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United States v. Figurell

decided: June 5, 1972.

UNITED STATES OF AMERICA
v.
BERNARD JOHN FIGURELL, APPELLANT



Biggs, Van Dusen and Aldisert, Circuit Judges. Aldisert, Circuit Judge (dissenting).

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

On May 1, 1971, the district court, sitting without a jury, found Bernard John Figurell guilty of a violation of 50 U.S.C. App. § 462 for his failure to notify his local draft board on or about January 12, 1967, of a fact that might have affected his draft status, specifically, that his wife and children were no longer living with him.*fn1 Figurell appeals from this conviction, claiming that the evidence presented at the trial failed to establish an essential element of the charge, that is, that his violation of the Selective Service rule requiring him to notify his local board of this situation was done "wilfully and knowingly."*fn2 For the reasons to be stated, we agree and reverse Figurell's conviction.

In order to convict Figurell of a violation of 50 U.S.C. App. § 462, the United States was required to prove not only that Figurell failed to perform his duty to report to his local board the fact that he was no longer living with his wife and children,*fn3 but also that Figurell knew of this duty and intended not to perform it. See, e. g., United States v. Williams, 421 F.2d 600 (10th Cir. 1970); United States v. Rabb, 394 F.2d 230 (3d Cir. 1968).*fn4 See also Ward v. United States, 344 U.S. 924, 73 S. Ct. 494, 97 L. Ed. 711, rev'g 195 F.2d 441 (5th Cir. 1952). Furthermore, the United States was required to establish that Figurell's knowledge of this duty and intent to evade it existed "on or about January 12, 1967, " when it was alleged in the indictment that Figurell violated his duty to report the fact that his wife and children were no longer living with him.*fn5 There was no direct evidence of Figurell's knowledge of this duty during this period. The district court, however, relied essentially on two sets of circumstantial evidence in finding that Figurell had the requisite knowledge: Figurell's good record of reporting to his local board information which was favorable to his III-A deferment status, and Figurell's delivery of a certain forged letter to the local board on May 25, 1967. After a careful consideration of these factors, as well as the other evidence in the record, we have concluded that there is insufficient evidence in the record to establish beyond a reasonable doubt that Figurell knew, on or about January 12, 1967, that he had a duty to report the fact that he was not living with his wife and children and that he "knowingly and wilfully" failed to make such report within the prescribed 10-day period (see note 5, supra).*fn6

The district court was certainly correct in concluding that it was reasonable to infer from Figurell's good record of reporting information favorable to his III-A status that he was aware of his duty to report unfavorable facts. Indeed, his Selective Service file reveals that by January 12, 1967, Figurell had already reported at least one unfavorable fact to his local board.*fn7 This record however, does not support a finding beyond a reasonable doubt that Figurell knew in January 1967 that he had a duty to report the particular fact involved in the instant case, that is, the fact that his wife and children were no longer living with him. The facts that Figurell had reported to his draft board prior to January 12, 1967, were all objective facts which were clearly relevant to a III-A deferment status. These facts included his marriage on June 18, 1963 (reported on July 22, 1963), his wife's pregnancies (reported on July 23, 1963, and December 3, 1964), his wife's miscarriage in November 1963 (reported on April 8, 1964), and the births of his children on December 31, 1964, and December 7, 1965 (reported on January 8, 1965, and January 11, 1966, respectively).*fn8 This record indicates that Figurell was aware that his local board should be informed of changes in his "marital status" in the sense of whether he was married or not, since he had reported the fact of his marriage to the Board.*fn9 But there is no substantial evidence in Figurell's Selective Service record from which it may be inferred that Figurell knew during January 1967 that the fact that his wife and children were not living with him must be reported to the local board.*fn10 In the roughly three-and-one-half years of their marriage prior to January 12, 1967, Figurell's wife had left him approximately six times for periods ranging from several weeks to several months.*fn11 None of these separations had been reported to Figurell's local board,*fn12 and in each case Figurell's wife and children had eventually returned to live with him. Thus, as the district court acknowledged,*fn13 Figurell's past record of reporting changes to his local board cannot sustain his conviction.

The proof which the district court found justified Figurell's conviction included a May 15, 1967, letter contained in Figurell's Selective Service file. This letter, which purported to be from Mrs. Figurell but was in fact a forgery, stated that she and her children were now living with Figurell.*fn14 Apparently, as a result of this letter, Figurell was reclassified from I-A to III-A on June 8, 1967. Although Figurell denied ever having seen the forged letter or having anything to do with its writing (N.T. 76-77),*fn15 Miss Haggerty, the Executive Secretary of the local board, testified that Figurell personally delivered it to her (N.T. 32).*fn16 The district court apparently accepted Miss Haggerty's testimony and reasoned that Figurell's delivery of this letter on May 15, 1967, was sufficient under the circumstances*fn17 to justify a finding that Figurell knew, on or about January 12, 1967, of his duty to report his separation from his wife and children.*fn18 We cannot agree. The only relevance which this forged letter has to Figurell's guilt is the light which it casts on the state of Figurell's knowledge on or about January 12, 1967.*fn19 Presumably the district court reasoned that if Figurell delivered the May 15, 1967, forged letter stating that he and his wife were living together, it could be inferred that he was aware of its contents and therefore knew that this fact was relevant to a III-A classification. From this knowledge it could then be inferred from his past record of reporting facts to the local board which he knew to be relevant to his III-A classification that Figurell knew, on or about May 15, 1967, that he had a duty to report the fact that his wife and children were no longer living with him. Even in the absence of additional circumstances, however, proof of this knowledge on May 15, 1967, would be at best weak evidence of Figurell's knowledge of this duty on or about January 12, 1967, some four months earlier.*fn20 But in the instant case, Figurell's Selective Service file indicates that he was reclassified from III-A to I-A on February 17, 1967, apparently as the result of a report by his wife to the local board on February 9, 1967, that she and their children were no longer living with Figurell. Thus, at least by the time that he received notice of his reclassification on or about February 17, 1967,*fn21 Figurell became aware of the fact that he could not maintain or secure a III-A deferment if his wife and children were not living with him. In these circumstances, proof that he also had such knowledge on May 15, 1967, when the forged letter was brought into the local board, has slight, if any, additional probative value on the question of whether Figurell had such knowledge on or about January 12, 1967.*fn22

From the foregoing, we conclude that there is not sufficient evidence to support the district court's finding beyond a reasonable doubt that Figurell had knowledge on or about January 12, 1967, of his duty to report the fact that his wife and children were no longer living with him.*fn23 Accordingly, the district court's judgment of conviction will be reversed and the case remanded for entry of judgment of acquittal.*fn24

ALDISERT, Circuit Judge (dissenting).

The majority hold that despite Figurell's failure to keep the local board informed of a fact which might have affected his draft status, 50 U.S.C. App. § 462(a), his conviction was infirm because there was insufficient proof that he "wilfully and knowingly" violated the law. I disagree.

Where the concept of "wilfully and knowingly" becomes central to the litigation, the inconsistency of the relevant case law becomes manifest. Reference to semantic explanations is rarely of great assistance. Often, recourse is made to legislative history for direction, but as regards the specific portion of the Selective Service Act before us, there is no help there.

In an attempt to bring some order out of the chaotic state of statutory and case law, the Commission for the Reform of the Criminal Law has proposed a new codification of the degrees of criminal culpability.*fn1 Section 302 of the Proposed New Federal Criminal Code*fn2 would place "intentionally" on the highest rung of culpability; and then, in decreasing order, "knowingly," "recklessly," and "negligently." The Commissioners suggest: "A person engages in conduct . . . (e) 'willfully' if he engages in the conduct intentionally, knowingly, or recklessly." So construed, the proposed code seems to accept the language in United States v. Murdock, 290 U.S. 389, 394-395, 54 S. Ct. 223, 226, 78 L. Ed. 381 (1933): "The word ['willfully'] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. . . . Aid in arriving at the meaning of the word 'willfully' may be afforded by the context in which it is used. . . ." See also, United States v. Vitiello, 363 F.2d 240, 243 (3d Cir. 1963).

Thus, the Code would suggest that what is critical for our analysis is not the equivocal "willfully"; rather we must concentrate on "knowingly."*fn3 Its general meaning is associated with conduct which is voluntary, and not inadvertent or accidental.

In any event, this elemental emphasis becomes important so there will be no unnecessary confusion between the statutory standard of "knowingly" and the expression "knowledge" ...


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