490 F.2d 29 (2nd Cir. 1973), 170, United States v. Velazquez

Docket Nº:170, 73-1869.
Citation:490 F.2d 29
Party Name:UNITED STATES of America, Appellant, v. Jose Emiliano VELAZQUEZ, Defendant-Appellee.
Case Date:December 28, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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490 F.2d 29 (2nd Cir. 1973)

UNITED STATES of America, Appellant,


Jose Emiliano VELAZQUEZ, Defendant-Appellee.

No. 170, 73-1869.

United States Court of Appeals, Second Circuit.

December 28, 1973

Argued Oct. 16, 1973.

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[Copyrighted Material Omitted]

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George E. Wilson, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., S.D.N.Y., John W. Nields, Jr., and S. Andrew Schaffer, Asst. U.S. Attys., on the brief), for appellant.

Michael D. Ratner, New York, city (Richard A. Levy and Eisner, Levy & Steel, New York City, on the brief), for defendant-appellee.

Before KAUFMAN, Chief Judge, and LUMBARD and TIMBERS, Circuit Judges.

LUMBARD, Circuit Judge:

This is an appeal by the government under 18 U.S.C. § 3731 (as amended) from an order of the Southern District (Pierce, J.) dismissing an indictment which charged Jose Emiliano Velazquez with failure to submit to an armed forces physical examination (count I) and with failure to report for and submit to induction (count II), both in violation of 50 U.S.C. App. § 462(a).

The indictment in the case was filed July 25, 1972, and on August 8, 1972, Velazquez pleaded not guilty. Over the following months he filed fourteen voluminous motions for dismissal, extensive discovery, and other forms of pretrial relief. The government filed brief affidavits in opposition to most of these motions. Trial had been tentatively set for December 4, 1972.

However no trial was held, nor any pretrial hearing. Instead, after several months' delay, and without hearing counsel for either side, Judge Pierce dismissed the indictment on April 24, 1973, on the basis of one of Velazquez' motions. In doing so he relied solely on the motion papers and presumably, although not explicitly, on the government's affidavit in opposition.

Velazquez' successful motion was made under Rule 12, F.R.Cr.P., on the grounds that he had a valid defense to count I of the indictment. He asserted that he had not received adequate notice of his duty to report for a physical examination, and that therefore he had never been under an obligation to submit to it.

Judge Pierce agreed with this argument, and extended it to count II of the indictment as well. In his memorandum opinion of April 30, 1973, in support of his dismissal order, Judge Pierce considered that under Rule 12 the court was entitled to pass upon the alleged defense to the indictment on the grounds of inadequate notice, inasmuch as such a defense, if raised at trial, would be passed upon in the first instance by the trial judge. He therefore considered those portions of Velazquez' Selective Service record which Velazquez had obtained on pretrial discovery and which had been included as part of the motion papers.

These revealed that on October 17, 1971, Velazquez' local board in New York mailed him a notice to report for and submit to a pre-induction physical examination (SSS Form 223), the examination to be held on November 2, 1971. Due to a typographical error, the notice was misaddressed and was returned undelivered to the board by the post office. A second Form 223 was sent on October 27, 1971, for the same November 2nd examination date, and to the correct address. But as Velazquez had moved, evidently without notifying his local board of the fact, it too was returned undelivered. The board subsequently obtained Velazquez' new address and on January 5, 1972, sent him notice (Form Letter #8) that he was under a continuing obligation to report for and submit to a physical examination. The letter informed him also that he was to appear for the examination at the Whitehall Street Armed Forces Entrance and Examination Station in Manhattan at 7:00 a.m. on January 20, 1972, a date later changed to January 21st. There is no dispute that Velazquez actually received this letter notice.

The motion papers further revealed that on January 21st Velazquez appeared

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as directed at the Whitehall Street station for his examination. However he refused to undergo the examination and refused to cooperate with Selective Service personnel, and he continued this refusal in spite of efforts by his local board to obtain the reasons for his failure to take the physical examination. Thereafter, on June 1, 1972, he was sent an order to report for and submit to induction because of his prior delinquency, the reporting date given as July 6, 1972. He again appeared at the Whitehall Street station on the required date, but he continued his refusal to cooperate.

Judge Pierce in his memorandum noted that Form Letter #8 contained none of the procedural safeguards and information about the rights of registrants which are printed on Form 223. 1 Relying on the fact that 32 C.F.R. § 1628.16(a) (1971) specified the use of Form 223, 2 and that the Selective Service apparently deemed notice of these rights to be of sufficient importance to be included on the required form, he held that Form Letter #8 did not provide adequate notice of an obligation to report, and hence that no duty to report arose upon its receipt. He concluded that, absent the duty to report, even though Velazquez had reported as ordered, there was no violation of 50 U.S.C. App. § 462(a) for failure to submit to the examination, since such a violation is premised on avoidance of the obligation with prior knowledge of the consequences. He accordingly dismissed the indictment as to count I.

Judge Pierce then went on to dismiss the indictment as to count II. He noted that a local board's authority to order a registrant to report for and submit to induction rested on 32 C.F.R. § 1631.6(a) (1972), which provides:

That notwithstanding Part 1628 or any provision of these regulations, when a registrant in whatever classification has refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination, he may . . . be selected and ordered to report for induction even though he has not been found acceptable for service in the Armed Forces . . ..

It followed, Judge Pierce concluded, that 'since the defendant was under no legal duty to report for a physical examination, he cannot be said to have 'refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination.''

The government seeks to appeal Judge Pierce's dismissal of the indictment in respect to both counts. It relies for authority to appeal on 18 U.S.C. § 3731 (as amended) and contends that appeal is not barred in this case by the constitutional protection against double jeopardy, which is now the sole bar to government appeals from dismissals in criminal cases. 3 On the merits it contends

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that receipt of Form Letter #8 provides adequate notice of a Selective Service obligation to report for and submit to a physical examination. It also urges that mere mailing of the form gives rise to the obligation (see fn. 2).

In opposition Velazquez contends, on the jurisdictional point, that although Judge Pierce styled his order a dismissal of the indictment, and although it was based solely on motion papers, it was nonetheless equivalent to an acquittal on the merits because the court had gone beyond the face of the indictment to consider 'competent evidence' (the court's term) contained in his Selective Service record. He therefore claims that an appeal would permit facts 'peculiar to the defendant'-- specifically receipt of Form Letter #8 in place of SSS Form 223-- to be reconsidered by a second tribunal, contrary to the provisions of § 3731. He argues further that an instance of double jeopardy would be the more clearly made out because of the hybrid nature of Selective Service cases, since they are at once traditional criminal proceedings and also proceedings for the review of administrative action which place in the hands of the judge issues of fact not usually left to his determination in ordinary criminal trials.

Velazquez also contends that even if an appeal is allowed, he should nonetheless prevail on the merits because Form Letter #8 does not provide adequate notice of legal obligations the neglect of which may incur severe criminal and administrative sanctions.


We hold that in this case an appeal by the government does lie under § 3731. We conclude that Velazquez was not placed in jeopardy by the determination of the trial court when it based the dismissal of the indictment against him solely on motion papers submitted prior to trial, before either the selection or waiver of a jury and without any opportunity for counsel on either side to be heard.

The Supreme Court has recently cautioned that the question of assessing whether jeopardy attaches is not to be decided by any mechanical test. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Accordingly, it is not wholly dispositive of the claim raised by Velazquez to state that since the jury was neither waived nor empaneled, jeopardy could not have attached, although this gives rise to a strong presumption. 4 United States v. Pecora, 484 F.2d 1289 (3rd Cir., 1973)

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. Nor is it satisfactory to rely, as has been done in non-jury cases, simply on the fact that no evidentiary hearing was held by the trial court in disposing of the motion. See Newman v. United States, 133 U.S.App.D.C. 271, 410 F.2d 259, cert. den., 396 U.S. 868, 90 S.Ct. 132, 24 L.Ed.2d 121 (1969). The critical question is whether the government's action in prosecuting Velazquez, in both its administrative and judicial phases, reached the point where the government's power to retrace its...

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