United States v. Richmond

Citation274 F. Supp. 43
Decision Date21 August 1967
Docket NumberNo. 63 C.D.,63 C.D.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
PartiesUNITED STATES of America, Plaintiff, v. Norman Earl RICHMOND, Defendant.

COPYRIGHT MATERIAL OMITTED

John K. Van de Kamp, U. S. Atty., Robert L. Brosio, David R. Nissen, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff.

Ben Margolis, Los Angeles, Cal., and George T. Altman, Beverly Hills, Cal., for defendant.

MEMORANDUM OPINION

DELEHANT, Senior District Judge.

On November 16, 1966, an indictment was found, returned and filed by a duly constituted Grand Jury within and for this court against Norman Earl Richmond (hereinafter referred to generally as "the defendant") as defendant. In and by such indictment, it was and is charged against the defendant that:

"Defendant NORMAN EARL RICHMOND, a male person within the class made subject to selective service under the Universal Military Training and Service Act, registered as required by said Act, and the regulations promulgated thereunder and thereafter became a registrant of Local Board No. 119, said Board being then and there duly created and acting, under the Selective Service System established by said Act, in Los Angeles County, California, in the Central District of California; pursuant to said Act and the regulations promulgated thereunder, the defendant was classified in Class I-A and was notified of said classification and a notice and order by said Board was duly given to him to report for induction into the armed forces of the United States of America on October 18, 1966, in Los Angeles County, California, in the district aforesaid; and at said time and place the defendant knowingly failed and neglected to perform a duty required of him under said Act and the regulations promulgated thereunder in that he then and there knowingly failed and neglected to report for induction into the armed forces of the United States as so notified to do."

Also on November 16, 1966, and upon such indictment, a warrant for the arrest of the defendant was issued out of this court by the Clerk thereof, which warrant was executed by the United States Marshal of this district (through one of his duly appointed and qualified deputies) on November 18, 1966.

On December 19, 1966, pursuant to earlier setting by this court, the defendant appeared in person and by counsel of his own selection, before this court, the Honorable A. Andrew Hauk, one of the judges of this court presiding, for arraignment and plea, and then and there was arraigned in due form, and pleaded not guilty to the single charge against him made in the foregoing indictment.

Thereafter, and on March 8, 1967, the defendant, in writing, and with the approval in writing of both of his counsel, made and filed herein a waiver of the right to trial by jury, and a request that the court try all charges against him, but without any waiver of the right to request any special findings of fact as provided by Rule 23(c), Federal Rules of Criminal Procedure; subjoined to which was a signed consent by the United States Attorney that the case be tried without a jury, coupled with a tendered waiver by the United States Attorney of the right to request any special findings of fact as provided by Rule 23(c), Federal Rules of Criminal Procedure. Also on March 8, 1967, the court (the present judge presiding), after conference with the attorneys for both parties and with the defendant in person within the presence of, and with the stenographic recording of the proceedings of such conference by, the court reporter, approved the foregoing waiver of trial by jury, of course, with the reservation to the defendant of the right under Rule 23(c), Federal Rules of Criminal Procedure to request any special findings of fact.

Thereafter, and on March 14, 1967 and March 15, 1967, trial of this cause was publicly had to the court, without a jury, John W. Delehant, Senior United States District Judge presiding. In harmony with an informal discussion in open court at the close of the trial, between counsel and the court, counsel for the several parties, as of March 23, 1967, the defendant personally approving as of March 17, 1967, entered into a stipulation in writing, which was lodged in the clerk's office on March 24, 1967, and formally filed therein on March 30, 1967, after the approving order of the judge as of March 24, 1967. A copy of that stipulation appears as a footnote hereto.1

It appears to be appropriate at this point for the writer of this memorandum opinion to make two observations. The first is that, as the judge presiding over the trial, he considers that the striking, through the use of ink, both by the defendant and by his counsel, of the language in the typed form of waiver employed on March 8, 1967 designed to waive the right to request special findings as provided by Rule 23(c) should be liberally construed as operative actually to request such findings generally. The court, therefore, without requiring any further or more explicit demand in that behalf, is announcing herein its factual findings. Secondly, since it is preparing and filing this memorandum opinion, it is incorporating such findings herein, without any formal findings of fact separate and distinct from this memorandum opinion. However, as will presently be obvious, the court's formal announcement of judgment will be made in open court by the judge.

The several exhibits introduced and received in evidence upon the trial have been assembled and considered. The court has had access to a transcript of the testimony received in behalf of the parties, as well as to selected material presented prior to the instant trial in the course of the trial of Criminal Case No. 62 in this court, and has been favored with the exhaustive briefs of counsel, as well as the oral arguments of counsel in the course of the trial.

It is preliminarily observed that the reporter's transcript of the proceedings in the course of the trial fairly discloses such evidentiary issues as were tendered during, as well as at the threshold of, the trial. That record speaks for itself, and is not presently recalled or discussed. References, however, are later and briefly made to some, though not all, reservations of questions (e. g., of relevancy or of materiality) on occasions when the court provisionally and precautionarily received certain offered testimony, to which objection had been advanced.

Norman Earl Richmond is a male person. He was born March 6, 1946 in the community known as Arcadia in the state of Louisiana, United States of America. On March 18, 1964, he was, therefore, eighteen years, twelve days of age. He was five feet and seven and three-eighths or eight inches tall, and weighed one hundred forty pounds. He then resided at 1920 West 95th Street, Los Angeles, California.

On March 18, 1964 the defendant executed, signed and filed a Selective Service System Registration Card (SSS form No. 1, revised March 14, 1962). His local board in the Selective Service System was "Local Board No. 119, Los Angeles County, 14911 Crenshaw Boulevard, Gardena, California. By that local board, a Selective Service System Classification Questionnaire was, on April 15, 1964, transmitted to him by United States mail at his place of residence, supra. He timely received that questionnaire; and thereafter and on April 24, 1964, returned it to Local Board No. 119. In it, as returned, and among other things, he identified the date and place of his birth, his name, height (specifying five feet, seven and three-eighths inches), weight, and place of residence as already disclosed, supra; identified a telephone number through which he might be reached, his Social Security Number, the name and address of a woman who would always know his address (incidentally, but immaterially, a person with a name different from that of a woman mentioned for the same purpose on his registration card); stated that he had never been married; identified as members of his immediate family his 38 year old father, his 39 year old mother, and his two sisters respectively 16 and 14 years of age; stated that he had graduated from high school; denied conviction of any criminal offense "other than minor traffic violations" (a phrase, in the printed form, not of his insertion); and disclaimed being a sole surviving son of a family of which one or more sons or daughters were killed in action or died in line of duty while serving in the nation's armed services, or subsequently died of injuries received or disease incurred in such service. Besides those statements, he left uncompleted and quite blank the spaces involving (a) any military record, (b) marital status and dependency, (c) occupation (note, however, that in his registration card he had declared that he was a "student L. A. C. C.," presumably meaning "Los Angeles City College"), (d) agricultural occupation, (e) all questions touching any claim of status as a minister of religion, or as to preparation for that occupation, (f) all questions oriented to the status of a conscientious objector, (g) all questions touching education, except his graduation from high school, and current college attendance, supra, (h) all questions touching alienage, and (i) all questions touching possible disqualification for military service by reason of physical or mental infirmity. He volunteered no information in the spaces inviting such information generally. He executed that questionnaire on April 23, 1964.

On May 4, 1964, the defendant's status was considered by a three member panel of Local Board No. 119, and he was classified as in Class 1-A, that is, subject to military service, by the unanimous vote of the panel. And on May 6, 1964, notice of such action was sent to him through United States mail by Local Board No. 119.

On August 14, 1964, Local Board No. 119, on SSS Form 223, by mail directed the defendant to present himself for Armed...

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    • United States
    • U.S. Court of Appeals — Fifth Circuit
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    ...in the Universal Military Training and Service Act. Etcheverry v. United States, 9 Cir., 1963, 320 F.2d 873, 874; United States v. Richmond, C.D.Cal., 1967, 274 F.Supp. 43; Arver v. United States, supra. However, appellant mounts one further constitutional assault on the Act. He alleges tha......
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