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April 11, 1969

James Harrison BRANIGAN, Jr., Defendant. UNITED STATES of America v. Sammie Lee BROWN, Defendant. UNITED STATES of America v. Christopher Strater ROBINSON, Defendant. UNITED STATES of America v. Ronald P. MOYER, Defendant

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

 These are various motions by defendants in four separate indictments, wherein each defendant is charged under the Selective Service Act with unlawful refusal to submit to induction. *fn1" The defendant Robinson also is accused of unlawful failure to have his classification card in his possession; the defendant Branigan, both his classification and registration cards. Since the respective motions by each defendant in substantial respects parallel one another and present common issues, they may be considered together.


 All the defendants challenge the array of the grand jury that indicted them, charging that the process of jury selection then in effect in this district reflected a policy of intentional and systematic discrimination against persons under 35, the poor, Negroes and Puerto Ricans. *fn2" Similar challenges have been repeatedly rejected by our Court of Appeals. *fn3" The only new issue advanced is the alleged discriminatory exclusion of persons under 35 years of age. However, this challenge requires no different result, since "it is a matter of common knowledge * * * that many women in the younger age groups have responsibilities of care for young children, and that many persons of both sexes in the younger age categories are away from home at school, and in the case of men, in military service." *fn4" This branch of the motion to dismiss is denied.

 Defendants also attack the petit jury array on the same grounds as those advanced with respect to the grand jury. But this challenge is premature, since it cannot now be determined whether any basis exists for challenge to those jurors who may be drawn for the defendants' trial under the recently effective Jury Selection and Service Act. Accordingly, this branch of the motion is denied as premature. *fn5"

 Moyer and Branigan contend that count 1 of their indictments is fatally defective for failure to allege that the defendants were ordered to report for induction pursuant to the order of call established by the Regulations. *fn6" The argument is without merit. The indictment charges the defendants with refusal to submit to induction, a duty required of them under the Act and the rules and regulations made pursuant thereto. This allegation is cloaked with the presumption of regularity in the administrative process. *fn7" Thus, the Government, as part of its case in chief upon the trial, may rely upon the presumption to establish the validity of the call-up order. *fn8" And while the issue may be raised by the defense, assuming it is a valid defense, thereby putting the Government to its proof in rebuttal, there is no requirement that the indictment affirmatively negate claimed defenses to the indictment - in short, the indictment need only allege the essential elements of the crime charged. The indictment against each defendant is sufficient to inform him of the elements of the charge against which he must defend himself to protect him against double jeopardy on the same charge and to enable the court to decide whether the facts alleged are sufficient in law to withstand a motion to dismiss the indictment or to support a conviction following a trial. *fn9"

 Branigan also moves to dismiss counts 2 and 3 of his indictment, which charge him with non-possession of his registration and classification certificates on the ground they do not charge criminal offenses under the statute. The claim is without merit. The regulations impose upon a registrant the duty to have in his personal possession at all times both his registration and his classification cards. *fn10" Section 12(a) of the Act makes it a criminal offense for a registrant knowingly to "fail * * * or refuse to perform any duty required of him under or in the execution of [the Act] * * * or rules, regulations, or directions made pursuant to [the Act] * * *." *fn11" Thus, upon its face, the statute transmutes into a criminal offense a registrant's failure to comply with the above mentioned regulations. However, Branigan contends that the statute does not come into play in this instance, since neither regulation contains any "suggestion" that a violation will result in criminal sanctions. He argues that the deletion in 1942 of a provision in the then existing regulation, *fn12" making non-possession of the registration card "a violation of these Regulations," *fn13" leaves in force only the sanction that such non-possession "shall be prima facie evidence of * * * failure to register"; in short, the change reflected, and practice confirmed, an administrative policy that non-possession was no longer to be considered a violation, involving criminal sanctions. The argument fails on a number of grounds. First, since the registration regulation expressly imposes the duty of possession which brings a breach thereof within section 12 of the Act, there is no requirement that it also specify that a violation of its provisions constitutes a criminal offense. Apart from the fact that it would be needless repetition, which probably accounts for its deletion in 1942, *fn14" the contention would give greater force to the regulation than to the statute. An administrative edict cannot overcome a statute which is the source of its authority. *fn15" Second, the defendant concedes that the regulation governing the classification certificate lacks a similar history to that of the registration provision - that is, at no time has that regulation provided that a violation would constitute a criminal offense, and so no such provision has ever been deleted. The defendant brushes this aside with the observation that a violation of the classification-card regulation is less serious than a violation of the registration-card regulation. The law, however, recognizes no such distinction, nor is there any basis for the purported distinction. As the Supreme Court pointed out in United States v. O'Brien: "The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system." *fn16"

 Finally, the contention that as a matter of administrative practice the possession requirement was not intended to be enforced by criminal prosecution is at once challenged by prosecutions and convictions for non-possession of registration or classification certificates which have been upheld by the courts. *fn17" That earlier prosecutions for non-possession may have been grounded on subsection (b) and not on subsection (a) of section 12 is of no significance; subsection (a) is broad enough to permit prosecution for the offense here alleged. The choice of subsection to be used rests with the prosecutor.


 Defendants Brown and Branigan mount a two-pronged attack upon the Act as unconstitutional upon its face and as applied to them. This attack is directed to the exemption for ministers and divinity students, *fn18" and the deferment for college students. *fn19" According to the defendants, not only must these provisions be stricken as unconstitutional, but the balance of the Act is not saved by the severability clause. *fn20" They contend the voiding of the challenged provisions would do such violence to the basic exemption and deferment policy of the Act as to alter materially the congressional Selective Service policy - in effect, for the judiciary to strike down only the alleged invalid provisions and to permit other aspects of the draft system to remain encroaches upon the power of Congress, which alone has the power to enlarge or restrict the classes subject to induction or to be exempted from service. *fn21"

 (a) The ministerial and divinity student exemption.

 Here the essence of the defendants' attack is that the ministerial exemption violates the First Amendment's prohibition of the establishment of religion; that it constitutes an impermissible classification that invidiously discriminates against defendants and others who are not ministers or divinity students in violation of their rights under the due process clause of the Fifth Amendment. The contention cannot be sustained. The power of Congress to grant exemptions and deferments is indeed broad. Its authority to classify and to conscript manpower for military service is beyond question. *fn22" In exercising that authority, Congress may, in the national interest, provide complete exemption from service for some and partial exemption for others. *fn23" This determination, insofar as it centers about the national welfare, is a matter of legislative grace. *fn24" Thus, Congress could conclude that in the national interest certain classes of otherwise eligible males should be excused from service and that ministers could be among them. *fn25" That we are a religious people made up of adherents of many faiths and sects is an historical fact. *fn26" The exemption provision, by its recognition that religion is a significant fact in the nation's life, does not thereby violate the mandate of government neutrality in matters of religion. It neither forces nor influences any person to attend or not attend a house of worship or to profess a belief or disbelief in any religion. *fn27" The injunction of neutrality does not require hostility toward religion. Indeed, the four dissenters in Everson v. Board of Education, speaking through Mr. Justice Rutledge, observed that: "Our constitutional policy * * * does not deny the value or the necessity for religious training, teaching or observance. Rather it secures their free exercise." *fn28" Congress, in the exercise of its broad power, could determine that ministerial exemption was required to secure to the masses of our citizens their constitutional right to the free exercise of their religion and that not to grant the exemption interferes with that fundamental guarantee. *fn29"

 Thus, Mr. Justice Brennan, in School Dist. of Abington Township, Pa. v. Schempp, postulated that even upon an assumption that a congressional provision contravened the Establishment Clause, nonetheless it could be sustained as necessary to secure the right guaranteed under the Free Exercise clause. *fn30" He expressed the view: "Such a principle might support, for example, the constitutionality of draft exemptions for ministers and divinity students." *fn31" And in a somewhat related reference to the issue, Mr. Justice Stewart, in his concurrence in Sherbert v. Verner, was of the opinion "that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom - not only for a minority, however small - not only for the majority, however large - but for each of us." *fn32"

 The Establishment Clause claim was advanced, and summarily rejected, by the Supreme Court when raised in the challenge to the 1917 Draft Act. *fn33" While the defendants argue, in the light of subsequent First Amendment developments, that the ruling cannot now be considered conclusive, *fn34" the re-enactment in substance of the same provision in the subsequent acts strongly suggests that its vitality remains unimpaired. *fn35" The statute carries with it not only the strong presumption of constitutionality, *fn36" ...

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