Petition for Writ of Certiorari — Walker v. United States

Supreme Court brief1973

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Text

Table of Contents.

Questions presented

Statutory provisions involved

a Statement of the case

a _ Beasons for granting the writ 12

| L The decision below raises serious and recurring

questions in the administration of federal crim-

inal justice as to what procedures are required

by the Constitution or statutes when a lower

court exercises its power to sentence a convicted

defendant | 12

Il. The decision below raises serious and recur-

| __ ring questions as to the proper interpretation of

‘50 U.S.C. App. § 462, and there is a widespread

conflict among lower courts in the application

of its penal sanctions 19

ow vd wo

Table of Authorities Cited.

¥ CasEs.

| Baker v. United States, 338 F. 2d 931 14

> Ballew v. United States, 160 U.S. 187 16

_ Bartone v. United States, 375 U.S. 52 15

q Board of Regents of State Colleges v. Roth,

408 U.S. 564 17

Bryan v. United States, 338 U.S. 552 15, 16

Cafeteria & Restaurant Workers Union, Local 473,

- AFL-CIO v. McElroy, 367 U.S. 886 17

| Farrar v. Wheeler, 145 F. 482 16

ii TABLE OF AUTHORITIES CITED

Fay v. New York, 332 U.S. 261 15

Francis v. United States, 152 F. 155 16

Furman v. Georgia, 408 U.S. 238 18, 19

Goldberg v. Commissioner of Social Services of New

York v. Kelly, 397 U.S. 254 12

Haller v. Robbins, 409 F. 2d 857 13, 14

Hanley v. United States, 123 F. 849 16

Haynes v. United States, 101 F. 817 16

Kent v. United States, 383 U.S. 541 12, 14

La Buy v. Howes Leather Co., Inc., 352 U.S. 249 15

Marshall v. United States, 360 U.S. 310 15

McGuatha v. California, 402 U.S. 183 18, 19

McGee v. United States, 462 F. 2d 243 12, 15

McNabb v. United States, 318 U.S. 332 15

Mempa v. Rhay, 389 U.S. 128 14

Morrissey v. Brewer, 408 U.S. 471 12, 17

North Carolina v. Pearce, 395 U.S. 711 12

Perry v. Sindermann, 408 U.S. 593 17

Scott v. United States, 419 F. 2d 264 14

Sherman v. United States, 356 U.S. 369 19

Smith v. United States, 223 F. 2d 750 14

Smith v. United States, 273 F. 2d 462 17

Specht v. Patterson, 368 U.S. 605 14, 17

Thomas v. United States, 368 F. 2d 941 13, 15

Townsend v. Burke, 334 U.S. 736 13

United States v. Adams, 449 F. 2d 122 15

United States v. Bryant, 442 F. 2d 775 14

United States v. Carty, 447 F. 2d 964 13

United States v. Charles, 460 F. 2d 1093 15

United States v. Daniels (1), 429 F. 2d 1273 14, 19, 25

United States v. Daniels (II), 446 F. 2d 967 13, 14

her , TABLE OF AUTHORITIES CITED iii

United States v. Dudley, 436 F. 2d 1057 14

United States ex rel. Brown v. Rundle, 417 F. 2d 282 13, 14

United States for use of John Davis Co. v. Illinois

Surety Co., 226 F’. 653, aff’d 244 U.S. 376 16

United States v. Freed, 460 F. 2d 75 15

United States v. Griffin, 434 F. 2d 740 14

United States v. Latimer, 415 F. 2d 1288 12, 13

United States v. McCord, 5 SSLR 3490 15, 25, 27

United States v. McCoy, 429 F. 2d 739 13, 26

United States v. McKinney, 427 F. 2d 449 14

United States v. Preston, 445 F. 2d 808, cert. denied,

404 U.S. 1022 13, 15

United States v. Tucker, 404 U.S. 443 13, 16

United States v. United Mine Workers of America,

330 U.S. 258 19

United States v. Weston, 448 F. 2d 626, cert. denied,

404 U.S. 1061 13

United States v. Wiley, 278 F. 2d 500 13, 15

Verdugo v. United States, 402 F’. 2d 599 14

Whitworth v. United States, 114 F. 302 16

Williams v. New York, 337 U.S. 241 24

Yates v. United States, 356 U.S. 363 15

Federal Rules of Criminal Procedure, Rule 32 2, 7,17

Statutes, Etc.

United States Constitution, Fifth Amendment 2

United States Constitution, Sixth Amendment 2, 14

18 U.S.C. §§ 1403, 1917 22

Probation Act, 18 U.S.C. § 3651 2, 6, 23

Federal Youth Corrections Act, 18 U.S.C. § 5010 = 2, 5, 23

26 U.S.C. § 7237 (d) 23

28 U.S.C. § 1254(1) 2

28 U.S.C. § 2106 | 8, 15, 16, 17

TAY

iv TABLE OF AUTHORITIES CITED

Military Selective Service Act of 1967, § 12, 50 U.S.C

App. § 462 2, 3, 8, 18, 19, 20

MISCELLANEOUS.

ABA Project, Appellate Review of Sentences, § 2.3

(Approved Draft, 1968); Sentencing Alterna-

tives and Procedures, § 5.7 (Approved Draft,

1968) 17, 18

American Bar Association Project on Minimum

Standards for Criminal Justice, Sentencing Alter-

natives and Procedures, § 5.6 (Approved Draft,

1968) and Appellate Review of Sentences, § 2.3

(Approved Draft, 1968) 13

Herlands, When and How Should a Sentencing Judge

Use Probation, 35 F.R.D. at 487 (1964) 93

Institute on Sentencing, 35 F.R.D. 381 (1964),

Form No. 14 93

Jaffe, Judicial Control of Administrative Action,

182 (1965) 26

91st Cong., 2d Session, at 12853, 12861, 12871-

12872 22, 25

Note, Procedural Due Process at Judicial Sentencing

for Felony, 81 Harv. L. Rev. 821 (1968) 13

Note, Sentencing Selective Violators: A Judicial

Wheel of Fortune, 5 Col. L. J. & Soc. Probs. 160,

Table III (1969) 22

Report of the President’s Commission on an All-

Volunteer Armed Force (1970) 93

Sentences in Selective Service and Income Tax Cases,

52 F.R.D. 481 (1970) 20

Statistical Abstract of the United States, p. 163,

Chart No. 268 (1972) 29

Statistical Abstract of the United States, p. 264,

Chart No. 433 (1972), SSLR 6021 4

Statistical Abstract of the United States, p. 266,

Chart No. 436 (1972) 20 «

RIOR Ee LEAS ON Aa shat ag E85 SERRE PDOs LAN DLE LAL BALIN CRRA BIA

Eo aineaeamenmtnes wenen eememeneenn PNP RA TERE OE IN

Supreme Court of the United States.

Octoser Term, 1972.

No.

JOHN DABNEY COLLIER WALKER,

Petitioner,

v. i

UNITED STATES OF AMERICA,

Respondent. i

PETITION FOR A WRIT OF CERTIORARI TO THE ‘

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

The petitioner, John Dabney Collier Walker, respectfully f

prays that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the

First Circuit entered in this proceeding on December 4, §

1972.

Opinion Below.

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. No opinion was rendered

by the District Court for the District of Massachusetts.

ERNE LT NS RIE REEL BYES NE AI SRL AEG SIN Oh ns

Jurisdiction.

The judgment of the Court of Appeals for the First Cir.

cuit was entered on December 4, 1972. This petition for

certiorari was filed within 30 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1),

Questions Presented.

1. Whether the Fifth Amendment mandate that no per.

son shall be deprived of liberty without due process, and/or

the Sixth Amendment right to effective assistance of coun.

sel, and/or the right to judicial review of a constitutionally

invalid sentence, and/or Rule 32 of the Federal Rules of

Criminal Procedure, entitle a defendant to procedures that

limit the possibility of merely arbitrary action, such as a

statement of reasons for the sentence imposed upon him

by the trial judge.

2. Whether in the exercise of its supervisory power over

criminal proceedings in the lower federal courts, should this

Court require the trial judge to adopt procedures that limit

the possibility of merely arbitrary action and, at a minimun,

to set forth the reasons for the sentence he imposed where

the record shows a clear abuse of discretion in weighing the

factors relevant to sentencing under the applicable statutes

and governing law.

3. Whether the Fifth Amendment mandate that no per-

son shall be deprived of liberty without due process, and/or

the policy of section 12 of the Military Selective Service Act

of 1967, 50 U.S.C. App. § 462, as reflected in the grant of

probation to 63% of defendants sentenced thereunder,

and/or the Federal Youth Corrections Act, 18 U.S.C.

§ 5010, and/or the Probation Act, 18 U.S.C. § 3651, entitle

a defendant to a sentence of probation when all of the in-

EE" EME EE NE PCRS IAG Oi, 2 DAE PAAR LE OTERO AN TAF SE URIS SS LINE SA Rab aos ERE OD STP PR

formation presented to the trial judge, (from the probation

office, the government attorney, and witnesses for the de-

fendant,) shows that the defendant is an outstanding mem-

ber of his community who acted only out of profound moral

convictions, and deterrence is the sole basis asserted by the

government for its recommendation of imprisonment.

4, Whether 28 U.S.C. § 2106 empowers a court of appeals

to modify the sentence imposed by a district court where the

record shows a clear abuse of discretion by the trial judge

in weighing the factors relevant to sentencing under the

applicable statutes and governing law.

Statutory Provisions Involved.

The Military Selective Service Act of 1967, 50 U.S.C.

App. § 462, provides in part:

SES LT LET SRA EME GISELLE OLED CAPPS N PIR

‘“‘(a) Any member of the Selective Service System

or any other person charged as herein provided with

the duty of carrying out any of the provisions of this

title [sections 451, 453, 454, 455, 456 and 458 to 471

of this Appendix], or the rules or regulations made

or directions given thereunder, who shall knowingly

fail or neglect to perform such duty, and any per-

son charged with such duty, or having and exercis-

ing any authority under said title [said sections],

rules, regulations, or directions who shall knowingly

make, or be a party to the making, of any false, im-

proper, or incorrect registration, classification, physi-

cal or mental examination, deferment, induction,

enrollment or muster, and any person who shall

knowingly make, or be a party to the making, of any

false statement or certificate regarding or bearing up-

on a classification or in support of any request for a

particular classification, for service under the provi-

Si ea a |

Ce Ane a

sions of this title [said sections], or rules, regulations,

or directions made pursuant thereto, or who other.

wise evades or refuses registration or service in the

armed forces or any of the requirements of this title

{said sections], or who knowingly counsels, aids, or

abets another to refuse or evade registration or sery.

ice in the armed forces or any of the requirements of

this title [said sections], or of said rules, regulations,

or directions, 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 [said sec.

tions], or rules, regulations, or directions made pur-

suant to this title [said sections], or any person or

persons who shall knowingly hinder or interfere or

attempt to do so in any way, by force or violence or

otherwise, with the administration of this title [said

sections] or the rules or regulations made pursuant

thereto, or who conspires to commit any one or more

of such offenses, shall, upon conviction in any dis.

trict court of the United States of competent juris-

diction, be punished by imprisonment for not more

than five years or a fine of not more than $10,000, or

by both such fine and imprisonment. . . .

**(b) Any person (1) who knowingly transfers or

delivers to another, for the purpose of aiding or

abetting the making of any false identification or

representation, any registration certificate, alien's

certificate of nonresidence, or any other certificate

issued pursuant to or prescribed by the provisions

of this title [sections 451, 453, 454, 455, 456 and 458

to 471 of this Appendix], or rules or regulations pro-

mulgated hereunder; or (2) who, with intent that it

Se~_— ARTES AS PET Cree

be used for any purpose of false identification or rep-

representation, has in his possession any such certifi-

cate not duly issued to him; or (3) who forges, alters,

knowingly destroys, knowingly mutilates, or in any

manner changes any such certificate or any notation

duly and validly inscribed thereon; or (4) who, with

intent that it be used for any purpose of false identifi-

cation or representation, photographs, prints, or in

any manner makes or executes any engraving, pho-

tograph, print, or impression in the likeness of any

such certificate, or any colorable imitation thereof; or

(5) who has in his possession any certificate purport-

ing to be a certificate issued pursuant to this title [said

sections], or rules and regulations promulgated here-

under, which he knows to be falsely made, reproduced,

forged, counterfeited, or altered; or (6) who knowing-

ly violates or evades any of the provisions of this title

[said sections] or rules and regulations promulgated

pursuant thereto relating to the issuance, transfer, or

possession of such certificate, shall, upon conviction,

be fined not to exceed $10,000 or be imprisoned for not

more than five years, or both. ...’’

SOI NN TR NR, TOT EE ETT RI,

The Federal Youth Corrections Act, 18 U.S.C. § 5010, pro-

vides in part:

“‘(a) If the court is of the opinion that the youth

offender does not need commitment, it may suspend

the imposition or execution of sentence and place the

youth offender on probation.

““(b) If the court shall find that a convicted person

is a youth offender, and the offense is punishable by im-

prisonment under applicable provisions of law other

than this subsection, the court may, in lieu of the pen-

alty of imprisonment otherwise provided by law, sen-

tence the youth offender to the custody of the Attorney

General for treatment and supervision pursuant to this

chapter until discharged by the Division as provided

in section 5017 (c) of this chapter; or

**(c) If the court shall find that the youth offender

may not be able to derive maximum benefit from treat.

ment by the Division prior to the expiration of siz

years from the date of conviction it may, in lieu of the

penalty of imprisonment otherwise provided by lav,

sentence the youth offender to the custody of the Attor.

ney General for treatment and supervision pursuant

to this chapter for any further period that may be

authorized by law for the offense or offenses of which

he stands convicted or until discharged by the Division

as provided in section 5017 (d) of this chapter.

**(d) If the court shall find that the youth offender

will not derive benefit from treatment under subsec.

tion (b) or (c), then the court may sentence the youth

offender under any other applicable penalty provi-

sion... .”’

The Probation Act, 18 U.S.C. § 3651, provides in part:

“Upon entering a judgment of conviction of any

offense not punishable by death or life imprisonment,

any court having jurisdiction to try offenses against

the United States when satisfied that the ends of jus-

tice and the best interest of the public as well as the

defendant will be served thereby, may suspend the im-

position or execution of sentence and place the defend-

ant on probation for such period and upon such terms

and conditions as the court deems best.

“Upon entering a judgment of conviction of any

offense not punishable by death or life imprisonment,

if the maximum punishment provided for such offense

| :

is more than six months, any court having jurisdiction

to try offenses against the United States, when satis-

fied that the ends of justice and the best interest of the

public as well as the defendant will be served thereby,

may impose a sentence in excess of six months and

provide that the defendant be confined in a jail- in-

stitution or a treatment institution for a period not

exceeding six months and that the execution of the re-

mainder of the sentence be suspended and the defend-

ant placed on probation for such period aad upon such

terms and conditions as the court deems best... .”’

Rule 32 of the Federal Rules of Criminal Procedure pro-

vides in part:

“(a) (1) . . . Before imposing sentence the court

shall afford counsel an opportunity to speak on behalf

of the defendant and shall address the defendant per-

sonally and ask him if he wishes to make a statement

in his own behalf and to present any information in

mitigation of punishment.

““(e) Presentence Investigation.

“*(2) Report. The report of the presentence investi-

gation shall contain any prior criminal record of the

defendant and such information about his characteris-

ties, his financial condition and the circumstances af-

feeting his behavior as may be helpful in imposing sen-

tence or in granting probation or in the correctional

treatment of the defendant, and such other informa-

tion as may be required by the court. The court be-

fore imposing sentence may disclose to the defendant

SENDA TOAV AAR STAY LO ALOT I AMY REE MRILEN I PLDT EEO ARSE PM IEP Se TR

or his counsel all or part of the material contained jp

the report of the presentence investigation and afford

an opportunity to the defendant or his counsel to com.

ment thereon. Any material disclosed to the defendant

or his counsel shall also be disclosed to the attorney

for the government.’’

28 U.S.C. § 2106 provides :

‘*The Supreme Court or any other court of appellate

jurisdiction may affirm, modify, vacate, set aside or re-

verse any judgment, decree, or order of a court law-

fully brought before it for review, and may remand the

cause and direct the entry of such appropriate judg-

ment, decree, or order, or require such further pro-

ceedings to be had as may be just under the circum.

stances.’’

Statement of the Case.

Four days after his eighteenth birthday, John Walker

visited his local draft board and announced his inability to

he was indicted pursuant to 50 U.S.C. App. § 462. Prior

to trial, Walker’s counsel tried unsuccessfully to persuade

government counsel to agree to recommend probation, and

thereafter determined to litigate the case on the basis of

an obscure regulation. Both the trial and appellate courts

held this regulation inapplicable, and Walker does not here

challenge that ruling.

From the outset, the principal issue in this proceeding

has been the nature and extent of punishment prescribed

by the relevant statutes and governing law. Following his

conviction, Walker submitted to the trial judge a presen-

tence memorandum, supported by numerous letters which

demonstrate Walker’s impeccable character and deeply-

rooted pacifism, requesting that Walker be placed on pro-

bation under the Youth Corrections Act with direction that

he perform civilian work for a period of two years, and

concluding that, ‘‘To require confinement in the circum-

stances of this case would be an abuse of discretion and

would raise serious constitutional questions involving the

vagueness of sentencing standards, as well as other due

process issues.’’

The report prepared for the trial judge by the probation

office states in part that Walker’s mother, (a widow who

works as a registered nurse,) depends on Walker for the

care of her younger children, and that,

‘‘John has never been involved in any prior difficulty

and, therefore, is not known to the local police. This

young man has an excellent reputation in the com-

munity and this is borne out by the many character ref-

erence letters sent to Judge Ford.

‘John readily admits that he refuses to register for

the Selective Service Act and his actions in this case

are a direct result of his strong convictions against any

type of war. The writer found Walker to be complete-

ly cooperative during the entire presentence investi-

gation.’’ (Emphasis added.)

At the sentencing, Walker testified that he would obey

a judicial order that he perform alternate service as a

condition of probation. In its argument to the trial judge,

the government conceded that Walker is ‘‘an outstanding

member of his community’’ and that he is an ‘‘outstand-

ing man,’’ but nevertheless recommended two years im-

prisonment for the sole reason of deterrence. The trial

judge, without reference to the presentence memorandum,

- PEM RR LNe Ree WELT REL

to the probation department’s report, to the testimony, or

to the arguments of counsel, and without a word of explana.

tion, sentenced Walker to two years in the penitentiary.

On appeal, Walker argued that he was entitled to pro.

bation on statutory and constitutional grounds, that the

appellate court had power to modify the lower court’s sen-

tence and should exercise it given the uncontroversial na-

ture of the relevant fact, but that should the appellate

court decline to modify the sentence itself, the case should

be remanded to the district court for resentencing in ac.

cordance with specified standards and with direction that

the trial judge explain the reasons for the resentence.

In affirming the sentence, (and thereby declining to re-

mand or to require a statement of reasons by the trial

judge,) the Court of Appeals held in part:

‘‘ Walker] was, at the time of his conviction, nine-

teen years old. He was one of eight children. His

father, a surgeon, who had served in World War II,

having died, his mother was left with two small chil-

dren at home. Because appellant took a large degree

of responsibility for them, his mother could resume

work as a nurse. [Walker’s] counsel’s pre-sentence

memorandum contained sixteen letters, from relatives,

teachers, school officials, and neighbors, all portraying

appellant as a pacifist of some year’s convictions, as

a good student, with no record of school or other in-

fractions, as a mild-mannered but socially aware and

constructive person. He had organized and run, ac-

cording to the Director of Guidance for the Salem

public schools, a responsibly conducted draft counsel-

ling service. He had organized and helped conduct a

storefront arts, crafts, and music school for Salem

children.

‘Government counsel willingly conceded that [Walk-

er] ‘is an outstanding member of the community’ but

recommended a two-year prison term for deterrence

reasons, arguing that since registration was the first

step in the administrative process, enabling the gov-

ernment to assemble its available pool of manpower,

failure to register was perhaps even a more serious

offense than refusing to report for induction. The

court, without articulation of reasons, imposed a two-

year prison sentence well within the statutory maxi-

mum of imprisonment for five years, a fine of $10,000,

or both, but apparently more severe than the sanctions

generally imposed in most recent Massachusetts draft

cases... .

‘We nevertheless confess to a sense of uneasiness, in

view of the single conclusory reason advanced to justify

a sentence which, in the context of selective service

sanctions currently imposed, may be relatively long for

a young person who, except for this conviction, is

deemed by all a valuable member of his community.

Deterrence is, of course, a legitimate concern for both

prosecution and the courts. In this case the prosecution

did not make it clear how one who gives his name and

address to the selective service authorities frustrates

these authorities as much as one who, after register-

ing, fails to keep his board informed of changes in his

address.>... We note, finally, the observation of the

court in Daniels, speaking of a Jehovah’s Witness, who,

like [Walker], would accept alternative sentence only

if so ordered by the court: ‘... under the limited fac-

tual circumstances of this case, the issuance of an order

‘<5 Appellant, had his principles allowed him to register,

would in all probability have been classified a conscientious

objector and assigned alternative service, if, indeed, despite

his high lottery number, he would have been called at all.’’

rook .

— ” ae ait .

ae as u :

probating the Appellant subject to his performance

of the identical work demanded of him by the Selective

Service is not the kind of sentencing which would ip.

duce widespread disobedience of the orders of loca]

Selective Service board.’ 446 F.2d at 972.” Appen.

dix, 4-7.

Reasons for Granting the Writ.

I. Tue Decision seLtow Raises Serious anp Recurrine

QUESTIONS IN THE ADMINISTRATION OF FEDERAL CriminaL

JUSTICE AS TO WHAT PROCEDURES ARE REQUIRED BY THE

ConsTITUTION oR STATUTES WHEN A Lower Covurr Exer-

CISES ITs PowER TO SENTENCE A CONVICTED DEFENDANT.

A. In Morrissey v. Brewer, 408 U.S. 471 (1972), this

Court held that, while the full panoply of procedural rights

due a defendant in a criminal proceeding does not apply

at a parole revocation hearing, 408 U.S. at 480, the minimal

requirements of due process entitle the parolee to a state-

ment of the evidence relied upon by the decision maker and

of the reasons for deciding to revoke parole, 408 U.S. at 489.

A statement of reasons was also required in Goldberg,

Commissioner of Social Services of New York v. Kelly,

397 U.S. 254, 271 (1970), Kent v. United States, 383 U.S.

541, 554, 561 (1966). The requirement has been applied in

some criminal proceedings. North Carolina v. Pearce, 395

U.S. 711, 726 (1969). McGee v. United States, 462 F. 2d

243, 246-247 (2d Cir. 1972). United States v. Latimer, 415

F. 2d 1288, 1290-1291 (6th Cir. 1969).

In the absence of a statement of reasons, it is impossible

to know whether or not the trial judge exercised his sen-

tencing power on the basis of an impermissible ground,

€.g., a rigid policy based solely on the nature of the crime,

ait

United States v. Daniels, 446 F. 2d 967, 968-973 (6th Cir.

1971), United States v. McCoy, 429 F. 2d 739, 742-744 (D.C.

Cir. 1970) ; a policy of imposing a probation sentence only

on defendants who plead guilty, United States v. Wiley, 278

F. 2d 500, 504 (7th Cir. 1960); reliance on the defendant’s

failure to acknowledge guilt in order to impose a more

severe prison sentence, Thomas v. United States, 368 F. 2d

941, 944-946 (Sth Cir. 1966) ; reliance on information which

suggests that the defendant may have committed a much

more serious offense, United States v. Latimer, 415 F. 2d

1288, 1290 (6th Cir. 1969), United States v. Weston, 448

F. 2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061

(1972); reliance on an ex parte communication by govern-

ment counsel, Haller v. Robbins, 409 F. 2d 857, 860 (1st

Cir, 1969); a mistaken belief that alternate service cannot

be made a condition of probation, United States v. Preston,

445 F. 2d 808, 809 (9th Cir. 1971), cert. denied, 404 U.S.

1022 (1972); an error as to the maximum allowable sen-

tence, United States v. Carty, 447 F. 2d 964, 965-966 (Sth

Cir. 1971); reliance on evidence illegally seized, United

States ex rel. Brown v. Rundle, 417 F. 2d 282, 284-285 (3d

Cir. 1969); or reliance on materially false information,

Townsend v. Burke, 334 U.S. 736 (1948), United States v.

Tucker, 404 U.S. 443, 447 (1972).

The American Bar Association Project on Minimum

Standards for Criminal Justice, (hereinafter referred to

as ‘‘ABA Project’’), Sentencing Alternatives and Proce-

dures, § 5.6 (Approved Draft, 1968), and Appellate Review

of Sentences, § 2.3 (Approved Draft, 1968), recognize that

a statement of the reasons for selecting a particular sen-

tence is a minimum requirement of due process. Other

commentators agree, e.g., Note, Procedural Due Process at

Judicial Sentencing for Felony, 81 Harv. L. Rev. 821, 843-

846 (1968).

Ces ee

2 aabeatyanteste. 2 ATI Sh Se ARE Sone o4 Raa

B. Sentencing is a critical stage of a criminal proseeyp.

tion when a defendant is entitled to the assistance of coun.

sel under the Sixth Amendment. Mempa v. Rhay, 389 US,

128, 132 (1967). This right is neither a ‘‘formality”’ nor

a ‘‘ritualistic requirement’’ but means the right to effec.

tive assistance of counsel. As Judge Browning wrote in

Verdugo v. United States, 402 F. 2d 599 (9th Cir. 1968)

(separate opinion), ‘‘Since counsel is powerless to correct

errors of which he is unaware, nondisclosure would appear

to be equivalent, in practical effect, to lack of counsel,”

402 F. 2d at 613. To the same effect, see United States y.

Bryant, 442 F. 2d 775, 778 (D.C. Cir. 1971), Haller v. Rob-

bins, 409 F. 2d 857, 860 (1st Cir. 1969). Cf. Kent v. United

States, 383 U.S. 541, 560-562 (1966). Recognition of this

right is implicit in various decisions requiring at

least partial disclosure of information to the defense prior

to sentencing. United States ex rel. Brown v. Rundle, 417

F. 2d 282, 284-285 (3d Cir. 1969); Baker v. United States,

388 F. 2d 931, 932-934 (4th Cir. 1968); Smith v. United

States, 223 F. 2d 750, 754 (5th Cir. 1955); United States vy,

Bryant, 442 F. 2d 775 (D.C. Cir. 1971).

C. Specht v. Patterson, 386 U.S. 605, 610 (1967), held

that due process requires, ‘‘. . . findings adequate to make

meaningful any appeal that is allowed.’’ Cf. Scott v. United

States, 419 F. 2d 264, 266 (D.C. Cir. 1969). All of the

cases cited above involve judicial review of sentences and

many more could be cited. Recent selective service cases

involving review of sentences include United States v.

Daniels (I), 429 F. 2d 1273 (6th Cir. 1970); United States

v. Daniels (II), 446 F. 2d 967 (6th Cir. 1971) ; United States

v. McKinney, 427 F. 2d 449, 455 (6th Cir. 1970); United

States v. Griffin, 434 F. 2d 740, 742 (6th Cir. 1970) ; United

States v. Dudley, 436 F. 2d 1057, 1059 (6th Cir. 1971);

~X> Be A EPS ENS IN On OTE Tn 2 ONT BARES Tt ND dr ERE A MRE Re pwn 5 18 Voie ae

United States v. Charles, 460 F. 2d 1093, 1095 (6th Cir.

1972); United States v. Adams, 449 F, 2d 122, 124 (5th Cir.

1971); United States v. Preston, 445 F. 2d 808, 809 (9th

Cir. 1971), cert. denied 404 U.S. 1022 (1972) ; United States

y, Freed, 460 F. 2d 75, 79 (10th Cir. 1972) ; McGee v. United

States, 462 F. 2d 243, 246-247 (2d Cir. 1972) ; United States

y. McCord, 5 SSLR 3490 (2d Cir. 1972).

The basis for exercising the power to review lower court

sentences is rarely discussed, although, Thomas v. United

States, 368 F. 2d 941, 944-946 (5th Cir. 1966), and United

States v. Wiley, 278 F. 2d 500, 502-504 (7th Cir. 1960), ex- :

pressly rely on McNabb v. United States, 318 U.S. 332 t

(1943) and Yates v. United States, 356 U.S. 363, 366-367 :

(1958). McNabb held,

‘‘ Judicial supervision of the administration of crim-

inal justice in the federal courts implies the duty of

establishing and maintaining civilized standards of

procedure and evidence. Such standards are not satis-

fied merely by observance of those minimal historic

safeguards for securing trial by reason which are sum-

marized as ‘due process of law’ and below which we

reach what is really trial by force.’’ 318 U.S. at 340-

341.

The principle has been repeatedly reaffirmed, e.g., Fay

v. New York, 332 U.S. 261, 287 (1947); Yates v. United

States, 356 U.S. 363, 366-367 (1958); Marshall v. United

States, 360 U.S. 310, 313 (1959); Bartone v. United States,

375 U.S. 52, 54 (1963). This supervisory power exists in

the Courts of Appeals. La Buy v. Howes Leather Co., Inc.,

352 U.S. 249, 259-260 (1957).

Another basis for the power to review criminal sentences

is 28 U.S.C. § 2106 which was construed in Bryan v. United

States, 338 U.S. 552 (1949), to authorize remand for a new

SE NRT AMIE RTO TRIE ISIE EY TRI SME PRE FE RISB LINER Nn lm

trial even where the trial court should have directed a ver.

dict for the defendant. The antecedents of 28 U.S.C. § 2106,

partially reviewed in the Bryan decision, supra, at 554, 557-

558, were thoroughly analyzed in Ballew v. United States,

160 U.S. 187 (1895), which construed legislation enacted in

1872, 1879, 1889, and 1891, and held:

‘‘It thus conclusively appears that the authority of

this court to reverse, and remand with directions to

render such proper judgment as the case might re.

quire, upon writs of error in criminal cases . . . was

confessedly conferred by express statutory provisions,

and that a like power was conferred upon Circuit

Courts of Appeals ... in cases where they exercised

jurisdiction by error in criminal cases over the District

Court.’’? (Emphasis added.) 160 U.S. at 201-202.

No reported decision has attacked the Ballew statutory

analysis, and the early Circuit Court of Appeals decisions

rely heavily upon Ballew. See, e.g., Farrar v. Wheeler,

145 F’. 482, 486-487 (1st Cir. 1906) ; Hanley v. United States,

123 F. 849, 855 (2d Cir. 1903); Francis v. United States,

152 F. 155, 157 (3d Cir. 1907) ; Whitworth v. United States,

114 F. 302, 305 (8th Cir. 1902); Haynes v. United States,

101 F. 817, 820 (8th Cir. 1900); United States for Use of

John Davis Co. v. Illinois Surety Co., 226 F. 653, 664 (7th

Cir. 1915), aff’d 244 U.S. 376.

While some decisions may be found asserting that the

English common law rule still controls, (see Ballew, supra,

at 198-199,) the rule is most frequently said to be that a

sentence within statutory limits, ‘‘. .. is generally not sub-

ject to review.’’ (Emphasis added.) United States v.

Tucker, supra, at 447 (where this Court nonetheless va-

cated a sentence ‘‘within statutory limits... .’’) Compare

o~Xm—X—XY SS AL AP RR CLE ALO ATE IS REL NOTE GAT EAD PERLE IE The WA ULE DL OME TMG A UL baat” bth

Chief Judge Murrah’s dissent in Smith v. United States,

973 F. 2d 462, 469 (10th Cir. 1959), regarding the scope

of review authority conferred by 28 U.S.C. § 2106. i

Whatever the scope of ‘‘. . . any appeal that is allowed :

_.” either to supervise federal criminal proceedings or E

pursuant to 28 U.S.C. § 2106, due process requires ‘‘. . . find-

ings adequate to make meaningful . . .’’ such right to ap-

peal. Specht v. Patterson, supra, at 610. Boykin v. Ala-

bama, 395 U.S. 238, 244 (1969). ABA Project, Appellate ‘

Review of Sentences, § 2.3 (Approved Draft, 1968); Sen- i

tencing Alternatives and Procedures, § 5.7 (Approved

Draft, 1968).

D. In Morrissey v. Brewer, supra, this Court held,

‘As in Goldberg, ‘the decision maker should state the

reasons for his determination and indicate the evidence

he relied on....’’ 408 U.S., at 487.

Although the procedural elements of due process vary ac-

cording to the nature of the proceeding, e.g., Cafeteria &

Restaurant Workers Union, Local 473, AFL-CIO v. Mc-

Elroy, 367 U.S. 886, 895 (1961), due process minimally re-

quires a statement of reasons and of the evidence relied

upon. Morrissey v. Brewer, supra, at 489. This Court

«has eschewed rigid or formalistic limitations on the

protection of procedural due process... .’’ Board of Re-

gents of State Colleges v. Roth, 408 U.S. 564, 572 (1972),

and held in Perry v. Sindermann, 408 U.S. 593, 603 (1972),

that an inchoate right to future employment entitles a

teacher to a hearing and a statement of reasons for his

non-retention. A decision to impose a deprivation of lib-

erty is the paradigm of a decision which ought to require

no less. Rule 32 of the Federal Rules of Criminal Pro-

cedure requires a sentence hearing and provides that the

& er ta ae an - - . - =

Rs ae Se ary Saha tain RA te M/S GNA TEM AD a ENO MEER : |

defendant is entitled to present ‘‘information in mitigs.

tion of punishment.’’ Unless the trial judge discloses the

evidence he relies on and the reasons for his decision, it ig

difficult if not impossible to know what evidence and cir.

cumstances need to be ‘‘mitigated’’, and neither society

nor the defendant can be confident that the hearing is not

a ritualistic ceremony without influence on the actual sep.

tence.

E. The constitutional dimension of the tension which

arises from the absence of procedural safeguards is eyj-

dent in McGautha v. California, 402 U.S. 183 (1971) and

Furman v. Georgia, 408 U.S. 238 (1972). While McGauthe

rests on recognition of a jury’s power of nullification, 402

U.S. at 199, and on the impossibility of articulating stand-

ards adequate to govern the choice between life and death,

402 U.S. at 202-207, nothing in that decision suggests that

an arbitrary procedure may be used to select one among

as broad a range of alternative punishments as is available

under 50 U.S.C. § 462. Nothing in the court’s opinion sug-

gests disagreement with Mr. Justice Brennan’s proposition

that due process,

**. . . compels the States to make explicit the funda-

mental policy choices upon which any exertion of state

power is based, and to exercise such power only under

procedures that both limit the possibility of merely

arbitrary action and provide a record adequate to ren-

der meaningful the institution of federal judicial re-

view,’’ (Dissent,) 402 U.S., at 287,

as applied to a statute such as 50 U.S.C. App. § 462.

The ABA Project, Appellate Review of Sentences, supra,

observes that, ‘‘. .. in no other area of our law does one

man exercise such unrestricted power. No other country

—_—_

in the free world permits this condition to exist,’’ at 2.

The ‘‘transcending value’’ here at issue is, ‘‘Public con-

fidence in the fair and honorable administration of justice,

upon which ultimately depends the rule of law,”” Mr. Jus-

tice Frankfurter concurring in Sherman v. United States,

356 U.S. 369, 380 (1958), and the rule of law, that is to say

[a] government of laws and not of men,”’ means the ‘‘re-

jection in positive terms of rule by fiat, whether by the fiat

of governmental or private power. Every act of govern-

ment may be challenged by an appeal to law... .’’ Mr.

Justice Frankfurter concurring in United States v. United

Mine Workers of America, 330 U.S. 258, 308 (1947). See

also McGautha v. California, supra, at 285 (Mr. Justice

Brennan dissenting.)

IL Tse Decisions Betow Raises Sertovs anp Recureine

Questions 48 TO THE Proper IwrerPretation or 50 U.S.C.

Apr. § 462, anp THERE 1s a Wiwespreap Conriicr amone

Lower Courts in THE Application or its Penat Sanc-

TIONS.

A. The decision below conflicts with United States v.

Daniels, 446 F. 2d 967 (6th Cir. 1971), where under nearly

identical factual circumstances, the Court of Appeals for

the Sixth Circuit vacated a sentence of imprisonment which |

“defies’’ the congressional will and substituted a sentence

of probation conditioned upon the performance of civilian :

work. 446 F. 2d, at 972. ;

— in mind that, ‘‘Legislative ‘policy’ is

defined .. . by what . . . judges do in exercising the dis- ;

cretion . . . conferved: upon them,’’ Mr. Justice White

concurring in Furman v. Georgia, supra, at 314, the de- f

cision below also conflicts with the evolving policy of :

50 U.S.C. App. § 462: for the calendar years 1967, 1968,

1969, 1970, and 1971, the proportion of persons sen-

tenced under 50 U.S.C. App. § 462 and placed on probatio,

steadily increased from 11% to 26% to 39% to 56% and tp

63%, respectively. Statistical Abstract of the United

States, p. 266, Chart No. 436 (1972). Since there is no reg.

son to suppose that individual characteristics among such

persons changed appreciably from year to year, this pro.

gression necessarily reflects an evolving policy to guide the

exercise of sentencing discretion conferred by the statute.

In marked contrast, Chief Judge Solomon of the United

States District Court for the District of Oregon, writes in

Sentences in Selective Service and Income Tax Cases, 2

F.R.D. 481 (1970), noting his concern about the “‘wide dis.

parity in the sentences imposed for Selective Service vio

lations,’’ ibid:

**Modern theories of penology encourage us to treat

the criminal and not the crime; . . . How does this ap-

ply to Selective Service cases? Many of these young

men are idealists, with good backgrounds and excellent

educations. They have been influenced

**By respected public figures—Senators, Congress-

men, and other people who hold high political and

military office ;

‘*By presidents of great and respected universities;

**By well-known scientists, scholars, writers and

church leaders ;

all of whom say that our participation in the Vietnam

was is unjust, immoral, and illegal. Many of these

prominent people also say that the draft laws are um-

fair, immoral, and illegal.

‘*We take these promising young men and, upon

their conviction as Selective Service violators, we send

them to the penitentiaries to serve sentences up to 5

years. We know that they will have to serve a much

greater percentage of their terms . . . than they would

_—

have had to serve had they been convicted of the Dyer

Act or theft of a government check or had been con-

vieted of larceny or embezzlement of funds belonging

to the Post Office or a national bank.... (42 F.B.D.

at 482-483.)

‘Deterrence is the most important consideration in

the sentencing of Selective Service violators.

“Our government has determined that the draft is

the only feasible method of meeting our military man-

power needs.... (42 F.R.D. at 485.)

“Since they probably would have been placed on

probation had they committed any other non-violent

crime, are we justified in denying them probation for

a Selective Service violation?

“] think we are. Even though there are no manda-

tory minimums, a Judge must respect the objectives

of the law which the defendants violated.... (42

F.R.D. at 486.)

“The reference to defendants placed on probation

[in Oregon] needs some explanation. The great ma-

jority are Jehova’s Witnesses who were classified as

‘At present, I believe that since the primary purpose

of sentencing Selective Service violators is to deter

others, longer sentences should be imposed on those

violators who occupy prominent positions in student

and anti-draft organizations. I intend to impose sen-

tences of two years.

“For the follower, I would impose a sentence of 18

months, or in the alternative two years, with the re-

quirement that the defendant spend six months in a

jail-type institution and the balance of the time in

civilian work of national importance. . . .

“I believe that harsher sentences will have the op-

posite effect....’’ (42 F.R.D. at 487-488.)

The conflict between Judge Solomon’s position and the

widespread grant of probation to draft violators must be

viewed in context of the fact that the number of draft jp.

dictments returned in 1965, 1966, 1967, 1968, 1969, ang

1970, jumped from 369 to 642 to 1,388, to 1,698, to 3,455,

and to 3,873, respectively. Hearings on the Administration

and Operation of the Draft Law before the Special Sub.

committee on the Draft of the House Armed Services Com.

mittee, 91st Cong., 2d Session, at 12853, 12861 (1970) (here.

inafter ‘‘Hearings’’), that it increased to 4,539 in 1971,

4 SSLR, 70, and that the Justice Department anticipates

that 7,200 new indictments will be returned in fiscal 1973,

5 SSLR, 1.

Judge Solomon’s prediction that draft violators serve

a disproportionate percentage of their sentences is ac-

curate. Indeed, the Federal Parole Board releases per-

sons convicted of counterfeiting, embezzlement, forgery,

fraud, income tax evasion and theft after shorter lengths

of imprisonment (in absolute terms as well as percentage

of sentence imposed), than it does persons convicted of draft

violation. Statistical Abstract of the United States, p. 163,

Chart No. 268 (1972). The need to articulate governing

standards and to devise procedures to achieve parity in the

application of these standards is therefore particularly

acute in draft cases.

Judge Solomon is incorrect in his appraisal of congres-

sional intent. The absence of a statutory minimum in 50

U.S.C. App. § 462, (compare 18 U.S.C. §§ 1403 and 1917,)

is striking because the last major revision of the statute

occurred in 1948, and of 1,137 persons convicted of draft

violations in 1947, 32% received either probation or a fine

(as compared with 19% and 17% in 1946 and 1945, re-

spectively), while an additional 35% received prison sen-

tences of one year or less. Note, Sentencing Selective Vio-

lators: A Judicial Wheel of Fortune, 5 Col. L. J. & Soc.

Probs. 160, 176, Table III (1969).

_——

Further, 18 U.S.C. § 5010(d) expresses a congressional

determination that a person under the age of twenty-two

rs at the time of conviction (Walker was nineteen),

should be sentenced under the Youth Corrections Act

unless, ‘‘. . . the court shall find that the youth offender

will not derive benefit from treatment . . .’’ thereunder.

(Congress has in the past excluded persons convicted of

specific crimes from the operation of this statute, see

former 26 U.S.C. § 7237(d).) It follows that a youth

offender who does not need ‘‘treatment”’ should be granted

probation pursuant to 18 U.S.C. § 5010(a). Cf. Institute on

Sentencing, 35 F.R.D. 381 (1964), at 415, Form No. 14.

Moreover, 18 U.S.C. § 3651 was amended in 1948 to pro-

vide for split sentences of six months followed by proba-

tion. Implicit in this amendment is a congressional deter-

mination that, when most factors militate in favor of ;

probation but ‘‘some’’ imprisonment is deemed necessary,

a maximum of six months ordinarily serves the purpose.

For all categories of persons convicted of federal crimes,

the percentage placed on probation increased from 37% in

1954 to 50% in 1963. Herlands, When and How Should a

Sentencing Judge Use Probation, 35 F.R.D. at 487 (1964).

Surely one of the facts underlying congressional policy

favoring probation is the relative cost of incarceration as

opposed to probation. Op cit. 489.

Judge Solomon’s reading of the congressional will from

the Army’s manpower needs is based on an erroneous as-

sumption. As the Report of the President’s Commission on

an All-Volunteer Armed Force (1970) (hereinafter ‘‘ Report

on an All-Volunteer Armed Force’’), makes plain, the

problem in administering the Selective Service System is

that only a very small minority among the annual crop of

eighteen-year-olds is needed to complete the Army’s ranks

which are mostly filled by career personnel. The problem

is an overabundance of manpower, a circumstance reflected

Ce PED FM COM

Sila onet tihies A hai ha ea de a ales a betas Re)

in the fact that during fiscal 1971, 50% of registrants who

received a preinduction medical examination were disqnali-

fied, while another 24% who received an induction medica]

examination were also disqualified. Statistical Abstract of

the United States, p. 264, Chart No. 433 (1972), SSLR 6021,

6024.

In addition, Judge Solomon fails to take into account,

(when he dismisses the pertinence of ‘‘ Modern theories of

penology’’,) congressional approval of the concept of in.

dividualized sentences announced in Williams v. New York,

337 U.S. 241, 247, 248, n. 13 (1949). There is nothing to

suggest that Congress meant 50 U.S.C. App. § 462 to em-

body a policy other than one of individualized sentencing.

Thus, Judge Solomon’s inflexible rule conflicts not only with

orthodox penological concepts, but also with the pronounce.

ments of this Court and with the ascertainable will of

Congress.

Indeed, the language of 50 U.S.C. App. § 462 also con-

flicts with Judge Solomon’s view of congressional policy,

for the spectrum of offenses within the scope of the statute

is very broad: included is misbehavior by Selective Service

personnel in the course of registration, classification, or

physical and mental examinations; falsifying information

bearing on classification; counselling, aiding or abetting

evasion of duties imposed by the statute; hindering, by

force or violence or otherwise, the administration of the

statute; transferring or possessing a false certificate for

purposes of identification; forging, altering, destroying or

mutilating a certificate; as well as failure to observe any

of the regulations promulgated under the draft law. All

are subject to the same penalty provision with a maximum

of five years and/or $10,000 fine. It offends common sense

to read into this statute a congressional will to send Walker

to the penitentiary for two years.

_—-_

As for Judge Solomon’s suggestion that Jehovah’s Wit-

nesses may be granted probation while denying it to others

such as Walker, (see the finding of the court below, Ap-

dix, at 35, n. 5,) raises grave questions of equal protec-

tion. United States v. McCord, 5 SSLR 3490, 3492-3493 (2d

Cir. 1972), Judge Feinberg dissenting.

B. The deterrence argument is specious. The court below

concurred with the judgment of the Court of Appeals for

the Sixth Cireuit in United States v. Daniels, supra, 446

F. 2d at 972, that deterrence is of little significance on the

facts of this case. Appendix, at 35.

The purpose of the draft law is to recruit soldiers and,

by definition, to do so from among nonpacifists. It would

be frivolous to suggest that such nonpacifists would be em-

poldened to violate the draft if Walker received probation.

The fact that Walker’s crime is failure to register further

undercuts the deterrence rationale because there exist sub-

stantial inducements for registration: anyone with a

moderately high random selection number is secure; the

chance of being found medically unfit for military service

is more than 50%; the chance of successfully running

through the gamut of selective service regulations and

benefiting from local board procedural errors is very high

(Hearings, supra, at 12871-12872) ; and (whatever the result

in Walker’s case), 63% of draft violators received proba-

tion in 1971. Beyond this, failure to (1) report for induc-

tion, (2) submit to induction, and (3) report for alternate

service, account ‘‘by far’? for most draft indictments.

Hearings, supra, at 12856. Of particular significance is the

fact that persons who fail to register do not, like Walker,

advise their local boards; they go underground and are un-

covered, if at all, by the FBI. Hearings, supra, at 12848.

The possibility is remote in the extreme that any such

person would be affected by the outcome of Walker’s case.

URNS GF MONS Nef

bs i s

TIE ENA RNS AS AL

Sy ae. ce a eye

From the perspective of a would-be draft-evader, the pos.

sibility of imprisonment is more persuasive than the pos.

sibility of freedom—particularly when freedom hinges op

the ability of this draft-evader to convince the trial judge

that, like Walker, he is an ‘‘outstanding member of the

community.’’

The analogy frequently drawn between tax and draft

violations rests on a superficial analysis that offenders in

both classes tend to be noncriminal types. What the analogy

overlooks is the acute need to deter tax evaders, thereby

perhaps justifying a relatively inflexible policy of imprison.

ment. As the Report on an All-Volunteer Armed Foree,

supra, proves beyond a reasonable doubt, the need to deter

violations of the draft simply does not have the same

urgency.

C. Under the teaching that ‘‘abuse of discretion’’ means

‘‘a clear error of judgment in the conclusion . . . reached

upon a weighing of the relevant factors,’’ Jaffe, Judicial

Control of Administrative Action, 182 (1965), it is manifest

that the trial judge committed precisely such a clear error

of judgment by giving far too much weight to the need for

deterrence (assuming he adopted the government’s reason-

ing; the record discloses no other basis). As United States

v. McCoy, 429 F. 2d 739 (D.C. 1970) held, ‘‘But a rigid

policy based solely on the crime with which the defendant

is charged is not an exercise of discretion,’’ 429 F. 2d 743

(emphasis added), and that is equally true of the deter-

rence policy in draft cases.

Or stated differently, a judge who imposes a sentence

on the basis of an assumption that deterrence in draft cases

invariably requires imprisonment is acting on the basis of

what amounts to ‘‘misinformation.’’ Cf. United States v.

Tucker, 404 U.S. 443, 447 (1971) ; United States v. McCord,

5 SSLR 3490, 3493 (2d Cir. 1972), dissent of Judge

Feinberg.

Conclusion.

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the First Circuit.

Respectfully submitted,

JOHN G. 8S. FLYM,

Counsel for the Petitioner.

January 3, 1973.

RA HOWOS SRB WERE EEN

RS a aki aaa ft

United States Court of Appeals for the

First Circuit.

’

No. 72-1140 :

UNITED STATES OF AMERICA, i

JOHN DABNEY COLLIER WALKER, f

APPELLANT. S

PMO RTH

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Before Corrin, Chief Judge,

AupricH and CamMpBELL, Circuit Judges.

John G. S. Flym, with whom Flym, Geller, Miller, Taylor &

Weinberg was on brief, for appellant.

Robert B. Collings, Assistant United States Attorney, with whom

Joseph L. Tauro, United States Attorney, was on brief, for appellee.

December 4, 1972

Corrin, Chief Judge. Appellant was convicted of failure

to register with the Selective Service System, in violation

NLL YONI IA GOA ORY ARNE RCSD a |

—

of 50 Appendix U.S.C. $§ 453, 462. Four days after he

became eighteen, he visited his local board and announced

that he was not going to register. The executive secre

told him that, by failing to register, he could be subject to

imprisonment or a large fine. In response to questions,

appellant gave his name, address, and date of birth, and

departed. The next day the executive secretary wrote him

a letter, noting his birth date, and stressing the importance

that he register as soon as possible or else ‘‘be suspected

of being a delinquent’’. Appellant did not return to the

board, respond to this letter, or otherwise supply the board

with the remaining information necessary for registration,

Appellant was subsequently found guilty by a jury of

failure to register and sentenced to two years imprison-

ment.

Appellant protests both his conviction and his sentence,

As his defense on the merits, he cites non-compliance by

the board with 32 C.F.R. § 1613.16.1 Appellant does not

contest the fact that, prior to his visit, he knew that his

refusal to register could subject him to imprisonment. Cy.

United States v. Kelly, 336 F. Supp. 686 (E.D. Pa., 1972).

Nevertheless, he relies on Chernekoff v. United States,

219 F.2d 721 (9th Cir. 1955) and United States v. Kroll,

402 F.2d 221 (3d Cir. 1968), which required a similar

warning procedure under AR 601-270 in the event that an

1‘‘Tf the registrant refuses to cooperate or is inclined to evade,

refuses to answer, or answers falsely, his attention should be called

to the penal provisions . . . of the Military Selective Service Act

of 1967. If he is still refractory, witnesses should be called and,

after the penalty of the law has been explained again to him in

the presence and hearing of witnesses, a full opportunity should

be given him to reconsider his actions and answer the questions.

If he is still refractory, his name and the names of the witnesses

should be noted and the case immediately reported to the United

States district attorney. The registration should not be obstructed

or delayed. Persons attempting to obstruct or delay it should be

dealt with promptly and firmly.’’

inductee refused to step forward. This procedure, as noted

in Chernekoff, at 724, which is part of the prescribed

method of induction devised by the Army for use in proc-

essing groups of prospective inductees, has several formal

teps.”

tes selective service warning mandated by § 1613.16 is

not in the context of such final formalities but is, we think,

similarly a part of a process which has commenced. The

ceremonial warning with witnesses is similarly a last rite

to be administered before a crime is committed, i.e., a re-

fusal to cooperate, giving false or evasive answers, or

refusing to answer. These are crimes committed during the

process of registration. They are not, we think, committed

by an anticipatory announcement made by one who has not

yet presented himself for and submitted to registration.

The regulatory scheme corroborates this interpretation.

Regulation 1613.16 is part of Part 1613—Registration Pro-

cedures, beginning with § 1613.1 which provides that

‘‘[a]ny person required to be registered may present him-

self for and submit to registration ....’’ This is followed

by other sections dealing with the manner of conducting the

interview (4 1613.11), completion of the registration card

(§ 1613.12), signature ({ 1613.13), and certification

(§ 1613.14). At this point is located § 1613.16, indicating

that the objective of this regulation is to deal with the

registrant who has presented himself for registration but

has thereafter manifested his recalcitrance and to give

him ‘‘a full opportunity . . . to reconsider his actions and

2The method contemplates the assembling of a group of prospec-

tive inductees, informing them of the imminence of induction and

of the significance of the step forward, the removal of those who

refuse, informing such persons of the criminal sanctions, calling

on them again to step forward, and finally, requesting the re-

calcitrant registrant to sign a statement of refusal before two

witnesses. Chernekoff, supra, 219 F.2d at 724 n. 12. (Predecessor

and similar regulation. )

‘

answer the questions.’’ United States v. Bigman, 429 Py

old. He was one of eight children. His father, a surgeon,

who had served in World War II, having died, his mother

was left with two small children at home. Because appellant

took a large degree of responsibility for them, his mother

tives, teachers, school officials, and neighbors, all portray-

ing appellant as a pacifist of some years’ convictions, as a

good student, with no record of school or other infractions,

as a mild-mannered but socially aware and constructive

person. He had organized and run, according to the Director

of Guidance for the Salem public schools, a responsibly

conducted draft counselling service. He had organized and

;

1967), United States v. Picard, 464 F.2d 215 (

1972), as have other appellate courts, Yates v. United

national

statistics, showing the increasing and frequent recourse to proba-

tion. He now represents to us that, of twenty-three selective service

defendants sentenced in the District of Massachusetts in the past

two years, thirteen received probation, one received a fine and

probation, two received sentences of a year or less, five received

two-year sentences, and two received three-year sentences. Most of

the offenses involved failure to perform alternative service (7) and

failure to report for and/or submit to induction (14) None

States, 356 U.S. 363, 366-367 (1958), United States »

Wiley, 278 F.2d 500 (7th Cir. 1960), Scott v. United

419 F.2d 264, 266-267 (D.C. Cir. 1969), and United State,

v. Daniels, 446 F.2d 967 (6th Cir. 1971). In such

dorsed in Williams v. New York, 337 US. 241 (1949),

United States v. McKinney, No. 72-1480 (6th Cir. June 15,

clear how one who gives his name and address to the selee-

* Appellant also relies on 18 U.S.C. § 5010(d), which requires

a sentence treatment under the supervision of the Attorney General,

unless ‘‘the court shall find that the youth offender wil! not derive

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sentencing court.

tive service authorities frustrates these authorities as much

«sone who, after registering, fails to keep his board in-

formed of changes in his address." Nor did either party

nake available to the district court, so far as the record

discloses, data concerning the sentences meted out in recent

to other draft offenders or the fact, if it is a fact,

that the crime of refusal to register in Massachusetts has

een so rare that there has recently been no prosecution

through to sentence. We note, finally, the observation of

the court in Daniels, speaking of a Jehovah's Witness, who,

like appellant, would accept alternative sentence only if so

ordered by the court: “*. . . under the limited factual cir-

cumstances of this case, the issuance of an order probating

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.