United States v. Machado

• Decision Date: 21 November 1969
• Docket Number: Crim. No. 42692.
• Citation: 306 F. Supp. 995
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Pedro Lucas MACHADO, Defendant.

306 F. Supp. 995

UNITED STATES of America, Plaintiff, v. Pedro Lucas MACHADO, Defendant.

Crim. No. 42692.

United States District Court N. D. California.

November 21, 1969.

Herzstein, Maier & Carey, Paul Maier, San Francisco, Cal., for defendant.

Cecil F. Poole, U. S. Atty., F. Steele Langford, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

MEMORANDUM OPINION GRANTING MOTION FOR JUDGMENT OF ACQUITTAL

ZIRPOLI, District Judge.

I. FACTUAL SETTING.

Defendant, Pedro Lucas Machado, is charged with refusal to submit to induction. He raises in his defense the fact that the draft board which classified him I-A and issued his induction order did not comply with 32 C.F.R. 1604.52(c), which states in its pertinent part the following: "The members of local boards * * * shall also, if at all practicable, be residents of the area in which their local board has jurisdiction."

The board involved herein is Local Board No. 65, the same board that was held to be improperly constituted four months ago in United States v. Beltran, No. 42330, (N.D.Calif. July 11, 1969), 306 F.Supp. 385. The government has stipulated that three of the five members of Local Board No. 65 which serves one-half of Monterey County live outside the jurisdictional boundaries of that board. The defense relies on Beltran and United States v. DeMarco, No. 42377 (N.D.Calif. July 30, 1969), in its motion for judgment of acquittal. The government points to the contrary cases of United States v. Nussbaum, 306 F.Supp. 66 (N.D.Calif. October 22, 1969), and United States v. Kaul, 305 F.Supp. 829 (N.D.Calif. October 28, 1969), which relies on Nussbaum.¹ The court has given reconsideration to its decision in DeMarco and has given close attention to the arguments concerning collateral attack. For the reasons to be set out below the court has decided that its initial determination in DeMarco was correct.

II. MANDATORY NATURE OF 32 C.F.R. 1604.52(c).

Nussbaum raises two arguments: (1) that Reg. 1604.52(c) is discretionary, not mandatory; (2) that even if the regulation is mandatory it cannot be raised as a collateral attack in the criminal trial. A refinement of the second point is that a challenge to the draft board's composition must be brought in a quo warranto "direct" attack. When discussing the mandatory-discretionary issue Nussbaum and the government in the present case point out that the regulation states an area-wide residency requirement, while the statute states a county-wide residency requirement. They argue that compliance with the statute is sufficient. This theory flies in the face of numerous selective service cases in which the courts held that a board's failure to comply with the regulations was a violation of due process. See Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968) (failure to give registrant an Armed Forces Security Questionnaire); Briggs v. United States, 397 F.2d 370 (9th Cir. 1968) (failure to give a pre-induction physical); Brede v. United States, 396 F.2d 155, modified on rehearing 400 F.2d 599 (9th Cir. 1968) (failure to be ordered for alternative service by a meeting of the local board); Boswell v. United States, 390 F.2d 181 (9th Cir. 1968) (failure to issue a form 150).

The second point argued is that the regulation's phrase "if at all practicable" shows the flexibility of the requirement and "suggests that * * * the additional requirement to be, not mandatory, but directory only." Nussbaum, at 68. However, the phrase in question only modifies the statement "members * * * who shall also, if at all practicable, be residents of the area * * *." If in fact members of that area can serve as a practical matter, then the phrase sheds no light whatsoever on whether this requirement is mandatory or discretionary. Furthermore, it is inconceivable that in the area served by Local Board No. 65, which covers one-half of Monterey County including Carmel, Pacific Grove, Seaside, King City and Monterey, it is not practicable to find five qualified persons who live in that area.

Looking to the regulation itself one sees that it uses the word "shall", not "may." "Shall" has been traditionally interpreted as a mandatory direction.

"The word `shall' is ordinarily imperative, of similar effect and import with the word `must', and inconsistent with the idea of discretion. 82 C.J.S. Statutes § 380, at pp. 877-882." Pittman Construction Co. v. Housing Authority of Opelousas, 167 F.Supp. 517, 523 (W.D.La. 1958). See e. g., Stanfield v. Swenson, 381 F.2d 755 (8th Cir. 1967); In re National Mills, 133 F.2d 604 (7th Cir. 1943).

A mandatory interpretation of Sec. 1604.52(c) is also consistent with the policy of the Selective Service System. Four basic assumptions of this system underline that policy. First, there is the doctrine that local board members are neighbors of the registrant. See Ayers v. United States, 240 F.2d 802, 809 (9th Cir. 1956); Knox v. United States, 200 F.2d 398, 402 (9th Cir. 1952). General Hershey urged this policy in front of Congress when he stated "the choice (of who is to serve) is being made by the neighbors of the man * * *."² And in its budget justification for fiscal 1967, Selective Service characterized the local boards as "little groups of neighbors."³

The second assumption is that the local board members are responsive to the community and would act under the "continuous observation of all other members of the community."⁴

The third assumption is that the due process constitutional guarantees and those provided for by the Administrative Procedure Act are not necessary to the local board proceedings because of the individualized treatment the registrant receives and the informality of the board.⁵

These policy reasons have also been used by the courts to refuse the right to counsel at the personal appearance.⁶ In light of the courts' acceptance of the Selective Service's self-proclaimed model of "little groups of neighbors," as well as the use of the word "shall" instead of "may", it would seem that a mandatory interpretation of Sec. 1604.52(c) is compelled.

Since the regulation is mandatory, failure to follow it is a violation of due process. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Smith v. Resor, 406 F.2d 141, 145 (2nd Cir. 1969); United States v. Stiles, 169 F.2d 455 (3rd Cir. 1948); United States v. Eisdorfer, 299 F.Supp. 975, 987 (E.D.N.Y.1969); United States v. Walsh, 279 F.Supp. 115 (D.Conn. 1968); United States v. Schwartz, 143 F.Supp. 639, 640 (E.D.N.Y.1956). Some courts have required in certain situations a showing of actual prejudice before holding that a regulation violates due process. In the present context such a doctrine would work a fundamental unfairness to the defendant, for it is virtually impossible to show that a different result would have followed if the board had been properly constituted. And yet, given the broad powers of discretion in the local board⁷ it is quite likely that prejudice did or could result. Given that element of discretion and the policy behind the regulation the words of the court in United States v. Dale, 304 F. Supp. 1278 (District of New Hampshire July 31, 1969), are relevant:

There is no evidence that the defendant's classification was in any manner based upon prejudice * * *. In this situation * * * the absence of evidence of prejudice does not outweigh the obvious intent of the regulation and the seriousness with which it was undoubtedly drafted. * * *" (Emphasis supplied).

Also as the court succinctly said in Oshatz v. United States, 404 F.2d 9, 12 (9th Cir. 1968): "in this case Oshatz might not stand convicted of a felony had he been given the opportunity to execute the loyalty questionnaire. * * that is sufficient prejudice to require reversal." The effect of the decision herein is to remind the Selective Service System that the regulations apply to its operations as well as to the conduct of the registrant.

III. QUO WARRANTO DOES NOT LIE.

Even though the regulation is mandatory Nussbaum holds that an attack on the failure of the board to comply with Reg. 1604.52(c) can only be raised by a "direct" quo warranto proceeding. Historically quo warranto was "the prerogative writ by which the government (could) call upon any person to show by what warrant he holds a public office or exercises a public franchise." Newman v. United States ex rel. Frizzell, 238 U.S. 537, 545-546, 35 S.Ct. 881, 883, 59 L.Ed. 1446 (1915); Wirtz v. National Maritime Union of America, 399 F.2d 544, 548 (2nd Cir. 1968).

Since there are no selective service cases prior to Nussbaum discussing quo warranto it is necessary to look at the traditional cases in this area. These cases break down into two major divisions; those where there has been an alleged usurpation of a public office and those where a private party alleges that he has title to a position held by another.

The use of quo warranto to challenge the usurpation of public office is typified by corporate and habeas corpus cases. The first general situation deals with corporations and corporate office. Quo warranto is often used to challenge right to hold office in a corporation. For example, in Bill v. Carr, D.C., 88 F.Supp. 578 (Conn.1949), a former director of the Northeastern Insurance Company requested that the election of the present directors be declared null and void. The case of Community Blood Bank of Kansas City Area, Inc. v. FTC, 405 F.2d 1011, 1019 (8th Cir. 1969), points out that when corporations organized under nonprofit laws actually engage in profit-making activities they may lose their charter through quo warranto proceedings. However, because the franchises of unincorporated associations do not depend on the state quo warranto is inappropriate. See Wirtz v. National Maritime Union of America, 399 F.2d 544, 546 (2nd Cir. 1968).

The habeas corpus cases rely on Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899). In Ward the Court held that a person...