Candler v. United States

HOLMES, Circuit Judge

(dissenting).

The opinion of the majority neglects to mention a chain of undisputed facts which, in my opinion, compels the conclusion of the trial court that appellant was guilty as charged.

On September 28, 1942, the appellant, who had been placed in class 1 A, was no-*427tiñed that he had passed his physical examination preliminary to induction. Between that date and October 7, 1942, he went to his draft board and requested a release to the merchant marine. The local board, acting in accordance with its established policy, declined to release him, and he was notified by the clerk of the board that he would be called for induction in the next group, which, though the exact date could not be divulged, would be called within three weeks. He told the clerk that he was not going into the army. He then had separate interviews with the chairman of the local board and with the appeal agent, still seeking a release; and he told each of them that he was not going into the army.

On October 7, 1942, the local board mailed to appellant’s address a notice to report on October 22nd for induction. On October 15th, the board received from appellant a letter mailed in California, which gave a new California address. He did not report for induction on October 22nd. On October 31st, the board received a letter from appellant postmarked “Houston, Texas,” which gave another California address. On November 16th, the board ad- - dressed a letter to appellant at his California address, advising that he was delinquent and directing him immediately to contact his board. On November 23rd, the board received a letter from appellant giving three new addresses. On January 20, 1943, the board mailed to appellant at each of these addresses a notice to report for induction at a California induction station. All of these notices were returned unclaimed.

Between November, 1942, and May, 1943, the appellant, the United States Maritime Enrollment Service Office, and others, attempted to secure appellant’s release to enter the Merchant Marine. On May 13„ 1943, upon the request of the Administrator of the War Shipping Administration, the file kept by the local board relating to appellant was referred to the National Headquarters of Selective Service for consideration. On June 11, 1943, a letter was written to the State Director of Selective Service of Texas in behalf of the Director of Selective Service, reading in part as follows: “If the United States Attorney in Houston intends to prosecute this registrant, delinquency charges should not be withdrawn until the prosecution is terminated. An examination of the chronology of this case would seem to indicate that the registrant, to say the least, has not acted in good faith in the matter of the mailing addresses furnished the local board, particularly in connection with his written statement that the board should contact him in the future by writing any of the addresses furnished. The efforts of the post office to make the deliveries and its reasons for returning the envelopes are shown thereon.” When this letter was' written, it was the determination of the United States Attorney at Houston to prosecute the appellant. <

On June 10, 1943, the local board received a telegram from appellant in California, asking his present classification and giving a new mailing address. On June 25th, the board mailed a notice of delinquency to appellant at this address, which letter was returned unclaimed. On June 25th, appellant was arrested by agents of the F. B. I. in San Francisco. Appellant was ashore for weeks at a time during the entire period of his delinquency.

When appellant signed aboard the S/S Baldhill in October, he told the master that he had no draft classification. He received the original notice to report for induction after October 22nd, and he received in due course the board’s letter of November 16th advising him that he had been ordered to report for induction and was delinquent for failing to do so; but when apprehended by the F. B. I., he told the officer that he had not received either a notice to report or a notice of delinquency.

Did appellant fail to keep his draft board advised at all times of an address where mail would reach him? In a period of eight months he gave his board six different addresses, and mail addressed to him at each address was returned unclaimed. The only effective address ever submitted after his departure from Houston was that given upon the postal card that was mailed in Houston while appellant was on the Baldhill in the Pacific.

Did appellant fail to report for induction? He deliberately left Houston a few days before he knew he would be ordered to report, giving the local board mailing addresses that were, to say the least, not effective to reach him. After receiving notice that he had been ordered to report for induction and was delinquent for his fail*428ure to comply therewith, he took no action whatsoever except to send the board three new addresses, at which mail did not reach him. Thereafter for more than six months, though well advised of his status as a registrant, he remained beyond the call of his draft board until he was apprehended by the F. B. I.

What of his intent? Were these violations willfully and knowingly committed? Appellant flatly told three officials that he would not go into the army. While these utterances were fresh upon his lips, and when he knew that his induction was imminent, he departed from Houston obviously intending to be far from that city when his notice of induction was mailed. For more than one month he had every reason to expect to be ordered to report for induction, and for six months he knew that he had been so directed; but for the whole of that time he played hide and seek with his draft board until the game was ended by his arrest. Not by a single word or deed did appellant indicate any change of heart from 'his announced unwillingness to be inducted until his arrest brought the realization that he would be imprisoned if he failed to submit. To hold that such conduct does not violate the law enables the registrant to make a mockery of the Selective Service Act.

The majority rests its decision in part upon the doctrine of waiver, holding that the unrescinded order of the board to appellant, ordering that he report for induction in California, precluded it from prosecuting the criminal action. With deference, this position is wholly untenable. Selective Service Regulation 642.5 provides that after a delinquent registrant has been reported to the United States Attorney, the decision whether such delinquent shall be prosecuted rests entirely with that attorney. Notice of appellant’s delinquency was communicated to the United States Attorney on December 22, 1942, and after that date whatever right the local board had to enforce or waive these violations passed from them. Marshall v. United States, 5 Cir., 140 F.2d 261. Appellant was not returned from California to Texas for prosecution pursuant to the order of the local board, but that action was directed by the United States Attorney at Houston.

I respectfully dissent.