The opinion of the court was delivered by: PIERCE
Jose Emiliano Velazquez is a twenty year old New York City resident of Puerto Rican birth, and a self-professed activist in the Puerto Rican Socialist Party. He has been indicted for alleged violations of the Military Selective Service Act of 1967. Title 50 Appendix, United States Code, §§ 451 et seq. Count I of the indictment charges him with failing to submit to an armed forces physical examination on January 21, 1972; Count II charges a failure to report for and submit to induction on July 6, 1972.
Voluminous pre-trial motions have been made on behalf of the defendant, including an omnibus motion for disclosure of electronic surveillance with respect to defendant's premises and the premises of the Puerto Rican Socialist Party; a motion to suppress statements made by the defendant to the authorities; a motion for a bill of particulars and various discovery motions; and a motion to disqualify the Special Assistant United States Attorney whose exclusive role in this district is to prosecute Selective Service law violations.
Further, the defendant has made nine pre-trial motions to dismiss the indictment, asserting (1) that this is a selective, vindictive prosecution in retaliation for defendant's militancy; (2) that the uneven enforcement of the Selective Service law in various sections of the mainland and Puerto Rico violates his right to equal protection of the laws; (3) that the Selective Service law, applied to persons of Puerto Rican origin, violates the Geneva Convention, (4) and the United Nations Charter; (5) that the Selective Service law illegally subjects him to existing discrimination against blacks and Puerto Ricans in the armed forces; (6) that the indictment was returned by an unrepresentative, unconstitutionally selected Grand Jury; (7) that the Selective Service board's letter notice to report for a physical examination was invalid and therefore vitiates Count I of the indictment; (8) that the order to report for induction prior to a physical examination was invalid, thereby vitiating Count II of the indictment; and (9) that Count II of the indictment is duplicitous in that, in this particular context, a duty to report and a duty to submit state two separate offenses.
As interesting as many of these motions are, it is clear that some involve political questions which have been raised in the wrong forum; others involve issues which the defendant has no standing to raise. On fuller development, one or more might be meritorious, but in view of this Court's disposition of the indictment based on but one of the pre-trial motions, it is not necessary to reach any of those remaining.
The dispositive motion has been made pursuant to Fed. R. Crim. P. 12. In it the defendant has moved for a pre-trial order dismissing Count I of the indictment on the ground that the defendant's Selective Service file proves beyond question that the defendant was never under a legal duty to report for a physical examination because the notice he received was insufficient.
For the reasons set forth below, this Court dismissed the entire indictment by Order filed April 24, 1973, having determined that the facts asserted by the defendant were established by competent documentary evidence; and that this Court had the power to consider and act upon this motion at this time; and that given the established facts, the indictment could not stand as a matter of law.
A valid duty to report for a physical examination is an essential element of the crime charged in Count I. To sustain its burden of proof the government must establish that the defendant was a registrant (not at issue here), that the order to report was valid, and that the defendant received it.
The government is entitled to rely upon a labyrinth of presumptions -- of validity of Selective Service orders and proceedings, see Yates v. United States, 407 F.2d 50 (1 Cir.), cert. denied, 395 U.S. 925, 89 S. Ct. 1781, 23 L. Ed. 2d 242 (1969), and of the receipt of Selective Service communications from the mere mailing thereof. See United States v. Lee, 458 F.2d 32 (9 Cir. 1972); United States v. Garrity, 433 F.2d 649 (8 Cir. 1970). Thus, it is enough to support an indictment for the government to allege, as it has in this case, that the defendant is a registrant "to whom an Order to Report for Armed Forces Physical has been mailed . . .". Indeed, unless receipt is contested, mailing is enough, if proved, to support a conviction.
However, the presumptions are not sufficient to sustain the government's burden if the defendant asserts competent evidence to the contrary. United States v. Bowen, 414 F.2d 1268 (3 Cir. 1969). If that occurs, it then becomes the burden of the government to prove that the order to report was valid, and that the registrant actually received the communication. United States v. Smith, 308 F. Supp. 1262 (S.D.N.Y. 1969).
The defendant's motion is directed at these presumptions and it attempts to show that the facts asserted therein are conclusive and dispositive of the issue concerning the defendant's ...