UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: June 5, 1972.
UNITED STATES OF AMERICA
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" which, regrettably, has crept into the cases.
I do not construe the majority opinion to suggest, nor do I understand this court to have ever held, that in a criminal prosecution under the Selective Service Act, the government must prove that the defendant had actual knowledge of the allegedly violated statute or regulation. Such an interpretation would run counter to orthodox traditions associated with prosecutions of those cases in which it is not necessary to prove specific intent.
In United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S. Ct. 1697, 1701, 29 L. Ed. 2d 178 (1971), the Court had before it a conviction based on an information that the defendant "'did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C.F.R. 173.427.'" "The sole and narrow question [was] whether 'knowledge' of the regulation is also required," and, holding that such was not required, the Court, speaking through Justice Douglas, said:
The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of [this legislative history] we decline to attribute to Congress the inaccurate view that that Act requires proof of knowledge of the law, as well as the facts, and that it intended to endorse that interpretation by retaining the word "knowingly." We conclude that the meager legislative history . . . makes unwarranted the conclusion that Congress abandoned the general rule and required knowledge of both the facts and the pertinent law before a criminal conviction could be sustained under this Act.
Thus, in United States v. Rabb, 394 F.2d 230, 233 (3d Cir. 1968), when we said, "The Government must establish knowledge of the legal obligation and voluntary action or omission with the purpose of failing to perform such obligation," it was not meant that the government prove actual knowledge by the defendant of the allegedly violated regulation. The court's statement was nothing more than re-assertation that prosecutions under the Selective Service Act required proof of the necessary mens rea. Any other interpretation would run counter to Justice Douglas' re-affirmance in International Minerals of the principle that ignorance of the law is no defense.*fn4
But the problem does not disappear when we conclude that "knowingly" relates only to mens rea, because critical to a determination of a deliberate failure to act must be proof that the failure was not mere inadvertence. Deliberately failing to make the necessary report to the local board is the conduct proscribed by the regulation; an inadvertent failure to do so is not a criminal offense. And it is in the proof that the conduct was deliberate, and therefore "knowing," that the government is called upon to fashion some relationship between the provisions of the regulation and the defendant, by direct or circumstantial evidence.
In International Minerals, the Court gave expression to a test which I believe has relevancy here: "[where] the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." 402 U.S. at 565, 91 S. Ct. at 1701. To paraphrase this test for Selective Service deferment cases, we might ask: Are the specifics of the registrant's life-style which supported his deferment classification, such that there was a likelihood that it would be subject to regulation and control? If so, was it reasonable to presume that the registrant was aware of the existence of the regulation?
It seems to me that the degree of certainty with which the government must establish the requisite intent to obtain a selective service conviction logically varies with the specific offense. It also seems to me that a prosecution for failure to register for the draft would be placed at one extreme. There is widespread knowledge of this requirement within the general public, and especially within the affected age groups. There the government would not be required to devote much evidentiary attention to proving mens rea. Similar examples might be: where one had received a student deferment, and was no longer in school; or had received a conscientious objector classification, and then become engaged in selling napalm or rifles to military organizations; or, having been deferred as a minister of religion, changed his occupation to printing for commercial purposes atheistic literature. A prosecution for failing to respect the technical niceties required for efficient administration of the system, however, presents other considerations. For example, a prosecution for failure to keep the local board advised of one's correct address, without more, and without evidence of any prejudice to the system, would naturally focus on the element of scienter. This prosecution falls somewhere between the extremes.
Presumably, Figurell would have been drafted had he not received III-A status in 1963. 32 C.F.R. § 1622.30 provides:
Class III-A: Registrant With a Child or Children; and Registrant Deferred by Reason of Extreme Hardship to Dependents. -- (a) In Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home. . . .
Implicit in the deferment for dependency status under § 1622.30(a) is a Congressional expression of the public interest in preserving some type of family unit beyond mere fatherhood. The Act authorizes deferment of those "in a status with respect to persons (other than wives alone, except in cases of extreme hardship) dependent upon them for support which renders their deferment advisable." 50 U.S.C. App. § 456(h) (1). Dependency means more than purely financial support. Otherwise, there would be no deferment for this reason; there would simply be increased financial allotments for such servicemen. Cf., 32 C.F.R. § 1622.30(d). A deferment on family relationship seems to be based on a salutary policy of keeping the family unit intact, with the father living with and supporting the dependent children. Failure of the father to participate in the family unit would seem to strike at the very foundation of a dependency deferment under § 1622.30(a).
It is against this backdrop that we meet the question whether under all the evidence there were sufficient circumstances to permit a fact-finder to conclude that Figurell deliberately, not inadvertently, failed to report his change in his III-A dependency status to his local board. 32 C.F.R. § 1625.1(b) requires the registrant to report "any change in his occupation, marital, military, or dependency status." Section 1622.30(a) requires a "bona fide family relationship in their home." Our function as a reviewing court is not to substitute what finding we would have made had we been the fact-finder. Rather our responsibility is limited to determining whether there is a minimum quantity of evidence to satisfy the requirement of proof of mens rea.
The record discloses that on January 12, 1967, Figurell, then in Class III-A, failed to disclose that he and his family were still living together. Previously he had affirmatively reported: on July 22, 1963, that he had been married on June 18, 1963; one day later, on July 23, 1963, he reported that his wife was pregnant; on April 8, 1964, that his wife had miscarried in November, 1963; on December 3, 1964, that his wife was again pregnant; on January 8, 1965, that a child had been born on December 31, 1964; on January 11, 1966, that a second child had been born on December 7, 1965.
Additionally, in May, 1967, he presented to the board a letter, stating that he and his family were living together when, in fact, they had not been living together since January. Previously on February 9, 1967, his wife had reported to the board that he had left the family abode. Six days thereafter his classification was changed from III-A to I-A.
Assuming, without conceding, that only the activities prior to January 17, 1967, constitute relevant circumstantial evidence bearing on the mens rea issue, the question which divides this court is whether these circumstances are sufficient to support a finding that Figurell, classified for four years as a III-A, knew that his home and hearth relationship was subject to Selective Service regulations. As set forth in International Minerals, was the "probability of regulation so great" for the fact-finder to presume him to be aware of it?
I say yes. The majority says no. And, although what divides this court is strictly a judgment call, I am suggesting that implicit in the majority's view must be a threshold finding that Figurell at no time knew the wording of § 1622.30(a): "Into Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home. . . ." [Emphasis supplied.] I find to be beyond the realities of probable human experience the suggestion that a draft registrant who has successfully applied for and has enjoyed the benefits of a deferment for three and a half years does not know nor has been told the qualifications of that deferment.
Moreover, as here, where there is a history that the registrant was classified III-A in September, 1963, there has to be some rational explanation for subsequent reports to the local board regarding the family unit. On four separate occasions subsequent to his classification, he reported the pregnancies of his wife, the miscarriage, and the births of his children. Such conduct is consistent with knowledge of the regulation; it is totally inconsistent with purely volunteered action.
Reiterating that our function is not to make a finding of the necessary mens rea, but to determine whether adequate circumstantial evidence was present to support the trial court's finding, I am satisfied there was sufficient, supportive evidence.
I would affirm the conviction.