The opinion of the court was delivered by: MOSCOWITZ
Defendant was tried before the Court, having waived a jury, upon the second count of an indictment charging him with violation of Section 311, Title 50, Appendix, United States Code Annotated, which, insofar as pertinent, provides: 'Any person * * * who * * * evades * * * service in the land or naval forces or any of the requirements of this Act * * * or who in any manner shall knowingly fail or neglect to perform any duty required of him under * * * this Act, or rules or regulations made pursuant to this Act * * * shall, upon conviction * * * ' etc. Regulation 626.1(b), conceded to have been 'made pursuant' to the Act, at the time in question provided: 'Each classified registrant shall, within 10 days after it occurs, * * * report to the local board in writing any fact that might result in such registrant being placed in a different classification.'
The indictment charges that defendant, being a person duly registered under the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., violated the aforementioned statute and regulation in that he 'did unlawfully, wilfully and knowingly omit and refrain from disclosing to the Local Board duly exercising jurisdiction of defendant, Meyer Weiss, facts as to the liability of said defendant, Meyer Weiss, for service under the provisions of the Selective Training and Service Act,' that is to say, that he 'wilfully, knowingly and deliberately omitted and refrained from disclosing to the Local Board duly exercising jurisdiction in that behalf, the fact that said defendant, Meyer Weiss, was not from June 3, 1944 to December 31, 1944 employed by the Universal Camera Corporation, and that the employment of said Meyer Weiss had terminated on or about June 3, 1944. * * * '
Defendant asserts three principal arguments: (1) That the language of regulation 626.1(b) is too vague, indefinite and uncertain to inform those subject to it what conduct on their part will render them liable to the criminal penalty imposed, upon the basis of which a motion is made to dismiss the indictment, (2) that even if the regulation be deemed to furnish a legal standard of guilt, the indictment does not charge a crime thereunder, and (3) that even if a crime be charged, the evidence proves that defendant is not guilty thereof. No testimony was offered at the trial before the Court, the parties having stipulated various facts and exhibits having been introduced as the only other evidence. After the trial was completed, the Court summoned counsel for the defendant and the Assistant United States Attorney and advised defendant's counsel that in view of the seriousness of the crime charged, if his client would desire a jury trial, the Court would permit withdrawal of the earlier waiver and would grant the defendant the right to have a jury pass upon the question of his guilt or innocence. By letter dated February 21, 1946, which has been added to the file in this case, counsel informed the Court that defendant continued in his original position and did not desire to go before a jury.
On October 16, 1940, the defendant registered under the provisions of the Selective Training and Service Act and in due course shortly thereafter was placed in Class 3-A, as a pre-Pearl Harbor father. The intensity of the war having brought about a change of Selective Service policy whereby pre-Pearl Harbor fathers were no longer deferred unless they were engaged in an essential occupation, on September 4, 1943, defendant's Local Board wrote to him as follows:
'Pursuant to Local Board memorandum No. 181 issued by Selective Service, as amended August 16, 1943, please be advised that an examination of your file indicates that your present occupation is non-deferrable.
'You must, therefore, transfer to some other position or register with the United States Employment Service in order to be transferred to other employment.
'This Board grants you 30 days' time from date in which to comply with the above, otherwise we shall reclassify you to 1A for induction in accordance with Selective Service regulations.'
On September 13, 1943, defendant procured employment and commenced work as a supervisor trainee at the Universal Camera Corporation, working regularly on the 3:30 to midnight shift after a two-weeks training period. The fact of defendant's employment there and that the production being carried on was critical work for the army and navy were communicated by the Universal Camera Corporation to defendant's Local Board by letter dated September 14, 1943. On September 18, 1943, the Local Board wrote to the defendant that they had read the letter from Universal Camera Corporation and that 'in view of same' defendant would be continued in Class 3-A.
Six months later, on March 30, 1944, defendant received notice from the Local Board that he had been placed in Class 1-A, which meant that he was considered available for military service. Various occupational classification and certification forms, designated as 42-A and 42-B were submitted to the Local Board by Universal Camera Corporation, the last on May 22, 1944, which pointed to the 100% critical work in which the firm was engaged for the navy and stated that defendant was 'employed full time' as 'Supervisor of Sealing Division,' enumerating his duties and that it would take over six months to replace him. On July 5, 1944, the Local Board placed the defendant in Class 2-B, which classification entitled him to deferment from induction because of the character of his employment.
In the meantime, work having slackened at Universal Camera Corporation, defendant applied for a vacation and was told by the Supervisor that if he obtained a doctor's certificate he could have a leave of absence until the resumption of work required his return. Defendant procured a letter from a doctor and ceased work on June 3, 1944. On a printed form in the corporation's files, entitled 'Notice of Termination of Employment,' appears the handwritten notation 'leave of absence, ill health, see doctor's letter in file.' The official who signed this form did not recall whether it contained the handwritten words when he signed it but in the absence of any proof to that effect, the Court cannot assume that the paper has been tampered with. Defendant did not physically return to work for Universal Camera Corporation at any time after June 3, 1944, and received no pay whatever after that date. These facts were not made known to the Local Board until defendant wrote a letter setting them forth on December 26, 1944, which was after an investigation had been started and he had been interrogated by an official at Selective Service headquarters.
It is a fundamental constitutional protection that a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. From the great number of decisions passing upon the question whether particular legislative enactments are wanting in the required certainty, it is apparent that any test of validity is difficult of delineation. To the extent that any consistency may be evolved, it appears that a statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the constitutional guaranty of due process of law. United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A.L.R. 1045; Connally v. General Const. Co., 1925, 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888.
Thus, in the Cohen Grocery case, supra, the portion of the Lever Act, 41 Stat. 297, Sec. 2, which outlawed the making of 'any unjust or unreasonable * * * charge * * * for any necessaries' was condemned because it left open 'the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against' and because an 'attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury' (page 89 of 255 U.S., 41 S. Ct. 300, 65 L. Ed. 516, 14 A.L.R. 1045). In the Connally case, supra, an Oklahoma statute imposed penalties upon a contractor who failed to pay his employee 'not less than the current rate of per diem wages in the locality where the work is performed.' 61 Okl.St.Ann. § 3. It was held that the statute was so equivocal in two respects that a person of common intelligence attempting in the best of faith to comply with the terms of the statute, could not, without gifts which mankind does not possess, be sure that he was obeying its dictates and the statute was held invalid as being too vague and indefinite. The Court pointed out that no one could say with any accuracy what area constituted the 'locality' of the work and a 'current rate of wages' imported a range out of which it would be impossible safely to select a proper amount to be paid. In the Lanzetta case, supra, an enactment of New Jersey inflicting severe punishment upon a person who was 'a member of any gang' was held invalid on the finding by the court that nowhere in the language of the law was the term 'gang' defined and that the meanings indicated in dictionaries and in historical and sociological writings were numerous and varied. For the reason that ordinary persons could not understand what was condemned under this and other ambiguous terms, the statute was held repugnant to the due process clause.
But it is plain that the statute here involved and Regulation 626.1(b) made pursuant thereto are not open to the same criticism as were the enactments in these cases. An almost identical requirement formed part of the draft legislation in World War I
and registrants have been educated through two wars in what facts may result in a change of their classification. The language of the Regulation certainly has acquired a well understood connotation and men of ordinary intelligence would not be likely to differ as to its meaning. All registrants may be presumed to be aware that deferments from military service are based upon physical condition, marital and dependency status and occupation and that termination of an employment, upon the sole basis of which a registrant has been given a classification defined in the Regulations and entitling him to deferment, may result in a change of that classification. Here the evidence clearly demonstrates that this defendant, who is a lawyer, not only knew that he was placed in Class 2-B solely because of his employment with Universal Camera Corporation but that he originally undertook the employment as a mere subterfuge and for the purpose of avoiding induction.
In Gorin v. United States, 1941, 312 U.S. 19, 61 S. Ct. 429, 434, 85 L. Ed. 488, the constitutionality of the Espionage Act, 50 U.S.C.A. § 31 et seq., was sustained though it prohibited the obtaining of documents and disclosure of information 'connected with the national defense' on the ground that 'the use of the words 'national defense' has given them, as here employed, a well understood connotation.' In Dunne v. United States, 8 Cir., 1943, 138 F.2d 137, 142, in rejecting the argument that the wording of the contested statute was too vague and sweeping ('advocate, abet, advise or teach the duty, necessity, desirability or propriety' of overthrowing the government, 18 U.S.C.A. § 10), the court said (at page 142): 'The words attacked are ordinary everyday terms with generally understood meanings. They are not vague. They are 'sweeping' only in the sense that they endeavor to cover the different means by which Congress deemed the forbidden result might be brought about.' In Chaplinsky v. New Hampshire, 1942, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031, the Court held that a statute was not vague or indefinite which provided that 'No person shall address any offensive, derisive or annoying ...