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UNITED STATES v. MILLER

December 16, 1965

UNITED STATES of America,
v.
David J. MILLER, Defendant



The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 Defendant Miller, who has been charged with knowingly destroying and mutilating his Notice of Draft Classification (SSS Form No. 110) (hereinafter "Notice") pursuant to the provisions of 50 Appendix United States Code 462(b), as recently amended by 79 Stat. 586, Public Law 89-152, August 30, 1965, moves to:

 
1. Dismiss the indictment, or, in the alternative, to
 
2. Receive a bill of particulars with regard to the charge, and to
 
3. Discover and inspect various documents and effects, including the charred remains of his aforesaid Notice.

 For reasons to be briefly hereinafter discussed, the motion to dismiss the indictment prior to trial is denied, and the motions for particulars and discovery, as will be more specifically delineated, are granted in part and otherwise denied.

 I.

 Upon his motion to dismiss, Miller argues variously that: (1) the indictment fails to charge a crime against the United States; (2) the indictment effectively denies or abridges his rights to freedom of speech, assembly and exercise of political rights, all as guaranteed to him by the First, Ninth and Tenth Amendments to the Constitution of the United States; (3) the indictment effectively denies him due process of law under the Fifth Amendment because the underlying criminal statute serves no legitimate legislative purpose; and (4) the indictment would work a deprivation of his right to be free from cruel and unusual punishment as secured to him by the Fifth and Eighth Amendments. *fn1" All of these claimed deficiencies, as Miller is aware, must be found at this stage, if they are to be found at all, on the face of the indictment or its statutory underpinning.

 A. Contention that the indictment fails to state a crime against the United States.

 In order to put this contention in focus, it is necessary to indicate that defendant's basic argument consists of the following syllogism:

 
1. Only destruction and mutilation of a "certificate" constitutes a violation of the pertinent provision of Section 462(b).
 
2. A Notice of Classification is not, as a matter of fact or law, a certificate.
 
3. Thus, Miller's alleged destruction and mutilation of his Notice does not constitute a violation of the statute.

 Simply stated, defendant's second or minor premise is erroneous. Although it may be argued that neither the provisions of Title 50 Appendix nor the regulations thereunder categorically define the Notice (SSS Form No. 110) to be a "certificate", it is plain enough from the face of Section 462(b) as a whole that Congress certainly there used the word "certificate" with intention to embrace, among other Selective ...


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