Petitioner Supplemental Memorandum — Davis v. United States

Supreme Court brief1972

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b WRD A. Sis KI AP Zt

. os In THE “JAN 26. 1972.

‘ oo | Supreme Court uf the Uni ‘Miatrs CLEA

- OCTOBER Term, 197 1 — ¢

2 No. 71-661

. > . 4 . . . ’

. 4 , JoseEpu Antruony Davis,

Petitioner,

—Y

Unirep States or AMERICA.

ON PETITION FOR A WRIT OF CERTIORARI TO TRE UNITED *STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

‘ ' = °.

PETITIONER’S SUPPLEMENTAL MEMORANDUM

Marvin M. KarpatkKIN . .

1345 Avenue of the Americas

New York, New York 10019

*Micnaret E. Somers . ‘

» Danie Kauten © : -

2512 Wilshire Boulevard r

Santa Monica; California

Metvin L. Wurr ate

c/o American Civil Liberties Union ,

Fotndation .

156. Fifth Avenue

New York,.New York 10010

Attorneys for Petitioner

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OES SG ALIEN, TS MG Ag? Nos

aan In 7.

- Supreme Court nf the Hnited States

_OcToBER Term, 1971 ;

No. 71-661

—

Josepu-Anruony Davis, — -

Petitioner,

Unirep States or AMERICA,

ON PETITION FOR A WRIT @F CERTIORARL-‘TO THE UNITED STATES

COURT OF: APPEALS FOR THE NINTH CIRCUIT

—_—

PET ITIONER’S SUPPLEMENT AL MEMORANDUM

"Following the filing ef petitioner's s reply uocusiiiaiiie

on January 21, 1972, counsel for petitioner | obtained copies *—

of the opinions of the United States Court of: Appeals for

the Ninth Cireuit in United States \. Fox, F. 2d

No. 71-1917 (December 30, 1971) and Zack v. ‘Benson,

F.2d ——, No. 71-1304 (December 30, 1971). Those opia-

ions are annexed hereto in the appendix mprd. :

Whatever disatzreeme nt may exist between the govern-

ment and petitioner with respect to his de facto accelera-

tron in the order of call, see See. D, pp. 16-19 Pet. and See. 2,

pp. 5-7, Reply Memorandum (hereinafter R.M:) and P. 7,’

Mem. Op., it is now clear under Fox, supra, that nclilionana ws

induction order, was invalid, it having concededly been is-

sued without a prior determmation .of his “physical -ac-

eeptability. See For, supra at pp. 3a-fia, infra, This

; ,

argument ¥ was of course urged by petitioner in his prer 1-

ously filed briefs.*

In light of the Ninth Cir cuit’s intervening decision in F ox,

the petition for a writ of certiorari should be gr anted or in

the alternative this Cotirt should consider the appropriate-

ness of remanding to the Court of Appeals’ for the Ninth

Cireuit with instructions te grant a re ‘hearing or tehear-

ing en banc.

Respectfully me

Marvin M. Karparkrn

1345 Avenue of the Americas

New York, New York 10019

Micuase.t EF. Somers

“Danre, Katten © .

2512 Wilshire Boulevard —

Santa Monica, California

Mecvin L. Woe

c/o American Civil Liberties

; ~ Union Foundation |

age ; 156 Fifth “Avenue”

New York, New York 10010

deren for Petitioner**

- *The statement by the Ninth Circuit panel in Foz, at p. *

infra, that neither “the nature of the delinquency ; .. BOF

the evidence of non-acceleration” appears in the Davis litigation, is,

with all due,respect;. erroneous. First,.the record in this case

clearly div ulges and the government acknowledges the reason for

Davis’ delinquency. Second, if, as the For panel contends, there

is no evidence of non-acceleration, then the government simply

cannot be held to have sustained its burden of, proof on ‘the “de

facto” accelération issue.

”

, ** Attorneys for petitioner ers ratefully ack mow ledge the assista

Lait ets istanee

_of-Mr, Edwin Oppenheimer of the New York Civil Liberties Qnion.

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APPENDIX

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" Opinion of the United States Sain of Appeals:

for the Ninth Circuit:

No. 711917.

. oe

Usiren STATES OF AMERICA,

Plaintiff- Appellee, |

Vs.

De fendant-A ppellant:

Perer Artuur Fox, \ ‘

[Deveriber “30, 1971]

‘ es, . \

. -—-_--

Appeal from the Knited States District Court

for the Central District of California

Before: Merritt and Duniway, Cireuit Judges,

and Crocker,* Distriet Judge

Duniway, Cireuit Judge:

| Appellant, Fox was convicted for failare to report for im *

‘duction into the Armed Forees ; in ytolation of 30 U.S.C. er

‘§ 462. We reverse. 7 Ee

Fox was declared delmquent by his Selective Servi ice

- Board on July 10, 1969, for his failure to appear for pre-

° induction physical examitiations as ordered:on four ‘sepa-

rate “occasions. On: July. 28, — Fox was .ordered to

* Honorable M. D. Crocker, U nited States District Judge, East- it

ern District of California, sitting by” ‘designation.

we toages: : 4 aus a eee :

Zs report for induction’ on* August 19, 1969, which he failed’

to. do. He likewise failed to respond to two substquent :

letters instr ucting him to report for induction based on his -

* - continuing duty to report ‘under the original order, the last

time on Oetober 12, 1970. His indictment rested on his

failure to appear on that date.

At trial, the government offered évidence from which it

sought ‘to show that Fox’s induction order was not ac-

celerated by the declaration ef delinquency. The pertinent

date for determining whether acceleration oceurred is Au-

gust 19, 1969...United States v. Lane, 9 Cir., 1971, 442 F.2d

415; United States v. Dobie, 4 Cir., 1971, 444° F. 2d.417, 421.

‘The governnient relied upon the Andest. 1969 delivery list,

the July and J une lists, and a list showing the birthdates

* of all registrants born in-1949; of whom: Fox. was one. of

the eldest. The trial Jeong no acceleration and con-

_-vieted.

Since the decisions in Gutknecht v. U nited States, 1970,

396 U.S. 205, and Breen v. Selective Service Board, 1970,°

396 - 460, this eourt has routinely reversed cony ictions

Sa feilure to report for or submit to induction in cases °

hieh it appearedythat the defendant had been declared

delinquent by his local board and ordered to report for

induction as a delinquent. We have presumed, absent evi-

dence. to the contrary, that ‘his. induction was accelerated

“ by the declaration . of delinquency. United’ States v.

Thomas, 9 Cir., 1970, 422 F.2d 1327; Gregory v. United

States, 9 Cir., 1970, 422 F.2d 1323; United States v. Brown- . -

ing, 9 Cir.,.1970, 423 -F.2d 1201; United. States v. Stow,

. ¥§ Cir., 1970, 427 F.2¢’891; United States v. Broyles, 9 Cir. .. .

- 1970, 427 F.2d 358; United States v..Supina, 9.Cir., 1970,

428 F.2d 1226; United States v. McQueary, 9 Cir., 1970,

| 429 F.2d 984; United States v. Townsend, 9 Cir., 1970, 481 — |

“

“F.2d°702;United States v. Kohlsy 9 Cir.,-1971) 441. F.2d

1076, 1077; Andié-v. Resor, 9 Cix., 1971, 443 F2d 921;

UnitedStates ¥. Hayden, 9 Cir, ., 1971, 445 F. Od 1365, 1369.

In all of these cases except four} (Gregory, Browhing,

Broyles and Andre),’ the delinquenéy was the same.as here |

failure to take a physical examination as ordered. The ® |

. nature of the delinquency in’ Andre does not appear; the ~~ . ‘

other three cases involv ed failure to earry draft cards. =

in two cases, we have. remanded instead of reversing, . a

_United States v. Davi is, 9 Cir., 1970, 482 BP.2d 1009; United Ha

- States v. Pennington, 9 Cir; 1971, 489 F.20 145. Ti Davis, 7

the trial judge on remand found that there jad been no.

acceleration, and we then affirmed. U nited. States v. Davis,

9 Cir; 1971s 447 F.2d 1376.. We-_also. ‘aflirmed | a‘ similar

finding i in an unreported decision, United Sta es Vv. Misen-. -

-. himer, No. 71-1384, July 22, 1971. However, the nature of -

the delinquency in these cases does not appear, nor does *

it. appear what the evidence of non-accéleration was. Thus

~~ they are of no help to either side in this case.

In the ‘present. casé, we. need not consider tlie ey idence

PERL A RTE HRN NE

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Gffered by the government to. show that ‘mduetion Was not 7 ;

accelerated, because, under the regulations in effect at the . ae

time, Fok’s induction was accelerat®d- by the declaration ,

_ of dgfinquencey as a matter of law. Without the deelaratidn, hs -

‘the Board€ould not have “order ed him to report for indye- - | :

tion. As in Pennington, supra, “Tw fe feel tree to [take ise - oor

position ] sjtice the possibility [of ‘doing so], ,is not con- .

sidered in our earlier opinions.” 439 .F.2d-at 146. - :

The regulations in’ effect at the time of Fox’s induction

order required the Local Board, upon receiving a, Notice of a aay

Call from the State Director of Selective Service; to select

“and order for induction the number of, men necessar ¥ to fill

* ‘the call from among its registr ants ;- ;

NTT INNIS Sy! Bison

Se eda one eS ca

aa" (1) Who had been classified LA 1-A-O; and

“SY @who had been found scceptable for ‘service in the

_ Arined Forces; and .- \ .

*. » (3) to whom the Loca? Board! had ma Nei a Statement

7 _.. Of Acceptability (DD Form 62) at Wast 21 days

aan befare the date fixer] for itiduction. .\

: Only two classes of registrants ‘were excepted froyn the lat-

_ ter’ two of these three prereqiiisites for induction: de-

~ * 5. linquents and volunteers. 22¢CF RR. fornier § 163}.7(b)."

32 CPR. § 1631.7(b) stated in 1969: , Oe eek. PS

“(h) When a call is placed with designation of age group of

roups, cach loral board, unen receiving a Netice of Call on

thee teres Loe note 201) Trom the State Director of Selec

Letring

————. trant¥ whe" have been elawitied i: Clasi 1A and Chys4-A-0

* and whe have been found acceptable for service im the Armed

. Acceptability (DD Forw-62) at least 21 before the date -

fixed for induction; Prd: ided, That a rant classified in

“Clas LA or Claw LA) who is a delinquent may be selected

a and ordered to report for- induction to fill an induction call

foo | % + matwithvanding the fact that b? has not been-found accept.

. thle for service in the. Armed Forces and ‘has not been mailed -

4 Statement of Acceptability (DI Form 62); And provided -

ferther, Thava révistragt classified in Class LA or Class 1-A-0

|, who has volunteered for mera rerdeee Si tre 9 werd only eae

net been foiind-acceptable for service in the Armed: Forces

* and regardies of whether a Statement of Acveptahility has

° * been ‘mgiled io him. Such registrants shall be Armor | and -

. ; ordered to report for induction™in the following order: A

\ ’ (1) Delinquents who have attained the age of 1? vears in

-* the order of their dates of birth with the oldest heing selected -

7 firy ‘ es

. ok Sard - *(tontinucd on followmng Page)

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No dispute éxists as to the facis here. Fox was classified _ .

1-A, but he was never found to be “acceptable Tor service”

and he whs never mailed & Statement of Acceptability either

at least 21 days before his induction date or al all. He was

not a volunteer; thits the bnly authérity the Local Board.” ”

had for its order to Fox te report for induction was the -

provision of § 16317 (b) for delinquents to be called without

_ @ previous findihg of acceptability or the mailing of a State-

ment of Acceptability 21 days before induction.” Yet that

provision was part of the delinyueney regulationggheld in-

valid by the Supreme Court in Gutknecht. ’The lécal board

could not rely on that, invalid regulation to order appel-

lant’s induction and there was no othér valid provision of.

the regulations whith gave the local board authority te -

order his induction- U did. Tt follows that the order

of July 28, 1900, was. i aml created no tiuty on Fox's

part to report for induction. / ;

: . . a.

None of our degisions requires a contrary result. None -

purports te authorize what we would have-to do here to con-

‘elude that’ no accelerationeoccurred. We would have #°

assume three things: first, that Fox did report for and

(2) Volunteers whe have not attained the age of. 26 years in

the sequence in whieh they have volunteered for induction.

_ 2 deferved in lass 1-S-C or Class II-S and have been integrated - °

take .his physical examination (although Le did not); see-_

. ond, that as a result of thaf assumed examination, he would .

have been found acceptable for service ; third, that ke would |

then have been sent g Statement of Acceptability. We

. would also have to assume that all. of this would have hap-

pened long enough before the declaration of delinquency

and order for induction that Fox would have been available

for call in August, 1969,.even without the declafation of

delinquency. Having made all of those-assumptions, we «,

Would ‘then, have tov examine the Board's records to ascer- -

tain that he was called i in the proper order, as preseribed in _

$1631.7(b). No case requires that we take such a voyage

to “Fantasyland”; we decline to engbark on it.

. We realjze that the result does not seem to be a desirable

one; Fox Was about as delinquent as it would. be possible

for a young man-to be in.relation to hts Various’ duties

under the Selective’ Service Law. But we did not’write the

law or the regulations, and-the defect,in them that produces .

the result in this case has been corrected.2. As the Court

pointed out in Gutknecht, there was ‘a remedy: Fox could

have been prosecuted for one or more of his numerous de-

linquencies. But thgt was not dotie; instead, the delinqueney

route to aecelerated imduction, condemned in Gutknecht,

was taken. - ;

| Rev Seced: Ww hen the manilate goes down, the ‘fndichatont

will be dismissed.

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* The. regulations were mmended by an E xecutive Order on, June

16, 1970, to perinit a local hoard to érder the induction of a regis-

trant who fails th report for i physical examination as ordered,

without the necessity of first finding him accepta! le for service or

mailing hitn a Statement of Ate eptability 21 days prior to indue-

* tion. alas FBS § 1631. 7(a).

, Se as

Ta’

‘Opinion of the United States Court of Appeals

- for the Ninth Cirepie 5 ‘

te 71-1304

~— —t- =

| Arruur Cuarves Zack,

»* rare Petitioner-Appellant,

vs. ,

CuarLes Bensox, Camp Administrator,

Stafford Federal Prison Camp, Staffotd, Arizona,

Respondent-Appellee..

: —<—

[December 30, 1971]

APPEAL FROM THE UNIED STATES DISTRICT COURT

- FOR-THE CENTRAL DISTRICT OF CALIFORNIA

Before: Duniway, Evy and Cuxoy, Cireuit Judges

‘Per Curtmam:

’ The facts in this case are legally indistinguishable from

those in United States v- Fox, 9 Cir. 1971, F.2d

(No. 71-1917, December 30, 1971). ‘On the authority of that

case, the ‘judgment, i is : . .

Reverséd. When the mandate goes down, PAE Ce Ses

shall be vacated. :

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