United States v. Kotrlik, 72-1577

• Decision Date: 04 December 1972
• Docket Number: 72-1589.,No. 72-1577,72-1577
• Citation: 465 F.2d 976
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathan Charles KOTRLIK, and Craig Ronald Gaevert, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.2d 976 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Nathan Charles KOTRLIK, and Craig Ronald Gaevert, Defendants-Appellants.

Nos. 72-1577, 72-1589.

United States Court of Appeals, Ninth Circuit.

August 11, 1972.

Certiorari Denied December 4, 1972.

Stephen Adams (appeared), of Adams & Adams, San Francisco, Cal., for Nathan Charles Kotrlik.

J. Thomas Hannan (argued), of Lovitt & Hannan, San Francisco, Cal., for Craig Ronald Gaevert.

Fredric F. Tilton, Asst. U. S. Atty. (argued), F. Steele Langford, Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for the United States.

Before BARNES and TRASK, Circuit Judges, and BATTIN,^* District Judge.

Certiorari Denied December 4, 1972. See 93 S.Ct. 539.

PER CURIAM:

All parties to these companion and consolidated appeals agree that the sole question involved is whether the 1969 draft lottery, which assigned appellants their induction priorities, was required to be "statistically random".

Prior to 1970, Selective Service registrants were called for induction in order of their ages, the oldest first. In 1970, Random Selection Numbers (RSN's) were chosen by assigning each day of the year a number from 1 to 366, and picking each number by random selection. Each number chosen was the RSN for all men whose birthdays fell on such date. Secondary numbers were assigned to the letters of the alphabet to distinguish among men with the same birthdate. Secondary numbers referred to the first letters of the registrants first and last names.

Appellants admit they cannot and are not seeking a "pure" or "scientifically perfect" random lottery, but assert that the selection should be "more random" than they assert it was.

The District Court's opinion summarized the drawing procedure, as appears in Note 1.¹ The full description of the mixing, tumbling, drawings, etc., which occurred appears in the Government's Brief, pp. 3 to 7, and need not be repeated here.

Appellants assert there was an insufficient mixing of the capsules. The trial court denied appellants' pretrial motion for the appointment of expert witnesses to criticize the procedure followed, stating that there was no plan, purpose or pattern in the drawing of the numbers, and hence it was a "random drawing", as the term random is usually understood and used in ordinary English language. The court below in describing the drawing said:

"While perhaps not scientifically perfect, the draft lottery of December 1, 1969 was conducted in a perfectly fair manner. There was no discrimination. There was no inequity. The Selective Service officials did not deliberately select the number assigned to defendant\'s birthdate any more than the defendant himself deliberately chose the date of his birth." (Appeal Record page 114, at 117.)

We agree, and affirm the trial court's decision.

* Honorable James F. Battin, United States District Judge, District of Montana, Billings, Montana, sitting by...