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December 12, 1967

UNITED STATES of America, Plaintiff,
Alexander M. LYBRAND, Defendant

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Defendant, Alexander M. Lybrand, was classified a conscientious objector opposed to participation in war in any form (Class I-O). He was ordered by his local draft board to report for civilian work in lieu of induction into the Armed Forces. Having failed to report, he was indicted and tried by the Court for knowingly failing to comply with his local draft board's order. 50 U.S.C. App. §§ 456(j), 462(a).

 At the trial the government called as its only witness the Chief Clerk of the defendant's local draft board. Defendant's Selective Service file was marked for identification and fourteen of the documents in the file were introduced. These documents, together with the Chief Clerk's testimony with respect to the practice of the local board and instructions given to defendant, constituted the government's case.

 Defendant introduced no evidence. He moved for a judgment of acquittal specifying sixteen separate grounds, including denial of the right to counsel in his appearances before the local board, incomplete and misleading advice given by the local board in response to his written inquiry, and absence of proof that defendant was called to civilian work in lieu of induction in the order prescribed by the Selective Service regulations. These contentions came as no surprise to the government which had been furnished with defendant's trial brief before any evidence was received; it contained authority and argument in favor of each of defendant's grounds for dismissal.

 For the reasons stated below, the Court holds that the government was required to prove that defendant was ordered to report at the time he "would have been ordered to report for induction if he had not been classified in Class I-O." 32 C.F.R. § 1660.20. Because failure to establish this element of the prosecution's case requires granting the motion for a judgment of acquittal it is unnecessary to consider defendant's other contentions.

 Power of Court to Question Lawfulness of Order by Local Board

 A preliminary issue is whether this Court is foreclosed from deciding if the local draft board complied with the Selective Service Regulations in ordering the defendant to report for induction.

 Prior to the 1967 amendments, the statute governing the draft provided that:

"The decisions of such local boards shall be final, except where an appeal is authorized and is taken * * *. The decision of * * * appeal boards shall be final in cases before them on appeal unless modified or changed by the President * * * and the determination of the President shall be final." Universal Military Training and Service Act, 50 U.S.C. App. § 460(b)(3).

 The Supreme Court has interpreted this provision as authorizing limited judicial review. In the leading case of Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946), the Court held that a showing by the defendant that his classification was without "basis in fact" was sufficient to deprive the local board of jurisdiction and constituted a defense to a prosecution for failing to comply with its order.

 Following the rationale that the local board loses jurisdiction when it denies substantial rights accorded by the regulations, trial courts refused to convict and appellate courts reversed convictions where there were prejudicial errors in processing a registrant. Many of these cases involved irregularities in the classification process. See, e.g., Olvera v. United States, 223 F.2d 880 (5th Cir. 1955) (failure of board to give adequate reason for discretionary refusal to reopen defendant's classification); Knox v. United States, 200 F.2d 398 (9th Cir. 1952) (failure to classify defendant anew after a personal appearance). But the doctrine was not limited to classification procedures. Thus, in United States v. Mohammed, No. 57 CR 532 (N.D.Ill.1958), described in United States v. Mohammed, 288 F.2d 236, 240 (7th Cir. 1961), a verdict of guilty was set aside and a new trial ordered because the court found that the order of induction was signed by the clerk of the local board and defendant's file contained no indication that the order was authorized by the board. And in United States v. Garst, 132 F. Supp. 93 (S.D.N.Y.1953), the court ruled that the local board's induction order was invalid and directed a judgment of acquittal where it appeared that defendant was over twenty-six years of age when the order was finally issued and that the board was in error in extending defendant's liability to the draft until age thirty-five.

 The 1967 amendments exclude judicial review of classifications unless there is "no basis in fact" for the classification. The amendment reads as follows:

"No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant." 50 U.S.C. App. § 460(b)(3), as amended, 81 Stat. 104.

 The question posed is whether the 1967 legislation can be interpreted to foreclose the defense that the board acted beyond its authority in issuing the order, defiance of which is the basis of this prosecution. To put the example used by the Supreme Court in Estep, does the new amendment mean that if a man from Oregon were drafted by a Pennsylvania draft board, he would be precluded from raising this point in defense to a prosecution for failure to obey the draft order?

 The legislative history of this provision gives little indication that it was designed to achieve such an extreme result. Relevant Congressional reports suggest that what was sought to be avoided was routine review by the courts of classification orders. The House Report does not even mention the language relating to the scope of review. H.Rep. No. 267, 90th Cong., 1st Sess. (1967), 1967 U.S.Code Cong. & Admin.News, pp. 1464, 1489. It indicates only that "[the] committee was disturbed by the apparent inclination of some courts to review classification action * * * before the registrant had exhausted his administrative remedies." Id. The only other mention of the provision in the committee reports was in the Conference Report which states that:

"there shall be no judicial review of classification except as a defense to a criminal prosecution after a person has exhausted his administrative remedies and presented himself for induction. This language also provides that any such judicial review shall extend only to whether there is any basis in fact for the classification assigned." Conf.Rep. No. 346, 90th Cong., 1st Sess. (1967), 1967 U.S.Code Cong. & Admin.News, pp. 1508, 1516-1517.

 There is no indication that Congress was concerned with jurisdictional errors involving matters other than the classification of the registrant. On the contrary, it appears that Congress was attempting to state a standard for scope of judicial review -- of classifications -- narrower than the substantial evidence test. Cf. Dickinson v. United States, 346 U.S. 389, 399, 74 S. Ct. 152, 159, 98 L. Ed. 132 (1953) (Jackson, J., dissenting) ("It will not do for the Court as in Estep to say on the one hand that the board's action is not subject to 'the customary scope of judicial review' and that 'the courts are not to weigh the evidence,' and then on the other to strike down a classification because no affirmative evidence supporting the board's conclusion appears in the record."); Davis, Administrative Law § 23.08, at 332 (1958) ("The search for a formula which will meaningfully make the scope of review narrower than what is provided by the substantial-evidence rule has not yet met with success"). But cf. Changes in the Draft: The Military Selective Service Act of 1967, 4 Columbia Journal of Law and Social Problems, 120, 156-159 (1968) (Only purpose of amendment was to overrule Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (2d Cir. 1967) which permitted review of classification of students in a civil action where students asserted that their First Amendment Rights were violated). The language of the statute and its legislative history point to the conclusion that Congress left untouched the power of the courts to consider -- in a criminal prosecution -- jurisdictional errors other than those dealing with classification.

 Illegality of Order to Report

 The Selective Service Regulations expressly provide that an order to a conscientious objector to report for civilian work " shall not be issued prior to the time registrant would have been ordered to report, if he had not been classified in Class I-O." 32 C.F.R. § 1660.20. Concededly, in the present case, the government failed to offer proof that this provision was complied with by the defendant's local board.

 Having concluded that defendant is not foreclosed from asserting the board's lack of jurisdiction as a defense, it must be determined whether, assuming non-compliance, this irregularity would establish that defense. It seems clear that not every departure by a local board from standard practice, not each minor slip, deprives a local board of jurisdiction and invalidates its order. See, e.g., United States v. Lawson, 337 F.2d 800, 812-813 (3d Cir.), cert. denied, 380 U.S. 919, 85 S. Ct. 913, 13 L. Ed. 2d 804 (1964) (signing an order by rubber stamp violated regulations but did not void order to ...

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