United States v. Dobie

• Decision Date: 28 June 1971
• Docket Number: No. 14236.,14236.
• Citation: 444 F.2d 417
• Parties: UNITED STATES of America, Appellee, v. Larry Nolan DOBIE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

444 F.2d 417 (1971)

UNITED STATES of America, Appellee, v. Larry Nolan DOBIE, Appellant.

No. 14236.

United States Court of Appeals, Fourth Circuit.

Argued May 3, 1971.

Decided June 28, 1971.

Marvin M. Karpatkin, New York City (Louis Ellenson, court-appointed counsel, and Ellenson & Fox, Newport News, Va., and Karpatkin, Ohrenstein & Karpatkin, New York City, on brief), for appellant.

Roger T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., for Eastern Dist. of Virginia, on brief), for appellee.

Before BRYAN, WINTER, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

In an earlier opinion, United States v. Dobie, 429 F.2d 32 (4th Cir. 1970), this court vacated Larry Nolan Dobie's conviction for failing to report for induction and remanded the case to determine whether Dobie's local board illegally accelerated his induction order because he had been declared delinquent. We now hold that the government has failed to meet its burden of showing that Dobie's induction order was issued in the proper order of call.

In the fall of 1966, Dobie was enrolled as a junior at George Washington University in Washington, D. C. Through no fault of his own, the college reported him as a sophomore, and his local draft board, believing him not to be making satisfactory educational progress, denied him a student deferment. It classified him I-A on November 17, 1966, and notified him of his status on November 29.

Assuming the error to be the board's, Dobie wrote on December 2 requesting an explanation of his classification. The board's only reply was an order issued December 6 for him to report for a physical examination the following week. Dobie failed to report, and on December 16 the board wrote him that he was delinquent.

Three days after missing his physical examination, Dobie visited his local board headquarters to explain that he was still a student and that his education was proceeding at the proper pace. In addition, he told the clerk he was opposed to killing people, and she issued him an application for classification as a conscientious objector. He returned the form two days later without filling it in, but attached a fourteen page letter, which was for the most part a statement of his beliefs concerning the use of military force. The letter also explained that he failed to report for his physical examination chiefly because of his resentment at being denied deferment as a student. He wrote that he told the clerk he would have the college correct its administrative error upon his return to Washington, but that she nonetheless insisted he report for a physical examination. On January 3 the clerk notified Dobie that the board's previous order to report for a physical examination was proper, and that he was being rescheduled for examination on January 19. The board received a corrected student certificate from the college on January 6, but it took no steps to change his classification.

Shortly before his second scheduled physical examination, Dobie notified the board that he was leaving school. He also wrote that again he would not report for his physical examination — this time, however, as an act of conscience. In early February, the board sent him a delinquency notice dated January 26, 1967 for his failure to report for his physical examination on December 13. As instructed in the notice, he wrote the board immediately for advice about what he should do. Again the board did not respond to his letter. Instead, it simply ordered Dobie to report for induction as a delinquent on March 7.¹ Dobie did not appear on the appointed day, and his indictment, prosecution, and conviction followed.

In Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), the Supreme Court held that while the Military Selective Service Act of 1967² provided for the criminal prosecution of delinquent selective service registrants, it did not authorize the regulations providing for accelerated induction. Since Dobie's induction order was issued while the acceleration regulations were still in effect, the government has the burden of proving that Dobie's local board did not accelerate him.³ The sole question in this appeal, therefore, is whether the government has met its burden of proof.

The government does not contend that Dobie's local board did not follow the Selective Service regulations that authorized his accelerated induction as a delinquent.⁴ Instead, it claims that by happenstance there was no one in March 1967 who would otherwise have been called ahead of Dobie. To establish this coincidence, the government offered delivery lists of inductees for the months of February and March 1967, and the testimony of the clerk of Dobie's local board that he would have been ordered for induction in February instead of March if he had reported for his December physical examination. The government points to dictum in Yates v. United States, 404 F.2d 462, 465 (1st Cir.), reh. denied, 407 F.2d 50, cert. denied 395 U. S. 925, 89 S.Ct. 1781, 23 L.Ed.2d 242 (1969), which indicates that in some circumstances a clerk's testimony is sufficient to show that the proper order of call had been followed.

Yates held that an indictment need not allege that a registrant was called in proper order, and that the presumption of regularity which attaches to a draft board's proceedings precludes a registrant from questioning the order of call for the first time on appeal. We find no difficulty in accepting the Yates holding, but the government's reliance on its dictum is totally misplaced. Yates dealt with a standard order of call, not the illegal acceleration of a delinquent. The presumption of regularity to which Yates refers means only that in the absence of evidence to the contrary a draft board is deemed to have called its registrants in the order specified in the regulations.⁵ Prior to Gutknecht, however, the regulations required that delinquents be called first. In this case, therefore, the government cannot rely on the presumption of regularity to show that Dobie was not accelerated, and we must look instead to the proof available to the government and to the proof actually presented to determine whether the government has carried its burden.

First, we note that the written records of a draft board can establish conclusively whether or not a registrant has been accelerated. Each local board must maintain a file known as the "102 book" listing in order of birth all registrants born in the same year. 32 C.F.R. § 1621.6. Production of the 102 book would have shown immediately whether there were registrants older than Dobie who were not called ahead of him. Once the older registrants were identified, their classifications could have been checked to determine whether they were in a deferred status on the date he was called. See United States v. Weintraub, 429 F.2d 658, 660 (2d Cir. 1970), cert. denied, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971). The government, however, did not produce the local board's 102 book.

Another source of information is the monthly delivery lists by which inductees are forwarded to the induction center. 32 C.F.R. § 1632.5. Each registrant ordered inducted is listed by name and draft number. The draft number contains a code for the year of the registrant's birth. An inspection of delivery lists for the month Dobie was ordered inducted and for the next several months would show who, among those called at the same time or afterwards, was older than Dobie. A check of the records of these men would immediately establish whether any was subject to call the month Dobie's induction order was issued. The government produced the March list, which in itself is inconclusive, but did not produce any subsequent list.

Even if the 102 book and the delivery lists showed that Dobie was not called out of turn, they would not establish that he was called at the appropriate time. Again the procedure for determining whether the call was proper is simple. Each month the local boards receive a notice of call ordering them to deliver for induction the number of men requested by the state director. 32 C.F.R. § 1631.6. Thus, a comparison of the notice of call and the delivery list for a given month will show whether the local board exceeded its quota for that month, and whether a delinquent registrant was included in the excess. The government did not produce the March notice of call.

The delivery list for February 1967, the month before Dobie's call, shows that his local board called three registrants, two younger than Dobie and one older. Because younger men were called, the clerk testified that if Dobie had reported for examination in December as ordered, he would have been inducted in February. The clerk's opinion presupposes without foundation that Dobie would have stopped college even if he had not been notified of his imminent induction as a delinquent.⁶

The clerk's speculation about what would have happened if Dobie had reported in December is an insufficient...