Defendant was ordered to report for induction on April 16, 1970; this he failed to do. The notice to report for induction was mailed to the Cherry Tree, Pennsylvania address.
12. A member of the Postal Service explained the procedure of the Post Office in returning letters to the senders when a stamp such as those that were on the correspondence sent to the Defendant at the Elmira address is placed on any envelope sent in the mail. The letters from the Local Board sent to the Elmira address were returned to the sender since the carrier was unable to effect his delivery. This occurred once again on the letter mailed March 6, 1970, even though two different attempts were made to effectuate delivery at two different addresses, i. e., the Y.M.C.A. in Elmira, New York and the 356 W. Water Street address. In making deliveries to a public facility such as the Y.M.C.A. or a hotel, the carrier would leave the mail in the Postal Box owned by the facility, then a representative of the Y.M.C.A. would make the determination as to whether the addressee is there or not. On the March 6, 1970 letter, the postal carrier attempting delivery endorsed the front of the envelope to the fact that the addressee had moved and his address was unknown, therefore, he could not effectuate delivery either at the Y.M.C.A. or the W. Water Street address, and the letter would be returned to the sender.
13. The F.B.I. made numerous unsuccessful attempts from 1970 until 1973 to contact the Defendant through his mother, people in the Cherry Tree area, and the Y.M.C.A. in Elmira, New York.
14. On May 2, 1973, a Richard A. Clark was arrested in Anchorage, Alaska for a motor vehicle violation. A Special Agent in the Anchorage area had received information the Defendant might be in the area and a check of the fingerprints of Richard A. Clark was found to coincide with those of Patrick Ross Yingling.
15. When the Agent went to the address furnished by Richard Clark, the Defendant admitted his identity, stated that a Bench Warrant had been issued for him for a violation of the Selective Service Act and that he had intended to turn himself in at the end of the summer.
16. From the testimony offered at the Non-Jury Trial and the Exhibits admitted into evidence, this Court finds that the Defendant knowingly and with the requisite intent failed to fulfill his duty under the Selective Service Act to keep his draft board informed of his current address and failed to report any and/or all address changes from the March 12, 1970 date as set forth in the indictment.
The critical element in the crime charged against this Defendant is that he knowingly and wilfully failed to keep his Local Board informed as to his current address. The facts show that the Defendant did comply with the Selective Service Law by registering when he reached his eighteenth birthday and by informing them of his new address in Elmira, New York. The law is well established that a registrant is not required to remain at one place or report every move he makes to his Local Board. United States v. Secoy, 481 F.2d 225 (6th Cir. 1973). If a registrant fails to furnish the Draft Board with a home address, it does not constitute a violation of the regulation requiring a registrant to keep his Local Board advised of an address where mail will reach him; his obligation is met if he provides a suitable means for being reached by his Local Board. United States v. Chudy, 474 F.2d 1069 (9th Cir. 1973); United States v. Burton, 472 F.2d 757 (8th Cir. 1973). A registrant cannot be convicted because of mere mistake, accident or other innocent reason. United States v. Neilson, 471 F.2d 905 (9th Cir. 1973).
A question of vital importance is whether the communications mailed to the various addresses furnished by the registrant or his family would have reached him in time for compliance with the Selective Service Act. United States v. Ebey, 424 F.2d 376 (10th Cir. 1970).
To convict a registrant of knowingly and wilfully failing to keep his Local Board advised of his address it is necessary to show that there is a deliberate purpose on his part not to comply with the Selective Service Act or any regulation issued thereunder. United States v. Reeves, 325 F. Supp. 179 (D.C.Fla. 1971). See also United States v. Rabb, 394 F.2d 230 (3rd Cir. 1968) on the issue of intent. Certainly, substantial compliance with the requirement that a registrant advise the Local Board of his current address where mail can reach him is not met by merely giving the Board a few clues by which the registrant can be located. United States v. Mostafavi-Kashani, 469 F.2d 224 (9th Cir. 1972).
In United States v. Secoy, supra, the Sixth Circuit held that the evidence sustained the conviction of a defendant who did not advise either his Local Board, his parents, or the person designated as the "person other than a member of his household who will always know his address", of his three month trip through the West Coast of the United States, and who did not establish any alternate means of communication for this period, for failing to keep his Local Board advised of his current address notwithstanding the defendant's claims that he had asked his landlord to hold his mail while he was gone and his testimony that he returned twice during his sojourn to pick up his mail. In Gretter v. United States, 422 F.2d 315 (10th Cir. 1970), the Court held that where the defendant left his parent's home without informing anyone of his new address where mail could reach him, where the Board made unsuccessful attempts to discover his new address after classifying defendant as a delinquent registrant and defendant communicated with the Board only after he was found by the F.B.I., defendant had the requisite intent to commit the offense of failure to advise his local draft board of an address where mail would reach him.
This Defendant's duty to advise the Local Board of an address where mail could always reach him was continuing one and he could properly be convicted of knowingly failing to so advise his Local Board though the indictment charged Defendant with failure to notify the Board of address changes from January 17, 1968 to July 1970, and the Board sent him nothing during that period apparently because its attempts to reach him in December of 1967 had been futile. United States v. Buckley, 452 F.2d 1088 (9th Cir. 1971). Relying on the law as set forth in the Secoy, Gretter and Buckley cases, this Court concludes that the Defendant is guilty beyond a reasonable doubt of the violation charged.
In United States v. Mostafavi-Kashani, supra, the Court stated:
"The evidence amply sustained the district court's conclusion that appellant's failure to keep his board informed of his current address was deliberate. The pattern of appellant's conduct gave every indication of evasive tactics to avoid receiving mail from the board. The record [as is here] is unlike Ward v. United States (1953) 344 U.S. 924, 73 S. Ct. 494, 97 L. Ed. 711. In Ward the registrant furnished his board with his employer's complete address, and the evidence showed that he received mail at that address. No similar showing was made in this case."