United States v. Dennis Adrian Baker

416 F.2d 202 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Adrian BAKER, Defendant-Appellant. No. 24024. United States Court of Appeals Ninth Circuit. Sept. 17, 1969. Arthur Brunwasser (argued), San Francisco, Cal., for appellant. Paul G. Sloan (argued), Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., San Francisco, Cal., for appellee. Before HAMLEY and KOELSCH, Circuit Judges, and KILKENNY, District judge. * KOELSCH, Circuit Judge: 1 Dennis Adrian Baker, a registrant classified I-A (i.e. available for military service) appeals from the judgment convicting him of failing to comply with the order of his Local Draft Board to report for induction into the armed forces of the United States of America. (50 App.U.S.C. 462) 2 Baker's sole attack is directed against the order. He argues that it was invalid for two reasons: 'First, because the local board did not hold a meeting and approve the issuance of the Order, as required by 32 C.F.R. 1631.7 under the Brede rule, and, second, because the local board called appellant out of the proper order required by the regulations without any apparent excuse or justification.' We discuss the contentions separately. 3 1. The order to report…

Dennis Adrian Baker, a registrant classified I-A (i. e. available for military service) appeals from the judgment convicting him of failing to comply with the order of his Local Draft Board to report for induction into the armed forces of the United States of America. (50 App. U.S.C. § 462)

Baker’s sole attack is directed against the order. He argues that it was invalid for two reasons: “First, because the local board did not hold a meeting and approve the issuance of the Order, as required by 32 C.F.R. § 1631.7 under the Brede rule, and, second, because the local board called appellant out of the proper order required by the regulations without any apparent excuse or justification.” We discuss the contentions separately.

1. The order to report for induction.

The Order to Report for Induction (SSS Form 252) upon which the conviction rests was signed by an assistant clerk of the Board and the Government concedes that the Board held no meeting after receiving the State Director’s Notice of Call on Local Board (SSS Form No. 201) to select and deliver registrants for induction.

Selective Service Regulation § 1631.7 provides in part that a local board “upon receiving a Notice of…

(dissenting) :

Even conceding the correctness of the doctrine branding the order of call as an essential “element of the offense”, as stated in United States v. Lybrand, 279 F.Supp. 74 (E.D.N.Y.1967), I would not place on the Government the burden of producing other registrants’ records to show a proper order of call. Greer v. United States, 378 F.2d 931 (5th Cir. 1967) ; United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968); and Yates v. United States, 404 F.2d 462 (1st Cir. 1968) , do not require that result.

Those in charge of the administration of our Selective Service System face monumental problems in exercising their legal discretion on when and under what circumstances a registrant’s call should be deferred, and another called in his stead. The decisions in Greer, Sandbank and Yates are on sound ground in requiring a registrant to show the invalidity of the call as part of his defense. Yates did not depart from that teaching in recognizing that “rare case where a defendant can produce evidence of a person who should have been called before him but was not.” Yates, supra, p. 466 . Here, the appellant asked for and received a hearing before the Judge, outside the presence…