United States v. Velazquez
| Decision Date | 30 April 1973 |
| Docket Number | No. 72 Cr. 851.,72 Cr. 851. |
| Citation | 359 F. Supp. 448 |
| Parties | UNITED STATES of America v. Jose Emiliano VELAZQUEZ, Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Richard Levy, Eisner & Levy, Michael D. Ratner, New York City, for defendant.
Whitney North Seymour, Jr., U. S. Atty., New York City by George E. Wilson, Sp. Asst. U. S. Atty., for plaintiff.
MEMORANDUM OPINION
Jose Emiliano Velazquez is a twenty year old New York City resident of Puerto Rican birth, and a self-professed activist in the Puerto Rican Socialist Party. He has been indicted for alleged violations of the Military Selective Service Act of 1967. Title 50 Appendix, United States Code, §§ 451 et seq. Count I of the indictment charges him with failing to submit to an armed forces physical examination on January 21, 1972; Count II charges a failure to report for and submit to induction on July 6, 1972.
Voluminous pre-trial motions have been made on behalf of the defendant, including an omnibus motion for disclosure of electronic surveillance with respect to defendant's premises and the premises of the Puerto Rican Socialist Party; a motion to suppress statements made by the defendant to the authorities; a motion for a bill of particulars and various discovery motions; and a motion to disqualify the Special Assistant United States Attorney whose exclusive role in this district is to prosecute Selective Service law violations.
Further, the defendant has made nine pre-trial motions to dismiss the indictment, asserting (1) that this is a selective, vindictive prosecution in retaliation for defendant's militancy; (2) that the uneven enforcement of the Selective Service law in various sections of the mainland and Puerto Rico violates his right to equal protection of the laws; (3) that the Selective Service law, applied to persons of Puerto Rican origin, violates the Geneva Convention, (4) and the United Nations Charter; (5) that the Selective Service law illegally subjects him to existing discrimination against blacks and Puerto Ricans in the armed forces; (6) that the indictment was returned by an unrepresentative, unconstitutionally selected Grand Jury; (7) that the Selective Service board's letter notice to report for a physical examination was invalid and therefore vitiates Count I of the indictment; (8) that the order to report for induction prior to a physical examination was invalid, thereby vitiating Count II of the indictment; and (9) that Count II of the indictment is duplicitous in that, in this particular context, a duty to report and a duty to submit state two separate offenses.
As interesting as many of these motions are, it is clear that some involve political questions which have been raised in the wrong forum; others involve issues which the defendant has no standing to raise. On fuller development, one or more might be meritorious, but in view of this Court's disposition of the indictment based on but one of the pre-trial motions, it is not necessary to reach any of those remaining.
The dispositive motion has been made pursuant to Fed.R.Crim.P. 12. In it the defendant has moved for a pre-trial order dismissing Count I of the indictment on the ground that the defendant's Selective Service file proves beyond question that the defendant was never under a legal duty to report for a physical examination because the notice he received was insufficient.
For the reasons set forth below, this Court dismissed the entire indictment by Order filed April 24, 1973, having determined that the facts asserted by the defendant were established by competent documentary evidence; and that this Court had the power to consider and act upon this motion at this time; and that given the established facts, the indictment could not stand as a matter of law.
A valid duty to report for a physical examination is an essential element of the crime charged in Count I. To sustain its burden of proof the government must establish that the defendant was a registrant (not at issue here), that the order to report was valid, and that the defendant received it.
The government is entitled to rely upon a labyrinth of presumptions— of validity of Selective Service orders and proceedings, see Yates v. United States, 407 F.2d 50 (1 Cir.), cert. denied, 395 U.S. 925, 89 S.Ct. 1781, 23 L. Ed.2d 242 (1969), and of the receipt of Selective Service communications from the mere mailing thereof. See United States v. Lee, 458 F.2d 32 (9 Cir. 1972); United States v. Garrity, 433 F.2d 649 (8 Cir. 1970). Thus, it is enough to support an indictment for the government to allege, as it has in this case, that the defendant is a registrant "to whom an Order to Report for Armed Forces Physical has been mailed . . .". Indeed, unless receipt is contested, mailing is enough, if proved, to support a conviction.
However, the presumptions are not sufficient to sustain the government's burden if the defendant asserts competent evidence to the contrary. United States v. Bowen, 414 F.2d 1268 (3 Cir. 1969). If that occurs, it then becomes the burden of the government to prove that the order to report was valid, and that the registrant actually received the communication. United States v. Smith, 308 F.Supp. 1262 (S.D. N.Y.1969).
The defendant's motion is directed at these presumptions and it attempts to show that the facts asserted therein are conclusive and dispositive of the issue concerning the defendant's legal duty to report for a physical examination.
Appended to the moving papers are copies of the Minutes of Action and three Selective Service Board communications regarding the defendant's physical examination. These documents are from his Selective Service file, provided to him by the government as part of pretrial discovery in this case.
These documents indicate that an Order to Report for Armed Forces Physical Examination (SSS Form 223) was mailed to the defendant on October 19, 1971. It directed him to present himself for Armed Forces Physical Examination on November 2, 1971. It is clear that this Order contained a typographical error made by the Board in the address. It was returned by the Post Office on October 27, 1971. On the same day the Board issued and mailed a new SSS Form 223 to what is characterized in the Minutes as the "correct address". This Order also directed the defendant to appear for his physical examination on November 2, 1971. On November 1, 1971, it too was returned by the Post Office.
Thereafter, the Board made inquiries of the defendant's address references and acquired his current address on November 5, 1971. But it never mailed another SSS Form 223 to the defendant. Instead, on January 5, 1972 the Board mailed a Form Letter #8 which told the defendant that it was his "continuing obligation to report for Pre-Induction Physical Examination as indicated on your order issued by this local board on Oct. 27, 1971." This letter directed him to report for his physical examination on January 20, 1972. The reporting date was later changed to January 21, 1972, for reasons that are not clear from the Minutes. On January 21, 1972, the defendant appeared for the physical examination and was declared an uncooperative registrant.
For purposes of this motion, the defendant admits through his attorneys that he received Form Letter #8. He asserts that the documents from his Selective Service file prove beyond doubt that he never actually received either of the SSS Form 223 Orders that were mailed prior to his receipt of Form Letter # 8.
Given the presumption of regularity accorded Selective Service files, this Court regards the copies of the Selective Service documents from those files as competent evidence. See United States v. Bulger, 338 F.Supp. 629 (N.D. Cal.1972). Cf. United States v. O'Rourke, 341 F.Supp. 622 (S.D.N.Y. 1972). Furthermore, the facts contained therein are at least sufficient to shift to the government the burden of proving the defendant's actual receipt of an SSS Form 223.
The government, of course, may attempt to prove these facts by independent evidence. United States v. Jones, 431 F.2d 619 (9 Cir. 1970), cert. denied, 401 U.S. 926, 91 S.Ct. 882, 27 L. Ed.2d 829 (1971). However, the government's response to this motion and to the facts demonstrated therein, in no way indicates that it has or intends to introduce such independent proof.1 In a four-page answering affidavit, there is not even an assertion that the facts are other than set forth by the Minutes of Action, and by the defendant. Nor does the government seek to rebut the presumption of the validity of the documents presented from the Selective Service file.
Therefore, this Court accepts as uncontroverted and established the facts revealed by the Minutes of Action and the copies of the SSS Form 223 orders of October 19, 1972, and October 27, 1971, and the Form Letter # 8 of January 5, 1972. To wit: the defendant never received and was never aware of the contents of the SSS Form 223 orders; the defendant did receive the Form Letter # 8 and was thereafter aware of the existence of the SSS Form 223 of October 27, 1971.
The government has not raised the possibility of the prematurity of this motion. However, this Court recognizes and the defendant's counsel acknowledge, that even though the ultimate question of the validity of a Selective Service board order and any alleged infirmity in the duty to report is one for the Court, not the jury,2 such a defense would normally be ruled upon after trial of the general issue.
But, here, where the facts are undisputable and dispositive of the issue in favor of the defendant, the matter seems ripe for judicial resolution on the law at this time. This is particularly compelling in this instance because if Count I falls because of an invalid order, Count II must fall also, see infra. Thus, disposition of this motion...
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