United States v. Bruce Ogilvie Irwin

546 F.2d 1048

• Court: Court of Appeals for the Third Circuit
• Decided: December 6, 1976
• Docket: 76-1359
• Status: Published

Opinions

JAMES HUNTER, III, Circuit Judge:

This is an appeal from a jury conviction under 50 U.S.C.App. § 462(a) for willfully and knowingly failing to report for military induction. The trial court excluded certain evidence relating to defendant’s motives for not reporting and denied defendant’s requested charge on “willfully.” Finding no reversible error, we affirm.

I.

Bruce Ogilvie Irwin received from his local draft board a letter dated November 7,1972, ordering him to report for induction on December 8, 1972. A few days after receiving that letter, Irwin was arrested by local police in Bridgewater, New Jersey, for having participated in allegedly disorderly conduct one night in late October, 1972. The morning after his arrest, Irwin was arraigned by Judge Esposito, the municipal court magistrate for Bridgewater Township. The magistrate explained that Irwin would be released on bail and that a notice would be mailed informing him of the date on which he would be required to report to the court. Irwin told the magistrate that he had received his draft notice and had to go into the Army. The magistrate responded “You have to take care of this first;” Irwin inquired, “Well, suppose this doesn’t come up before I am scheduled for induetion, that is December 8.” Tr. 155. Judge Esposito replied that Irwin would have to take care of the township charge first.¹ In fact, Irwin was not summoned to appear before the magistrate until sometime the following year.

The second relevant event after the receipt of his draft notice was Irwin’s attempt to enlist in the U.S. Navy, which occurred sometime during the second half of November 1972. The Navy recruiter explained the procedure for enlisting in the Navy prior to an already scheduled induction by the Army, and advised Irwin that, in light of his induction date of December 8, 1972, Irwin would have to hurry. As it turned out, the Navy recruiter uncovered Irwin’s pending criminal charges and advised Irwin that those charges made him unacceptable for enlistment in the Navy. The recruiter did not advise Irwin that the charges nullified his duty to report on his scheduled induction date.

When December 8, 1972, arrived, Irwin did not report for induction. He had not notified his draft board of any reason he might have had for not reporting. Concerned, a clerk from the draft board called Irwin a few days after his failure to appear and asked Irwin why he had not come. Even then Irwin did not explain that he had criminal charges pending against him. Instead Irwin replied he did not have to report because he was told by “Mr. Esposito” ² that he would have to take care of “the court matter” first, and that he was in “some kind of trouble.” Tr. 158. The clerk asked him what kind of trouble, but Irwin replied that he did not know, that he had forgotten. The clerk made no further inquiries. On June 11,1973, Irwin was indicted for knowingly and willfully failing and neglecting to appear for induction on December 8, 1972, in violation of 50 U.S.C. App. § 462(a).

The trial court excluded evidence relating to these three incidents — the magistrate’s statement, the rejection by the Navy, and the follow-up telephone call by the draft board clerk — ruling that Irwin’s motives for not appearing were irrelevant.³ The jury returned a verdict of guilty; a two year prison sentence was suspended, and Irwin was placed on probation for three years and fined $1500.00.

II.

To establish a violation of 50 U.S.C.App. § 462(a) for failure to report for induction, the government must show that 1) Irwin received an order to report for induction; ⁴ and 2) Irwin knowingly failed to report. The precise wording of the Military Selective Service Act of 1967, 50 U.S.C.App. § 462(a) is, in pertinent part:

Any member of the Selective Service system or any other person charged as herein provided with the duty of carrying out any of the provisions of this title, . or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment

50 U.S.C.App. § 462(a).

Irwin’s duty was to report for induction on December 8, 1972; his criminal liability arises from having knowingly failed to perform that duty. The indictment charged Irwin with having “knowingly and wilfully failed to appear for [his scheduled] induction.”⁵ Irwin clearly failed to report for induction, but in deciding whether the trial court erred in excluding evidence bearing on Irwin’s reasons for not reporting, we must determine the mental state required in a knowing and willful failure to report for induction.

Legislative history provides no clue to the meaning of “knowingly fail,”⁶ so we rely on case law under 50 U.S.C.App. § 462(a). As a threshold matter, a knowing and willful failure clearly requires more than mere carelessness or inadvertence. United States v. Rabb, 394 F.2d 230 (3d Cir. 1968). Here there is no allegation by Irwin that he forgot to report on December 8, 1972; on the contrary, any evidence concerning the conversations with the magistrate and the Navy recruiter only underscores Irwin’s awareness of December 8, 1972, as the date on which he was ordered to report. Despite the trial court’s ruling that testimony relating to those conversations would be inadmissible, there were attempts to introduce that testimony, such as the following colloquy:

Q. Mr. Irwin, . . . did you go down for induction on the 8th of December?

A. No, I didn’t.

Q. Why not?

A. Well, because of two reasons. One was because I' was told not to go down. Q. By whom, sir?

A. By the judge in Bridgewater Township.

The Court: Strike it out. The jury will disregard the answer.

Q. Was there another reason?

A. Because the Navy recruiter refused me.

The Court: Objection sustained. The answer will be stricken. The jury will disregard it.

Tr. 140-41.

This exchange supports our view that Irwin was seeking to introduce evidence of his motives: he had not failed to report accidentally or inadvertently — he had reasons for not reporting.

A person’s motives for not reporting for induction are irrelevant in a conviction under 50 U.S.C.App. § 462(a). United States v. Boardman,⁷ 419 F.2d 110 (1st Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970), cited approvingly in United States v. Malinowski,⁸ 472 F.2d 850 (3d Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). All that is necessary is proof that the defendant’s failure to report was deliberate, conscious, knowing, not accidental and not inadvertent. United States v. Benson, 469 F.2d 1356, 1362 (7th Cir. 1972). Indeed, the court in Benson remarked that a mere statement by a registrant that he was not going to report for induction would be sufficient to support a criminal conviction. Id. at 1362. In United States v. Rabb, supra, we held that in order to prove a violation of 50 U.S.C.App. § 462(a) the government “must establish knowledge of the legal obligation and voluntary action or omission with the purpose of failing to perform such obligation,” Id. at 233.

In this case, the very evidence that was excluded as irrelevant insofar as it related to Irwin’s good faith motives for not reporting would also have been cogent evidence to reinforce the jury’s finding that Irwin’s failure to report was deliberate. When Irwin attempted to enlist in the Navy, after receiving his order to report for induction into the Army, he demonstrated that he had not in fact believed that the local magistrate’s remark, “You have to take care of this first,” meant Irwin was relieved from his duty to report for his scheduled induction. At trial, Irwin testified

I went to my local Navy recruiter in Somerville and he asked me questions, and I told him that I was scheduled to go into the Army, I got drafted, got my draft notice, and he said “Well, when were you supposed to go in?” and I told him “December 8” and this was pretty— this was like the second half of November. He said “Well, you have to get all your papers, your testing and your papers all squared away and signed ten days before December 8, so he said he — he instructed me — he made a phone call to New Brunswick and instructed me to go right down there, so I did. I went down there and I talked to an officer down there.

Tr. 157 (emphasis supplied). This conversation bars Irwin from credibly claiming that he thought the magistrate’s comments relieved him from the duty to report on December 8 for induction. Thus we find that the exclusion of this evidence, even if it had been error, did not create substantial prejudice.

Appellant argues in addition to the above evidentiary claims that the trial judge erred in refusing to include “bad purpose” or “evil motive” in his instruction on willfulness. We are not persuaded that one of those phrases must be included. In United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), the Supreme Court, in holding that tax misdemeanors as well as tax felonies require proof of willfulness, described “willfully” as a “voluntary, intentional violation of a known legal duty.” Id. at 360, 93 S.Ct. at 2017. There is no requirement that the phrase “bad purpose” or “evil motive” be included. As we said in United States v. Greenlee, 517 F.2d 899 (3d Cir.), cert. denied 423 U.S. 985, 96 S.Ct. 391, 46 L.Ed.2d 301 (1975), when the trial court did include “bad purpose”

the use of terms such as “bad purpose” does not imply that the government must prove more than that the defendant acted with a guilty mind, i. e., voluntarily and with the deliberate intent to violate the law. We think the instruction here adequately conveyed the concept that liability can be based . . . only on a “specific intent to do something which the law forbids. . .

Id. at 904 (emphasis supplied).

The Supreme Court, writing per curiam in a recent tax evasion case, United States v. Pomponio,-U.S.-, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976), reversed the Fourth Circuit’s holding that “willfully” requires a finding of bad purpose or evil motive. The Supreme Court held that

[i]n so holding, the Court of Appeals incorrectly assumed that the reference to an “evil motive” in United States v. Bishop, and prior cases meant something more than the specific intent to violate the law .

We did not, however, hold that the term [“willfully”] requires proof of any motive other than an intentional violation of a known legal duty. .

. On the contrary, as the other courts of appeals to consider the question have recognized, willfulness in this context simply means a voluntary, intentional violation of a known legal duty. United States v. Pohlman, 522 F.2d 974, 977 (CA8 1975) (en banc), cert. denied, 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638; United States v. McCorkle, 511 F.2d 482, 484 — 485 (CA7 1975) (en banc), cert. denied, 423 U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43; United States v. Greenlee, 517 F.2d 899, 904 (CA7 1975), cert. denied, 423 U.S. 985, 96 S.Ct. 391, 46 L.Ed.2d 301; United States v. Hawk, 497 F.2d 365, 366-369 (CA9 1974), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65.

Id. at -, 97 S.Ct. at 23-24 (emphasis supplied). In the case sub judice, the court charged the jury

[a]n act is done knowingly, if it is done voluntarily and intentionally and not because of mistake or accident or other innocent reason. An act is done wilfully if it is done voluntarily and intentionally and with specific intent either to do something which the law forbids or to fail to do something which the law requires.

Tr. 176 (emphasis supplied).⁹ We find no error in that charge.

III.

Any claim that Irwin was excused from reporting because he had pending against him a criminal charge is easily disposed of. In an extreme case where the registrant was not just awaiting trial, but was already in prison at the time he was ordered to report, the Tenth Circuit confirmed his conviction under 50 U.S.C.App. § 462, saying that being in jail was no excuse, he could have written to the draft board, since he was allowed one letter per day. United States v. Ebey, 424 F.2d 376, 378 (10th Cir. 1970).

A belief that one is unacceptable to the army is no defense to a charge of knowingly failing to report for induction. See, e. g., United States v. Shriver, 473 F.2d 436, 437 (3d Cir. 1973); United States v. Medina, 462 F.2d 1110, 1111 (10th Cir. 1972); and United States v. Goodman, 439 F.2d 810 (9th Cir.), cert. denied 404 U.S. 832, 92 S.Ct. 77, 30 L.Ed.2d 6 (1971). Nor is the fact that charges are pending against one. United States v. Benson, 469 F.2d 1356 (7th Cir. 1972) ; Nickerson v. United States, 391 F.2d 760 (10th Cir.), cert. denied 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1366 (1968); and Doty v. United States, 218 F.2d 93 (8th Cir. 1955).

Likewise, any belief Irwin may have had that he did not have to obey the order to report is no defense. Even when registrants relied on specific advice from their attorneys that they need not comply with an order to report for induction, courts have not recognized this reliance as a defense. As stated by the Second Circuit in United States v. Mercado, 478 F.2d 1108 (2d Cir. 1973) , this is just another application of Id. at lili (emphasis supplied). The First, Fifth and Ninth Circuits have also rejected such a defense in induction cases. United States v. Steiner, 469 F.2d 760 (5th Cir. 1972); United States v. Jacques, 463 F.2d 653 (1st Cir. 1972); and United States v. Wood, 446 F.2d 505 (9th Cir. 1971).

the settled rule that an erroneous belief that an induction order is invalid, even if based on the advice of counsel, is not a defense to a prosecution for refusing induction, and that one who refuses induction on the basis of such a belief acts at his peril.

IV.-

We find no error in the exclusion of the disputed evidence or in the court’s charge on “willfulness.” We have considered the other contentions raised by the defendant and find them without merit. The judgment of the trial court will be affirmed.

1 . We realize that the statement “You have to take care of this first” could be ambiguous: we assume the magistrate meant that Irwin would not be able to avoid his pending criminal charge by joining the army; Irwin may have interpreted the statement to mean that he need not even report for the draft, as ordered, until the township charges had been settled. Even if Irwin believed the latter, he made no attempt to inform his draft board of this complication. Had he done so, this suit would in all likelihood never have arisen.

2 . There was also a local public defender by the name of Esposito, which may have confused the draft board clerk.

3 . The court included in its charge to the jury Mr. Irwin’s belief, whatever it may have been, or anything he may have been told by anyone other than his Selective Service Board about whether or not he was obliged to report for induction cannot be considered by you in this case.

4 . See, e. g., United States v. Belgrave, 484 F.2d 915 (3d Cir. 1973), where this court reversed a conviction because the government had not met its burden of establishing beyond a reasonable doubt that defendant had received actual notice of his order to report for induction. Id. at 917.

5 . The statute requires only a knowing failure, but the indictment and the charge to the jury both refer to “willfully” as well as “knowingly.”

6 . See United States v. Figurell, 462 F.2d 1080, 1087 (3d Cir. 1972) (Aldisert, J., dissenting).

7 . In Boardman, a case also involving a knowing and willful failure to report for induction, the trial court instructed the jury as follows:

Motive is that which tempts, induces or moves a person to commit a crime. Intent is the purpose or mental state with which the person does the act. Now, members of the jury, motive, no matter how laudable or praiseworthy that motive may be, cannot negative a specificate [sic] intent to commit a crime. . . . Where a person has a specific intent to bring about a result which the law seeks to prevent, what induces him to act, his motive, is immaterial.

Id. at 113-14.

See also United States v. Couming, 445 F.2d 555, 556-57 (1st Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 291, 30 L.Ed.2d 266 (1971).

In United States v. Bowen, 421 F.2d 193 (4th Cir. 1970), the Fourth Circuit did reverse the trial court for its refusal to allow defendant to explain further his reasons for not reporting for induction. Defendant had been asked why he did not report; he answered that he did not want to be in the army. He was not allowed to explain why he did not want to be in the army. The case has not been followed.

As Wigmore notes, testimony concerning a person’s intent or motive is receivable “only on the assumption that the intent or motive is a fact permissible to be proved under the substantive law involved in the case. Hence, if for any reason of substantive law the person’s intent or motive is not provable at all, it is not provable by such testimony.” 2 J. Wigmore, Evidence § 581, p. 721 (3d ed. 1940).

See also United States v. Pomponio,-U.S. -, -, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976) (per curiam), where in a willful tax evasion case the Court upheld a charge that “[g]ood motive alone is never a defense where the act done or omitted is a crime.”

8 . The defendant in Malinowski was charged with willful evasion of federal income taxes.

9 . Compare the “willful” charge we reversed in Rabb, which added “[t]he word is also employed to characterize the thing done without ground for believing it is lawful or conduct marked by careless disregard, whether or not one has the right so to act.” United States v. Rabb, 394 F.2d 230, 232 (3d Cir. 1968).