United States v. William Charles Eppinette, Jr.

488 F.2d 365, 1973 U.S. App. LEXIS 7664
Court of Appeals for the Fourth Circuit·Decided October 3, 1973·No. 73-1362·Published·Cited by 1 cases

Opinions

BUTZNER, Circuit Judge:

William Charles Eppinette, Jr. appeals from a judgment of conviction for failure to keep his selective service registration certificate and classification notice in his personal possession. We reverse the judgment and remand the case to the district court with instructions to enter a judgment of acquittal because nonpossession of these forms is not a crime punishable under § 12(b)(6) of the Selective Service Act of 1948, 50 U.S.C. App. § 462(b)(6) (1970).

On December 13, 1971, Eppinette returned his registration certificate and notice of classification to his local selective service board as a protest against the Vietnam War. In response, the board sent Eppinette a letter advising him that the law required him to keep the cards in his personal possession. The board also enclosed a form for requesting new cards. When Eppinette advised the board that he did not want any new cards, he was indicted for violating § 426(b)(6),1 convicted, and sentenced to two concurrent one year prison terms.

The section of the Act that the government accused Eppinette of violating provides:

“Any person . . . who knowingly violates or evades any of the provisions of this title or rules or regulations promulgated persuant thereto relating to the issuance, transfer, or possession of [a Selective Service] certificate, shall, upon conviction, be fined not to exceed $10,000 or be imprisoned for not more than five years, or both.” 50 U.S.C. App. § 462(b)(6) (1970).

The United States does not contend that Eppinette violated any of the specific prohibitions in the Act. Instead, it asserts that Eppinette violated § 462(b) (6) by failing to comply with selective service regulations that require a registrant to have his registration certificate and notice of classification in his [367] personal possession at all times.2 The government claims that the statute makes failure to comply with these regulations a crime punishable by imprisonment or fine. In support of this contention, it cites recent decisions upholding similar convictions based on indictments brought under § 462(a).3 We decline to follow the decisions on which the government relies because they do not accord with our interpretation of the statutes and the regulations. See generally Dranitzke, Possession of Registration Certificates and Notices of Classification by Selective Service Registrants, 1. Sel.Serv.L.Rptr. 4029 (1968).

Section 462(b) (6), as the general clause which follows the description of five specific crimes, must be construed in light of the statute of which it is a part. See Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 600, 83 S.Ct. 926, 10 L.Ed.2d 1049 (1963); Jarecki v. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). This canon of -statutory construction is particularly applicable to § 462(b)(6) because the section is part of a criminal statute that must be strictly construed. [368] Cf. United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed. 2d 457 (1971); Rewis v. United States, 401 U.S. 808, 812, 1056, 28 L.Ed.2d 493 (1972). The first five subsections of § 462(b) outlaw fraudulent transfers of registration certificates, fraudulent possession of a certificate that has not been duly issued to the person possessing it, alteration or destruction of a certificate, fraudulent printing of a likeness of a certificate, and knowing .possession of a forged or altered certificate.4 All five of the subsections are concerned with the destruction or fraudulent use and possession of certificates; none of them mention any requirement that a registrant possess certificates that have been duly issued to him. Therefore, the natural construction of the sixth subsection is that it reaches frauds which the statute did not expressly cover, but it does not punish the nonpossession of a validly issued certificate when no fraud has been committed.

This construction of § 462(b) (6) accords with the congressional intent as expressed in the legislative history. Statutes enacted prior to the Selective Service Aot of 1948 contained no statutory provisions analogous to § 462 (b). The Senate Report of the 1948 Aet explains the new provision as follows.

“False certification. — This subsection does not appear in the 1940 act. It establishes a fine of not to exceed $10,000, or imprisonment not to exceed 5 years, or both, as the penalty for the false use of selective-service certificates and related papers.” S. Rep.No.1268, 80th Cong., 2d Sess., 2 U.S.Cong.Serv. 1989, 2008 (1948).

There is no suggestion in the report that the Senate intended the Act to punish simple nonpossession of draft cards when no fraudulent conduct is involved. The House version of the Act did not have a provision similar to § 462(b), but the conference committee accepted the Senate version. The conference managers of the House explained the conference bill as follows:

“The Senate bill provided specific penalties for those forging or altering certificates issued under the act and for persons possessing or using any such forged or altered certificates. The House amendment contained no comparable provisions. The conference agreement adopts the provisions of the Senate bill with respect to this matter.” Conf.R.No.2438, auth Cong., 2d Sess., 2 U.S.Cong.Serv. 2011, 2017 (1948).

[369] We attach particular importance to this legislative history because the Act contains no language expressly making the nonfraudulent failure to possess validly issued draft cards a crime. Only a strained construction of the Act, inconsistent with its legislative history, would countenance Eppinette’s punishment for his simple failure to retain in his personal possession the draft cards that were issued to him. “But when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.” United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). We, therefore, hold that Congress did not intend § 462(b) (6) to punish nonpossession of validly issued Selective Service documents in the absence of fraud.

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United States v. William Charles Eppinette, Jr., 488 F.2d 365, 1973 U.S. App. LEXIS 7664 (4th Cir. 1973).

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United States v. William Charles Eppinette, Jr.
488 F.2d 365 (Fourth Circuit, 1973)