Yates v. United States, 7117.

• Decision Date: 14 February 1969
• Docket Number: No. 7117.,7117.
• Parties: Richard D. YATES, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

407 F.2d 50 (1969)

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

No. 7117.

United States Court of Appeals First Circuit.

Decided 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.

ON PETITION FOR REHEARING

PER CURIAM.

On December 13, 1968, we rendered our decision in Yates v. United States, 404 F.2d 462 (1st Cir. 1968), affirming appellant's conviction for refusal to submit to induction in the armed forces.

By petition for rehearing defendant asks that we reconsider our prior holding relating to two issues — order of call and custodianship of selective service files.¹ Normally, our disposition of a petition for rehearing is not accompanied by an opinion; however, we choose to expand upon our opinion in the present case in regard to order of call so that any misunderstanding may be prevented.

We begin by observing that each of petitioner's contentions flows from his interpretation of the concept of "element of the offense" as automatically involving certain inevitable consequences in every case. We rejected this view in our original opinion, and we continue to do so, because we think that, especially in this area of the law, analysis is not aided by labels, and that classification of order of call as an element of the offense does not in itself conclusively settle questions relating to the presentation and resolution of the issue.²

Specifically, petitioner argues that our original opinion's reliance on a presumption of regularity where the order of call issue was not raised at trial is erroneous in that the presumption shifts the burden of proof to the defendant in a criminal case, and moreover that the presumption has no basis in fact or law.

We were careful to state in our opinion that the government always has the burden of proof on the order of call issue and that a defendant, if he so requests, is entitled to an instruction on order of call.³ However, where no evidence is presented at trial, the government will be aided by a presumption. The presumption is, however, only permissive. The jury may find that the defendant was called in order, but it is not compelled to do so. As we indicated in our earlier opinion, we do not think that this is unfair to defendants, and it certainly does not constitute a shifting of the burden of proof.⁴

Petitioner also challenges the correctness of the presumption by arguing that there is not a sufficiently close connection between the facts shown and the fact presumed. Essentially, petitioner contends that the presumption is given its prima facie force by the fact of the defendant's silence, and not by virtue of the efficiency of the Selective Service System. We think that petitioner has misconceived the point of our holding. The prima facie force of the presumption does not stem from defendant's silence but rests on the assumption — well established in our legal system — that, absent assertions to the contrary, an administrative agency has followed its own rules and regulations. See, Oestereich v. Selective Service Bd., 393 U.S. 233, 89...