Petition for Writ of Certiorari — Weersing v. United States
Supreme Court brief1969
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ae FiLED-
SEP 23 1969
RF aS SO SEU! CUS
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- Supreme ¢ Court of of the United d ‘Sta tege + vans,
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Joun FREDERICK WEERSING,
: )
Petitioner,
US.
UNITED STATES OF AMERICA, sa fase
. Respondent.
|
PETITION FOR WRIT OF CERTIORARI
= U.S.C. §1254(1)). stat
_ Davin FINKEL‘and Hucu R. Mangs,
| 3 a £3440 Wilshire Boulevard,
; ~ Los Angeles, Calif. 90005,
Attorneys eg Petitioner.
Parker & Son, Inic., Law Printers, Los Angeles. Phone 685-9790
Sere Rt SELECTOR
TRE ROLE
. “ede
a
SUBJECT INDEX
Opinion Below ....... ba cs ics edeievalacs aie ee ieeatels
Jurisdiction ........... fi costcclehvedaaieecbese cosas
Questions Presented ne it, ETE. SIA IS an
Constitutionat Provisions, atic and. Administra-
tive Regulations Involved ...............+-- pawenineptetniynecnies
Statement of the Case>.................. BS eR MER Canon oF
Summary of Proceedings Below ................-:+-ss00-0++:
How the I FONG ssiscinsinceoncusinnndetanensdioninnenen
Reasons for Granting Certiorari ~.......0:..2...2.-:02000-+-
&
. Peekaiinary Statement .<..-..-...----rinsnceeesieen bpintinin
EL :
Proof. of a Valid Induction Order Is an Essential
Ingredient of the Offense Charged; and Con-
' viction Without Such Proof Offends ds Due Proc-
WUE iscttnncheacteotsencdsitanulseiaiabiies vlasailies asinicasdicain ties
oe III. 3
“Proof of Proper Order of Call Is an Issue Which
| May Not Only Affect the Due Process Rights
of the Accused Registrant, but Tends to Safé-
guard the Integrity of the Selective Process ...:..
IV.
It Is a Denial of Due Process to Substitnte an Un-
founded Presumption of Regularity for Proof
of an Essential Element of the Offense ..:...........
RABE WEEP 0 ARE LIBEL IES. PRA ER ASE AE ABE
ii.
Ne - | ” Page’
The Use of hi Piiesipted of Regularity in Se-
_ lective Service Cases Has Convoked Diverse and
Often Questionable Rationales Therefore, Re-
sulting in Conflicting and Confusing Applica-
tions Thereof, Not Only Between, but Within
BEE CRORES onc cevsnincwigseuserensi Themyimocaigatis en gelliicnesis 14 -
ee 7
The Presumption of Regularity Cannot Be Justi-
fied on Grounds’ of Convenience, Common Ex-
perience, Fact or _ PP" Speed eC ee ‘asteaet ae. 16°
aes ae: ene
> The Selective Service File at Bar Discloses Proce-
dural Error Which Strips the Local Board’s
Induction Order of Any Presumptive Validity
- to.Which It Otherwise Might Have Been En- |
tHeG ........ Sencheoesiadintinencncenantincnsinbledtisint Seca ni 20
CINE oo cicecincnies. ipaiuiaibdeoniiasia car eesti e e 21
» INDEX TO APPENDICES _
Appendix A. Opinion of the United States Court
of Appeals for the Ninth Circuit ......... odmuaeiialues 1
Appendix B. Title 50 App., U.S.C. §462(a) pone,
Appendix C. Title 50 Appx., U'S.C. §454(a) ........ 10
Appendix D. Title 50 Appx., U.S.C. §455(a) ...... 11
Appendix E. 32 C.F.R. §1631.7(a) ecesocsccesneee ee
Appendix F. Partial List of -Selective Service
Cases Disclosing Administrative Irregularities
and Procedural Errors ..........-..-.--se-sessestesscsesseesseees 14
ee ne
“Bain, a sarte, WEUS, 17S. Ce 781 pea
~-Brede v. United States, 396 F. 2d 155, op. mod..
meee: |
TABLE OF AUTHORITIES CITED «| |
Cases Page
400 F. IE I shidsidiacuicu aasoeinmdanees Riiidicnuicte
Carnley V. Cochran, 369 US. 506, 82'S. Ct. 884 ... 13
Chaney v. United States, 406 F. 2d 809 oe 15
Christoffel v. United States, 338 U.S. 84,69 Ss...
Rs FNM > Decl Miki tecoharnesinecdsaincuetanemousasalenenntinn 8, 12
Estep v. United States, $27 U.S. 114, 66°S, ct
. Mire dies RCO AP SEIT SPOOR OE Oa OH 8
Fannon v. United States, 155 F.2d-720, 11 Alaska ©
EON RA SR oD OOO cennisty.
Franks v. United States, 216 B20... 8
Garner v. Louisiana, 368 U.S. i157, 2 S.C.
a NN dca alerted sacetopacieietonacninn iicscadionssicisidciusscseisibionen -~ 8
Greer v. United States, 378 F. 2d 931 00... . 5,
Griffin v. California, 380 U.S. 609, 85 Sz Ct. 1229 .. 19 .
Johnson v. Florida, 391 U.S. 596, 88 S. Ct. 1713 ..... 8
Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 .... 13
"Keene ¥. United States, 266 F. 2d 378 ..7, 14, 15, 16, y7
Koch v. United States, 150 F. 2d. 762 aes eNeias 16.
Kretchet v. United States, I BE TOE cincannvcnese es
Leary-v. United States, 89 S. Ct. 1532 .......... 12, 17,.18
Miller v. United States, 388° F. 2d°973 ceceecoesceee UL
Miranda ~v. Arizona, 384 ick , 346, 86 S. Ct.
I eke WoL haces senlcingcowntnioainniaiisvavkonoataed 8, 13, 19
Morissette v. United States, 342 US. Boas, fe. !
Ries OI siebiscencocsntag TPO et IE EASA ett SUP 12
Sabriego v.- Maverick, 124 U. $. 261 SORA I a nee 12
; :
oom | * Page
Shepherd v. United States, 217 F. 2d 942 ........15, 19
Sicurella v. United States, $48 aS. 385, 75: S/R.
se A ae RE RINE EET ee Oa LO y----- 16
Slochower v. Bead of Higticr’ Exhiestion of the
City of N.Y., 350 U.S: 551, 76S. Ct./637. .....:2 19
nay, _ Stirone v. United States, 361 US. 212, 80 >: ee
270 : eeeccece ‘ eeeece wesseeneeseneeentatecesecementnreseteereesdeeny wccsccccccces 9
’ Storey v. ‘United States, 370F. are
- Thompson. y.. Louisville; “362“U.S? 199, 80.5. Ct
IE. MERE IN AP LENS ODEON cml, Mi 8:
Tot v. United States, 319 US. 463, 63 S; ‘Ct 1241. ~
EC SAIE MT a rer ubikabsasiededicsnnestscnakenihanecbicbetients lesan 17, 18
United States v. -Bornemann, 298 F. Supp. 1253 °::. ‘16
‘United States v. Bryan, 339 U.S. 323, 70 S: Ct.
SPR eds nee desbeaaen Shana acid aiiacad cchadalsdinie lian acsdade . 12
United States v. Dugdale, 389 F. 2d GEE ceernstnwcceun 11
United States v. Fatrick, B40 Fe. 2 Deion ssseetnsers 7
United States v. Lybrand, 379 F. Supp. 74... 16
United States v. Richmond, 274 F. ‘Supp: OF conn
United States v. Romano, 381 U.S. 136, 86.8. Ct.
279 vincsintavenssinaounnbesnpianpntsneainsinanininiestnaetieneliey Bey BO.
United States v.’ Ross, 92 U.S. 281 scaanaseasaaiaieiai 12
United States v. ‘Sandbank, 403 F. 2d 38, 89 S.
A RIMINE ceiedapsiighcannecatpeigaiatactostntainieianit 7, 14, 15, 16, 19
United States v. Smith, ‘291 F. Supp. 63 e 19
United States ex rel. Bergdoll v v. Drum, 107 F
| Venus v. United States, 368 -U. s. “345, 82 S, Ct. 384,
rev'’g 287 F, 2d 304 veleninnnenilbctninniilicin soesenesneeeneseettesseeee
cd
Page
Ward: v. United States, 344 U.S. 924, 73 S. Ct.
a4, ceva 196-F 2d 441 ae
Yates v. United States, 404 F.2d 462; aire. den’d,
407 F F. 2d 50 soakeanacenennienn 7, 8, 9; 14, 15, 16, 18, 19 —
Zuziak’ V.- Used” States, 119 F.2d 140 ...... wegseoneoal 8 |
Regulations ) y)
Code of Federal Regulations, Title 32, Sec. 1604. | ae
Code of Federal’ Regulations, Title 32, Sec. 1606.1 .. . 20 ;
_ Code of Federal Regulations, Title 32;, Sec. 1628. -
Code of Federal Regulations, Title*32,, Sec. 1631 .. 10°
Code of Federal Regulations,. Title 32, Sec. 1631.2 10
Codefof Federal Regulations, Title K ae Sec. 1631.6 .. 10
Code sia Federal ee Title 32, Sec. 1631. 7
miesicmaanete Aecbespinvsinissncenennenipysesvennpanessvopeecateceecs 3, 10
3 | Statutes ;
Code’ of Federal Regiilations, Title * Sec. 1660. 20-
OF suhawiates Sesiiplsiiablhcieisieinian fnviailegdaneticahopuieepiaas 21
Military . Selective Service Acct of "1967, Sec. ‘ mm 9
United States Gode, Title 18, Sec. 3231 dcedaecealacs 4
Unitéd States Code,: Title 28, Sec. 1254(1) .... 2
‘United States Code,. Title 50: App., Sec. ee 3 : |
United States Code, Title 50 App., Sec. 455° .....3, 10
> United States Code, Title 50 App., Sec. 455(a) (2)
silica pans ei eaten od ee
‘ United States Code, Title 50 App., Sec. 462. igo 3.
United. States Code Annotated, Title 50, See. 462 a.
United States Constitution, Fifth Amendment ate DS ..
ew
IN THE
Supreme Court of the United States
October Term, 1969 —
aad . No. eccesoce
JoHN FREDERICK WEERSING,
| Petitioner,
US.
UNITED STATES OF AMERICA,
Respondent.
. a >
PETITION FOR WRIT OF CERTIORARI
(28 U.S.C. §1254(1)). | :
@
To the Honorable Chief Justice of the United S tates
Supreme Court, and to the Honorable Assoqgat: :
- Justices Thereof:
Petitioner, John Frederick Weersing, prays that a
Writ of Certiorari issue to review the judgment of the’
United States Court of Appeals for the Ninth Circuit,
made and entered on August 7, 1969, iif thre-ease en>-
titled United States of America v. John Frederick Weer-
sing, No. 23055.
Opinion Below.
. The opinion and judgment of the United States Court
of Appeals for the Ninth Circuit is not yet reported; and
a copy of said opinion and judgmerit is appended hereto
as Appendix “A.”
%
EEE EEE EEE eae_e_ aw a
—2—
Jurisdiction.
1. The judgment of said Circuit Court of Appeal
was filed and entered on August 7,1969. © —
2. No application for rehearing was made to. said.
_ Circuit Court, and-no rehearing of ‘the cause has» been
ordered by said court.
3. The date for filing this Petition, under Rule 22
of the Rules of the Supreme Court, was September. 6,
1969: but we file same was extended to September
22, 1969 by ordgr of Mr. Justice Douglas, dated Septem-
ber 12, 1969.
4. Jurisdiction to review said judgment of said Cir- ~
cuit Court is conferred on this court by Title 28 U.S.C.
§1254(1).
Questions Presented.
The only question presented by this Petition is the
following,
WHETHER PETITIONER’S CONVICTION
FOR: REFUSAL TO SUBMIT TO INDUCTION
PURSUANT TO AN ORDER “DULY GIVEN”
BY HIS DRAFT BOARD VIOLATES DUE PROC-
ESS OF LAW WHERE THE ONLY PROOF OF
AN ESSENTIAL ELEMENT OF SAID OFFENSE
- RESTS SOLELY UPON A PRESUMPTION UN-
AUTHORIZED BY STATUTE, IMPOSED WITH-
OUT NOTICE AND BY IMPLICATION, AND
UNSUPPORTED BY REASON, COMMON EX-
PERIENCE, FACT OR LAW, AND WITHOUT
ANY RATIONAL CONNECTION TO ANY FACT
PROVED.
4
ar Se
Constitutional Provisions, Statutes and
Administrative Regulations Involved.
The constitutional provision involved herein is the
Fifth Amerfdment -to the United States Constitution
which states; in pertinent part:
i “No person shall . . . be deprived of life, liberty,
or property without ies process of law . Af geile
The statutes involved herein are Title 50 U. ol hes
§§454, 455, and 462; which are set forth, respectively,
in Appendix “B”, “C” and-“D” hereof.
' The administrative renihinsiadl involved herein is 32
C.F.R. §1631.7, which ‘is set férth in Appendix | a ha
hereof.
Statement of the Case.
Summary of Proceedings Below.
On March 27, 1968, a one-count indictment was re-
turned and filed-in United States District Court for
the Central District of California [C. T. 2-3],’ charg-
ing Petitionés. with violation - of . 50 U.S.C.A. §462 by:
refusing to submit to induction pursuant to “a notice
and order by said Local Board No. 139 . . . duly givert
to the cotati :
i, ee represents’ the Clerk’s Transcript of the certified record
of the proceedings in the District Court below; and the number
refers, of course, to the pages thereof at which ‘the decided ref-
erence may be found.
2Said indictment reads in pertinent part, as follows:
“Defendant JOHN FREDERICK WEERSING . .
registered as required by said [Universal Military Training
and Service] Act and thé regulations promulgated thereun-
der and thereafter became a registrant of Local Board No.
94, Los Angeles, California; pursuant to said Act. and the
regulations promulgated thereunder, the defendant was .clas-
(This footnote is continued on the next page)
og
‘
Sere,
nS
APT PT
SPELT EI eI et
FOI ER Te Severe
Jurisdiction of the United States District Court to try
said offense was derived from Title 18 U.S.C. §3231.
Petitioner was arraigned on said indictment and en-
tered a plea of not guilty thereto on April 15, 1968
[C. T..4]. Thereafter, Petitioner, being represented by
counsel at all stages of the proceedings agairtst him,
waived a jury and special findings [C. T. 5]. :
On May 7, 1968, Petitioner’s case came on for trial
before the Hon. Irving Hill, Judge of the United States -.
District Court for said district [C. T..28]. Following
a court trial, and upon submission of the cause, the
court found Petitioner guilty of ‘the offense charged
[C. T. 28]. |
On May 27, 1968, Petitioner was sentenced by the
trial court to three (3) years imprisonment and judg- |
ment was entered accordingly [C. T. 36]. _
Notice of Appeal was filed’on May 27, 1968 [C. T.
37]; and the United States Court of Appeals for the
Ninth Circuit ‘affirmed said judgment on Bie 0 Pe
1969 (Opinion, Appendix “A”): ,
sified in Class 1-A and was subsequently notified of said —
classification by said Board; thereafter said Board trans-
ferred the defendant for induction to Transfer Board 139
in San Diego County, California, both of said Boards being
then and there, and at all times herein mentioned, duly
created and/ acting under the Selective Service System es-
tablished by said Act, thereafter [sic] a notice and order
by said 1 Board No. 139 was duly given to the defend-
ant to report for induction into the armed forces of the
United States of America on August 29, 1967 im Los An-
geles. County, within the Central District of California ;
and at said time and place the defendant knowingly failed
and refused to be inducted into\the armed forces of the
United States as so notified ir £94 to do.”
9a SRSA SSIS BP ASG LNG TIA ER EBS TCDS
How the Question Arose.
_ The government’s case at trial consisted solely of
°Petitioner’s Selective Service file which was admitted in
evidence without objection [R. 5, 8];° and which .con-
tained, among other documents, petitioner’s induction
orders (SSF 111, 154).
Petitioner filed a written motion for judgment of.
acquittal specifying eight (8) grounds in support there-
of, including the following: [C. T. 26, 27]
SO OK
mT
t
“eS
5. The government has wholly. failed to prove a
violation of the Act°and Regulations by the de-
fendant as charged in the indictment.
x OK oe
7. The Local Bodrd did not follow the Selective
Service Regulationscig its consideration of the de-
fendant’s claim and evidence.
KK
The only evidence offered by the defence was the testi-
mony of Petitioner who took the stand and testified -
briefly on a point not raised here [R. 11-22]. The
defence thereupon rested, and Petitioner renéwed and ©
argued his motion for judgment of acquittal. The trial
court denied said motion, and found Petitioner guilty
as charged [R. 53; C. T. 28].
The government offered no evidence at trial to show
the regularity of the order of call, or to establish the
>,
validity of the induction me Tee
‘“
3R. refers to the Reporter’s transcript of the ofal proceedings
had in ithe trial court; and the number signifies the pages.
thereof at which cited reference may be found.
a.
Bisa by ate AE I babendil al SEN Pe a
Petitioner attacked the validity of the induction order
at trial, albeit not upon the grounds urged here.*
| Specifically, Petitioner did not ¢xpressly challenge the
propriety of the order of call, although he contends here
that Points 5 and 7-of his motion for judgment of ac-
quittal should be construed to embrace this theory.
On appeal, the Petitioner contended, inter alia, that A
his conviction was not sustainéd by -sufficient evidence
in that there was™no proof that he had been duly or
lawfully selected for induction either pursuant to a meet- |
ing.of his Local Board, or that he had been selected
in the proper order (See: Petitioner’s Opening’ Brief on
Appeal, pp. 13 et seq. .).
The Court of Appeals in its opinion (Appendix 7 Nae
at p. 2) held, in-effect, that although the government
had the burden of establishing the validity of the in-
-duction order, Petitioner waived the Order of Call point
by failing to raise it at trial and declared that Petitioner’s
conviction was supported by the presumption of regu-
larity accorded to the administrative proceedings lead-
ing up to his induction order (Op. PP. 2-3).
%
*At trial, Petitioner focused his argument on two contentions:
(1) that his personal appearance hearing before the Local
Board was unfair and inadequate [R. 39-42, 11-22} and (2) that
the Board’s refusal to reopen his classification, after he had
filed a post-induction claim for conscientious objector status was
arbitrary and a denial of due process [R. 23-39].
On appeal, Petitioner also contended that the Board’s denial
of his occupational deferment claim was ‘without basis and
fact. . ;
Sh Mab a kt Pee ct
a ae
REASONS FOR GRANTING CERTIORARI. |
I,
Preliminary Statement.
Although the Government failed to prove, or offer
proof, that Petitioner was called up in regular order, as,
in effect, was alleged in the Indictment, the Ninth Cir-
cuit held. that where that issue was not raised at
trial, such proof was obviated by the presumption of
regularity which the Court found attached to the Selec--
tive Service proceedings giving rise to the issuance of
Petitioner’s Induction Order. :
Petitioner contends, inter alia, that proof of proper
order of call is an essential: element of. the offense and
that resort to the presumption of regularity as a sub-
stitute therefor denies him due process of law in viola-
tion of the Fifth Amendment to the United States Con- .
stitution. ; ‘ a
ade. II.
Proof of a Valid Induction Order Is an Essential In- |
gredient of the Offense Charged; and Convic- —
tion Without Such Proof Offends Due Process.
Most circuits seem to agree that one of the essential
elements in a prosecution.for a refusal to submit to in- |
duction is proof that the induction order is valid (Yates
v. United States, 404 F. 2d 462, reh’g den’d, 407 F. 2d
50, 51. (1st Cir. 1969); Fannon v. United States, 155 - +
«F, 2d 720, 721, 11 Alaska 91 (9th Cir., 1946); Keene
v. United States, 266 F. 2d 378, 380 (10th Cir., 1959);
but see; United States v. Sandbank, 403 F. 2d 38, 40
(2nd Cir., 1968); cert. den. ........ US... 0 6S Oy
1301 (1969) ; United States v. Fatrick, 140 F. 2d 5. al
Cir., 1944), . | =
ERA NG RIT: LETRA PG blo I Sa WL TRE Se Cine TETRA LF a iv.
Ci alta tbat
4
on to
The burden of proving a valid induction order lies |
. &
and remains with the Government (Yates v. United |
States, supra; Kretchet v. Umited States, 284 F. 2d
561, 566 (9th Cir., 1960) ; Franks v. United States,.
216 F. 2d 266, 270 (9th Cir., 1954); Zuziak v. United
States, 119 F. 2d 140, 142 (9th Cir., 1941)). ;
_An order to report for induction issued to a. regis-
trant called out of proper order is an invalid order
(United States v. Smith, 291 F. Supp. 63 (D, N.H.,
1968); United States v. Miranda, #73-76 (D, P.R.,
11-18-68), 1 S.S.L.R. 3265 (unreported) ).°
A registrant is under no duty to salacts with an in- -
valid induction order (Estep v. United States, 327 U.S.
114, 121-122, 66 S. Ct. 423, 427 (1946)).
Conviction upon a charge’ not made or proved i is a
denial of due process of law (Johnson v. Florida, 391
_ U.S. 596, 88 S. Ct. 1713 (1968) ; Garner v. - ‘Lenina:
368 U.S. 157, 82 S. Ct:7248 (1961); Thompson v.
Louisville, 362 U.S. 199, 204, 206, 80 S. Ct. 624, 628,
629 (1960) ).
...Failure to prove every element of the offense charged ~
bars a conviction (Christoffel v. United, States, 338
“US. 84, 89, 69 S. Ct. 144%, 1450 (1949) ; Ward v.
United States, 344 U.S..924, 73 S. Ct. 494, rev’g 195
F. 2d 441 (Sth Cir., 1952); Venus v. United States,
368 U.S. 345, 82 S. Ct. 384, rev’g 287 F. 2d 304
(9th Cir., 4960) ; Fannon v. United States, supra, 155
F. 2d 720)." .
5S.S.L.R. refers to the Selective Service Law Reporter pub-
lished in Washington, D.C., under the auspices of the Public pa
» Education Institute, and reporting opinions and proceedings or
pertinent portions thereof, in selective service cases, some of
which are not reported in the official reports.
—9—
Moreover after an Indictment has been returned, its
charges may not be broadened or contracted through
amendment except by-the Grand Jury (Ex parte, Bain,
121. U.S. 1, 7 S. Ct. 781 (1887) eited with ‘approval
. in Stirone v. United States, 361 U.S. 212, 215-217, 80
S. Ct. 270, 272, 273 (1960) ). - :
The Indictment at bar charged Petitioner with failure ©
and refusal to submit to induction pursuant to an order
from his draft board “duly given”.
Hence, where the Government alleges that'an induc- .
tion order has been duly issued or given,: it does not
lie within the power of the Court or the Government
to dispense with proof thereof (Stirone v. United
States, supra).
The question, therefore, is whether the Due Process ©
Clause of the Fifth Amendment permits reliance upon
the presumption of | regularity in lieu of affirmative
proof of the proper ‘order of call to support petitioner’s
y conviction. :
here,
III.
Proof of Proper Order of Call Is an Issue Which
May Not Only Affect the Due Process Rights
of the Accused Registrant, but Tends to Safe-
guard the Integrity of the Selective Process.
In Yates v. United States, supra, 404 F. 2d at p. 466,
the ee af Appeals .for. the first Circuit observed:
. There exists the possibility. that capricious or
Blt er action was taken by a Local Board; a
defendant has little opportunity to obtain proof
of discrimination; and there is no chance or pro-
cedure to review this issue before the agency. There
ought, therefore, to be a means of exerting con-
stant pressure on the Local Boards to adhere faith-
fully to the ai of call regulation.” -
‘“
=
Authority for the selection and induction process, as’
well as certain limitations thereon® lies in §5 of the
Military Selective Service Act of 1967 [50 U.S.C.
§455] enacted on’ June 30, -1967, which empowers the
President to promulgate: regulations toward that end.
Pursuant .to that mandate, the President issued. reg-
ulations, incorporated in 32 C.F.R- §1631, governing
the’ establishment of quotas and the selection process.
Selection is based on the quota of men determined
- nationally and for each ‘state by the National Director °
of Selective Service (32 C.F.R. §1631. 2).
The State Director, in turn, slldcates to each Local
Board in his state the number of men required to be fur-
nished by each board, and issues a Notice of Call on
Local Board (SSS Form 201) “directing the Local
Board to select and deliver for induction the number of
men allocated to the Local Board” (32 C.F.R. §1631. 6).
The Local Board is authorized to select and. deliver
only such number of men as will fill. the call. More-
over, the mode of selection by the Local Board must
follow a prescribed order, beginning with delinquents,
’ volunteers, and nori-volunteers, according to age and
marital status, with the — first. (32 C.F.R.
'§1631.7). i.
In the trial of United States v. John Raymond: Jones,
#3450-EAC (C.D., Calif., August, 1969), Major Al-’
bert Madsen, Chief of Manpower Division of the Cali-
fornia State Selective Service Headquarters, testified
that it had been the State Director’ s practice to call up.
For example, §455(a) (2) of Title 50 D.S.C. App., foseves |
the. order of induction “for such registrants within such age ~
groups as has been heretofore established and in effect” on the
effective date of said statute: -
SE Tes Red ecb Alera ar tan oe
ot
‘two or three times the riumber of men to be inducted
ine rder to insure .that the State met its national quota.
_ Exhibits introduced in that case showed’ that over a
two year period, said defendant’s Local Board alone had
a net total of forty (40) overcalls.”
Such procedure would appear’to be at variance with
the aforementioned Selective Service Regulations, and
calls into question the very integrity of the Selective
Service System. Moreover, it is apparent that an ifn-
proper order of call a. well. prejudice the procedural
due process rights of t he registrant.
For 4 , follc owing’ receipt of an induction no- .
tice, Petitioner“ filed a claini*for classification..as a Con-
scientiquis” Objector, and requested ‘that his classification —
be re-opened for that purpose (Op. 5; SSF 113).° The
Courts below sustained the, Local Board’s refusal to
re-open Petitioner’s classification because it appeared
from his communications to the Board that his beliefs
had crystallized before the induction order had issued.
Therefore, he could not show a change of circumstance -
beyond his control justifying the. re-opening of his clas- .
-. sification (Op. at p. 6; See: United States v. Dugdale,
389 F. 2d 482, 484-485 (1968); 32 CFR. §1625.2).
However, if Petitioner was selected out of order, his”
induction notice would thereby have been vitiated, and_
his Conscientious Objector claim would then have quali-
fied. for review (Miller v. United States, 388 F. 2d
973 (9th. Cir’, 1967)).
7The undersigned has copies of the Exhibits above referred
to, and will submit the same to the Court upan request. A tran- |
script of. the testimony above referred to was not yet available
at the time this Petition went to the printer. ~
8S.S.F. refers to Petitioner’s Selective Service File, received .
~ in évidence at trial as Exhibit A, and incorporated as a part
_of the Certified Record on Appeal and here. |
=
| 7
It Is a Denial of Due Process tos Substitute an Un-
founded Presumption of Regularity. ‘for Proof
of an Essential Element of the Offense.
This court has long held the view that:
“The presumption that public officers have done
their duty, like the presumption of innocence, is”
“undoubtedly a legal: presumption, but it»does not
supply proof of a substantive fact . . nowhere is
the presumption held fo be a substitute for proof
of an independent and material fact.” (United
States v. Ross, 92 U.S. 281, 284; Sabriego v.
Maverick, 124 U.S. 261, 285). *
A presumption cannot constitutionally stand in lieu
of proof where: unsupported by common: experience
or by substantial evidence, or where lacking a rational
connection with the fact proved (Leary v. United States,
89 S. Ct. 1532, 1547 et seg. (1969); United States v.
Romano, 381 U.S. 136, 141, 86 S. Ct. 279, 282 (1965);
Tot v. United States, 319 U.S. 463, 468-469, 63. S. Ct.
1241, 1245-1246 (1943)). ©
. Neither can an implied presumption substitute for
proof of an essential ingredient of the offense (Moris-
sette v. United States, 342 U.S. 246, 275, 72 S. Ct. 240,
256. (1952); Christoffel v. United States, supra, 383
U.S 84, 89-90, 69 S. Ct. 1447, 1450; cf. United States v.
Bryan, 339 U.S. 323, 70 S, Ct. 739 (1950) (where the
presumption was allowed because the assumed fact was
collateral to the offense charged)).. - ,
The Court of Appeals below held that “the presump-
tion of regularity of official acts is sufficient, at least,
to preclude reversal where, as here, ‘the issue of the
—13—
regularity of the order of call was not raised in the
trial court.” (Op. at’ p. 2).
Thus the Court in effect inferred Petitioner had
waived-the issue based on a silent record. But, as this
~ Court has noted in another context :
“Presuming waiver from a silent record is imper-
missible.” (Carnley v. Cochran, 369 U.S.506, 516,
82 S. Ct. 884, 890 (1962); Miranda v. Arizona,
384 U.S. 436, 475, 86 S. Ct. 1602, 1628 (1966);
See.afso: Johnson v. Zerbst, 304 U.S. 458, 58 S.
Ct. 1019). |
If the burden of proving the validity of an induft-
tion order or the regularity of the order of call was
upon the Government, Petitioner was under no duty to
speak in the absence of proof, or to suggest what proof
would be required, or to disclose his defenses thereto—
including the defense of standing silent on an insuf-
ficient record (See: Miranda v. Arizona, supra, 384
U.S. at p. 460, and cases cited thereat).
Indeed, if the presumption relieves -the Government
f the obligation to produce evidence on the issue, it
oes so whether or not the accused puts the Government
on notice. Accordingly, the opinion of the learned
Court below leaves standing a conviction unsupported
~ by proof which is conceded to be the Government’s obli-
gation to produce, but which duty the court presumes
was waived by Petitioner’s silence. If this unique but
startling rationale be left to stand, the Defendant’s
mantle of innocence will soon be converted to a cloth
woven so firie that only he will be able to see it.
LE PLY LEG, TT RT
e “
Pe RS RT REDE Oe
PE Ey Gy LO
—14—
Mes:
The Use of the Presumption of Regularity in Selec-
tive Service Cases Has Convoked Diverse and ~
Often Questionable Rationales Therefore, Re-
sulting in Conflicting and Confusing Applica-
tions Thereof, Not Only Between, but Within
the Circuits.
As suggested by the opinion of the Court below, most
Circuit Courts accept the view that the Government’s _
burden of proof is met by reliance on- the presumption
of regularity; .at least absent notice by defendant put-
ting the validity of the induction order at issue (Weers-
ing v. United States, #23055 (8-7-69) (Opinion be-
_low); Yates v. United States, supra, 404 F. 2d at pp.
465-466, rehr’g den. 407 F. 2d at p. 51); or evidence
ding to rebut the presumption (United States v.
Sandbank, 403 .F. 2d 38, 40 (2nd Cir., 1969)) (al-.
though there is language suggesting that the invalidity
of the order is an affirmative defense); Greer v.
United States, 378 F. 2d 931, 933 (Sth Cir., 1967); but
see: Chaney v. United States, 406 F..2d 809, 813 (5th -’
Cir., 1969) (requiring clear and convincing evidence
to rebut presumption) ; Keene v.' United States; 266 F.
2d 378, 380 (10th Cir., 1959) ).°
But “despite apparent harmony among the circuits as
to the propriety of invoking the presumption on a silent
record, there is wide diversity and confusion on the
rationale therefor and the circumstances and standards
’ governing it its applieation.
®The opinions of the 6th Circuit in United States v. N orman,
iaieaal i ae nce anal Dec. 7-15-69), ‘and United States v.
Boroski, - , (#18,548, Dec. 6-25-69) have not yet
been anil, oa ‘were not available to undetsigned at this
writing.
are |
Thus the Second Circuit views application of the pre-
sumption as merely “permitting the government to pre-
sent its case-in-chief freA of a technical nicety.”
(United States v: Sandbank} supra, 403 F. 2d at p. 40
(fn) ). y
On the other hand, the Keene court, while acknowledg-
ing that the government has the burden of proving the
validity of the order, finds the presumption of regularity
like the presumption of innocence, a “procedural safe-
guard.” (Keene v. United States, supra, 266 F. 2d at -
*p. 381).
We have already noted that the First Circuit, and
presumably, by its emphasis on the rationale of Yates,
supra, the Court of Appeals below, invoked the presump-
tion on a waiver theory (Yates v. United States, supra,
404 F. 2d at p. 466). That is, the government is re-
quired to prove up the propriety of the order of call
or otherwise establish the validity of the induction no-
tice only when notified by the accused that the same
is at issue.
Not so the Fifth Circuit, which, in Chaney v. United
- States, supra, 406 F. 2d at p. 813, recently held that
‘evidence through the lips of the Local Board’s clerk that
the Board applied an erroneous view. of the law to re-
quests for reopening of classifications, was not suf- |
ficient to overcome the presumption of regularity.
Contrast that approach with the one taken by the
"Ninth Circuit in Shepherd v. United States, 217 F. 2d
942 (1954) where the Court of Appeals expressly re-
fused to invoke the presumption of regularity to sus-
‘tain an inference that an Appeal Board had disregarded
the erroneous advice of the Department of Justice con-
y
-
-—16—
cerning the claim of a conscientious ‘objector (Accord:
Sicurella v. United States, 348 U.S. 385, 75 S. Ct. 403
(1955)). | , ane
In some cases, the presumption of regularity has been
_ applied, perhaps more appropriately, to collateral issues,
as where the court has refused to draw inferences ad-
verse to the Local Board’s proceedings;? either because
based on speculation or conjecture, or on deductions
which are unreasonable or irrelevant, or inconsistent
with the record.
Thus, in United States v. Bornemann, 298 F. Supp.
1253, 1258 (D., Conn., 1969), the court refused to
speculate that on a de nove review, the Appeal Board
indulged in the same erroneous theories applied by the
Local Board (See also: Storey v. United States, 370
F. 2d 255 (9th Cir., 1966); Koch v. United States,
150 F. 2d 762 (4th Cir., 1945) (evidence suppérted
presumption) ; United States v: Richmond, 274 Fé Supp.
43;-62 (C.D., Cal., 1967) (evidence supported p p-
tion ; issue collateral) ).
-
VI.
' The Presumption of Regularity Cannot Be Justified
on Grounds of Convenience, Common Experi-
ence, Fact or Law. |
Only in Keene v. United States, supra, 266 F. 2d
at p. 381 (and inferentially, Yates, on rehearing (407
F. 2d at p. 51) )—does a court expressty grapple with
the conflicting presumption of innocence.” There,
10Of coure, the opinion in United States v. Lybrand 379 F.
Supp. 74 at p. 82 (E.D., N.Y., 1967) expresses a “grave doubt
about the propriety and the constitutionality of presuming an es-
sential element of a serious crime. [Citing cases].” But Lybrand
' appears to have been overruled by Sandbank, supra, 403 F. 2d at
p. 40.
~v
—17— ae,
| 4
after tha Ng Tot v. United States; supra, the ,
‘Keene court states:
“Neither do we think that traditional presumption
of innocence overcomes the presumption of regu-
larity and validity. Both are founded in the policy 7
. of the law as procedural safeguards [citing au- _&£.
thorities], They stand in lieu of fact until over- .-
-come by fact; they do not conflict, rather they - Be
‘operate secéssively to shift the duty of producing
evidence at ‘the ultimate risk of non-persuasion . kc 4
one operates as an invulnerable cloak of innocence |
until removed by proof ‘beyond a reasonable doubt;
the other operates as a rule of law to sustain the
burden of proof and support a finding of guilt .. .”
This theory ignores the teachings of Leary, Romano
and Tot, to wit: That a presumption can only substitute
for affirmative proof, if at all, where supported ‘in rea-
son and common experience and by a rational nexus
between the fact presumed and the fact proved.
EEE LG A OTRO TOA IT HERIOT MIRON YN ARAN DP IE
In none of the Selective Service cases invoking the
presumption of regularity has the ultimate fact—that
fis, the validity of the induction order, or here, the pro-
‘priety of the order of call—been restablished except by
the presumption. So, the Tenth Circuit is saying that
the) aceunes must discard his mantle of innocence in
response to a presumption which has, support only in ay
*fj i¢tion and convenience.
‘In Leary, Romano and Tot, min the statutory ;
presumption was also rebuttable, and likewise, was
grounded on convenience. Its effect, if not its function
was to compel the defendgft“to negative inferences
from proved facts through his own testimony or by
other evidence.
RTE em Pe ise
v
ASOT ANE ERT VR NEVINS, PVE ISL T EN ILEST UY ONE HIER Yn
$ _
The presumption of regularity is from the same de-
sign and purpose and draws on the same rationale;
but there is a significant distinction. In Leary, Romano
and Tot, the defendant had knowledge which, theoreti- ;
cally at least, could dispel or rebut the inference (Leary,
in fact, attempted to do so, ‘albeit unsuccessfully).
With the presumption of regularity, however, knowl-
edge or information of the irregularity of the order
‘ of call or other procedure is not necessarily in the. pos-
_ session of the accused, but rather is under the control
--and administration of the government. As the First
Circuit noted in Yftes, supra, (404 F. 2d at p. 466):
“There is n difficulty in the perhaps rare case
\ ] nt. can produce evidence of a per-
‘son who should have been .¢alled before him but
was not. In such a case, the government cannot
disprove a leak in the bucket simply by. showing
that most of it was tight. But when the defendant
lacks any such proof, his only recourse ig,to exam-
ine the clerk of the Local Board. This may not
conclusively establish the absence of any violation
of the regulation, but, since the clerk must. testify
_ ™ any case to the validity of the order to veport,
there is little extra burden on the government to
have him prepared to testify on order of call.” °
(Emphasis supplied).
Thus, on grounds of accessibility to proof and the
probabilities of administrative error, the Yates court
questions the propriety of indulging the presumption in-
lieu of. proof. )
‘It does $0, in the final sae, because “what is
involved, while an element of the offense, has not been
a) ey
o%
deemed important enough in the particular case to make
any effort to elicit facts . . .’” (Emphasis supplied)
(Yates, supra, 404 F. 2d at p. 466; see: Sandbank,
supra, 403 F. 2d at p. 40 (fn.)). But, under the prin-
_ ciples heretofore discussed, the court cannot infer waiv-
er of proof from a.silent record. For the accused there,
as here, was simply exercising his constitutional right °
to remain silent—a right from which no adverse in-
ferences may be drawn (see: Griffin v. Califormia,
380 U.S. 609, 85 S. Ct. 1229 (1965); Slochower: v.
Board of Higher Education of the City of N.Y., 350
U.S. 551, 557, 76 S. Ct. 637, 640).
Besides, as we have seen, the presumption of regu-
larity as to order of call is not necessarily warranted
(See: United States v. Smith, supra, 291 F. Supp. 63;
United States v. Miranda, supra, 1 SSLR 3265)..Un-
like most administrative agencies, Local and Appeal
Boards in the Selective Service System are comprised
of lay persons serving voluntarily without special ex-,
pertise or training,” and. whose enormous case load’
defies reflective deliberation. These factors, combined
with an extensive record of procedural error by.’Selec- '
tive Service Boards,” raises a serious. constitutional
Shepherd v. United States, supra, 217 F, 2d at p. 945;
United States ex rel. Bergdoll v. Drum, 107 F. 2d 897,:900 (2nd
Cir., 1939). Local Board members testifying. in two Selective
Service cases.in the Central District: of California recently dis-
closed an unfamiliarity with many Selective Service regulations
bearing on Board procedures and on classifications (United
States v. Ronald Jack. Willens, #2892-JC., 3/18-19/69 (unre-
ported); United States v. Daniel Lott, #1921-P.H., 10/9/68
(unreported)). Copies of the reporter’s transcripts are in the
possession of the undersigned counsel, and will be made available
to the court upon request.
12See Appendix F, infra, which contains a partial list of
cases belying the presumption of regularity, usually: to the regis-
(This footnote is continued on the next page)
_ —20— |
question as to whether the presumption of regularity
is justified, either in fact or law, in Selective Service
cases. —
Bs ‘VIL.
The Selective Service File at Bar Discloses Proce-
dural Error Which Strips the Local Board’s In-
duction Order of Any Presumptive Validity to
Which It Otherwise Might Have Been Entitled.
Petitioner’s Selective Service file, reveals that no
. tmheeting was held by the Local Board preceding the is-
suance of the two induction orders in his case.
* -Selective Service Regulation Section 1631.7(a) pro-
vides that each “Local Board . . . shall select and or- |
der” the required number of men for induction. The
regulations are silent as to the powers or duties of a
clerk, and refer to such employee only once (32 CFR.
§1606.1). aS
On the other hand, 32 C.F.R. §1604.59 states: sg
“Official papérs issued by a Local Board may be
signed by any compensated employee of the Local
Board, if he is authorized .to do_so_ by ‘resolution
duly adopted by and entered in the minutes of the
meetings of the Local Board; provided, that the
Chairmen or member of the Local Board must
sign a particular paper when specifically required
, to do so by the,Director of Selective Service.”
trant’s prejudice. It seems reasonable to assume that the number
of such cases avhich do not reach the courts, or official publica-
tions, are many times the number appearing in Appendix F.
18(SSF 13..See: Entry for June 20, 1967; Note: there appears
to be no entry on the cover sheet for August 11, the date when
‘ Petitioner’s second induction order was issued; but ‘the latter
document appears at p. 154 of the Selective Service file).
Meh
oo
It would thus appear that the regulations contem-
plate a meeting ofthe Board at which registrants are
selected for induction, and to confer authority upon
either a clerk or Board member to sign an induction
notice. . :
In Brede v. United States, 396-F. 2d 155, op. mod.
400 F. 2d.599 .(9th Cir., 1968), a case involving an
order to Seport for alternative civilian service, the 9th
Circuit Tonstrued comparable regulations (32 C.F.R.
§1660.20(b)) as requiring such a meeting of the Local
Board. ‘The court refused to apply the Brede doc-
trine to the case at bar on the ground that the issue
was not raised at trial (Op. at p. 3).
However, if Petitioner’s contention is correct, that
is, that the Local Board was required to meet for the
purpose of selecting and ordering men up for induction,
then the record belies the presumption of regularity for
it appears on the face of Petitioner’s Selective Service ~
file that no such meeting occurred. |
At very least, if there was authority for the tsidac-
tion order, pursuant to a Board meeting, it would seem
incumbent upon the government to prove it. If such a
résolution existed, that burden could easily have been.
met—certainly more easily than could Petitioner prove -
its non-existence. .
°
Conclusion.
The scope of judicial review in Selective Service cases
is the narrowest known ¢o the law. This, coupled with
the history of administrative irregularity in the Selec-
tive Service System, the lack: of training and expertise
‘among its Board members, and the severe penalties that
flow from conviction for failing to obey an induction
7
/
order, counsel cautious iinet of the presumption ;
_ of regularity asa substitute for proof.
Petitioner therefore urges that the government should |
be required to establish what it has alleged, based on
records available to it. To impose or shift such duty
upon the accused would require him to engage'in a fish-
ing expedition which obviously would not be sanctioned.
For the foregoing reasons, the within, Petition ea
Certiorari should therefore be granted.
Respectfully submitted,
Davip FinxeEt and Hucu R.’MAngs,
. By Hucu R. MANEs,.
Attorneys for Petitioner.
6 ee PEAT Ae LR RRL, Pe NR tar ele a OP .
a ate lee ag ae atl Sie le aly
APPENDIX A.
Opinion of the United States Court of Appeals”
for the Ninth Circuit.
United States Court of Appeal for the Ninth Cirenit. \,
' United States of America, Plaintiff-Appellee, -vs.
John Frederick Weersing, Defendant-A ppellant. No.
23,055.
[August 7, 1969]
Appeal from the United Statés District Court for
the Central District of California.
Before: BARNES, BROWNING, and CARTER, Cir-
cuit Judges.
BROWNING, Circuit a
Defendant was convicted of refusing to sybmit to
induction in violation of 50 U.S.C. App. § . We.
‘affirm.
The indictment alleged, in the words of the statute,
' that defendant “knowingly” refused to be inducted.
Defendant contends that failure to allege that he acted
“wilfully” renders the indictment materially defective.
We held in Graves v. United States, 252 F.2d 878,
882/(%h Cir. 1958), “that the word ‘knowingly’ in the
statute here involved may not be as strong-a word as
‘wilfully’ . . ., hut the use of either of these words re-
quires proof of culpable intent. . . .”’ We did not hold,
as defendant suggests, that the word “wilfully” must
‘appear in the charge. On the contrary, although the in-
dictment in Graves alleged that the defendant acted
“knowingly,” the conviction was reversed only for lack
1See also United States v. — 394 F.2d 230, 231-32 (3rd
Cir. 1968).
-
es
of proof of culpable intent.” If, as Graves holds, the
word “knowingly,” in the statute, necessarily implies
wilfulness, it is sufficient for the same purpose in a-
charge under ‘the statute, absent any suggestion that
defendant was thisled or prejudiced in any way. United
States v. Beatty, 350 F.2d 287 (6th Cir..1965). Neither
of the cases cited by defendant as direct contrary au-
thority sohold®= / ,
Defendant contends that the stint failed to
prove that he was ordered to report for induction by
the local bard pursuant to its authority, or that he
was selected for induction in proper order.
Defendant did not challenge the sufficiency of the
evidence in either respect in the trial court.
The Courts of Alppeals of five circuits have consid-
ered whether the p -inni must affirmatively es-
tablish as a part of its\case-in-chief that the order to the
‘defendant to report for induction was issued in the
sequence provided by Selective Service Regulation 32.
C.F.R. § 1631.7. While the precise problem presented
and the rationale applied differ in the various cases, it
is clear that all of these courts would agree that the
presumption of regularity of official acts is sufficient,
at least, to preclude reversal when, as here, the issue
of the regularity of the order of call was not raised
in the trial court. United States v. Norman, .... F.2d
(6th Cir. 1969), No. 18,779, filed July 15, 1969; Little
v. United States, .... F.2d .... (10th Cir. 1969), No.
153-68, filed May 6, 1969; United States v. Boroski,
2Defendant does not challenge the sufficiency of the evidence to
establish culpable intent.
®Potter v. United States, 155 U.S. 438, 446 (is04) ; United
States v. Baker, 262 F.Supp. 657, 678 (D.D.C. _—
a
_.. F.2d “.. (6th Cir. 1969), No. 18,548, filed June 25,
1969; Yates v. United States, 404 F.2d 462, 465-66
(1st Cir. 1968), rehearing denied 407 F.2d 50 (1969) ;
United States v. Sandbank, 403 ¥.2d 38,.40 (2d Cir.
1968) ; Pique v. United States, 389. F.2d 765 (5th Cir.
1968); Lowe v. United States, 389 F.2d 51, 52 (5th
Cir. 1968); Greer v. United States, 378 F.2d 931,
°933 (5th Cir. 1967). We see no reason to depart from
this unanimity of view. - oe
The reasons supporting this position (see particular-
ly Yates v. United States, supra, 404 F.2d at 465-66)
apply equally to absence of specific proof that the order
to defendant to report for induction was issued or au-
thorized by the local board itself rather than by the
boatd member who signed it. Accordingly, assuming
that. Selective Service Regulation § 1631.7(a) required
action by the whole board in issuing or authorizing the .
“order to report for induction, we hold that lack of proof
of specific compliance with this requirement is not a
ground for reversal when, as here, the issue was not
raised/at trial. Little v. United States, supra.*
The. defendant requested But was denied deferment as
a person “whose employment ... is . . . necessary to
the maffitenance of the national health, safety, or in-
terest.” 50°U.S.C.App. § 456(h)(2). He contends that
the denial was without basis in fact; and that the local
board should have given him notice of his right to have
the appeal from its action heard by the appeal board for
the area in which he was ‘employed. Neither: conten-
*The record in Brede v. United States; 396 F.2d 155 (9th Cir.
1968), modified 400, F.2d 599 (9th Cir. 1968), discloses that
failure of the local board to comply with Selective Service Regu-
lation § 1660.20(d) was raised by motion for judgment of ac-
quittal at the close of the prosecution’s case.
a?
tion was made in the trial court. Assuming they are
properly before us, we hold they are without merit.
Whether or not we would have reached the same
conclusion as the board on the merits of defendant’s
. request for occupational deferment, we are satisfied
that there was a basis in fact for the board’s decision.
To obtain a deferment iunder section 465(h)(2), the
registrant must satisfy the board (1) that he is en-
- gaged in activity necessary to the maintenance of: the
national health, safety, or interest; (2) that he cannot
,be replaced; and (3) that his removal would cause a
material loss of effectiveness in the activity. 32 C.F.R.
§ 1622.23.
Defendant based his request upon his employment
as an assistant planner in the Planning Department’ of
the City of San Diego, specializing in the application of
electronic digital computer techniques to city planning.
He pointed out that city planning improves the environ- -
ment: of urban dwellers, particularly in housing and
transportation, and that a favorable environment en-
-hances their productivity. He noted that San_Diego is
the site of important naval activities employing many
San Diego workerg.#fe offered. evidence that there was
a scarcity of yy aagebeior in both city planning and
electronic data processing, and that this combination of
skills was of unusual importance to the effective devel-
opment of a number of: specific pee in the San
Diego City Planning Department.
_ We think the. board could properly determine from
this showing that the relationship between defendant’s:
employment and the maintenance of national health,
safety, and interest ws too remote and indirect to jus-
Pe RO eg ee
dons’. ~
tify deferment under section 456(h)(2). The board
could conclude that city planning; as such, was no more
directly related to the national’ health, safety, or interest
than many if not most other municipal services, and
that San Diego’s involvement in one aspect of national
defense was not materially greater than the involvement
of other American cities of equal size in other aspects of
the complex and widespread national defense effort.
_ The record also contained facts to support the con-
clusion that defendant was not irreplaceable and that
his removal would not cause material ‘loss to the effec-
tiveness of city planning in San Diego. The board noted
that defendant had been employed in his. position for
only five. months, and that he was one of two persons
engaged in research and computer programing in the
San Diego Planning Department. Moreover, -while de-
fendant’s supervisor initially wrote, “We ‘hive no one:
available, nor do we know of anyone, who.could replace
him in the type of program he is now establishing for
,” he later stated, somewhat less sweepingly, that de-
festa was “one of the: relatively few people available
to us” with the requisite ‘qualifications.
Defendant contends that the board should have ad-
vised him of his right to have*his appeal submitted to
the appeal board for the area in which he was employed,
rather than to the appeal board for the area in which
his local board was located. 32 C.ER. § 1626.11(b):
The right conferred by section 1626.11(b) is condi-
tioned upon the filing of a written request. No such re-
quest was filed until after the appeal had been decided
adversely to the defendant. Defendant argues, however,
that the cireumstances disclosed in this record imposed
an obligation upon: the local board to ‘transfer the ap-
a
OPTI OTE
\y
—h— ;
‘peal without a written request or ‘to call. defendant’s
attention to the regulation so that he sight invoke its
_ provisions.
Defendant lived and worked in San Diego, where
there were both local boards and an appeal board. De-
fendant’s local. board was located in Pasadena, and his
appeal board in -Los Angeles. Defendant had appeared
personally before the Pasadena local board, traveling
from San Diego for this purpose. He advised his local
board that~he would like to appear personally before
the appeal board “if. necessary,” and. asked when the
appeal board would meet since it was “a longe drive
to Pasadena.” Since the regulations did not provide for
a personal appearance before the appeal board, the local
board did not respond to defendant’s inquiry but simply
forwarded the file to the appeal board, which affirmed
the local board’s rejection of defendant’s claim.
We see nothing in these circumstances to alert the lo-
cal board to defendant’s desire that the appeal be heard
by the San Diego appeal board, if indeed this was de-
fendant’s wish prior to the adverse decision of the Los ©
Angeles appeal board. On an earlier occasion defendant ~
had arranged with his Pasadena local board for transfer |
to a San Diego board for his physical examination. He |
did not request a. general transfer from the Pasadena
local board to a San Diego local board; and he later
traveled to Pasadena for a personal appearance’ before
that local board in support of his request for occupation-
al déferment» If the question occurred to the board at
all, it, could properly have assumed that, for reasons of . ‘
his own, defendant preferred not to have his appeal
submitted to the San Diego appeal board. .Certainly
we cannot say that the local i failure to transfer
the appeal sua sponte or to inquire as to defendant’s
wishes violated the regulations « or denied defendant pro-
cedural due process.
nn a =e '
The defendant’s final contention is hat the local
board improperly refused to reopen his\etassification
and consider his conscientious objector claim.
The local board mailed defendant an induction notice
on June 20, 1967. On June 24 defendant wrote tothe
board claiming exemption as a conscientious objector.
His letter arrived on June 26.
The board was without power to reopen defendant’s
classification after mailing the induction notice unless it
could specifically: find that there had been a change in ~
_defendant’s status resulting from circumstances over
which he had no control. 32 C.F.R. § 1625.2.
We need not decide whether the maturing of a con-
scientious objection to war is a circumstance “over
which the registrant had no control”—a question now
pending before this court in bane in Ehlert v. United
States, No. 21,930. The board must also find that “a
change in the registrant’s status” occurred after the
mailing of the notice of induction; and’ defendant of-
fered no facts upon which such a a isis might have
been based.
In his SSS Form No. 150 defendant attributed his
convictiohs to participation in church activities. as a
child, parental influence, and college training—all of
which occurred long prior to the mailing of defendant’s
notice of induction.
Defendant wrote to his draft board that the arrival
of this notice precipitated the filing of his conscientious
objector claim and that he had not submitted it’ earlier
because he had mistakenly supposed that appellate proc- |
“essing of his claim for an occupational deferment was
‘not completed and an order to report for induction
therefore would not be issued.° As the trial court said,
“defendant’s letter asserting for the first time his views
on conscientious objector matters cléarly reveals no
new views or recent maturing or changing of them in
' the two, or at most four-day period between the-notice
of induction and the sending of this letter. In fact,
it reveals to the contrary. What is new is the determina-
tion to assert these views in view of the induction no-
tice now having come to him. And it is clear that that
assertion was precipitated, as he says himself, by the .
induction notice, and not by any change or \difference
in 'the views themselves.” See Oshatz v. United S tates,
404 F.2d 9, 10-11 (9th Cir: 1969); Briggs v. United
States, 397 F.2d 370, 372 (9th Cir. 1968);. United
States v. Dugdale, 389 F.2d 482, 484-85 (9th Cir.
1968). en eee,
Affirmed.
The letter read, in part: |
“You may question the late arrival of this statement of
beliefs. It is in part precipitated -by the arrival of an order ~
to report for induction: I was suddenly and absolutely
faced with having to throw over my life’s work and, within
fifteen days, begin an instructional regimen of violence and
mayhem. is
Also, I was misled by the State Selective Service Head-
quarters when they informed me in a letter. dated June 13,
1967 that ‘. . . if you have further questions regarding your
rights; we suggest you contact your local board for an ap-—
pointment with the appeal agent.’ I construed this as meaning :
I(had an additional period in which to review my- case with -
legal coun'sel to prepare another appeal, and that- this, would
grant me the usual immunity from induction while this was
pending. If I hads believed otherwise, I would not iene
delayed in bringing this new information to your attention”
> (emphasis added). pgs
APPENDIX B.
Title 50 App., U.S.C. §462(a).
Title 50. App. U.S.C. eee) which states in rele-
vant part as follows:
Gey & “wae . . person charged as. herein
eevtika Sea hi ‘ay of carrying out any of the
provisions of this title, or the rules or regulations
made or directions given thereunder, who shall
knowingly fail or ‘neglect to perform such duty
. or who in any manner shall knowingly fail or
neglect or refuse to perform any duty required of -
“him under or in the execution of this title or rules,
regulations, or directions made pursuant to this
title . . . shall,-upon conviction in any district court
of the United States of competent jurisdiction; be
punished by imprisonment ae not more than five
years or a fine of not more than $10,000, or ~
both such’ fine and i imprisonment .. .”
RAMMED SL TLE PBA TE RO RLEL AEE LOOT SAREE EEA SGI SEN IR IEE SEY, EMER OG SEINE
j terEhE Ay
es a
; APPENDIX C.
Title. 50 Appx., U.S.C. §454(a).
Title 50 Appx. U.S.C. pette) which provides in
pertinent part as follows: | >
“ . the President is authorized, from time to
time, . . . to select and induct into the Armed -
Forces of the United States for training and serv-
ice in the manner provided in this Title ... . such
number of persons as may be required to / aici
and maintain the strength of the Armed Forces.”
—11—
APPENDIX D.
Title 50, Appx., U. Ss. C. §455(a).
"Title 50, Appx., U.S.C. §455(a), provides in rele-
~ vant part as follows:
“(a)(1) The selection of persons for * training
and service under §4 7§454 of this Title] shall
be made in an impartial manner, under. such rules
.and regulations as the . President may prescribe, —
_ from the persons who are liable for such training
and service and who at the time of selection are
Pn ey and classified, but not’ deferred or ex-
* empted . fe ;
Se ee \ ie
"“(2) Notwithstanding the provisions of Par-
agraph (1) of this subjection, the President in
establishing the order of induction for registrants
within the various age groups found qualified for
induction shall not effect any change in the méthod
of determining the relative order of induction for
such registrants within such age groups as has q
been heretofore established and in effect on the v
date of enactment of this paragraph [June 30,
1967], unless ‘authorized by law enacted [there- ;
afte} ......"
LOA Oe A NRE
:
;
- APPENDIX E.
32 C.F.R. §1631.7{a).
32 C.F.R. §1631.7(a) which provides, in pertinent
part, as follows:
“(a) When a call is placed without designation
of age group or groups, each Local Board, upon
receiving a Notice of Call on Local Board (SSS
Form 201) from the State Director of Selective
Service . . . shall select and order to report for
induction the number of men required to fill the
call. from among its registrants who have been
classified in Class 1-A and Class-1-A-O and have
been found acceptable for service in the Armed
Forces and to whom the Local Board has mailed
a Statement of Acceptability (DD Form 62) at
least 21 s before the date fixed for induction;
Provided, that a registrant classified in Class 1-A
or Class 1-A-O who is delinquent may be selected
and ordered to report for induction to fill-an in-
duction call notwithstanding the fact ‘that he has
not been found acceptable for service in the Armed
Forces and has not been mailed a Statement of Ac-
ceptability (DD Form 62); And provided further,
that a registrant classified in Class 1-A or Class
1-A-O who has volunteered for induction’may be
selected and ordered to report for induction. not-
withstanding the fact that he has not been found
acceptable for service in the Armed Forces and
regardless of whether or not a Statement’ of Ac-
ceptability (DD Form 62) has been mailed to
him. Such registrants . . . shall be selected and or-
dered to report for induction in the following or-
der:
“(1) Delinquents who have attained the age of ,
19 years in the order. of their. dates of birth
with the oldest. being selected first.
(2) Volunteers who have not attained the age
of 26 years in-the sequence in which they have
volunteered for induction.
(3) Non-volunteers who have attained the age
of 19 years and have not attained the age of
26 years and who (A) do not have a wife...
in the order of their dates of birth with the
oldest being selected first, or (B) who have a
wife whom they married after [August 26,
1965] .. . in the order of their dates of birth
with the oldest being selected first.
. (4) Non-volunteers [between 19 and 26 who
married before August 26, 1965]. ...
(5) Non-volunteers who have attained the age
of 26 years in the order of their dates of birth
with the youngest being selected first.
(6) Non-volunteers who have attained the age
of. 18 years .6 months and who have not
__attained the age OF9 years .
* *
onitus
APPENDIX F. |
Partial/ List of Selective Service Gases Disclosing
Mmihistrative Irtegularities an Procedural
Errors.
The following is:a partial list of selective service
cases disclosing administrative irregularities and pro-
cedural errors: It is offered as tending to show that
the presumption of regularity is not applicable to the
selective service field because not supported by fact
or common experience.
Oesterich v. Selective Service Local Board No. 1 1, :
393 U.S. 233, 99'S. Ct. 414 (punitive reclassification
-_ of theology. sttident for protest agpinst war); Applica-_
tion of Shapiro, 392 F. 2d 397 (Bd Cir., 1968) (1-A
classification invalidated because lack of quorum) ;
Talcot v. Reed; 217 F. 2d 360 (9th Cir., 1954) (Fail-
ure of Board to grant personal appearance; wrongful
denial of reopening of classification based on Selective
Service. Bulletin holding pregnancy to be a status over
which registrant has control, so as to bar, on that ac-
count, -induction notice reopening); Jn re Abram-
son, 196 F 2d 261 (3d Cir., 1952) (Induction notice
sent to. rong city); Franks v. United States, 216 F.
2d 266 (9th Cir., 1954), (FAilure ‘of Local Board to
consider classification for which registrant eligible) ;
Knox v. United States, 200 F. 2d 398, and cases cited
at p. 401, (9th Cir., 1952) (Failure to reclassify regis-
trant after personal appearance, thereby. depriving him
of appeal rights; court refuses to invoke presumption
of regularity as aid to convigtion); Peebles v. United
States, 220 F. 2d 114 (C.A. 7, 1955) (Board members
found biased and prejudiced v. registrant claiming C.O.
2
j
¥
| —1s—
status); Uffelman v. United States, 230 F. 2d 297
(9th Cir., 1956) (Failure of Board to appoint ad--—
visors to registrants to post their names, held not
prejudicial error) ; Gatchell v. United States, 378 F. 2d
_ 287 (9th Cir., 1967) (Appeals Board’s application of er-
roneous standards to ‘ministerial claim); Accord: Si-
curella v. United States, 348 U.S. 385, 392, 75 -S. Ct.
403; Shepard v. United States, 217 F. 2d 942, 944-946
(9th Cir., 1954); United States v. Stepler, 258 F. 2d
310, 317 (3d Cir., 1958); Henderson v. United States,
223 F. 2d 421 (7th Cir., 1955) ; Olvera v. United States, —
223 F. 2880 (5th Cir., 1955); Townsend v. Zimmer-
man, 237 F. 2d 376 (6th Cir., 1956) (Failure of Local
Board Chairman to adhere to regularities. held preju-
dicial to registrant’s appeal rights); Mizrahi u. United
States, 409 F. 2d 1219 (9th Cir. 1969) (refusal to re-
open based on erroneous interpretation. of regulations
and improper standards); Accord: United States v.
Freeman, 388 F. 2d 246, 248 (7th Cir., 1967; reh’g
den’d 1968); United States v. Stafford, 389 F. 2d ,
215 (2d Cir., 1968); Petrie v. United States, 407 F.
2d 267 (9th. Cir., 1969); Woo v. United States, 350
F. 2d 992 (9th Cir., 1965)); Battiste' v. United States,
F. 2d 910 (5th Cir.; 1969) (Failure of Board’s
clerk to refer registrant’s letter to Local Board held
not prejudicial) ;-Brede v. United States, 396 F. 2d 155,
modified, 400 F.2d 599 (9th Cir.,-1968) (Unauthor-
ized issuance of induction order); United States v.
Bellmer, 404 F. 2d 132 (3d Cir., 1968) (Failure of
Board to forward registrant’s letter to State Director;
absence from ‘file at trial defeats presumption of regu-
larity); Chaney v. United States, 406 F. 2d 809 (C.A.
5th, 1969) (Refusal to reopen based on erroneous view
—16—
of law, held not prejudicial; clerk’s testimony fot suf-
ficiently clear and convincing as to overcome prestimp-
tion of regularity) (Crane v. Hershey, 410 F. 2d 962,
966 (1st Cir., 1969) Erroneous denial of> 1-S classifica-
tion based on National. Director’s Memorandum in di-
rect conflict with standard; accord: Foley v. Hershey, .*°
‘409 F. 2d 827 (7th Cir., 1969) ; Catano v. Local Board
No. 94, 298 F. Supp. 1183 (E.D. Pa., 1969)); Shep-
- ard v. United States, 217 F. 2d 942 (9th Cir. 1954),
rehearing denied, 220 F. 2d~855 (9th Cir., 1955),
(Agpeal Board presumed to have followed erroneous
advice of Department | of Justice). United States v.
Walsh, 279 F. Supp. 115 (D.C. Mass, 1968) (Failure
of Local Board to meet and consider. request for re-
opening of classification); United States v. Burlich,
257 F. Supp. 906 (S.D. N.Y., 1966) (Failure to re-
open classification upon presentation of prima facie
claim for new classification; Accord: United States v.
Vinceli, 215 F. 2d 210; rehearing denied, 216 F. 2d
681 (2nd Cir., 1954); United States.ex rel. Berman v.
Craig, 207 F. 2d 888 (3d Cir., 1953)); United States
v. Kezmes, 125 F. Supp. 300 (W.D. Pa. 1954) (De-
nial of 4-D exemption based on erroneous theories) ;
United States v. Rund, 299 F. Supp. 408 @D, N.D.,
1969) (No basis in fact for refusal to classify regis-
‘ trant 1-0); United States v. Blaisdell, 294 F. Supp.
1303 (D., Me., 1968) (Failure of Local Board to con-
sider post-induction Notice C.O. claim held to preclude
conviction) ; United States v. St. Clair, 293 F. Supp.
337..(E.D.N.Y., 1968). (denial of C.O. claim. based
on erroneous hae’ Accord: United States v. Shac- °
‘ter, 293 F. Supp. 1057 (D., Md., 1968) ; United States
a e
v. Bryant, 293 F. Supp. 922 (W:D., Ark., 1968) ; Cupit
° ”
—17—
v. United States, 292 F. Supp. 146 (W.D., Wis., 1968)
(Order to ‘@port for civiliam work not authorized by
Board); United States v. Fargas, 66 Cr. 792. (S.D.
N.Y., 1969) and United States v. Hudson, 67 Gr. 681 .
(S.D.N.Y., 1969) .... F. Supp. ong k Ska. Be0o-
(Substitution of Doeuments in registrant’s files by
- Selective Service offices following indictment; and pro-
cedural irregularities in processing of C.O. claims);
United States v. Deppe, No. .67 Cr. 473 (E.D., N.Y.,
11/21/68) 1 S.L.R. 3285 (Dismissal on motion of :
government on discovering that member of Local Board
did not reside in city where Board located); United
States v. McNeal, No. 41, 993 (N.D., Cal., 9/10/68)
1 S.S.L.R. 3227 (failure of Local Board to consider
1-S claim, or to supply registrant with C.O. form when
requested to do so; on latter point, see also: Boswell v._
United States, 390 F. 2d 181 (C.A. 9th, 1968));
United States v. Madrid, No. 68-82-S:A. (W.D., Tex.,
8/7/68) 1 S.S.L.R. 3168 (induction order. issued while
appeal pending); Striker v. Resor, 283 .F. Supp. 923
(D., N.J., 1968) (possible: consideration by Board of
anonymous phone messages concerning registrant’s al-
*
leged immorality, misinformation to registrant regard-
ing his rights; ‘See also: In re Schmidt, 68 F. Supp.
765 (N. D., Cal., 1946) (reclassification “based on er-
? .
roneous selouiy regarding registrant’s activities) );
United States v. Giessel, 129 F. Supp. 223 (D., N.J.,
1955) (failure to advise registrant of his procedural
rights); Ex Parte Barrial, 101 F. Supp. 348 (S.D.,
Cal., 1951) (1-A classification and induction based on
Local Board resolving contravening regularities).
9
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Ra Ey is a ae
Car Ne RET EN BOP RT aay)
SONY EERE EP My TERT i ea ol al or
-
eM ee DIO reser
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