United States v. Crocker, 3-68 CR 51.

• Decision Date: 14 May 1970
• Docket Number: No. 3-68 CR 51.,3-68 CR 51.
• Citation: 313 F. Supp. 831
• Parties: UNITED STATES of America, Plaintiff, v. George William CROCKER, Defendant.
• Court: U.S. District Court — District of Minnesota

313 F. Supp. 831

UNITED STATES of America, Plaintiff, v. George William CROCKER, Defendant.

No. 3-68 CR 51.

United States District Court, D. Minnesota, Third Division.

May 14, 1970.

Robert G. Renner, U. S. Atty., by J. Earl Cudd, Asst. U. S. Atty., for plaintiff.

Chester A. Bruvold, Minneapolis, Minn., for defendant.

NEVILLE, District Judge.

The above case came before the court on May 12, 1970 on defendant's motion brought during the thirty day grace period at the end of which defendant must surrender himself to commence serving a prison sentence following the mandate of affirmance of his conviction from the United States Court of Appeals which was received by the clerk of this court on April 15, 1970. The motion seeks to set aside the jury's verdict which found the defendant guilty of wilful and knowing failure to comply with an order of his local Selective Service draft board to report for and submit to induction into the armed forces of the United States and further seeks to vacate the judgment of conviction and the sentence imposed pursuant thereto and requests an order dismissing the indictment and acquitting the defendant. The basis for the motion is that the defendant's Selective Service file (Government's Exhibit 1) conclusively demonstrates that defendant was classified as a delinquent and was "delivered for immediate induction as delinquent registrant" on February 7, 1968. It is contended that the case of Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), rendered illegal the so called delinquency and consequent acceleration provisions of the Selective Service Law and regulations and that since defendant's file shows that defendant was treated as a delinquent, ergo, his conviction should be set aside and judgment of acquittal entered.

Defendant's motion, it seems to the court, must be denied for any one of several reasons:

First, the motion procedurally is not proper. After a case has been tried, and in this case appealed, it is not grounds either for a new trial or for vacation of and setting aside the verdict and judgment that one of the parties has thought of a new ground for prosecution or for defense.

At no time did the defendant or his counsel either before this court, the Court of Appeals or the United States Supreme Court raise the so-called "delinquency" defense. Defendant argues that at the time of his trial this court (by another judge) had ruled against the delinquency defense and that it was therefore useless to assert it. United States v. Gutknecht, 283 F.Supp. 945 (D.Minn. May 1968). He could not or should not have been unaware of it as a defense, however. Further, the District Court decision was then on appeal. Significantly also by the time of defendant's petition for certiorari to the United States Supreme Court, Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (Jan. 19, 1970), had been decided. Defendant's complete eschewing of the Selective Service Law may or may not have led counsel to assert only the defense of unconstitutionality of the law, for certain it is that defendant declined to avail himself of two possible grounds for deferment and perhaps chose not to cloud the issue at trial. He never exercised any of his administrative remedies before the Board nor appealed his classification. Be that as it may and whatever the reasons behind defendant's actions, it seems clear that a defendant cannot try a case, assert some defenses, appeal and when dissatisfied, ask to open up the case to assert a second defense, appeal again if unsuccessful and if affirmed, appear again before the trial court and assert a third defense so as to start all over again. This is not contemplated by the laws nor is it accepted legal procedures. One must assert his defenses at the time or be deemed to have waived them. See Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), which, though a habeas corpus case, opines on the fact that "a shift in the law or the impact of a new decision" does not help a defendant where no appeal was taken and a particular defense had not been asserted.

Here the delinquency defense was known and had been asserted in other cases. Now defendant, though he eschews the law, attempts to rely on a court interpretation thereof which will set aside his conviction.

The above reasoning would seem to the court to apply whether or not, as a technical matter, the court treats defendant's motion as though brought under Rules 33, 34 or 35 or other sections of the Federal Rules of Criminal Procedure or as a motion brought under 28 U.S.C. § 2255, the "federal prisoner's habeas corpus." For purposes of argument, the court is willing to treat it either way. The court therefore declines to rely solely on the technical aspect as to whether the rhetoric of defendant's motion is proper. In either or any event, the reasons above stated should bar assertion of the defense at this time.

Second, the court does not believe that Gutknecht has application to the case at bar even if the delinquency defense now could be asserted for there is no showing here that the Local Board, by declaring defendant a delinquent in any way hastened or accelerated his induction notice. In fact, all of the inferences from the file seem to the contrary. Gutknecht speaks of and condemns declarations of delinquency against registrants who thereby lose a deferment or exemption and are...