UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
February 14, 1974
UNITED STATES of America
Eric Lincoln SELIGSON, Defendant
Cannella, District Judge.
The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
Defendant, Eric Lincoln Seligson, is charged, in a one count indictment, with knowing failure to keep his local Selective Service board advised of an address where mail would reach him, Section 462(a) of the Universal Training and Service Act of 1951, 50 U.S.C. App. § 462(a),
and 32 C.F.R. § 1641.3.
Defendant waived his right to a trial by jury and consented to a trial by the court. The trial was held on January 29, 1974. Defendant has, at the close of the proof, moved for a judgment of acquittal, Rule 29 of the Federal Rules of Criminal Procedure. That motion is denied. The court finds the defendant guilty, as charged in the indictment, beyond a reasonable doubt.
Defendant registered for Selective Service with Local Board 16 at New York, New York, on September 3, 1964 and gave his address as 1370 St. Nicholas Avenue, New York, New York. At that time, he was informed by the registrar of his obligation to keep the local board advised of any change in his mailing address and he was given a pamphlet entitled "Selective Service and You" which contained similar information. At his registration, defendant completed and signed a classification questionnaire which also contained a warning about his duty to report any address change. On October 12, 1964 the local board mailed to the defendant a Registration Card which included, on the reverse side, a similar notice. On October 19, 1964 the defendant was forwarded a Notice of Classification (he was classified I-A on October 15, 1964) which stated a similar warning concerning his obligation to report address changes.
On July 19, 1965 the local board received a letter from defendant stating that he had changed his address to 272 Seventh Street, Palisades Park, New Jersey.
The defendant was mailed a notice to report for a physical examination by the local board on July 22, 1965. He appeared at the physical and was found fully acceptable for induction on August 2, 1965.
On August 16, 1965 the local board received a letter from defendant which stated that he no longer resided at the New Jersey address and that he would be departing for Europe shortly. He advised that during the period that he was to be abroad his American address would be 1670 Florida Street, San Francisco, California (his mother's address) and that he would also receive mail at the American Express Office, London, England. Defendant further stated that he would "notify the Selective Service System as to any change in [his] classification."
On November 15, 1965 the local board mailed a notice for a second physical examination to defendant at the San Francisco address. On November 24, 1965 the local board received a letter from defendant's mother (together with the contents of the November 15 mailing) stating that defendant was in Europe and that she was not in a position to contact him.
On November 26, 1965 the board directed a mailing to the defendant at American Express, London; this letter was returned on March 17, 1966 marked "Unclaimed-Not known".
The local board thereafter declared defendant delinquent in his Selective Service obligations on February 1, 1966 and it mailed appropriate delinquency notices to defendant at both the California and London addresses on February 3, 1966. The notice mailed to London was returned to the board on April 13, 1966 marked "Unclaimed-Not known".
On March 23, 1966 the board sent tracer letters to defendant's mother and his grandmother, Lillian Wilson, who had been listed by the defendant as the person who would always know his address. Mrs. Wilson responded March 28, 1966, by stating that she had not seen or heard from the defendant in about a year and she gave the last address for the defendant known to her as 1350 St. Nicholas Avenue, Bronx, New York. On March 30 the board directed a letter to defendant at the address provided by Mrs. Wilson, but this mailing was returned on April 4, 1966 marked "No such number". The board then sent a letter to defendant at the original address furnished by him, 1370 St. Nicholas Avenue, on April 7, 1966. This letter was returned "Moved. Left No Address." on April 11. In the interim, on April 8, the board received a response to its tracer letter from defendant's mother which stated that she had not heard from him since November 1965 and that she did not know his present whereabouts. She suggested that the board again try to reach him at the London American Express office.
Thereafter, on April 12, 1966, the local board mailed a notice of induction for April 25, 1966 to the defendant in San Francisco. This notice was neither returned nor acknowledged.
Defendant did not report on April 25 and on May 12 the local board reported defendant to the United States Attorney as a Selective Service violator.
An F.B.I. investigation was subsequently instituted to locate and apprehend the defendant. "Leads" were sent to numerous cities and countries and, at one point, defendant was located in Canada. In March 1969 the F.B.I. was informed that defendant was expected to arrive on an Air Canada flight at Kennedy Airport and they requested that the Port Authority Police apprehend him. Defendant was, however, able to escape capture when he fled across the air-field. As a result of the continued F.B.I. investigation defendant was again located, in October 1973, in Blytheville, Arkansas, using the assumed name of Eddie Watts, Jr. He was arrested on October 5, 1973 by the local police and was, thereafter, returned to New York for trial, by the F.B.I.
The regulation, 32 C.F.R. § 1641.3, places a duty upon a registrant to keep his local board advised of an address where mail will reach him and the statute, 50 U.S.C. App. § 462(a), makes a registrant's knowing failure, neglect or refusal to comply with the regulation a crime.
The statute and the regulation do not require a registrant to report his every move to the board, but do impose a continuing obligation to keep the local board advised of a "good" current address. United States v. Read, 443 F.2d 842, 844 (5 Cir.), cert. denied, 404 U.S. 943, 92 S. Ct. 294, 30 L. Ed. 2d 258 (1971); Kokotan v. United States, 408 F.2d 1134, 1137 (10 Cir. 1969). The address furnished to the board must be one where defendant genuinely intends to call for his mail at reasonable intervals. United States v. Haug, 150 F.2d 911 (2 Cir. 1945). The regulation is satisfied "when the registrant, in good faith, provides a chain of forwarding addresses by which mail, sent to the address which is furnished to the board, may be, by the registrant reasonably expected to come into his hands in time for compliance." Bartchy v. United States, 319 U.S. 484, 489, 63 S. Ct. 1206, 1208, 87 L. Ed. 1534 (1943). See also, United States v. Secoy, 481 F.2d 225 (6 Cir. 1973); United States v. Ebey, 424 F.2d 376, 377 (10 Cir. 1970).
Defendant has failed to meet these requirements. Upon his departure for Europe he furnished the local board with two addresses: that of his mother in San Francisco and the American Express Office, London. The American Express address was a dead letter box; all mail sent there by the board was returned "Unclaimed-Not Known". The San Francisco address was little more. Mail there addressed, was either returned by defendant's mother together with a statement of her lack of knowledge of his whereabouts or neither returned, nor acknowledged. At neither address could defendant have reasonably expected mail to reach him in time for compliance with his Selective Service obligations nor did he call for his mail at either location at regular intervals. The San Francisco address did not satisfy the regulation because his mother was unable to contact him or forward to him the mail there received. The London letters were not deliverable because he was not in London at regular intervals to pick them up. It is an unavoidable conclusion that, on the facts of this case, the defendant failed to keep his local board advised of an address where mail would reach him.
The simple failure of the defendant to keep his local board so advised would not, of itself, be a crime. The statute, 50 U.S.C. App. § 462(a), requires that the defendant's non-compliance was knowing; the requisite mental element of the offense. The Supreme Court has held that a defendant acts knowingly when it is shown "[that] there was deliberate purpose on the part of the [defendant] not to comply with . . . the regulation." Ward v. United States, 344 U.S. 924, 73 S. Ct. 494, 97 L. Ed. 711 (1953), reversing per curiam, 195 F.2d 441 (5 Cir. 1952). The court finds defendant to have acted with such deliberate purpose.
It is clear that defendant had adequate notice of his duty to keep the board informed of an address where mail would reach him. Such notice is plainly demonstrated by his receipt of numerous Selective Service documents which explicitly warned him of his obligation to keep the board so informed.
Additionally, defendant's previous compliance with the regulation, his informing the board of the change in his address to New Jersey and, later, to San Francisco and London, evidences his knowledge of the obligation imposed. Defendant's knowing non-compliance, guilty intent, is further evidenced by the inability of his mother, who resided at one address given by him, to furnish any information concerning his whereabouts, United States v. Buckley, 452 F.2d 1088 (9 Cir. 1971); United States v. Booth, 454 F.2d 318, 322 (6 Cir. 1972); United States v. Williams, 378 F. Supp. 159 (S.D.N.Y.1973) (MacMahon, D. J.), and by the fact that his grandmother, the person who had been listed by defendant as always knowing his address, could not provide a "good" address for him. Kokotan v. United States, supra, 408 F.2d at 1137; United States v. Booth, supra, 454 F.2d at 322; cf., United States v. Chudy, 474 F.2d 1069, 1070-1071 (9 Cir. 1973); United States v. Burton, 472 F.2d 757, 762-763 and fn. 6 (8 Cir. 1973). The return of the letters sent to London, unclaimed, also demonstrates the knowing character of defendant's non-compliance. The regulation is violated when a registrant no longer calls for mail at an address which he has furnished to the board. United States v. Haug, supra, 150 F.2d at 914.
It is overwhelmingly clear on the evidence that defendant was aware of his obligation to the board and deliberately refranied from performing it; this is sufficient evidence to support a finding of guilt, United States v. Secoy, supra ; United States v. Mostafavi-Kashani, 469 F.2d 224 (9 Cir. 1972); United States v. Booth, supra, without other proof of specific intent or other corrupt or wicked motive. United States v. Wood, 446 F.2d 505, 507 (9 Cir. 1971); United States v. Couming, 445 F.2d 555, 557 (1 Cir. 1971).
The defendant has advanced two principal arguments or justifications in his defense.
His first contention is that a conviction is not here warranted because the local board failed to make all reasonable attempts to reach him at the London address that he had given. He states that although the board sent all relevant mailings to the San Francisco address, it made an inadequate attempt to contact him in London. Defendant asserts that one mailing to London was insufficient under Haug and Ward and he relies on United States v. Smith, 308 F. Supp. 1262 (S.D.N.Y.1969). Initially, the court indicates that this position is premised upon a faulty review of the evidence: that only one mailing to London occurred,
when in fact there were two.
Additionally, the Smith case is clearly distinguishable on its facts from the instant matter. In Smith proof was adduced to show previous thefts from the mailboxes in question and Judge Motley took judicial notice of frequent mail thefts in housing projects. On those facts the court was unable to conclude beyond a reasonable doubt that defendant had received the notice in question. Here, the defendant asserts, without a shred of evidence to support his position, that because the American Express office in London handles thousands of letters, the letter (or, properly, letters) mailed by the board to him could well have been misdelivered or never delivered at all, thereby not affording him an opportunity to comply. Such pure speculation is not a substitute for proof.
Additionally, the court finds that it was not unreasonable for the board, after twice mailing to the defendant in London and twice having the letters returned as "Unclaimed-Not known", to cease attempting to communicate with him at that address. The efforts of the board were sufficient; it was not required to proceed with an exercise in futility. See, e.g., United States v. Booth, supra.
Defendant's final argument, asserted vigorously at trial, is premised upon the Supreme Court decision in Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970). In Gutknecht the court held invalid the selective service procedure of declaring a registrant delinquent in his obligations and, thereafter, accelerating his induction. Defendant contends that since the board invoked this invalid practice in his case he should now be acquitted because the instant prosecution is not brought in good faith and because his fear of arrest or immediate induction under the illegal induction order caused him to refrain from informing the board of his whereabouts.
This position is entirely without merit and must be rejected. The action of the local board in declaring the defendant delinquent and accelerating his induction call is plainly irrelevant to the question of his having violated his clear and continuing duty to keep the board advised of an address where mail would reach him. Gutknecht affords no defense to the instant prosecution. United States v. Schwartz, 366 F. Supp. 443, 449 (E.D.Pa.1973). See also, United States v. Zmuda, 423 F.2d 757, 759 (3 Cir. 1970).
The court finds beyond a reasonable doubt that the defendant, Eric Lincoln Seligson, knowingly failed to keep his local board advised of an address where mail would reach him. Accordingly, defendant's motion for a judgment of acquittal, Fed.R.Crim.P. 29, is denied and the defendant is found guilty on the one count of the indictment.
The foregoing constitute the court's findings of fact pursuant to Fed.R.Crim.P. 23.