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United States v. Kerley

decided: January 28, 1988.


Appeals from the United States District Court for the Western District of Wisconsin, No. 82 CR 47 -- John C. Shabaz, Judge.

Posner, Easterbrook, and Kanne, Circuit Judges.

Author: Posner

POSNER, Circuit Judge.

A jury convicted Gillam Kerley of having "refuse[d] registration . . . in the armed forces," 50 U.S.C.A. § 462(a), and Judge Shabaz sentenced him to three years in prison and imposed a fine of $10,000. Having been born in 1961, Kerley was required to register during the eight-day period preceding August 3, 1980. In a series of letters to the Director and the General Counsel of the Selective Service System in 1981 and 1982, Kerley said he had decided not to register. "I have not registered with Selective Service. . . . To have registered for the draft in July 1980 would have been lending my tacit approval to those very dangerous trends in our nation. . . . It was, and is, my duty to disobey. I am proud to be among the . . . men who refused to register." On the basis of these letters, the Selective Service System searched its files for evidence that Kerley had registered, and found none. FBI agents then met with Kerley and gave him a blank registration card and mailing envelope together with a letter informing Kerley of "his obligation to register." Kerley gave the agents a statement which accused the government of pursuing a policy of "illegal selective prosecution" (a charge we rejected in United States v. Kerley, 787 F.2d 1147 (7th Cir. 1986)) and said he was "honored" to have been "singled out" for prosecution and was "not intimidated." A month later Selective Service searched its files again, to see whether despite his brave words Kerley had registered. They found nothing, and in November 1982 a grand jury indicted him for having refused to register between August 3, 1980, and July 30, 1982.

Kerley's first argument is that the district court erred in instructing the jury that failure to register with Selective Service is a continuing offense. The provision of the Selective Service Act that creates the duty to register, 50 U.S.C.A. § 453, requires male citizens between the ages of 18 and 26 to present themselves for and submit to registration "at such time or times" as shall be determined by Presidential proclamation; for Kerley that meant the eight-day period that ended on August 3, 1980. He argues that once the period passed, he had no further duty to register; hence the jury's consideration should have been confined to the eight-day period, a period in which, as we shall see, he conceivably may not have had the willfulness required by 50 U.S.C.A. § 462(a).

This argument might have been compelling under the regime of Toussie v. United States, 397 U.S. 112, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970), which held that, at least for purposes of the statute of limitations, failure to register is not a continuing offense. Congress quickly overruled Toussie, however, by enacting 50 U.S.C.A. § 462(d), which provides that no person shall be prosecuted for failure to register "unless the indictment is found within five years next after the last day before such person attains the age of twenty-six, or within five years next after the last day before such person does perform his duty to register, whichever shall first occur." The statute implies a continuing duty to register. Cf. United States v. McGoff, 265 U.S. App. D.C. 312, 831 F.2d 1071, 1099 (D.C. Cir. 1987) (dissenting opinion). Its evident purpose is to induce persons who have failed to register when they should have done so to register late, for by doing so they gain the benefit of a shorter statute of limitations. Under this interpretation, a Kerley who never registers may be prosecuted until he is 31; a Kerley who registers at 20 can be prosecuted only until he is 25. If the "duty to register" began and ended when Kerley was first required to register at age 18, he would have had no inducement to register late rather than never, for one cannot perform a duty after the duty has lapsed. The duty must therefore continue until he reaches 26.

So construed, the statute does not violate the self-incrimination clause of the Fifth Amendment, cf. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 856-58, 82 L. Ed. 2d 632, 104 S. Ct. 3348 (1984), for it does not compel anyone to register late and by doing so reveal his earlier violation; it merely gives someone who does register late the benefit of a shorter statute of limitations. Although it would be better if Congress had stated more plainly that the duty to register is a continuing one, Kerley does not argue that the statute is unconstitutionally vague. We therefore agree with the Eighth Circuit that the duty to register is indeed a continuing one. See United States v. Eklund, 733 F.2d 1287 (8th Cir. 1984) (en banc).

The next question is whether the instructions were fatally flawed in eliminating an element of the offense from the jury's consideration. The jury was told, among other things:

Two essential elements are required to be proven in order to establish the offense charged in the indictment: First, that the defendant at the time charged in the indictment had a legal duty to register with Selective Service; and second, that the defendant knowingly failed, evaded, or refused to register.

When the word knowingly is used in these instructions it means that the defendant realized what he was doing and was aware of the nature of his conduct, and did not act through ignorance, mistake, or accident. Knowledge may be proved by the defendant's conduct, and by all the facts and circumstances surrounding the case.

Kerley argues that these instructions allowed the jury to convict him for failing to register even if he didn't know he had a duty to register.

To upset his conviction on this basis Kerley must show not only that (1) the statute implicitly requires that the nonregistrant knew he had a duty to register and (2) the instructions failed to place this issue before the jury, but also that (3) the failure was plain error. For proper objection to the instruction was not made, Fed. R. Crim. P. 30; and while it is true both that Kerley objected to the quoted instruction at the charging conference and that he was not required to repeat his objection after the instruction was given, see United States v. Hollinger, 553 F.2d 535, 543 (7th Cir. 1977), simply objecting was not enough. Rule 30 requires that the "grounds of the objection" be stated -- a requirement taken seriously in this circuit, see United States v. Kehm, 799 F.2d 354, 362-63 (7th Cir. 1986); United States v. Kuecker, 740 F.2d 496, 503 (7th Cir. 1984). Kerley failed to state any ground for the objection. Although he is not a lawyer and was not represented, and allowances are sometimes made for the plight of the unrepresented litigant, see, e.g., Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir. 1982), so basic a provision of the Federal Rules of Criminal Procedure as the requirement that the litigant state the grounds for his objection to an instruction is not waived for unrepresented defendants. United States v. Redfield, 197 F. Supp. 559, 589-90 (D. Nev.), aff'd per curiam, 295 F.2d 249 (9th Cir. 1961); 5 Orfield's Criminal Procedure Under the Federal Rules § 30:39, at p. 57 (2d ed. 1987); cf. Faretta v. California, 422 U.S. 806, 835-36, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). And it is not satisfied by the defendant's offering his own instruction. The district judge may have thought that the substance of Kerley's proposed instruction was contained in the judge's instructions; it was incumbent on Kerley to point out the judge's error. See, e.g., United States v. Kehm, supra, 799 F.2d at 363; United States v. Markowski, 772 F.2d 358, 362-63 (7th Cir. 1985). Kerley must therefore show that the error (if any) in the instructions was plain error.

The first step on this road is no problem. We have no doubt that the statute should be interpreted to require that the defendant had knowledge of the duty to register. See, e.g., United States v. Klotz, 500 F.2d 580 (8th Cir. 1974) (per curiam); United States v. Rabb, 394 F.2d 230 (3d Cir. 1968); United States v. Boucher, 509 F.2d 991 (8th Cir. 1975); cf. Wayte v. United States, 470 U.S. 598, 612-13 & n. 13, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); United States v. Borkenhagen, 468 F.2d 43, 50 (7th Cir. 1972). It surely was not Congress's intention to impose criminal liability on eighteen-year-olds who do not register because they don't know they have to, maybe because they have a medical condition that, because it would disable them from military service, they incorrectly assume (cf. 50 U.S.C.A. § 453 and United States v. Shunk, 438 F.2d 1204 (9th Cir. 1971) (per curiam)) excuses them from having to register.

A harder question is whether the instructions withdrew the issue of knowledge of legal duty from the jury. In Liparota v. United States, 471 U.S. 419, 85 L. Ed. 2d 434, 105 S. Ct. 2084 (1985), the Supreme Court, reversing this court, held that the crime of food-stamp fraud requires not only proof of unauthorized use of food stamps but proof that the user knew that his use was unauthorized. The Court assumed that the definition of "knowingly" in the instructions -- the identical definition as in the present case -- referred to the defendant's knowledge that he was using food stamps (equivalent to Kerley's undoubted knowledge that he was not registering for the draft) rather than to knowledge that the use was unauthorized. See id. at 422. But neither in this court nor in the Supreme Court ...

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