United States v. Kamber

• Decision Date: 12 June 1972
• Docket Number: No. 18756.,18756.
• Citation: 458 F.2d 918
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor Samuel KAMBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

458 F.2d 918 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Victor Samuel KAMBER, Defendant-Appellant.

No. 18756.

United States Court of Appeals, Seventh Circuit.

November 19, 1971.

Rehearing Denied March 27, 1972.

Certiorari Denied June 12, 1972.

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Clyde O. Bowles, Jr., William J. Martin, George J. Cotsirilos, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Howard M. Hoffman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KERNER, Circuit Judge.

Certiorari Denied June 12, 1972. See 92 S.Ct. 2434.

SWYGERT, Chief Judge.

This is an appeal from a conviction following a jury verdict of guilty on the charge that defendant Kamber "willfully and knowingly was a party to the making of a false statement to selective service bearing upon his classification for service in the Armed Forces of the United States" in violation of 50 U.S.C. App. § 462(a).

Defendant registered in 1961 with his local board in Chicago. After being initially classified I-A in 1964, he obtained various deferments until June 20, 1968 when he was reclassified I-A. He appealed the reclassification which was affirmed by the appeals board on September 16, 1968. After receiving notification that the I-A classification had been affirmed, defendant called his local board to request a courtesy appearance in order to seek a II-A occupational deferment. On September 25, 1968 he received notification that he would be allowed a courtesy appearance at the October 8 meeting of the board.

On October 2 defendant mailed to his local draft board and to the Illinois State Director of Selective Service identical letters purporting to bear the signature of J. G. Handley, Chairman of the Division of Humanities at Prince George's Community College in Largo, Maryland, where defendant was employed as an assistant professor of speech. The letters were highly laudatory of defendant and spoke of him as being virtually irreplaceable. It is undisputed that defendant drafted the letters, had them typed on the college's letterhead stationery, had the signature notarized (by assuring a notary public who had not witnessed the affixing of the signatures that they were genuine) and personally mailed the letters.

The local board received the October 2 letter purportedly signed by Handley on October 4. On October 8 defendant appeared before the board for the courtesy appearance previously granted. The defendant was reclassified II-A on October 14, 1968. Then, on October 15, 1968, Handley wrote to the Illinois Headquarters of the Selective Service System in response to a letter from the headquarters advising him that his letter of October 2 relating to defendant's request for deferment had been received. Handley reported that he had never before written to Illinois Selective Service. After investigation confirmed that the signature on the October 2 letters was not Handley's, this prosecution followed.

Defendant challenges the validity of his conviction on several grounds: the jury was prejudiced by publicity during the trial; the Government failed to prove beyond a reasonable doubt the essential elements of the crime charged; the proof varied fatally from the crime charged in the indictment; all or part of 50 U.S.C. App. § 462(a) is void for unconstitutional vagueness; and the Government's case included false evidence and improper cross-examination which denied defendant a fair trial. We affirm the conviction.

The factual basis for the claim of prejudicial publicity during the trial is as follows. On the day the trial began, defense counsel specifically declined to have the district judge caution the jury with regard to publicity. The following morning an article about the trial appeared in the Chicago Sun-Times under the headline, "Tricia escort tried for draft evasion here." The article, other than paraphrasing the essential allegations of the indictment, related only that defendant was active in the upper echelons of the Young Republicans, that he remained so active after his indictment and that he had escorted Tricia Nixon to one political affair and Julie Nixon to another in recent times. The trial court conducted a voir dire examination of each juror out of the presence of the others on the morning the article appeared to determine whether any had read it and, if so, whether any thought it had prejudiced them about the case. Eight of the jurors stated that they had read the article, and two of the remaining jurors had heard it discussed. However, no juror thought that the article had prejudiced him with regard to the case, and several stated that they did not learn anything new from the article. Juror Langland was excused by the court on the basis of her answers at that voir dire, but the reason for excusing her was that she stated to the court that she was unsure of her impartiality because of deferment problems faced by her draft-eligible son.¹

We agree with the district judge that the newspaper article was not prejudicial. We find it hard to believe that a petit jury would be prejudiced against a man on the basis of an article which said no more than what the instant piece did. Rather, we believe that this case is governed by United States v. Jannsen, 339 F.2d 916, 919-920 (7th Cir. 1964), where we also held that a challenged newspaper article could not be said to be prejudicial as a matter of law. Moreover, the judge here conducted the examination of the jurors after the appearance of the article in accordance with the practice we approved in United States v. Accardo, 298 F.2d 133 (7th Cir. 1962), of interrogating each juror out of the hearing of his fellows, even though the judge did not believe the article was prejudicial. Defendant was not deprived of due process by prejudicial publicity.

Defendant's contention that the proof was inadequate to convict is also erroneous. Viewing the...