Venus v. United States

• Decision Date: 02 February 1961
• Docket Number: No. 16961.,16961.
• Citation: 287 F.2d 304
• Parties: Carlin Constantine VENUS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.2d 304 (1960)

Carlin Constantine VENUS, Appellant, v. UNITED STATES of America, Appellee.

No. 16961.

United States Court of Appeals Ninth Circuit.

December 24, 1960.

Rehearing Denied February 2, 1961.

Hayden C. Covington, Brooklyn, N. Y., Kenneth A. Barwick, Lemon Grove, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Minoru Inadomi, Los Angeles, Cal., Asst. U. S. Attys., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and BOLDT, District Judge.

BARNES, Circuit Judge.

Appellant appeals from a judgment of conviction for knowingly failing and neglecting to keep the local draft board advised of the address where mail would reach him at all times. The indictment charged an offense in violation of Title 50 U.S.C.A.Appendix, § 462.¹

Jurisdiction of the district court was invoked under the provisions of Title 18 U.S.C.A. § 3231 and Title 50 U.S.C.A. Appendix, § 462. Jurisdiction of this court to review the appeal from the judgment rests on the provisions of Title 28 U.S.C.A. §§ 1291 and 1294.

In order to review at least one of the questions presented on this appeal it is necessary to briefly summarize some of the past history of appellant's entanglement with the provisions of the Universal Military Training and Service Act. Appellant registered with the Local Board No. 140 in San Diego County, California, on September 15, 1948. During the years 1950 and 1951 appellant was classified at various times in classifications I-A and III-A. On November 19, 1951, appellant returned to the local board a completed conscientious objector form, in which he claimed that he was, by reason of his religious training and belief, conscientiously opposed to participation in war in any form and claimed exemption from both combatant and noncombatant service. During the years 1952 and 1953 appellant was at various times classified in classifications I-A-O, II-A and I-A. Thereafter appellant remained classified or reclassified I-A, this last classification being on September 1, 1955, following an unsuccessful appeal by the appellant to the appeal board. On September 2, 1955, notice of classification was sent to the appellant at Modesto, California, which appellant claimed he never received. Such claim was advanced by appellant in the prosecution of the first indictment returned against the appellant. On October 28, 1955, the local board ordered appellant to report for induction on November 8, 1955, which order to report was likewise sent to Modesto, California, which was likewise claimed by appellant to have never been received.

Appellant failed to report for induction on November 8, 1955, and on August 8, 1957, appellant was charged by indictment with the offense of failing to report for induction on November 8, 1955, at San Diego, California. Following trial of that offense to a jury, appellant was convicted, and appealed from the judgment of conviction to this court. The judgment of conviction was reversed by this court in Venus v. United States, 9 Cir., 1959, 266 F.2d 386. Following such reversal the offense in the indictment was tried twice to a jury, resulting in each case in a mistrial because of failure to reach a verdict in each case on the part of each jury.

On December 23, 1959, a two-count indictment was returned against the appellant. The first count of this new indictment charged appellant with the offense of failing to perform a continuing duty to report for induction in April 1956. The second count of the new indictment charged that appellant was a person within the class made subject to Selective Service under the Universal Military Training and Service Act; that he registered as required by said Act and the regulations thereunder, and became a registrant of local board No. 140; and that he "thereafter had a duty to keep said board advised at all times of the address where mail would reach him; that on or about February 1, 1955 * * * the defendant, Carlin Constantine Venus, knowingly failed and neglected to perform said duty required of him under said Act and the regulations promulgated thereunder, in that he knowingly failed and neglected to keep said board advised of the address where mail would reach defendant."

The offenses charged in the two indictments — the failure to report for induction on November 8, 1955, alleged in the first indictment returned on August 8, 1957, and the two offenses — the failure to perform a continuing duty to report for induction in April 1956, and the failure to keep the local draft board notified where mail would reach appellant at all times — set forth in the indictment returned on December 23, 1959, were consolidated for trial. The case was tried to a jury in May of 1960. Following deliberations of three days, the jury returned a verdict finding appellant guilty on the second count contained in the second indictment. The jury reported that it was unable to agree on the offense set forth in the first indictment, and on count one of the second indictment. Thereafter the trial court dismissed the first indictment and the first count of the second indictment sua sponte "in the interests of justice, on the ground that there had been now four trials." Appellant was committed to custody for three years, and ordered to pay a fine of $500.00.

On December 29, 1959, the appellant moved the district court to dismiss the indictment returned on December 23, 1959, against appellant, on the ground that the delay of appellee in returning the indictment charging appellant with failure to keep the local draft board advised at all times of an address where mail would reach him deprived appellant of his right to a speedy trial, as guaranteed by the Sixth Amendment to the Constitution of the United States. This motion was denied by the district court.

One of appellant's specifications of error on this appeal is that the district court committed reversible error in so doing. We will consider this assignment of error before proceeding to the other points involved in the review of this appeal.

The indictment returned against appellant on December 23, 1959, alleged that the offense set forth in the second count was committed on or about February 1, 1955. Hence the indictment was returned within the five-year period of limitations specified by Title 18 U.S.C.A. § 3282.² Trial on this offense commenced on May 5, 1960, and was concluded May 14, 1960, which was less than five months from the date of the return of the indictment.

Appellant concedes "there are a large number of cases that hold that a prosecution is not barred by the statute of limitations so long as it is brought within the five-year statutory period. The courts have held that limitation does not apply even if the indictment is delayed to near the end of the five-year period." (Appellant's Opening Brief, p. 54.) Mindful of the above stated concession, appellant contends that the delay of appellee in causing appellant to be indicted was violative of the speedy trial provisions of the United States Constitution. No claim is advanced by appellant that he was arrested, detained or held in custody on the offense charged in count two of the indictment prior to the return of the indictment. In short, appellant's argument is that he should have been sooner indicted. We find no merit in this contention. As stated in Parker v. United States, 6 Cir., 1958, 252 F.2d 680, 681, certiorari denied 356 U.S. 964, 78 S.Ct. 1003, 2 L.Ed.2d 1071:

"The provisions of the Sixth Amendment guaranteeing a speedy trial to anyone charged with an offense, contemplates a pending charge and not the mere possibility of a criminal charge."

See also Iver Ikuko Toguri D'Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, at page 350, rehearing denied 203 F.2d 390, 9 Cir., certiorari denied 1952, 345 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343, in which this court stated:

"Appellant however says that her military detention in Japan in the year following October, 1945, demonstrates that she was denied a speedy trial. We shall have occasion to refer to the character of the detention later in this opinion, but wholly apart from whether that detention was or was not in accordance with law, it has no bearing whatever upon the question of her right to a speedy trial, which is one that arises after a formal complaint is lodged against the defendant in a criminal case."

Appellant's reliance on United States v. Provoo, D.C.Md.1955, 17 F.R.D. 183, affirmed 1955, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761, and Taylor v. United States, 1956, 98 U.S.App.D.C. 183, 238 F.2d 259, is completely misplaced. In the Provoo case the defendant was arrested on a formal charge in September 1949, but was not indicted in the proper district until October of 1954. In the Taylor case the indictment was returned on February 23, 1954, and trial did not commence until March 28, 1956. It clearly appears in the Taylor case that the defendant in no manner waived his right to a speedy trial.

Before proceeding further we will briefly summarize the evidence which was before the jury relevant to the offense for which appellant was convicted.

When appellant registered with his local draft board in San Diego County, he gave as his mailing address 184 National Avenue, Chula Vista, California. The clerk of the local board testified that at some time prior to June 7, 1954, appellant gave as an address where he could always be reached the address of his parents, which was 650 Eleventh Street, San Diego, California. On July 14, 1950, notice of classification was mailed to appellant at the address at 184 National Avenue, Chula Vista, California, but was returned to the local board marked "Moved, left no address." Between that date and June 7, 1954, appellant notified the local board of change of address on five separate occasions, the last change of address prior to June 1954 being 650 Eleventh Street, San Diego, California. On June 7, 1954, appellant filed with the local...