand for resentencing.

No Show At Jackson

Robert Edward Johnson was classified I-O (conscientious objector not available for military duty) by Selective Service Local Board No. 23 of Grenada, Mississippi. Pursuant to 50 U.S.C.A. App. § 456(j), and as an alternative to military service, he was ordered² by his Board to work at the Mississippi State Hospital in Whitfield, Mississippi. His work at Mississippi State Hospital proved unsatisfactory and, accordingly, he was dismissed. Subsequently he was reassigned to Rush Memorial Hospital in Meridian, Mississippi, and when employment there was terminated for poor performance, the State Director of Selective Service ordered him transferred to the University of Mississippi Medical Center in Jackson, Mississippi. On January 31, 1969, after he had served some 16 months of his two-year obligation, Johnson failed to report to the University of Mississippi Medical Center as ordered by the State Director. Thereafter he was prosecuted for a violation of 50 U.S.C.A.App. § 462, by an indictment charging that he did "knowingly, wilfully, unlawfully and feloniously fail, neglect and refuse to" obey the orders of his local Selective Service Board.³ From a jury verdict of guilty and a five-year sentence, this appeal has been taken.

The Indictment Sufficeth

Johnson first claims that the indictment was fatally defective for two reasons.

Specificity

First, Johnson protests that the indictment did not measure up to requisite standards of specificity. Relying on Lowenburg v. United States, 10 Cir., 1946, 156 F.2d 22 and United States v. Farinas, S.D.N.Y., 1969, 299 F.Supp. 852, he argues that the indictment was insufficient because it did not allege specific duties he failed to perform.

Assuming, without deciding, that we would follow these decisions of sister Circuits, these cases simply do not touch this record. In Lowenburg, the indictment alleged no specific order which had been disobeyed, but rather, only the general refusal of Defendant "to work and perform duties." Actually, Lowenburg was tried specifically for refusing to burn stumps and remove dirt therefrom. The Court held that the indictment was wholly insufficient to apprise Defendant that that specific act was to be the subject of prosecution.

Likewise in Farinas, the indictment alleged that Defendant "did fail, neglect and refuse to obey the orders of representatives of the Armed Forces of the United States * * *." Again, the specific order disobeyed was not set out and the indictment was held fatally deficient for that reason.

Unlike those cases, the indictment here specifies the particular criminal act for which Defendant was to be tried. The indictment alleged that "on or about January 31, 1969" Johnson did "knowingly, wilfully, unlawfully and feloniously fail, neglect, and refuse to report for and remain in employment with the University of Mississippi Medical Center at Jackson, Mississippi, for twenty-four consecutive months or until such time as released or transferred by proper authority as ordered * * *." (Emphasis supplied). Clearly that indictment fully informed the Defendant of the specific act for which criminal liability was sought to be imposed—complete with time, place and circumstance.

If a precedent need be marshaled, United States v. Wagoner, 7 Cir., 1944, 143 F.2d 1, cert. denied, 323 U.S. 730, 65 S.Ct. 67, 89 L.Ed. 586 is more than enough. In Wagoner the indictment alleged that the Defendant "unlawfully, knowingly, wilfully, and feloniously failed and refused to present himself for and submit to registration * * *." This indictment was held to state a "clear, definite, and general offense," and to be legally sufficient to withstand a due process challenge. If the word "registration" in that indictment is changed to the phrase "civilian employment at Mississippi State Hospital," the indictment here becomes virtually identical.

Punishable Offense

Johnson's second attack on the indictment is that no offense under the statute was made out since the order violated was not that of the local Selective Service Board, as alleged, but rather an order of the State Director of Selective Service.

That exact contention was before this Court and decided in Davis v. United States, 5 Cir., 1968, 400 F.2d 577, cert. denied, 394 U.S. 908, 89 S.Ct. 1019, 22 L.Ed.2d 219. Although Johnson strenuously urges that the Davis case is not applicable here, we disagree.

The Order To Report For Civilian Work issued by Local Board No. 23 to Johnson specifically directed "you are ordered to report for employment pursuant to the instructions of the local board, to remain in employment for twenty-four consecutive months or until such time as you are released or transferred by proper authority." (Emphasis supplied.) As we pointed out Davis, the State Director had authority to transfer Appellant to other civilian work after his discharge from the Mississippi State Hospital under Selective Service System Local Board Memorandum No. 64 issued March 1, 1962, Section 8(b). Thus, on the Davis approach, the failure to obey a lawful command of the State Director—a command which the Director was authorized to issue—was simultaneously a failure to obey the order of the draft board, as charged in the indictment.

This indictment specifying precise dates and identifying particular places (University of Mississippi Medical Center) satisfied the underlying requirements that it "inform the accused of the nature of the charges against him, with such specificity and particularity that the accused is enabled to undertake and prepare an adequate defense." United States v. Levinson, 6 Cir., 1968, 405 F.2d 971, 977; United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; Hagner v. United States, 1932, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861. And attributing the State Director's order to the Board related to its legal effect and did not mislead the Defendant as to the charges he faced.

Was Order Out of Order?

Johnson next asserts that his conviction should be reversed because the Government did not prove that he was ordered to report for alternative service in the proper sequence. The issue considered here has never been before this Court in precisely the form presented in this particular appeal.

We observe initially that this is a criminal prosecution. Johnson has been sentenced to five years in prison. It is an obvious rudiment of due process that in a criminal prosecution every essential element of the offense must be proved beyond a reasonable doubt.⁴

Implicit in the charge that Defendant failed to obey an order of the local draft board is the allegation that the underlying order was lawful. Johnson could not be punished for disobeying an unlawful order of the Board.⁵ Thus, since Johnson cannot be punished unless he failed to obey a lawful order of the Board, the lawfulness of the order is necessarily an element of the crime charged.⁶

The order to report for alternative service was not lawful if it was issued contrary to controlling rules and regulations governing the Selective Service System.⁷ One of these—a particularly important one—sets forth the order in which Selective Service registrants are to be inducted or ordered to alternative duty in lieu of military service. 32 C.F. R. § 1660.20(a)(b)(c)(d)⁸ and § 1631.7 (a).⁹ Adherence to the proper order of call is of more than mere technical importance. Manifestly, it affects substantial rights of the registrants. United States v. Baker, 9 Cir., 1969, 416 F.2d 202, 204. Moreover, Congress, the President, and the American people have expressed clear intent that the draft, when utilized, be conducted with as much servitude to objectivity as is humanly possible.¹⁰ We deem it of particular significance, for example, that Congress affirmatively mandated and reiterated in each of the four paragraphs of 32 C.F.R. § 1660.20 that "such order to alternative service shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he has volunteered for such work." See note 8, supra. With possible consequences to those selected so awful and the opportunities for even good faith but inadvertent exercise of subjective choices undeniably present, it is certainly essential that objective standards spelled out in the law be scrupulously respected.

The order of call—as it stood in 1967¹¹—required that (i) delinquents (oldest first) be called to report first, (ii) volunteers (in the order...