Yates v. United States, 7117.

• Decision Date: 13 December 1968
• Docket Number: No. 7117.,7117.
• Citation: 404 F.2d 462
• Parties: Richard D. YATES, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

404 F.2d 462 (1968)

Richard D. YATES, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 7117.

United States Court of Appeals First Circuit.

Heard October 1, 1968.

Decided December 13, 1968.

Rehearing Denied February 14, 1969.

Robert S. Frank, Jr., Boston, Mass., by appointment by the Court, with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for appellant.

John Wall, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Edward F. Harrington, Asst. U. S. Atty., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Rehearing Denied February 14, 1969. See 407 F.2d 50.

McENTEE, Circuit Judge.

Defendant, one Yates, appeals his conviction for refusal to submit to induction into the armed forces. In October 1963 shortly after his eighteenth birthday, defendant registered with Local Board 15 in Walterboro, South Carolina, the Selective Service Board that had jurisdiction over him. Subsequently he moved to Boston where he now lives. In 1966 when classified 1-A and ordered to report for induction defendant appeared at Local Board 34 in Roxbury, Massachusetts, and requested transfer of induction to Boston.¹ This request was granted and shortly thereafter the Massachusetts Board ordered him to report for induction. Yates then applied to his South Carolina Board for reclassification as a conscientious objector.²

Although this reclassification was denied, it did result in cancellation of the outstanding induction order. In May 1967 the South Carolina Board again ordered the defendant to report for induction and he requested and was granted another transfer to Boston for induction. Shortly thereafter the Massachusetts Board ordered him to report for induction in Boston on June 14, 1967. He reported but refused to submit to induction. Defendant was indicted and after trial by jury was found guilty as charged and sentenced.

On appeal he questions the sufficiency of the indictment³ and also complains that the trial court erred in refusing to grant his motion for judgment of acquittal.

Relying principally on Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), defendant contends that the indictment is defective in that (1) nowhere in it is his liability for induction alleged; (2) it does not charge him with a knowing failure to submit to induction; (3) the phrase "his local draft board" is fatally ambiguous in the context of this case and (4) the indictment fails to allege that he was called in proper order by his South Carolina draft board.

In Russell the defendant was convicted of refusal to answer questions of a congressional investigating committee. The indictment was found defective because it did not specify the matters under investigation. Throughout his discussion of the indictment defendant cites Russell for the proposition that in addition to setting out the elements of the offense charged the indictment must allege specifics.

This proposition must, however, be read in relation to the indictment's primary goal — that defendant be apprised with reasonable certainty of the nature of the charge against him. It also must be read in light of the facts in Russell. There the lack of explicitness went to the very core of a very complex factual situation; not so in the instant case.

Coming now to defendant's first two challenges, we think the indictment, although somewhat general, sufficiently alleges (1) the defendant's liability for induction and (2) that the defendant knowingly failed to submit to induction. With regard to the first, he could hardly "neglect to perform a duty required of him" if none were required. As to the second, the words "unlawfully, knowingly and wilfully" which appear in the beginning of the indictment are incorporated by reference into the specific portion of it.

Defendant's third and fourth challenges to the sufficiency of the indictment also constitute two of his three grounds for judgment of acquittal. He complains that the phrase in the indictment "his local draft board" is ambiguous in that it does not identify which order of which draft board created the duty to submit to induction; that this phrase can only refer to the South Carolina Board, whereas the government's proof showed that defendant was ordered to report for induction by the Massachusetts Board, thus creating a prejudicial variance between the indictment and the proof. These contentions are also without merit. The simple common sense of the matter is that when the defendant was charged with failure to obey an order of his draft board to report for induction on June 14, 1967, there can be no doubt that he knew very well which order and which board was meant. Even though three previous induction orders had been issued, all of them bore a much earlier date and each of them had been cancelled. By no stretch of imagination could the indictment be regarded as referring to any of these cancelled orders. It was at defendant's own request that he acquired a Local Board of Transfer for induction purposes. The fact that he also had a Local Board of Origin in South Carolina might in some highly theoretical sense make the phrase "his local draft board" ambiguous, but in context there certainly is no practical ambiguity.⁴ We fail to see how in the circumstances of this case the omission of the term "of transfer" from the indictment in any way misled or prejudiced this defendant.

We are not persuaded by defendant's contention that the indictment must allege and the government must affirmatively prove that he was called for service in proper order. The indictment does not have to allege this specifically; it is included in the general allegation that defendant "did unlawfully * * * neglect to perform a duty required of him under * * * the Universal Military Training and Service Act and the rules, regulations and directions duly made pursuant thereto * * *."

In considering the nature of the burden on the government as to proof of proper "order of call," we acknowledge the differing approaches of United States v. Lybrand, 279 F.Supp. 74 (E.D. N.Y.1967); Greer v. United States, 378 F.2d 931 (5th Cir. 1967) and United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968)⁵. Greer, the first of the trilogy, (if we except the unreported decision, United States v. Rhodes, Criminal No. 41,112, N.D.Cal. Jan. 26, 1967) simply held that in the absence of any evidence of failure to follow proper order of call, the gap is filled by a presumption of regularity. Lybrand denominated order of call an "element of the offense" and held that, there being no affirmative proof, the government had not made out a case.⁶ In Sandbank the Second Circuit held that "the better rule is to require the registrant to show that the call up was invalid as part of his defense * * *"⁷

This impels us to consider the extent of the government's burden and the manner in which it should be expected to sustain that burden, consistent with the rights of the defendant, in the light of such factors as the access to proof by both sides, its criticality and administrative limitations.

To begin with, adherence to the order of call regulation, while not unimportant, does not seem to us to be of the magnitude of the jurisdictional defects with which Estep was concerned. In a large draft board area perfect proof that no person exists who should have been drafted before the defendant but was not, would be improbable. On the other hand, there exists the possibility that capricious or arbitrary action was taken by a local board; a defendant has little opportunity to obtain proof of discrimination; and there is no chance or procedure to review this issue before the agency. There ought, therefore, to be a means of exerting constant pressure on the local boards to adhere faithfully to the order of call regulation.

There is no difficulty in the perhaps rare case where a defendant can produce evidence of a person who should have been called before him but was not. In such a case, the government cannot disprove a leak in a bucket simply by showing most of it was tight. But where the defendant lacks any such proof, his only recourse is to examine the clerk of the local board. This may not conclusively establish the absence of any violation of the regulation but, since the clerk must testify in any case to the validity of the order to report, there is little extra burden on the government to have him prepared to testify on order of call.⁸

If, however, the order of call point is not raised before trial and...