Petition for a Writ of Certiorari — Karnap v. United States

"FILE Copy =| 7"?

| JUN 20 1

IN THE

Supreme Court of the United States

OctToBeR TERM, 1972

—_—

No YQelw@24

cenneeenenneeeneeet

JOHN RussELL KarnapP, Petitioner

v.

Unirep States or America, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Gary Howarp Simpson

4720 Montgomery Lane

Bethesda, Maryland 20014

(301) 656-3323

Counsel for Petitioner

SSE “ge RD

Purss or Byron S. Apams Parntina, Inc., WASHINGTON, D. C.

=S,

SUBJECT INDEX

Page

NNN is eens cava wsinkare mek anew 1

RI cg a aed ee 1

I Seok cnc ates ckkdecenwx wns 2

Constitutional and statutory provisions involved ..... 2

I rt PETIT NOL PTE +

Reasons for granting the writ ....... Rigesesuseenans 5

NE aie entailed Gide ina pine bed aie oie wikie'es 16

MI Fi ited ander taint cdevek Cokienweeecads la

TABLE OF AUTHORITIES CITED

CASES:

Bartchy v. United States, 319 U.S. 484 (1943) ........ 13

Brandon v. United States, 381 F.2d 727 (10th Cir. 1967) 12

Bridges v. Wixon, 326 U.S. 135 (1945) ............. 7

Bruton v. United States, 391 U.S. 123 (1968) ........ 7

California v. Green, 399 U.S. 149 (1970) ............

6

Clay v. United States, 397 F.2d 901 (5th Cir. 1968) .. 10

Colvin v. United States, C.A. 9, 41 L.W. 2676, June 19,

iia a eee a 10

Douglas v. Alabama, 380 U.S. 415 (1965) ............ 7

Dutton v. Evans, 400 U.S. 74 (1970) ...........0.0. 6,7

Furman v. Georgia, 408 U.S. 238 (1972) ............ 16

Graves v. United States, 252 F.2d 878 ( ee 14

Kemp v. United States, 415 F.2d 1185 (5th Cir. 1969) 10

LaPorte v. United States, 300 F.2d 878 (9th Cir. 1962) 8

Lopez v. United States, 373 U.S. 427 ( oe 13

MeKeiver v. Pennsylvania, 403 U.S. 528 Co) a 7

Mempa v. Rhay, 389 U.S. 128 (1967) ................ 16

Palmer vy. Hoffman, 318 U.S. 109 Ea eae 6,11

Penor v. United States, 167 F.2d 553 (9th Cir. 1948) 9

Peters v. Kiff, 407 U.S. 493 (1972) .................. 7

il Table of Authorities Continued

Page

Reynolds v. United States, 98 ik. me! 3s: | eee 7

Shepard v. Florida, 341 U.S. 50 ‘(| Barre 16

Standard Oil Company of California v. Moore, 251

F.2d 188 (9th Cir. 1957) 2.2... eee eee eee eee eee 9

Tehan v. Shott, 382 U.S. 406 (1966) .........-++---- 12

United States v. American Radiator and Standard

San. Corp., 433 F.2d 174 (8rd Cir. 1970) .....--. i)

United States v. Brady, 4 SSLR 1326 (D. Mass. May 4,

BO ogc seccun cence sukens keneet cents pemet ias> 14

United States v. Downing, 454 F.2d 373 (10th Cir

Se meen rr rrr err yee rs S. 10, 12

Williams v. New York, 337 U.S. 241 (1949) .......... 15

Williams v. Oklahoma, 358 U.S. 567 (1959) .......--. 15

Yaich v. United States, 283 F.2d 613 (9th Cir. 1960) .. 9

Yung Jin Teung v. Dulles, 229 F.2d 244 (2nd Cir. 1956) 10

CopEs:

OG e Bost FIoe icon icvasccscesueneesass 3, 8, 10, 11

RR oe he rrr res Tr 3, 9, 10, 11

98 U.S.C. Section 1254(1) ..........ccccccccscccecs 2

50 Appx., U.S.C. Section 462 .......-.- eee eee eee: 2, 4, 15

ee uc a gequenvaeneetuceeepaanes ves 9

SO CT. WORRIED) anon cc cc cecessctenssssscnssvcesxs 14

Table of Authorities Continued ili

CONSTITUTIONS: Page

The United States Constitution, Amendment V ...... 2

The United States Constitution, Amendment VI ..... 2,7

RULEs:

Proposed Rules of Evidence for the United States

Courts and Magistrates, 56 F.R.D. 183 .......... 8

Rule 27, Rules of Criminal Procedure .............. a

IN THE

Supreme Court of the United States

Octroper TERM, 1972

No.

_

JOHN RUSSELL KarnapP, Petitioner

v.

UnItTep States oF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

The petitioner, John Russell Karnap, prays that a

writ of certiorari issue to review the decision of the

United States Fourth Circuit rendered in this cause

on April 20, 1973.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet offi-

cially reported but is reported at 6 SSLR 3196.

JURISDICTION

The judgment of the panel of the Court of Appeals

was entered on April 20, 1973. A timely petition for

rehearing was denied on May 22, 1973 and this petition

2

for certiorari was filed within thirty days of that date,

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Should documents prepared by the government in

contemplation of a criminal prosecution be admissible

as government documents or business records especially

when prepared by an anonymous source whose personal

knowlege of the truth thereof is unknown?

2. May the corpus delecti of a crime be proven solely

by the introduction of business records or official docu-

ments made in preparation for criminal prosecutions?

3. As a matter of law, may criminal wilful neglect

exist absent actual knowledge of a duty ?

4, Is**individualized”’ sentencing constitutionally re-

quired ?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The United States Constitution, Amendment V:

‘‘No person shall be . . . deprived of life, liberty,

or property, without due process of law... .”’

The United States Constitution, Amendment VI:

‘Tn all eriminal prosecutions, the accused shall

enjoy the right ... to be confrouted with the wit-

nesses against him... .”’

United States Code, Title 50, Appx. Section 462:

‘(Any person) who evades or refuses registra-

tion or service in the armed forces or any of the

requirements of this title... shall, upon conviction

in any district court of the United States of compe-

3

tent jurisdiction, be punished by imprisonment for

not more than five y ears or a fine of not more than

$10,000, or by both such fine and imprisonment.

9

United States Code, Title 28, Section 1732:

‘**Record made in regular course of business .. .

(a) In any court of the United States and in

any court established by Act of Congress, any writ-

ing or record, whether in the form of an entry ina

book or otherwise, made as a memorandum or ree-

ord of any act, transaction, occurrence, or event,

shall be admissible as evidence of such act, transac-

tion, occurrence, or event, if made in regular course

of any business, and if it was the regular course of

such business to make such memorandum of ree-

ord at the time of such act, transaction, occurrence

or event or within a reasonable time thereafter.”’

99

All other circumstances of the making of such

writing or record, including lack of personal

knowledge by the entrant or maker may be shown

to affect its weight, but such circumstances shall

not affect its admissibility.

United States Code, Title 28, Section 1733:

**Government records and papers ...”’

‘*(a) Books or records of account or minutes of

proceedings of any department or agency of the

United States shall be admissible to prove the act,

transaction or occurrence as a memorandum of

which the same were made or kept... .”’

Criminal Procedure for District Courts, Rule 27:

‘*Proof of official reeord.”’

‘An official record or an entry therein or the lack

of such a record or entry may be proved in the

same manner as in civil actions.”’

+

STATEMENT OF THE CASE

John Russell Karnap was named in a two-count in-

dictment charging two violations of Title 50, Appendix,

United States Code, Section 462(a). Count One stated

that on January 4, 1971 the Petitioner failed to report

for an armed forces physical examination and Count

Two stated that he failed to report on February 1, 1971

for induction into the armed forces. On May 30 and 31,

1972 the case was tried before Chief Judge Sidney L.

Christie and a jury; a verdict of guilty was returned

as to both counts of the indictment.

The only evidence relevant to the aforementioned

charges were entries in the Petitioner’s Selective Serv-

ice file. Two documents were introduced (over objec-

tion) from the file—a ‘‘ Physical Examination List”

and a ‘Delivery List’-—on which appeared an “X”

mark opposite the defendant’s name in the column

headed ‘‘Failed to Report’. These two documents

were executed at the Armed Forces Entrance and Ex-

amination Station (AFEES) by a person acting in an

unspecified capacity who is not shown to have had

personal knowledge of the contents of the documents;

they were later transmitted to the local board. A

Selective Service Form 100, a document prepared from

the two AFEES documents, also indicated the Peti-

tioner ‘‘did not report’. These documents were pre-

pared in contemplation of criminal prosecution (App.

B, p. number 1) A witness testified that she was the

eustodian of the file and she concededly had no knowl-

edge about the preparation or truthfulness of the

AFEES forms.

The Petitioner received a notice of an order to report

for a physical examination by mail at 203 Green Oak

Drive, Huntington, West Virgina (his parent’s home)

~»

in December of 1970; the records show that a similar

order had been mailed to Mr. Karnap’s last reported

address (in New York), but was returned as “Un-

elaimed’’, On January 12, 1971, the local board mailed

an Order to Report for Induction at the West Virginia

address by registered mail, return receipt requested,

with the notation of ‘‘ Deliver to Addressee Only”’—this

was the only order to report for induction the loeal

board mailed. The January 12, 1971 induction order

mailing was returned to the local board on February 1,

1971 as ‘‘ Unelaimed”’.

Mr. Karnap was convicted on both counts and was

sentenced to three years imprisonment on each count,

to be served concurrently. Judge Christie, in a pre-

trial conference, stated that he had agreed with the

other judges in his district that a three year sentence

was appropriate in Selective Service cases so that the

offender would serve as much time in prison, one year,

as his tour of service in Viet Nam would have been.

(See Appendix B, number 1 and 2) for a reproduction

of Judge’s comments. )

REASONS FOR GRANTING THE WRIT

I

This case affords an opportunity for this Court to

rule that documents prepared in contemplation of a

criminal trial (drafted by one agency and forwarded

to another) are not admissible as official documents or

business records or, at minimum, that such documents

are not admissible in the absence of a showing of per-

sonal knowledge of the contents thereof in an identified

person. The Court will thereby decide on the impor-

tant question of federal law which has not been but

should be settled by this Court and will resolve a con-

flict of opinion in the circuits.

6

A. Information Obtained by Non-Selective Service Personnel

In Contemplation of a Criminal Prosecution Should Not be

Admissible Under 28 U.S.C. Sections 1732 and 1733.

The entries on the Physical Examination List and

the Delivery List, which were the sources of informa-

tion for the entries on the Selective Service Form 100,

were executed by non-selective service employees in

contemplation of a criminal prosecution. They consti-

tuted a ‘“‘viewing”’ of alleged criminal acts by prospec-

tive government witness and as such cannot fairly be

considered proper exceptions to the hearsay rule.

The Petitioner realizes that a watershed is being

reached by this Court in the Confrontation-hearsay

area ; this point is underscored by Justice Harlan’s con-

currences in California v. Green, 399 U.S. 149, 172

(1970) and Dutton v. Evans, 400 U.S. 74, 93 (1970).

The Petitioner also recognizes the existence of valid

policy reasons for normal government document-busi-

ness record exceptions to the hearsay rule as ‘*conven-

ience’’ and ‘‘obvious trustworthiness.’’ The line, how-

ever, must be drawn at admitting documents prepared

in contemplation of criminal prosecution. Entries

made by one government agency notifying another that

a law has been violated are not in the nature of census

reports, meteorological data, ship-logs or even hospital

records. Rather, the entries on the Delivery Lists or

Physical Examination lists, or records prepared from

them, are intended to constitute direct testimony, on the

heart of an alleged criminal law violation, in which the

maker, the United States government, is making a self-

serving declaration against a potential defendant.

Palmer v. Hoffman, 318 U.S. 109, 113-114 (1943).

‘‘Government convenience”’ is an insufficient excuse

for permitting the admission of hearsay-exception evi-

dence that goes to the essence of an alleged criminal law

7

violation. The law has never allowed a witness to a

murder to send a letter to the prosecutor and then have

the prosecutor base his case upon that letter because the

witness was a half an hour drive away, as in the case

presented here. Neither should the law allow a govern-

ment record to be introduced because of its supposed

“trustworthiness”’ when it has been prepared in obvi-

ous contemplation of a criminal prosecution.’

This Court has recognized that the appearance of due

process is as important as the reality of due process.

Peters v. Kiff, 407 U.S. 493 at 502 (1972). It appears

manifestly unfair to allow a party in a criminal case to

have one of its agencies write a letter to another one of

its agencies and thereby create admissible evidence not

subject to confrontation. If statutes or rules of evi-

dence allow agencies to correspond with themselves and

thereby generate admissible evidence not subject to the

Confrontation Clause under the rubrie of “trust-

worthiness’’, and in the name of ‘“‘government conven-

ience”’, then the Sixth Amendment protections and due

process rights are eviscerated.*

The fundamental and undeniable evil discussed in

this section applies in all criminal prosecutions. Be-

' Justice Harlan also noted in Dutton v. Evans, supra, that the

purpose of 28 U.S.C., Sections 1732-1733. is to ‘*eliminate the neces-

sity for the production of declarants where production would be

unduly inconvenient and of small utility to a defendant.’’ (400

U.S. at 96) ; this is not the situation in the case at bar.

* As Justice Harlan said, ‘‘the paradigm evil the Confrontation

Clause was aimed at was ‘trial by affidavit’ "’, (400 U.S. at 94). See

also: Bruton v. United States, 391 U.S. 123 (1968); Pointer v.

Teras, 380 U.S. 400 (1965): Douglas v. Alabama. 380 U.S. 415

(1965) ; Bridges v. Wiron, 326 U.S. 135 (1945) : Reynolds vy. United

States, 98 U.S. 145 (1879); and MecKeiver v. Pennsylvania, 403

U.S. 528 (1971).

8

cause of the clarity of the record and because of the

acceptance of the Proposed Rules of Evidence for the

United States Courts and Magistrates, Rule 803, 56

FRD 183, 307 and 308, this case presents an excellent

and timely vehicle for consideration of the issues pre-

sented.

B. The Use of 28 U.S.C. 1732 ("Business Records”)

In Criminal Cases.

All the information in the petitioner’s file regarding

his ‘‘refusals’’ was derived from entries made on docu-

ments by non-Selective Service personnel outside of the

local board’s office. Hence, the relevant information

was obtained from ‘‘others’’. Considering a similar

situation, Judge Learned Hand in United States v.

Grayson, 166 F.2d 863 (2d Cir. 1948) concluded that

the information received from ‘‘another’’ outside of the

organization whose records are in question involves

non-exempted multiple hearsay. Accord: Felice v.

Long Island R.R., 426 F.2d 192 (1970). Of course,

the Cireuit Court in this ease at bar indicated that the

officer at the AFEES was an ‘‘ad hoe”’ official of the

Selective Service System. See also LaPorte vy. United

States, 300 F.2d 878, 881 (9th Cir. 1962). The judicial

coronation of an army official as an ‘tad hoe’’ member

of the Selective Service System, although imagina-

tive, leaves the Fourth and Ninth Circuits in conflict

with the properly decided Second Circuit rule.

Furthermore, the record in the case at bar contains

no evidence that there was a systematic or routine

procedure through which the facts and circumstances

of any alleged refusal would be transmitted to the

maker of the record, if he did not witness the ‘‘re-

fusal’’ himself. In the absence of a showing of such

9

a routine there is no circumstantial guarantee of trust-

worthiness as required by those cases specifically eon-

sidering this issue. See United States v. American

Radiator & Stand. San. Corp., 483 F.2d 174, 197 (3rd

Cir. 1970) (declining to follow Sixth Cireuit) ; Stand-

ard Oil Company of California v. Moore, 251 F.2nd

188, 215 (9th Cir. 1957) ; and Palmer v. Hoffman, 318

U.S. 109 (1943). The Fourth Circuit departed from

the general rule when it stated that ‘‘it is reasonable

to infer that the third party here, the Army officer,

was ‘acting routinely, under a duty of accuracy, with

employer reliance on the result or in short, in the reg-

ular course of business’’’. (App. A, p. 3a). The

gap in the evidence in the case at bar cannot be filled

by an “‘inference”’.

C. The Use of 28 U.S.C., Section 1733 (Government Documents)

In Criminal Cases.

It is a general rule in prosecution of the Universal

Military Training and Service Act that the Selective

Service file of the accused is admissible into evidence

as a public document under 28 U.S.C., Section 1733.

Penor v. United States, 167 F.2d 553 (9th Cir. 1948) ;

the petitioner does not deny the existence of the gen-

eral rule. However, the mere fact that the file may

qualify as a public record does not ipso facto over-

come the normal hearsay objection unless the document

relates to an event to which the author of the document

himself could testify. The public documents exception

to the hearsay rule is only to allow the non-appearance

of the public official who had personal first hand knowl-

edge of the facts contained therein.* Yaich v. United

* Tt should be noted that the mere fact that documents are placed

in selective service files, as required under 32 C.F.R., Section 1621.8,

including anonymous hate letters or newspaper editorials (see

10

States, 283 F.2d 613, 616 (9th Cir. 1960); Kemp v.

United States, 415 F.2d 1185 (5th Cir. 1969) ; and, Yung

Jin Teung v. Dulles, 229 F.2d 244, 247 (2d Cir. 1956).

A conflicting result was reached below and a coutlict

in the Circuits is seen. (Karnap; United States vy.

Downing, 454 F.2d 373 (10th Cir. 1972). The para-

meters of the conflict are fully articulated in United

States v. Hudson, 6 SSLR 3009 (9th Cir. 1972) where

Judge Lumbard of the Second Cireuit, sitting by desig-

nation, dissented from the Ninth Cireuit Judges opin-

ion. The majority saw no need for a substantiated

personal knowledge requirement in Section 1733 eases.

Judge Lumbard expressed a contrary view; he would

not allow a conviction based solely on the statement of

an anonymous person appearing in a government

record.

28 U.S.C. Sections 1732 and 1733 do not provide

exceptions to the hearsay rule which would allow police

records of hearsay statements into evidence. Colvin

v. United States, C.A. 9, 41 L.W. 2676, June 19, 1973.

The court held that Section 1732 documents must be

based on first hand observation and that Section 1733

documents must be based on the recording officer’s or

his subordinate’s personal observation. Only an army

official, and not any selective service official, saw the

‘‘refusal’’ so Section 1733 does not apply in the ease

at bar.

Clay v. United States, 397 F.2d 901, 924, n.23 (5th Cir. 1968) can-

not itself make all entries admissible. Similarly, even if the infor-

mation comes from a government agency outside of the Selective

Service System, the entries are not properly admissible as public

documents unless the author is shown to have had personal knowl-

edge of the document’s contents. (Cf. United States v. Knudsen, 320

F.Supp. 878 (D. Wise. 1971).

11

II

This case affords an opportunity to rule that the

corpus delecti of a crime may not be established solely

by the introduction of business records or official docu-

ments made in preparation for criminal prosecutions.

As noted above, the only “evidence” to show that the

petitioner refused to report for a physical examina-

tion or induction was in the form of correspondence

between AFEKS and the local board; this ‘‘evidence”’

was created, of course, in contemplation of criminal

prosecution. Hence, this question requires an articu-

lation of minimum standard of proof in criminal cases

involving exceptions to the hearsay rule. Cf. Palmer

v. Hoffman, supra.

Congress did not intend to allow the hearsay excep-

tions to allow a trial by file. The purpose of 28 U.S.C.,

Sections 1782 and 1733 was to facilitate proof of col-

lateral issues in a trial and not to cause people to be

imprisoned on the basis of a printed form. The con-

cept that boilerplate bureaucratic forms prepared in

contemplation of criminal prosecution may suffice to

establish specific intent of the corpus delicti of a crime

is shocking to the conscience and is contrary to the

entire history of Anglo Saxon jurisprudence. Unless

this concept is immediately dispelled, indulgence in it

by the lower courts will erode substantial confrontation

rights. Simply stated, the government must not be

allowed to secure convictions using exceptions to hear-

say rules as the sole evidence especially when witnesses

who observed the ‘‘erime”’ are available to testify and

be cross-examined. This Court has not addressed itself

to this issue and the lower courts have conflicting opin-

ions on this matter.

12

The Seventh Cireuit has recently held, in two cases,

that the corpus delicti of a crime cannot be established

solely by use of business records or government docu-

ments. In United States v. Webb, 467 F.2d 1041 (7th

Cir. 1972)* and in United States v. Sorrell, 473 F.2d

1054 (7th Cir. 1973), the Seventh Cireuit ruled that

Selective Service files, although admissible, cannot pro-

vide the sole basis for conviction in prosecutions for

failing to obey induction rules. Although an officer at

an AFEES station informed the local board by letter

that a prospective inductee ‘‘refused to take part in

all processing’’ (473 F.2d at 1056) the Court held there

was ‘‘simply no reliable evidence of sufficient probative

value upon which to base Sorrell’s conviction.”? (478

F.2d at 1057). In summary, Webb and Sorrell hold

that even if the file is admissible; the corpus delicti

in a criminal ease is not established on the basis of

unverified statements contained in memoranda.’ <Ac-

eord, see United States v. Brady, 4 SSLR 3126 (D.

Mass. May 4, 1971). A contrary result has been reached

in the Fourth Cireuit below and in the Tenth Circuit,

United States v. Downing, 454 F.2d 373 (10th Cir.

1972) and Brandon v. United States, 381 F.2d 12%

(10th Cir. 1967). This conflict needs to be resolved

so that the cireuits will have a clear indication of the

weight to be given to evidence admitted through excep-

tions to the hearsay rule in criminal cases.

4The Webb case substantially modified or clarified two other

Seventh Cireuit cases on which the Karnap Court heavily relied;

namely, United States v. Harris, 466 F.2d 129 (7th Cir. 1971) and

United States v. Holmes, 387 F.2d 781 (7th Cir. 1968) cert. denied

391 U.S. 936. Neither Harris nor Holmes ean now be read to allow

a hearsay exceptions to constitute the corpus delicti of a criminal

case.

5 The defendant has no duty to rebut the case against him. The

prosecution must shoulder the entire load of proving its case be-

yond a reasonable doubt, Tehan v. Shott, 382 U.S. 406, 415 (1966).

13

III

This case affords an opportunity to rule that erim-

inal wilful neglect cannot exist absent actual know!l-

edge of a duty. The Court will thereby resolve a con-

flict in the Circuits.

On January 12, 1971, the local board mailed an Order

to Report for Induction to 203 Green Oak Drive,

Huntington, West Virginia (his parent’s home), by

registered mail, return receipt requested, with the nota-

tion of ** Deliver to Addressee Only.”? The January 12,

1971 induction order was returned to the local board

on February 1, 1971 as ‘‘Unclaimed’’. The petitioner’s

last reported address was 2207 University Avenue,

Brown, New York, ‘‘while he was at N.Y.U.’’. How-

ever, in December of 1970, during Christmastime, he

had received and signed for his order to report for a

physical at the West Virginia address and a similar

order sent to the New York address was returned to

the local board as ‘*Unelaimed’’. The local board only

mailed one order for induction.

The petitioner’s failure to receive the Notice to Re-

port for Induction is shown by Selective Service ree-

ords as it was returned ‘“‘Unclaimed’’, The fact that

such non-receipt may have been the result of noneom-

plianee with the duty to keep the loeal board advised

of his address (which is not clear because the notice

was not sent to his last reported address)°® is immate-

rial because such noncompliance is another offense.

Evidence of this nature has been directly held to be

insufficient to sustain a conviction for failure to report

The defendant should not be required to bring in the government's

Witnesses, being bound by their testimony, and run the risk of

adverse or impeachable testimony. Lopez v. United States, 373

U.S. 427, 445 (1963), (Warren, C.J. concurring).

*°Cf. Bartchy v. United States, 319 U.S. 484 (1943).

14

because the registrant did not know of his duty; any

presumption of receipt because of the mailing is re-

butted by the return of the notice as ‘*Unelaimed”’,

United States vy. Williams, 421 F.2d 600 (10th Cir,

1970); Fisher v. United States, 413 F.2d 1034 (9th

Cir. 1969); and see United States v. Figurell, 462 F.2d

1080 (3rd Cir, 1972) (by implication) ; and, Graves y.

United States, 252 F.2d 878 (Cir. 1958). A contrary

result was reached below where the court speculated

that the Notice was ‘*Unclaimed’”’ because of the de-

fendant’s own conduct although only one notice to

report was mailed (on January 12, 1971, to his parent’s

home after Christmastime) and that not to the last

mailing address he gave to the board (the New York

school address) as required by 32 C.F.R. 1641.3. (App.

A, p. 5a). A similar result seems to have been reached

in United States v. DeNavarez, 407 F.2d 185 (2d Cir.

1969) and United States v. Preston, 420 F.2d 60 (5th

Cir. 1969). Hence, a deep division in the Circuits is

seen.

IV

This case affords an opportunity for the Court to

directly rule, as it has not but should, that *‘individual-

ized sentencing’ is constitutionally required. The

Court will thereby resolve conflicting opinions in the

circuits.

The sentencing judge, in a pre-trial conference,

stated that he had agreed with the other judges in his

district that a three year sentence was appropriate in

Selective Service cases so that the offender would serve

as much time in prison, one year, as his tour of service

in Viet Nam would have been. The petitioner was in

fact later sentenced to three years imprisonment. The

15

facts are clear in this case at bar’ but the law regarding

individualized sentencing is not.

This Court has indicated that it favors ‘“individual-

ized sentencing.’”? For example, in Williams v. New

York, 3387 U.S, 241 (1949) at 247, this Court declared,

“The belief no longer prevails that every offense of

like legal category calls for identical punishment with-

out regard to the past life and habits of a particular

offender.’? Later, in Williams vy. Oklahoma, 358 U.S.

576 (1959) at 585, this Court stated that the sentencing

judge ‘is authorized, if not required, to consider all

of the mitigation and aggravating circumstances in-

volved in the crime.’’

The Sixth Circuit has construed the two Williams

cases, and other cases involving due process, to mean

that individualized sentencing is required. United

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

States v. Charles, 460 F.2d 1093 (6th Cir. 1972). (See

also, United States v. Wiley, 267 F.2d 453 (7th Cir.

1959)) Specifically, the Sixth Circuit prohibited the

mechanical imposition of a standard sentence for all

violators of 50 Appendix U.S.C., Section 462. The

Fourth Circuit, however, held that the petitioner’s eom-

plaint about the admittedly mechanical sentencing of

the district court was without merit. Hence, the Sixth

and the Fourth Cireuit have conflicting opinions on

the question of mechanical sentencing and this is a

question on which this Court should make a definitive

ruling.

Furthermore, the mechanical imposition of a sentence

to cause a person to “serve as much time in jail as he

* The judge did indicate probation was given in guilty plea cases.

Hence, the issue here involves ‘‘mechanical sentencing,’’ in non-

guilty plea cases.

bf

.

See a

t)

16

would have in Vietnam”’ is clearly retribution for its

own sake, The sentence is ‘‘society’s’’ vehicle for

getting back at a person who had supposedly chosen

not to go to Vietnam. This Court has ‘consistently

denigrated retribution as a permissible goal of punish-

ment.”” Furman vy. Georgia, 408 U.S. 238 (1972), at

p. 345 (Justice Marshall concurring).

Finally, from another perspective, it may be said

that mechanical sentencing denies the accused of his

right to counsel at sentencing. Cf. Mempa vy. Rhay, 389

U.S. 128 (1967). If the judge has a preconceived

notion or if the judges in a judicial district have agreed

on the type of sentence in a given class of cases, then

all of counsel’s alloeution at sentencing is feckless.”

Hence, it was a useless formalism for counsel to be

present and the petitioner was denied assistance of

counsel at his sentencing.

CONCLUSION

The petitioner was subjected to a trial by presump-

tion and inference and was mechanically sentenced.

For these reasons, a writ of certiorari should issue to

review the decision of the United States Court of Ap-

peals for the Fourth Circuit.

Respectfully submitted,

Gary Howard Srurson

Counsel for Petitioner

Dated: June 21, 1973

8In Shepherd vy. Florida, 341 U.S. 50 (1951), beeause of pre-

trial publicity, the ‘trial was but a legal gesture to register a ver-

dict already dictated.”* (341 U.S. at 51). Similarly, in the case

at bar the pre-sentencing procedure and the allocution were but

legal gestures prior to the imposition of a preordained sentence. In

both cases the due process denials are patent.