Petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
Mr. Justice DOUGLAS, dissenting.
I dissent from a denial of certiorari in this case.
The Selective Service Regulations1 provide the sequence in which
registrants shall be ordered to report for induction. Petitioner
was in the group of nonvolunteers who are to be inducted 'in the
order of their dates of birth with the oldest being selected
It seems clear that the order of call provisions are mandatory
and that the local board's failure to observe them is a defense to
an indictment. [Footnote 3
the trial of
Page 400 U.S.
petitioner for failure to submit to induction, his counsel
proffered evidence that some 18 registrants older than this
petitioner and classified as I-A were available for in-
Page 400 U.S.
duction on the day he was ordered to report but were not sent
notices of induction. The District Judge indicated he probably
would grant a motion for a judgment of acquittal unless the
Government rebutted the evidence of violation of the Regulations.
The Government thereupon called the clerk of the board who advised
the court that the Selective Service records of other registrants
were confidential and could not be released except with the
permission of the Director. [Footnote 4
] The court suggested that permission of the
Director be sought. [Footnote
] It was so sought
Page 400 U.S.
but refused. The court thereupon examined the files in camera,
reading into the record some of their contents but refusing to let
counsel examine all of them. Petitioner was convicted and
The Court of Appeals disagreed with the District Court,
'The principal contention of the
appellant is that counsel for the defense should have been allowed
to see the files and determine for himself whether any material
therein could have based an attack on cross-examination on the
board's determination which might have demonstrated a lack of basis
in fact for the determination. We think this contention well
founded. A defendant is entitled to such an inspection, subject to
protective order by the court to mask the names or by other means
prevent public disclosure of the content of the files, so that
without violating the confidentiality of the files he may properly
determine for himself whether there is a proper foundation for the
board's apparent deviation from the order of call suggested by the
Form 102, see Alderman v. United States, 394 U.S. 165
so that a proper record may be preserved for appeal.' 429 F.2d
It held, however, that the error was harmless.
One of the summaries concerned E. S. and the Court of Appeals
made the following statement concerning him:
'E. S. was not available for
induction on June 8, 1967. He was a registrant who had already
signed up for the Reserves. While his request for an appeal or
personal appearance may have been untimely because it was made 12
days after the mailing of his notice of classification, rather than
the required 10 days, he was still unavailable for induction
Page 400 U.S.
because he had not had a pre-induction physical or mental
examination. He was finally classified I-D, which means he was a
member of a Reserve Unit or the National Guard.'
If 'signed up' means application for the Reserves, then the
enlistment requirement of Rule 1622.13(f)6 would not be satisfied
and E. S. should have been called before petitioner. The error
could not be 'harmless' if petitioner was called up ahead of his
time; and there is no way of determining whether E. S. had enlisted
without probing the facts and cross-examining the Board's witness.
The test we used in Alderman v. United States, 394 U.S.
, 181, for determining what wire-tap records should be
turned over by the judge who makes his in camera investigation of
them is whether the record is 'arguably relevant' to the question
whether 'tainted evidence' had been used to convict. Such a test
applied would make at least the file of E. S. available to counsel
I dissent from a denial of certiorari on the issue so posed.
provides: '... Such registrants, including those in a medical,
dental, or allied specialist category, shall be selected and
ordered to report for induction in the following order: ... (3)
Nonvolunteers who have attained the age of 19 years and have not
attained the age of 26 years ... in the order of their dates of
birth with the oldest being selected first.'
Id., n. 1.
One case holds
that a local board's failure to observe the order of call
regulations does not prevent a conviction for either refusal to
report for civilian work, refusal to submit to induction or refusal
to report for induction. That case, Schutz v. United States,
( CA5), stands apart from the great weight of authority.
Two district court decisions expressly held that the Government had
the burden of proof on the regularity of the order of call. United
States v. Rhodes, Cr. No. 4112 (N.D.Cal.) (unreported); United
States v. Lybrand, 279 F. Supp.
(E.D.N.Y.1967). No other court has subsequently adopted that
position and all circuit courts which have faced the issue have
rejected the Rhodes-Lybrand position. The Second Circuit rejected
Lybrand in United States v. Sandbank, 403 F.2d
. In a footnote that court stated: 'An analogy
may be drawn to a defense of insanity; although it is an
essential element of criminality that the perpetrator must have
acted with a sane mind, the government need not establish sanity as
part of its case in chief in every prosecution.' Id., at 40*. The
Tenth Circuit has expressly adopted Sandbank. Little v. United
States, 409 F.2d
The First Circuit accepts a presumption of regularity within the
Selective Service System, but announced: 'There is no difficulty in
the perhaps rare case where a defendant can produce evidence of a
person who should have been called before him but was not. In such
a case, the government cannot disprove a leak in a bucket simply by
showing most of it was tight. But where the defendant lacks any
such proof, his only recourse is to examine the clerk of the local
board. This may not conclusively establish the absence of any
violation of the regulation but, since the clerk must testify in
any case to the validity of the order to report, there is little
extra burden on the government to have him prepared to testify on
order of call.' Yates v. United States, 404 F.2d
, 466. In a case involving failure to report pursuant to an
order for induction the Ninth Circuit held that where the defendant
adduces proof showing the order of call was not regular then the
burden shifts to the Government 'to justify by affirmative evidence
the by passing' of the older individuals. United States v. Baker,
In two cases involving failure to report for civilian work the
Fifth Circuit announced it followed a rule presuming regularity but
did not state the consequences of overcoming the presumption. Greer
v. United States, 378 F.2d
; Lowe v. United States, 389 F.2d
. Subsequently that circuit has refused to even allow
evidence of irregularity in the order of call where the defendant
refused to report for induction. Schutz v. United States, 422 F.2d
. The decision is unclear although the court rests on the
distinction between refusal to report and refusal to submit: 'This
appellant was convicted of failing to report for induction as
ordered, not for refusing to be inducted after arrival at the
induction center. Therefore, we do not discuss the cases which have
dealt with the latter situation, other than to say that wilful
refusal to report for induction is a separate offense.' The court
felt every 'registrant is required to report for induction as
though he may have valid legal grounds for refusing to submit to
induction.' Besides being the only case rejecting the defense it
would appear to conflict with the Ninth Circuit's Baker decision
which also involved failure to report for induction.
The Eighth Circuit has only passed on regularity of call in a
case involving an attempt to get pre-induction review. Green v.
Local Board No. 87, 419 F.2d
. It held that showing older I-A registrants were not called
was not 'facially unlawful' for purposes of pre-induction review. A
district court in that circuit has adopted the presumption of
regularity that the Fifth Circuit announced in Greer and Lowe.
United States v. Shacter, 293 F.
A district court in Wisconsin, without indicating what test it
would apply, cited Sandbank, Yates, and Lybrand and appears to
indicate it would at least hold if the defendant could establish
irregularities then there would be acquittal. United States v.
Ball, 49 F.R.D. 153 (E.D.Wis.1969). Another district court noted
the defendant failed to prove irregularities without stating what
it would do if he had. United States v. Noonon, 2 S.S. L.R. 3595
(W.D.Pa.1969). In a footnote that court noted three registrants
older than the defendant and in his category had not been called
for physicals. It was this local board's policy to defer a physical
when appearances or appeals were pending. The court noted this
violated the regulations, but in each instance the other person was
deferred. 'Since the deferments precluded these registrants'
inductions, the failure to administer a physical examination in no
way hastened defendant's induction.'
puts in Class I-D a registrant who 'enlists or accepts appointment
before attaining the age of 26 years' in the Reserves.