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United States v. Abrams

decided: March 27, 1973.


Duffy, Senior Circuit Judge, Kiley and Stevens, Circuit Judges.

Author: Duffy

DUFFY, Senior Circuit Judge.

A grand jury indictment was returned in April 1971 charging defendant Abrams with a one count violation of 50 U.S.C. App. § 462, that on or about April 8, 1970 and continuing to and including the date of the indictment, Abrams wilfully and knowingly neglected, failed and refused to report for induction as ordered. A jury was waived. The trial judge found defendant Abrams guilty as charged and he was sentenced to the custody of the Attorney General for a term of three years.

The evidence adduced at trial revealed that defendant was ordered to report for induction on three separate occasions by Local Board No. 151, Waukegan, Illinois. On November 18, 1969, Abrams was ordered to report for induction on December 1, 1969. On December 1, 1969, defendant's induction was postponed "until further notice" pursuant to 32 C.F.R. § 1632.2.

The reason for the postponement of induction was to allow completion of a medical review of the defendant at his request which was then being conducted by the Surgeon General. A postponement order dated December 16, 1969 was issued by the local board nunc pro tunc so as to be effective from the date of postponement, December 1, 1969.

A second order for induction dated January 27, 1970 was mailed to defendant ordering him to report on February 16, 1970. Reference to his prior order was included in the new order. Abrams failed to report as ordered, but telephoned the local board on the afternoon of February 16th informing them that he failed to appear for induction because at the time he was being treated in the Intensive Care Unit of the Highland Park Hospital for an overdose of drugs. The local board requested that he tender an explanatory letter to them which request he fulfilled on February 18th. The local board also received a substantiating letter from one Dr. Rosenberg stating that defendant had been treated for an overdose of sleeping pills on the 16th of February.

A third order for induction dated March 18, 1970 was mailed to the defendant at 1055 County Line Road, Highland Park, Illinois, which was the last address the defendant supplied to his local board. This order made reference to the previous induction date of February 16, 1970 and instructed the defendant to report on April 8, 1970. Defendant Abrams failed to report as ordered.

The F.B.I. entered the case to determine why defendant had not reported as requested. In July 1970 the Bureau wrote to defendant's father indicating that defendant was delinquent with his local board. On August 18, 1970, Agent Kneibert visited the Abrams' home and was informed that defendant was located in Ann Arbor, Michigan but was expected to return within a month. Agent Kneibert instructed the parents to have defendant call the F.B.I. on his return.

Defendant returned home on September 7, 1970 but failed to contact the F.B.I. Agent Kneibert then visited defendant at his home on September 17, 1970 and informed him of the outstanding order to report. Defendant admitted he received the two previous orders but denied receipt or knowledge of the order of April 8, 1970. At this interview, Agent Kneibert asked defendant what his action would be if future induction notices were sent to him. Defendant indicated that he would require the assistance of counsel before he could reply to such a question.

Abrams was arrested on October 7, 1970 by the F.B.I. and the indictment was returned in April 1971. From the record, it is evident that at no time after February 1970 did defendant attempt to contact his local board.


The principal defense propounded by the defendant at trial and in issue on appeal was that he was not in receipt of the order of induction mailed on March 18, 1970. The trial court made a finding contrary to this contention to the effect that given the fact that the third notice was mailed to the last address supplied by the defendant to his local board, and that such letter was not returned to the board, the presumption of regularity of board procedures and mailing attested to the receipt of the notice of induction by defendant Abrams. On appeal, despite the finding to the contrary by the trial court, defendant argues that he presented sufficient evidence at trial to rebut the presumption of receipt, thereby rendering the trial court's finding erroneous.

Defendant produced evidence that from Saturday March 21, 1970 at midnight until Monday, March 24, 1970, at midnight, there was a work stoppage at the Highland Park Illinois Post Office and after delivery of mail was resumed, four days were required to distribute accumulated mail.

There was also testimony of a two-day work stoppage at Waukegan in which city the office of defendant's draft board was located. However, the officer in charge at the Waukegan Post Office testified that there was no accumulation of out-going mail during the work stoppage. The officer also testified that a letter mailed in the vicinity of the defendant's local board ...

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