United States v. Beltran
Decision Date | 11 July 1969 |
Docket Number | Crim. No. 42330. |
Citation | 306 F. Supp. 385 |
Parties | UNITED STATES of America, Plaintiff, v. Raul Retamoza BELTRAN, Defendant. |
Court | U.S. District Court — Northern District of California |
U. S. Atty. Cecil F. Poole and Asst. U. S. Atty. John G. Milano, San Francisco, Cal., for plaintiff.
Philips B. Patton, Santa Cruz, Cal., for defendant.
This matter was before the Court on Defendant's motion to acquit after the close of the government's case. The Defendant's Selective Service file reflects that on March 6, 1967, he was classified I-A. On December 27, 1967, he was ordered to report for induction on January 18, 1968. Defendant did not report and was processed as a delinquent on February 5, 1968; his delinquency was reported to the United States Attorney on April 29, 1968. On January 21, 1969, the Defendant requested that he be reclassified I-O. The Board considered this tardy request and refused to re-open his file. That the board need not re-open in such circumstances is clear. Palmer v. United States, 401 F. 2d 226 (9th Cir. 1968). That the board may re-open is also clear. 32 C.F.R. § 1625.14. Any re-classification by the board must be reported to the United States Attorney, obviously because such board action may have a bearing on the United States Attorney's decision to proceed with or decline prosecution. 32 C. F.R. § 1642.42.
The Defendant contends that this motion to acquit should be granted because his local board was not properly constituted at the times his classification was considered. Selective Service Regulation 1604.52(c) states in pertinent part:
The members of local boards shall be citizens of the United States who shall be residents of a county in which their local board has jurisdiction and who shall also, if at all practicable, be residents of the area in which their local board has jurisdiction.
Jurisdiction in Monterey County is divided between Local Boards 65 and 66. Local Board 66 encompasses substantially the City of Salinas and environs, and Local Board 65 encompasses the area in which the Defendant resides, including Carmel, Pacific Grove, Monterey, Seaside, and King City. At the times Defendant's classification was considered Local Board 65 included four members who resided in the area served by Local Board 66, and one member who resided in the area served by Local Board 65. Local Board 66 also included at least one member who was a resident of the area served by Local Board 65.
Under the regulation if it were practicable to compose Local Board 65 of residents of the area served by that board, then the above composition of the board would be improper. Assuming that there is a presumption of administrative regularity in favor of the government (contra, United States v. Hinch, 292 F. Supp. 696 (W.D.Mo.1968), any such presumption is overcome by the evidence in this case, because the most reasonable inference to be drawn from the evidence is that it was practicable to compose the board of local residents. The Court can take judicial notice that the area encompassed by Local Board 65 is inhabited by a substantial number of qualified citizens. Reference can be made to the population data of the State Department of Finance and the United States Bureau of Census to substantiate this. This area, no doubt, contains many citizens eligible and willing to serve. It also appears that one member of Local Board 66 is a resident of the area encompassed by Local Board 65. There does not appear to be any reason why this member, who is apparently qualified and willing to serve, should not be serving on Local Board 65. This Court, therefore, finds that Local Board 65 is improperly constituted.
To continue reading
Request your trial-
National Ass'n of Greeting Card Publishers v. U.S. Postal Service
...see also United States v. Lemke, 310 F.Supp. 1298 (N.D.Cal.1969), set aside 439 F.2d 762 (9th Cir. 1969); United States v. Beltran, 306 F.Supp. 385 (N.D.Cal.1969), represent a line of authority inapposite to the instant case. Williams and Machado hold that a defendant being prosecuted crimi......
-
Goral v. Dart
...protection of the individual subject to the officer's authority. See, e.g. , 181 N.E.3d 766450 Ill.Dec. 414 United States v. Beltran , 306 F. Supp. 385 (N.D. Cal. 1969) (statutory requirement that draft status be determined by ‘neighbors’ was held sufficiently important to allow draft resis......
-
Daniels v. Industrial Com'n
...statutorily required for the benefit and protection of the individual subject to the officer's authority. See, e.g., United States v. Beltran, 306 F.Supp. 385 (N.D.Cal.1969) (statutory requirement that draft status be determined by "neighbors" was held sufficiently important to allow draft ......
-
United States v. Cabbage, 19775.
...other grounds sub nom., Kolden v. Selective Service Board, 397 U.S. 47, 90 S.Ct. 811, 25 L.Ed.2d 33 (1970). See also United States v. Beltran, 306 F.Supp. 385 (N.D.Cal.1969); United States v. Machado, 306 F.Supp. 995 (N.D.Cal.1969); United States v. Lemke, 310 F.Supp. 1298 (N.D.Cal. The due......