Weintraub v. United States
Decision Date | 18 January 1971 |
Docket Number | No. 5961,5961 |
Citation | 400 U.S. 1014,27 L.Ed.2d 627,91 S.Ct. 572 |
Parties | Mark WEINTRAUB, petitioner, v. UNITED STATES |
Court | U.S. Supreme Court |
Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.
Denied.
I dissent from a denial of certiorari in this case.
The Selective Service Regulations1 provide the sequence in which registrants shall be ordered to report for induction. Petitioner was in the group of nonvolunteers who are to be inducted 'in the order of their dates of birth with the oldest being selected first.'2
It seems clear that the order of call provisions are mandatory and that the local board's failure to observe them is a defense to an indictment.3 On the trial of petitioner for failure to submit to induction, his counsel proffered evidence that some 18 registrants older than this petitioner and classified as I-A were available for in- duction on the day he was ordered to report but were not sent notices of induction. The District Judge indicated he probably would grant a motion for a judgment of acquittal unless the Government rebutted the evidence of violation of the Regulations. The Government thereupon called the clerk of the board who advised the court that the Selective Service records of other registrants were confidential and could not be released except with the permission of the Director.4 The court suggested that permission of the Director be sought.5 It was so sought but refused. The court thereupon examined the files in camera, reading into the record some of their contents but refusing to let counsel examine all of them. Petitioner was convicted and appealed.
The Court of Appeals disagreed with the District Court, saying:
It held, however, that the error was harmless.
One of the summaries concerned E. S. and the Court of Appeals made the following statement concerning him:
If 'signed up' means application for the Reserves, then the enlistment requirement of Rule 1622.13(f)6 would not be satisfied and E. S. should have been called before petitioner. The error could not be 'harmless' if petitioner was called up ahead of his time; and there is no way of determining whether E. S. had enlisted without probing the facts and cross-examining the Board's witness. The test we used in Alderman v. United States, 394 U.S. 165, 181, 89 S.Ct. 961, 22 L.Ed.2d 176, for determining what wire-tap records should be turned over by the judge who makes his in camera investigation of them is whether the record is 'arguably relevant' to the question whether 'tainted evidence' had been used to convict. Such a test applied would make at least the file of E. S. available to counsel for petitioner.
I dissent from a denial of certiorari on the issue so posed.
1 Reg. § 1631.7(a)(3) provides:
'* * * Such registrants, including those in a medical, dental, or allied specialist category, shall be selected and ordered to report for induction in the following order: * * * (3) Nonvolunteers who have attained the age of 19 years and have not attained the age of 26 years * * * in the order of their dates of birth with the oldest being selected first.'
3 One case holds that a local board's failure to observe the order of call regulations does not prevent a conviction for either refusal to report for civilian work, refusal to submit to induction or refusal to report for induction. That case, Schutz v. United States, 422 F.2d 991 (CA5), stands apart from the great weight of authority.
Two district court decisions expressly held that the Government had the burden of proof on the regularity of the order of call. United States v. Rhodes, Cr. No. 4112 (N.D.Cal.) (unreported); United States v. Lybrand, 279 F.Supp. 74 (E.D.N.Y.1967). No other court has subsequently adopted that position and all circuit courts which have faced the issue have rejected the Rhodes-Lybrand position.
The Second Circuit rejected Lybrand in United States v. Sandbank, 403 F.2d 38. In a footnote that court stated: 'An analogy
may be drawn to a defense of insanity; although it is an essential element of criminality that the perpetrator must have acted with a sane mind, the government need not establish sanity as part of its case in chief in every prosecution.' Id., at 40*. The Tenth Circuit has expressly adopted Sandbank. Little v. United States, 409 F.2d 1343.
The First Circuit accepts a presumption of regularity within the Selective Service System, but announced: ...
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