APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal No. 450-73).
Van Dusen, Hunter and Weis, Circuit Judges. Van Dusen, Circuit Judge, dissenting.
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.
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 induction, that is December 8." Tr. 155. Judge Esposito replied that Irwin would have to take care of the township charge first.*fn1 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"*fn2 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.*fn3 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.
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;*fn4 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 . . . .
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."*fn5 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,"*fn6 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. Well, because of two reasons. One was because I was told not to go down.
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 ...