United States v. Jeffrey Lynn Robinson

GIBBONS, Circuit Judge

(concurring and dissenting).

I concur in Judge Weis’ opinion except to the extent that it remands for a new trial on the second count. On that count I would remand for the entry of a judgment of acquittal. The majority opinion resolves the issue left open by the majority opinion in United States v. Clark, 468 F.2d 708 (3d Cir. 1972). As I indicated, in dissenting in Clark , I believe the Supreme Court’s interpretation in Toussie v. United States, 397 U.S. 112 , 90 S.Ct. 858 , 25 L.Ed.2d 156 (1970) of 50 U.S.C.App. § 453, prohibits a construction of that statute which would make failure to 'report for induction pursuant to an order to report on a designated date a continuing rather than a single offense.

Although the Government proceeded in the district court on the theory that it had to bring home notice to Robinson prior to November 6, 1968, it now espouses and the majority accepts the district court’s continuing duty theory. It points to the language of the indictment:

“That on or about November 6, 1968, and continuing from day to day thereafter . . . Robinson did knowingly and unlawfully fail to comply with a valid and lawful order ... to report for and submit to induction into the Armed Forces of the United States, that is, to report to 401 North Broad Street, Philadelphia, Pennsylvania on November 6, 1968 at 7:30 A.M. for induction.” (emphasis added).

Putting aside the question whether the United States should be estopped on appeal from adopting a construction of an indictment different from that advanced at trial, I cannot in view of the Supreme Court’s decision in Toussie sustain this conviction on a continuing duty theory. In Toussie the Court was urged to accept the argument that *1164 the duty to register was a continuing one. It noted that applicable regulations described the violation as a continuing one, but that the statute, 50 U.S.C.App. § 453, was unclear. It observed that the policy behind the statute of limitations conflicted with any continuing offense doctrine, and said:

“These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Id. at 115, 90 S.Ct. at 860 .

The Court found no such explicit language in the Selective Service Act of 1967. In United States v. Figurell, 462 F.2d 1080, 1082-1083, n.5 (3d Cir. 1972), this court applied the Toussie construction of the Act to another selective service duty, noting that failure to report a change in status is not a continuing offense. In United States v. Clark, 468 F.2d 708 (3d Cir. 1972), we considered Toussie in the context of the duty to report for induction. The majority opinion sustained the validity of an indictment for failing to obey a letter order to report on a specific date supplementing a prior Form 252 order to report for induction. But the majority, while sustaining an indictment for failing to obey what might otherwise have been an insufficient order to report for induction, carefully distinguished between a continuing duty, which could be implemented by a letter from the local board and a continuing offense. The offense was the failure to report at the time and place specified in the letter. I had trouble with the majority opinion in Clark . My dissenting opinion and the majority opinion, however, found common ground in the Toussie single offense construction of the Selective Service Act of 1967. As the majority opinion put it, “[s] imply because appellant was under a continuing duty to report for induction . . . does not necessarily mean that by violating that duty he has committed a continuing offense.” 468 F.2d at 711 .

There is a greater justification for declining to make failure to report for induction a continuing offense than for a declining to make failing to register, Toussie v. United States, supra, or failing to report a change in status, United States v. Figurell, supra, continuing offenses. In the latter cases the board lacks information about the existence or status of the registrant. Thus, there is considerable possibility of a registrant avoiding detection. In the induction order case the local board well knows that its order has been violated, and it remains free to issue another order. Toussie and Figurell , therefore, are a fortiori cases. Indeed, Congress recognized as much, when, in reaction to the Toussie decision it revised the Selective Service Act to make failure to register a continuing offense. See 50 U.S.C.App. § 462(d) (Supp. 1973). It did not, however, in that revision make failing to report for induction a continuing offense. The majority opinion on the second count is clearly inconsistent with our prior decision in Figurell . The second count of the indictment as construed by the district court after the verdict, does not state an offense under the Act. The motion for a judgment of acquittal on that count should have been granted since knowledge of the date on which the registrant was to report was not brought home to him until after that date had passed.