Summary
In United States v. Guertler, 2 Cir., 147 F.2d 796, the defendant was charged with having failed to keep his Local Draft Board informed at all times between March 19, 1941, and October 6, 1942, of the address where mail could reach him.
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No. 239.
March 1, 1945.
Appeal from the District Court of the United States for the Eastern District of New York.
Peter Guertler was convicted of violating the Selective Training and Service Act of 1940, § 11, 50 U.S.C.A.Appendix, § 311, and the regulations thereunder, and he appeals.
Affirmed.
This is an appeal from a judgment of conviction for violation of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 311, and the regulations thereunder. The indictment, filed September 26, 1944, charged the defendant with having failed to keep the local draft board advised at all times between March 19, 1941 and October 6, 1942 of the address where mail would reach him. He was found guilty and sentenced to imprisonment for three years and three months.
The evidence reveals that when the defendant registered on October 6, 1940, he gave as his address, 130-39 59th Avenue, Flushing, Long Island. On March 19, 1941, the draft board sent a questionnaire to him at that address, but it was returned. The draft board, on March 27, 1941, wrote to the person he had listed as the one who would always know his whereabouts, Mrs. Dolly Brown, asking her to report his address. She did not reply, but on April 3, 1941, the defendant wrote a letter to the board, notifying them that his address had been changed to c/o Al Schell, 93 Madison St., New York. He filled out and returned his questionnaire. On May 1, the Board sent him a card at the Madison Street address requiring him to report for examination on May 6, 1941. That card was returned by the post office marked "Not at address given." On May 15, the Board sent a notice of suspected delinquency to the same address, requiring his presence before the Board on May 20, 1941. This card was never returned to the Board. On May 22, 1941, the Board wrote to Mrs. Schell, the defendant's sister, at the Madison Street address, asking her if she could give his whereabouts. Mrs. Schell responded that the defendant did not communicate with her, but that she believed him to be aboard ship. On July 8, 1941, another letter was sent to Mrs. Schell, and she again replied that she did not know where he could be reached.
When first produced, the letters from Mrs. Schell were marked for identification, but not admitted in evidence for lack of sufficient identification. After the government had closed its case, the court, out of hearing of the jury, suggested to the district attorney that Mrs. Schell be called. Over the defendant's objection, Mrs. Schell took the stand and identified her letters.
At the trial, the defendant testified in his own behalf. On direct examination, he stated that he had pleaded guilty to a charge of having failed to register as an enemy alien and that he had entered the country illegally, but had escaped from the immigration authorities after he had been apprehended for the illegal entry. In his charge to the jury, the judge made reference to the defendant's conviction for failure to register under the Alien Registration Act.
Morris E. Packer, of Brooklyn, N.Y., for appellant.
T. Vincent Quinn, of Brooklyn, N.Y. (Vine H. Smith, of Brooklyn, N.Y., of counsel), for the United States.
Before EVANS, CLARK, and FRANK, Circuit Judges.
1. The defendant's first contention is that the offense, if any, was committed more than three years prior to the filing of the indictment and is therefore barred by the statute of limitations. We cannot accept that argument. The defendant was under a continuing duty to keep the draft board notified of an address where mail would reach him. He had not done so within the period stated in the indictment. That period did not end until a good deal less than three years prior to the filing of the indictment.
2. The defendant also asserts that the trial judge exceeded his function in directing the district attorney to call Mrs. Schell as a witness, and in questioning the other witnesses. After a scrutiny of the record, we do not think that he exceeded his province in regard to the conduct of the trial. In those cases cited by the defendant in support of his contention, the lower court took over the role of prosecuting attorney and displayed such bias as to require reversal. In the case at bar, no such bias can be attributed to the trial judge.
3. The defendant urges as another basis for reversal the failure of the judge to charge that the jury was to consider "whether the defendant in good faith kept or intended to keep in touch with his sisters and believed that they would hold for him any communication sent by the selective service board." Here the defendant relies on our decision in United States v. Trypuc, 2 Cir., 136 F.2d 900. But the error we found there was the charge of the district judge to the effect that the failure of the defendant to notify the board of his correct address was a crime. We pointed out that the issue was not the correctness of the address, but "whether the appellant `knowingly' failed to keep the Board advised of an address where mail would reach him." In the case at bar, the judge read the regulation to the jury, and further pointed out that he was "not concerned with what his address is * * * it is for you to determine whether he complied with this regulation or whether he wilfully and knowingly and unlawfully failed to comply with it." The trial judge, having sufficiently stated the applicable rule of law, did not err in failing to charge as the defendant asserts he should have charged.
4. The last of the defendant's assertions is the judge's reference to the defendant's prior conviction for failure to register under the Alien Registration Act, 8 U.S.C.A. §§ 137, 155, 156a, 451-460; 18 U.S.C.A. §§ 9-13. The defendant himself, on direct examination, had testified as to this conviction. The judge first referred to it in his charge in summarizing the evidence for the jury. He then told the jury that they might take the conviction into consideration in weighing the truth of the defendant's testimony. Thus, the question here is not whether the prosecution can produce evidence of prior convictions to prove the defendant's bad character when the defendant has introduced no evidence as to his character, but rather whether such evidence, once validly received, can be used to impeach the defendant's testimony. We believe that it can be so used, and that the judge correctly made reference to it when instructing the jury on what matters it might take into consideration in determining the defendant's veracity.
Cf. United States v. Novick, 2 Cir., 124 F.2d 107, 109.
United States v. Minkoff, 2 Cir., 137 F.2d 402, 405; United States v. Nettl, 3 Cir., 121 F.2d 927, 929.
The judgment is affirmed.