United States v. Bulger, CR71-1039.
| Citation | 338 F. Supp. 629 |
| Decision Date | 02 March 1972 |
| Docket Number | No. CR71-1039.,CR71-1039. |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Richard Michael BULGER, Defendant. |
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John F. Cooney, Jr., Asst. U. S. Atty., San Francisco, Cal., for plaintiff.
Lawrence K. Karlton and Marcus Vanderlaan, Sacramento, Cal., for defendant.
NICHOL, District Judge (Sitting by Assignment).
Richard Michael Bulger was tried before this Court for willfully and knowingly failing, neglecting and refusing to submit to induction into the Armed Forces of the United States in violation of the provisions of 50 U.S.C.A. App. Sec. 462. Upon the conclusion of the evidence and defendant's motion for judgment of acquittal, this Court took the case under advisement. This decision is rendered in compliance with the provisions of Rule 23(c) of the Federal Rules of Criminal Procedure.
Bulger registered with his local board in 1963 at the age of 18. He was classified II-S until August 5, 1969, when he was reclassified I-A.1 He filed a timely appeal.
On October 8, 1969, the registrant submitted to a pre-induction physical examination. During the examination he was advised to send to the local board additional information from his private physician relating to his alleged knee condition. Following the examination and a routine check of defendant's civil offenses, the registrant was found acceptable for induction on November 24, 1969. There is nothing in the file to indicate that the defendant-registrant was given an opportunity to complete a security questionnaire (form DD-98), at his pre-induction physical.
Two letters concerning defendant's medical history relating to his knees, which had been sent to the local board, were reviewed and considered by the Armed Forces examining and entrance station personnel (hereinafter referred to as AFEES). AFEES recommended no change in defendant's classification, and he was so notified on January 29, 1970.
On February 26, 1970, the defendant was notified that since he had not withdrawn his earlier request for an appeal in writing, as he had indicated he would do, the local board was scheduling another date for his personal appearance. The registrant responded to this notice with a letter2 stating why he was appealing. In the letter Bulger related the history of his alleged knee injuries and his subjective complaints. At the personal appearance the local board granted the defendant one month's time to substantiate his claim with medical evidence. On July 14, 1970, the local board voted 5 to 0 not to reopen or reclassify the registrant. At that meeting the local board reviewed the entire selective service file of defendant and noted that the registrant had not submitted any new medical proof of his claims.3 On September 24, 1970, the State Appeal Board voted 4 to 0 to retain the registrant in the I-A class.
On November 18, 1970, defendant was ordered to report for induction on December 1, 1970. This order was returned to the local board with a request for a conscientious objector form. Bulger was subsequently ordered to report for induction on January 12, 1971, and again on February 24, 1971. His induction order was postponed upon receipt of his application for classification as a conscientious objector on February 22, 1971. With his application the registrant attached a letter, prepared by his attorney, stating that the induction notice had crystallized his conscientious objector beliefs and that defendant intended to refuse induction.
On March 9, 1971, the local board reviewed the conscientious objector claim of defendant and refused to reopen. The registrant was notified his new induction date was March 10, 1971. Bulger was found acceptable, but refused induction on March 31, 1971, after receiving a thorough physical examination and orthopedic consultation regarding his alleged knee problem.4 The selective service file indicates that the registrant was given the opportunity and did fill out a form DD-98 (security questionnaire) on March 31, 1971, before refusing induction.
Defendant's first contention is that the presumption of regularity, which makes the registrant's selective service file admissible, does not attach in this case since the presumption has been rebutted. Defendant submits the following alleged irregularities as sufficient to rebut the presumption: (1) The government admits the local board minute entry classifying the defendant I-A between the entries on July 20, 1966, and January 10, 1967, is apparently erroneous; (2) Defendant claims by a letter to the local board and his testimony at trial that he was not given a second mental test as indicated in his file; (3) No form DD-98 (security questionnaire) appears in defendant's file prior to the issuance of form DD-62 (statement of acceptability) on November 24, 1969; and (4) Dr. Harris' testimony indicates that the registrant was not given a high quality medical examination by AFEES.
The law in the Ninth Circuit is that a registrant's selective service file is admissible against the registrant in a criminal prosecution for failure to submit to induction. United States v. Lloyd, 431 F.2d 160, 163-164 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S. Ct. 2210, 29 L.Ed.2d 688 (1971). A presumption of regularity goes with the file that can be rebutted only by direct evidence showing it to be irregular. United States v. Baker, 416 F.2d 202, 205 (9th Cir. 1969). Not every irregularity in the file will rebut the presumption. Some showing must be made that the defendant's rights were affected by the alleged irregularity. United States v. Neckels, 451 F.2d 709, 712 (9th Cir. 1971); United States v. Chaudron, 425 F.2d 605, 610-611 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 93, 27 L. Ed.2d 89. The only irregularity actually shown here was the erroneous entry in the minutes of the local board showing the defendant to have been classified I-A between the entries on July 20, 1966, and January 10, 1967. This entry has not been shown to have affected defendant's rights in any manner. In addition, this Court holds that to rebut the presumption of regularity of the entire selective service file there must be evidence showing that more than one clerical error was made.5
As to defendant's claim that he was not given a second mental test, this Court does not believe that defendant's own self-serving statements are sufficient to rebut the presumption of regularity. The selective service file indicates at two separate pages (SS file at 67 & 69) that such a mental test was conducted.
The remaining points are also not sufficient and will be discussed below.
Defendant's next contention is that this is a crime requiring a specific intent as opposed to a general intent. He therefore argues that mistake of law should be a defense. It is his theory that the government must show that he acted with a bad purpose as opposed to the doing of a volitional act.
At trial, testimony by defendant's attorney prior to this trial was received subject to objection. His testimony was that he advised the defendant that the decision of Ehlert v. United States, 422 F.2d 332 (9th Cir. 1970), affm'd 402 U. S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), in the Ninth Circuit Court of Appeals would be reversed by the Supreme Court of the United States. Thus, defendant's attorney, acting as the ex-officio Supreme Court, determined that Bulger's late-filed conscientious objector claim required the local board to reopen the registrant's classification and grant him a I-O classification. History, as so often happens, proved his attorney to be wrong. See Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), decided April 21, 1971.
Such advice is no defense. Refusal to submit to induction is not a crime requiring a specific intent. United States v. Wood, 446 F.2d 505 (9th Cir. 1971). This same defense was raised in the Wood case upon the same grounds and was rejected. We are bound by the Wood decision.
Bulger was told of his legal obligation and the consequences of his refusal to submit, and yet he repeatedly refused to submit. At trial he admitted he was in control of his faculties and that he intended not to submit to induction. This is sufficient to show the necessary intent. United States v. Day, 442 F.2d 1034 (9th Cir. 1971).
Bulger's selective service file does not contain a form DD-98 (security questionnaire) completed by the registrant prior to the issuance of the form DD-62 (statement of acceptability). The file indicates that Bulger did not complete a DD-98 form until his second physical examination at the induction center. It is defendant's contention that under existing Army and Selective Service Regulations the statement of acceptability is invalid. Thus he contends the order to report for induction, which is based on the statement of acceptability, is invalid.
At all times pertinent hereto, 50 U.S. C.A. App. Sec. 454(a) read in part:
No person shall be inducted into the Armed Forces for training and service ... until his acceptability in all respects, including his physical and mental fitness, has been satisfactorily determined under standards prescribed by the Secretary of Defense. ... (emphasis added)
32 C.F.R. Secs. 1628.10 & 1631.7 require that each registrant be given a physical examination and be found acceptable before he is ordered to report for induction. Army Regulation 601-270, ch. 5, Sec. II, pars. 5-2 and 5-6, state that the form DD-98 (security questionnaire) is to be processed at the time of pre-induction examination. In addition the regulations state that the DD-98 form may be completed at any time during processing and that any registrant who qualifies the form will not be inducted before an investigation is made.
From a reading of these statutes and regulations, the Court cannot conclude that the...
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United States v. Velazquez
...files, this Court regards the copies of the Selective Service documents from those files as competent evidence. See United States v. Bulger, 338 F.Supp. 629 (N.D. Cal.1972). Cf. United States v. O'Rourke, 341 F.Supp. 622 (S.D.N.Y. 1972). Furthermore, the facts contained therein are at least......