United States v. Walker, 72-1140.

• Decision Date: 04 December 1972
• Docket Number: No. 72-1140.,72-1140.
• Citation: 469 F.2d 1377
• Parties: UNITED STATES of America, Appellee, v. John Dabney Collier WALKER, Appellant.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 1377 (1972)

UNITED STATES of America, Appellee, v. John Dabney Collier WALKER, Appellant.

No. 72-1140.

United States Court of Appeals, First Circuit.

Heard October 2, 1972.

Decided December 4, 1972.

John G. S. Flym, Boston Mass., with whom Flym, Geller, Miller, Taylor & Weinberg was on brief, for appellant.

Robert B. Collings, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant was convicted of failure to register with the Selective Service System, in violation of 50 Appendix U.S.C. §§ 453, 462. Four days after he became eighteen, he visited his local board and announced that he was not going to register. The executive secretary told him that, by failing to register, he could be subject to imprisonment or a large fine. In response to questions, appellant gave his name, address, and date of birth, and departed. The next day the executive secretary wrote him a letter, noting his birth date, and stressing the importance that he register as soon as possible or else "be suspected of being a delinquent". Appellant did not return to the board, respond to this letter, or otherwise supply the board with the remaining information necessary for registration. Appellant was subsequently found guilty by a jury of failure to register and sentenced to two years imprisonment.

Appellant protests both his conviction and his sentence. As his defense on the merits, he cites non-compliance by the board with 32 C.F.R. § 1613.16.¹ Appellant does not contest the fact that, prior to his visit, he knew that his refusal to register could subject him to imprisonment. Cf. United States v. Kelly, 336 F.Supp. 686 (E.D.Pa., 1972). Nevertheless, he relies on Chernekoff v. United States, 219 F.2d 721 (9th Cir. 1955) and United States v. Kroll, 402 F.2d 221 (3d Cir. 1968), which required a similar warning procedure under AR 601-270 in the event that an inductee refused to step forward. This procedure, as noted in Chernekoff, at 724, which is part of the prescribed method of induction devised by the Army for use in processing groups of prospective inductees, has several formal steps.²

The selective service warning mandated by § 1613.16 is not in the context of such final formalities but is, we think, similarly a part of a process which has commenced. The ceremonial warning with witnesses is similarly a last rite to be administered before a crime is committed, i. e., a refusal to cooperate, giving false or evasive answers, or refusing to answer. These are crimes committed during the process of registration. They are not, we think, committed by an anticipatory announcement made by one who has not yet presented himself for and submitted to registration.

The regulatory scheme corroborates this interpretation. Regulation 1613.16 is part of Part 1613—Registration Procedures, beginning with § 1613.1 which provides that "any person required to be registered may present himself for and submit to registration . . . ." This is followed by other sections dealing with the manner of conducting the interview (§ 1613.11), completion of the registration card (§ 1613.12), signature (§ 1613.13), and certification (§ 1613.14). At this point is located § 1613.16, indicating that the objective of this regulation is to deal with the registrant who has presented himself for registration but has thereafter manifested his recalcitrance and to give him "a full opportunity . . . to reconsider his actions and answer the questions." United States v. Bigman, 429 F.2d 13 (9th Cir. 1970). Here, appellant had not presented himself for or submitted to registration, and indeed, had not refused to answer any questions. He had merely refused to put in writing the beliefs he had stated orally, not a part of the process of registration.

While we recognize that the purpose of the ceremonial warning might well apply to one like appellant, who visits his local board to announce his intention not to register, such an expansive reading of the regulation would leave local board officials in doubt as to when they must invoke the warning-cum-witnesses apparatus of the regulation. Visits of young eligibles could range from those seeking information, to those expressing uncertainty, generalized hostility, and specific intent, and could be subject to different interpretations by visitor and official. We therefore confine the scope of the warning obligation within what we deem a permissible narrow reading of the regulations. We conclude that appellant's motion for acquittal was properly denied.

The issue of appellant's sentence is a more vexing one. Appellant was, at the time of his conviction, nineteen years old. He was one of eight children. His father, a surgeon, who had served in World War II, having died, his mother was left with two small children at home. Because appellant took a large degree of responsibility for them, his mother could resume work as a nurse. Appellant's counsel's pre-sentence memorandum contained sixteen letters, from relatives, teachers, school officials and neighbors, all portraying appellant as a pacifist of some years' convictions, as a good student, with no record of school or other infractions, as a mild-mannered but socially aware and constructive person. He had organized and run, according to the Director of Guidance for the Salem public schools, a responsibly conducted draft counselling service. He had organized and helped conduct a storefront arts, crafts, and music school for Salem children.

Government counsel willingly conceded that appellant "is an outstanding member of the community" but recommended a two-year prison term for deterrence reasons, arguing that since registration was the first step in the administrative process, enabling the government to assemble its available pool of manpower, failure to register was perhaps even a more serious offense than refusing to report for induction. The court, without articulation of reasons, imposed a two-year prison sentence, well within the statutory maximum of imprisonment for five years, a fine of $10,000, or both, but apparently more severe than the sanctions generally imposed in most recent Massachusetts draft cases.³

We are not oblivious to the serious attention being devoted to many aspects of the sentencing process, including sentence review. See, e. g., American Bar Association Project on Standards for Criminal Justice, Appellate Review of Sentences (Approved Draft, 1968); Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. II, pp. 1334-1335 (1970). And, even in the absence of legislation or broadly accepted policy, we have set aside sentences when impropriety has clearly appeared, Marano v. United States, 374 F.2d 583 (1st Cir. 1967). United States v. Picard, 464 F.2d 215 (1st Cir. 1972), as have other appellate courts, Yates v. United States, 356 U.S. 363, 366-367, 78 S.Ct. 766, 2 L.Ed.2d 837 (1958), United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), Scott v. United States, 135 U.S.App.D.C. 377, 419 F. 2d 264, 266-267 (1969), and United States v. Daniels, 446 F.2d 967 (6th Cir. 1971). In such cases, however, there was a positive showing that either improper factors were considered or proper ones were not, establishing the lack of the individualized sentence approach endorsed in Williams v. New York, 337 U.S. 241,...