MOGALL
v.
UNITED STATES
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The court held that the petitioner was convicted under the erroneous assumption that he had a legal obligation to report facts to the draft board, which the government now concedes he did not.
Petitioner and an employee were indicted; they were acquitted of conspiracy charges but convicted of failing to report facts in writing to the draft b…
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Per Curiam.
Petitioner and his employee, one Perniciaro, were jointly indicted and tried on the charges contained in an eight-count indictment. The defendants were acquitted under Counts 1 to 7, the first of which charged petitioner and Perniciaro with conspiring for the purpose of enabling Perniciaro to evade military service by failing to make known to the draft board facts which might have resulted in Perniciaro being placed in a different draft classification . The defendants were convicted under Count 8, however, which charged petitioner and Perniciaro with failing to report facts in writing to the local draft board which might have resulted in Perniciaro being placed in a different draft classification, contrary to § 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, 50 U. S. C. § 311 and § 626.1 (b) of the Selective Service Regulations.
The Government now concedes that the Selective Service Regulations imposed no legal obligation upon petitioner, as an employer of a registrant under the Selective Training and Service Act, to make such reports to the local board. It is also conceded that petitioner was tried and convicted upon the assumption that he was under such a legal obligation. We agree that the plain language of the Regulation and the record of this case support these conclusions.
The Government urges that although the judgment of conviction against petitioner should be reversed, the indictment should not be dismissed since the prosecution may wish to try petitioner a second time on the charges contained in Count 8, as an aider and abettor. There is no showing of facts sufficient for us to pass judgment on the question. Accordingly, we intimate no opinion on the propriety of this procedure or the issues which it might present. See Sealfon v. United States, 332 U. S. 575 (1948). Those questions will be open in the District Court on our remand of the cause.
Reversed.
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Melear v. Spears, 862 F.2d 1177 (5th Cir. 1989)…o the Anderson/Harlow standard. See Thorsted v. Kelly, 858 F. 2d 571 (9th Cir.1988); Schlegel v. Bebout, 841 F. 2d 937, 945 (9th Cir.1988); but see Llaguno v. Mingey, 763 F. 2d 1560, 1569 (7th Cir.1985), cert. dismissed, 478 U.S. 1044, 107 S.Ct. 16, 92 L.Ed.2d 783 (1986); Moore v. Marketplace Restaurant, Inc. 754 F. 2d 1336, 1358, 1361 (7th Cir.1985) (Judges Posner and Gibson creating a panel majority on the issue); see id. at 1358 (Posner, J., concurring in part and dissenting in part) ("[I]f there was no pr…
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Casey v. United States, 343 U.S. 808 (U.S. 1952)…v. United States, 341 U. S. 946 (1951); Ryles v. United States, 336 U. S. 949 (1949); Bellaskus v. Crossman, 335 U. S. 840 (1948); Fogel v. United States, 335 U. S. 865 (1948); Wixman v. United States, 335 U. S. 874 (1948); Mogall v. United States, 333 U. S. 424 (1948). Similarly, the fact that the Solicitor General does not oppose the granting of a petition for certiorari is entitled to respect, see, e. g., Wong Yang Sung v. McGrath, 339 U. S. 33, 36 (1950). But it has never followed that we should automa…
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Travers v. United States, 335 F.2d 698 (D.C. Cir. 1964)…Ct. 581, 95 L.Ed. 758 (1951) (concurring opinion) with^ id., 341 U.S. 95 — 96, 71 S.Ct. 581 (dissenting opinion). . As to cruciality, compare Yates v. United States, supra note 10, 354 U.S. at 335-337, 77 S.Ct. 1064. . Cf. Mogall v. United States, 333 U.S. 424, 425, 68 S.Ct. 487, 92 L.Ed. 783 (1948) (per curiam.)…
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- Sealfon v. United States, 332 U.S. 575 (U.S. 1948)