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United States v. Austin

decided: March 17, 1976.

UNITED STATES OF AMERICA, APPELLEE,
v.
THOMAS MARTIN AUSTIN, APPELLANT



Appeal from a judgment of the United States District Court for the Eastern District of New York, Hon. Jack B. Weinstein, J., convicting appellant of failure to keep his local draft board advised of an address where mail would reach him.

Hays, Mulligan and Gurfein, Circuit Judges.

Author: Mulligan

MULLIGAN, Circuit Judge:

This is an appeal by Thomas Martin Austin from a judgment of the United States District Court for the Eastern District of New York, Hon. Jack B. Weinstein, entered on November 7, 1975 after a trial without a jury, convicting Austin of having failed to keep his local draft board advised of an address where mail would reach him, in violation of 50 U.S.C. App. § 462(a) and then - 32 C.F.R. § 1641.3. Sentence was suspended and Austin was placed on probation under the Youth Corrections Act, 18 U.S.C. § 5010(a).

The appellant was initially charged in a three-count indictment with 1) refusal to submit to induction, 2) failure to comply with a pre-induction order for a physical examination, and 3) failure to keep his local board advised of an address where mail could reach him. Judge Weinstein, although finding that a prima facie case had been made out on all three counts, dismissed the first two counts finding no proof beyond a reasonable doubt that Austin actually received the notices of induction and physical examination.

On this appeal, Austin first argues that the Government failed to prove beyond a reasonable doubt that he failed to advise his board of an address where mail would reach him. There is no question that Austin was registered for military service under the Selective Service Act (50 U.S.C. App. § 451, et seq.) with Local Board 64 in Jamaica, Queens. His selective service file, which was admitted in evidence at his trial, reveals that upon registration he gave as his address 115-46 144th Street, Queens where he resided with his mother. The law (50 U.S.C. App. § 465(b)) requires that:

It shall be the duty of every registrant to keep his local board informed as to his current address and changes in status as required by such rules and regulations as may be prescribed by the President.

The pertinent regulation, the former 32 C.F.R. § 1641.3, provides:

It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him of the contents of the communication, whether he actually receives it or not.*fn1

There is no record of any other address for Austin in the Selective Service file. Between 1968 and 1970 a number of notices were sent to Austin at the address given by him. Austin's mother testified for the Government that Austin, who had lived with her at that address when he registered for the draft in 1968, had left home sometime in 1968 or 1969 and left no forwarding address. She did not know his whereabouts and could not contact him in any way. She testified that she returned two letters addressed to her son from Selective Service in June and October 1969 with the notation "Please return to sender. Receiver not at this address." A notice of classification of Austin as a student entitled to deferment sent in March, 1968 was not returned. On July 16, 1969 the Board notified Austin that he was classified 1-A and that notice was not returned either. In October 1969 Austin was notified to report for a pre-induction physical. The order was returned with the note "Return to Sender - Receiver not at this address." A subsequent pre-induction physical notice in June 1970 and an induction notice of July 16, 1970 were not returned or obeyed.

When he registered, Austin named a Mrs. Chapman as the person who would always know his address. The Board contacted her in July 1969 and again in July 1970 and both times was advised that the appellant's address remained unchanged from that initially given. The court below characterized the testimony of Austin's mother as ambiguous on the issue of whether or not she turned over some of the unreturned mail to her son or otherwise informed him of its contents.*fn2 The fact that the Board continued to send mail to the same address from 1968 to 1970 as found below indicates that Austin supplied that body with no new address. There was no affirmative evidence of any kind that he ever did provide the Board with the location of another residence and he did not testify at all in his own behalf.

The sole argument proffered on this issue below and here is that the Board's Delinquency Report on Austin indicated on its face that there had been vandalism at the Board so that while it was complete in other respects, including his initially given address, the Report failed to indicate such items as "other obvious physical characteristics," "date of registration," "place of registration." Appellant's counsel therefore argues that Austin may have sent in a new address and it may have been destroyed or misplaced because of the vandalism at the Board. The court below properly disposed of the argument by holding that there was insufficient evidence to warrant any such inference. The Government argues that the three missing items, mentioned above, appear on and are normally obtained from the registrant's SSS Form 1 (registration card) which is separately maintained from the rest of his file, while his address would appear in the file which was in evidence. The suggestion is that the cards were the subject of the vandalism but not the files.

In any event, Austin had the burden of establishing that he notified the Board of any change. He offered no evidence of that and moreover offered no evidence of the time or extent of the vandalism although the clerk of the Board did appear on the morning of the trial and was available for questioning. In the face of this failure of evidence, the inference sought to be drawn by appellant is purely speculative and we find that the court below properly held that Austin had failed to give any notification of an address change.

Appellant's second argument is that the court below erred in finding Austin guilty of violating 50 U.S.C. App. § 462(a) since there was no proof that he ...


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