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UNITED STATES v. FARINAS

December 30, 1969

UNITED STATES of America,
v.
Juan Pedro FARINAS, Defendant



The opinion of the court was delivered by: COOPER

COOPER, District Judge.

 Defendant's various motions seek dismissal of this indictment charging him in five counts with violating the Military Selective Service Act of 1967, discovery and inspection of certain material, and a bill of particulars.

 I. Dismissal of the Indictment

 On November 15, 1968, the Grand Jury filed indictment No. 68 Cr. 927 charging defendant in one count with failure to perform duties required of him under the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) and the rules and regulations promulgated thereunder, in that he, as a registrant ordered to report for induction, knowingly failed to obey the orders of Armed Forces representatives while at the place of induction. That indictment was subsequently dismissed by Judge Tenney as being too vague to permit defendant to adequately prepare a defense because the "orders of certain representatives of the Armed Forces of the United States" allegedly disobeyed were not specified or recited therein. United States v. Farinas, 299 F. Supp. 852 (S.D.N.Y.1969).

 Defendant's case was then presented anew to the Grand Jury resulting in the filing on May 29, 1969 of the instant five-count indictment, 69 Cr. 481, which charges that defendant:

 
(a) knowingly failed, neglected and refused to obey the orders of representatives of the Armed Forces of the United States while at the place of induction, to wit, he failed when ordered to do so to cease and desist distributing leaflets to other registrants, making speeches to other registrants, and engaging in boisterous and unruly behavior (Counts 1-3);
 
(b) knowingly failed, neglected and refused to report for and submit to induction into the Armed Forces of the United States (Count 4);
 
(c) knowingly by force and violence and otherwise hindered and interfered with the administration of the Military Selective Service Act of 1967 in that after being warned that activity disruptive of the processing of other registrants would constitute a felony he persisted in such activity by making speeches, distributing literature and engaging in boisterous and unruly behavior (Count 5). See 50 U.S.C. App. § 462(a); 32 C.F.R. § 1632.14.

 A. All five counts

 1. vindictiveness

 Defendant first moves for dismissal of the indictment on the ground that the return of a five-count indictment following dismissal of the prior one-count indictment "constitutes a form of vindictiveness against the defendant in violation of the due process provisions of the Fifth Amendment."

 We have no evidence of vindictiveness here. Indeed, defendant has obtained that which he sought: specification and particularization of the offenses charged. In any event defendant has not been prejudiced by the filing of a five-count indictment. The authorities relied upon by defendant, all involving a defendant who had been treated more severely following the assertion of certain constitutional rights, are inapposite. See North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (more severe sentence on retrial); United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) (exposure to death penalty if trial by jury); Colon v. Hendry, 408 F.2d 864 (5th Cir. 1969) (charging a felony on retrial in place of a misdemeanor). Here the maximum penalty to which defendant could be subjected if convicted has not been increased by the additional counts since all offenses charged arose out of a single incident. See United States v. Ketchum, 320 F.2d 3, 8 (2d Cir. 1963).

 2. multiplicity

 His claim that the indictment must be dismissed on grounds of multiplicity, or that the Government must at this stage elect among counts, is denied. See United States v. Ketchum, supra at 7-8; United States v. Leibowitz, 420 F.2d 39 (2d Cir., Dec. 19, 1969). We cannot find that the alleged multiplicity "appears upon the face of the indictment so clearly that it is manifest that the Government cannot, as a matter of law, prove separate and distinct offenses." United States v. Birrell, 266 F. Supp. 539, 544 (S.D.N.Y.1967). Each provision allegedly violated and each count charged herein involve or may involve proof of elements in addition to or different from the others. Compare Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

 B. Counts 1-3

 1. Constitutionality of the Statute

 a. Delegation of legislative power

 Defendant first seeks dismissal of Counts 1-3 on the ground that 50 U.S.C. App. § 462(a) constitutes an impermissibly broad delegation of legislative power by the Congress. This subsection provides in pertinent part that it shall be a criminal offense to knowingly fail to perform any duty as established by the rules and regulations promulgated under the authority of the President "to prescribe the necessary rules and regulations to carry out the provisions of this title." 50 U.S.C. App. § 462(a); 50 U.S.C. App. § 460(b)(1) and (c).

 His argument is premised on the alleged absence of any adequate legislative standard for the exercise of this delegation of authority, relying upon Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446 (1935). While concededly broad, we believe the standard supplied by Congress of "necessary * * * to carry out the provisions of this title" to be constitutionally adequate. The regulations which have been adopted directly relate to the fair and efficient functioning of the machinery of the draft system Congress established and "fill in the details" of the clear statutory objective. These rules and regulations have in the main been subjected to many years of administrative refinement and have received the approval implicit in successive Congressional reenactments of this statutory scheme. See generally, Selective Draft Law Cases, [Arver v. United States] 245 U.S. 366, 389, 38 S. Ct. 159, 62 L. Ed. 349 (1918); Seele v. United States, 133 F.2d 1015, 1019 (8th Cir. 1943); United States v. Herling, 120 F.2d 236 (2d Cir. 1941); 1 Davis, Administrative Law §§ 2.01-2.06 (1958). See also, Savoretti v. Small, 244 F.2d 292, 296-297 (5th Cir. 1957) (power of the President to redelegate his rule-making authority).

 b. Vagueness and Overbreadth

 In an argument related to the foregoing, defendant alleges that 50 U.S.C. App. § 462(a) is both void for vagueness and overly broad because the duties required to be performed by a registrant are not specified within the statute himself and are "multitudinous" in number. The short answer is that to violate this section there must be a wilful and understanding failure or ...


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