The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
The defendant's motion for a judgment of acquittal, made pursuant to Rule 29 of the Federal Rules of Criminal Procedure (F.R. Cr. P.), is denied.
This case was originally assigned and tried without a jury before Judge McLean, commencing on July 20, 1972 and continuing with some interruptions until July 31, 1972. The defendant was charged in two counts with unlawfully and knowingly failing, neglecting and refusing to report for an Armed Forces physical examination on August 12, 1970 (50 U.S.C. App. § 462(a); 32 C.F.R. 1628.16), and with unlawfully and knowingly failing, neglecting and refusing to report for induction into the Armed Forces on September 16, 1970 (50 U.S.C. App. § 462(a); 32 C.F.R. § 1632.14). On July 31, 1972, Judge McLean found that the defendant did not receive the notice to report for the physical examination and found the defendant not guilty on Count 1.
As to Count 2, the court concluded that "apart from the order of call defense, the government has established defendant's guilt on Count 2 beyond any reasonable doubt".
The case was then adjourned to September 5, 1972 at which time the parties were to submit a joint factual memorandum on the status of each challenged registrant in connection with the order of call defense. The court commented: "Now, the only thing remaining is the question of the order of call defense and what I need is a roadmap to help me get through this mass of documents and pick out the few that are really involved".
Unfortunately, after the parties submitted their briefs and papers on September 5, 1972, Judge McLean died and the case was assigned to this court.
The court formally denied the defendant's motion for a mistrial on February 8, 1973 and gave the parties the opportunity to present further argument on February 13, 1973. Rule 25(a), F.R. Cr. P. provides that if a judge before whom a jury trial was commenced is unable to proceed with the trial by reason of death, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial. There is no statutory provision which deals with a similar situation in a non-jury trial. In a jury trial, the court decides questions of law while questions of fact are determined by the jury. In a non-jury trial, the court is both the finder of fact and law. Since provision is made for a successor judge to complete a jury trial where that judge need only resolve questions of law, a fortiori, a successor judge in a non-jury trial wherein there remain no questions of fact may proceed with the case and resolve questions of law.
In this action, there remain no questions of fact. The only aspect of the case that remained for Judge McLean to act on was to determine as a matter of law after he had examined the record whether or not the order of call regulations were violated. The complexity of order of call makes it an issue to be addressed to and decided by the court as a matter of law. See United States v. King, 455 F.2d 345, 353 (1st Cir. 1972). Moreover, there is no need for the court to hear witnesses or examine into their credibility on this issue. See generally Federal Deposit Ins. Corporation v. Siraco, 174 F.2d 360, 363 (2d Cir. 1949); Cahill v. Mayflower Bus Lines, Inc., 77 F.2d 838, 840 (2d Cir. 1935). The essential facts concerning the classifications of the challenged registrants and subsequent information received by the local board are undisputed. In short, the court finds that the determination required is one of law and not one of fact and therefore, the court is empowered to render judgment on the record of the evidence after hearing the argument and without hearing further testimony.
The court has read the entire record and briefs submitted by both sides. When the defendant stipulated that the case be tried non-jury, neither side requested that the court find the facts specially. See Rule 23(c), F.R. Cr. P. Nonetheless, Judge McLean did make findings as to both counts. Although, in the posture of this case, it is not necessary that this court make findings, the court fully concurs in all the findings made by Judge McLean as to both counts.
Because of the presumption of regularity which attaches to administrative proceedings the government is not required to prove as part of its case in chief that the defendant was called in proper order and not out of turn. United States v. Sandbank, 403 F.2d 38 (2d Cir.), cert. denied, 394 U.S. 961, 89 S. Ct. 1301, 22 L. Ed. 2d 562 (1968). In order to make a prima facie showing that the order of call regulations
were violated the defendant must establish that enough collateral registrants existed who should have been inducted prior to the defendant but were not. The government must then show beyond a reasonable doubt by rebuttal evidence that the local board's action was not "so lacking in support of the record as to be arbitrary and capricious". United States v. Weintraub, 429 F.2d 658, 660 (2d Cir. 1970) cert. denied, 400 U.S. 1014, 91 S. Ct. 572, 27 L. Ed. 2d 627 (1971).
At trial, the defendant claimed to raise the order of call defense by challenging the local board's delay in reviewing files and acting upon new information in cases involving deferred registrants classified 1-Y, 3-A, or 4-A.
The defendant contends that these registrants could have lost their eligibility for defendants and been classified 1-A prior to the time the defendant was ordered for induction. Only one challenge out of 24 registrants was directed at an individual with a 1-A classification.
In order to prevail on the order of call, the defendant contends that he must show that 9 of the challenged registrants were improperly bypassed by the board since the defendant's position on the delivery list was number 8 on a delivery list of 16. The government contends that the defendant's position is number 7 on the list making the magic number 10.
The court finds that the order of call defense is not properly raised with respect to the deferred registrants and that the government is entitled to the well-recognized presumption of regularity in these cases absent a showing of systematic preferential treatment of deferred classifications. The original bases for the classification of these registrants in a deferred category are conceded by the defendant and there is no Selective Service regulation which governs the frequency with which these deferred classifications are to be reviewed. The cases which have dealt with the subject of order of call have involved registrants who were listed as 1-A and older than the defendant. This required the government to demonstrate from those registrants' files why they were not called before the defendant in strict compliance with the order of call regulations. See, e.g., United States v. Dudley, 451 F.2d 1300 (6th Cir. 1971); United States v. Baker, 416 F.2d 202 (9th Cir. 1969).
In general, the court finds that the local board did not act arbitrarily and capriciously with regard to the deferred challenged registrants nor was its conduct predicated upon egregious individual error or a pattern of plain error or discrimination. See United States v. Griglio, 467 F.2d 572 (1st Cir. 1972); United States v. Holby, 345 F. Supp. 639 (S.D.N.Y. 1972), rev'd on other grounds, 477 F.2d 649 (2d Cir. 1973). The court further finds that no showing was made that any of the deferments which were concededly proper at the time that they were made, should have been changed as to make available for the delivery list the name of any registrant that would have affected the defendant's number on the list.
While the board's conduct is subject to some criticism, "[it] is not the function of this court to undertake a full-scale review of administrative procedure, or to establish arbitrary time deadlines. Where the regulations provide such deadlines, they will be enforced. Otherwise, in the absence of intentional delay, discriminatory treatment, or favoritism, the administrative action will be upheld". United States v. Smith, 443 F.2d 1278, 1280 (9th Cir. 1971). See also United States v. Howells, 452 F.2d 1182, 1185 (9th Cir. 1971), cert. denied, 406 U.S. 925, 92 S. Ct. 1794, 32 L. Ed. 2d 126 (1972). The defendant's local board cannot be expected to act with absolute perfection, particularly where the board must process 4500 registrants of which 2900 are active cases with a working personnel of one full time and one part time clerk. The court finds that the board did the best it could with the available tools.
As to Count 2, the court finds that all the elements of count 2 have been proven by the government by credible evidence beyond a reasonable doubt and it finds the defendant guilty as charged.
An investigation and pre-sentence report is ordered and sentence is set for June 19, 1973.
THE COURT: Now we'll take up Count 1 first.
The indictment, in Count 1, charges that on or about August 12, 1970, the defendant knowingly failed, neglected and refused to perform a duty required of him by the Selective Service Act, in that being a registrant to whom an order to report for an Armed Forces physical examination had been mailed by his Selective Service System local board, he unlawfully and knowingly did fail, neglect and refuse to report for the physical examination.
The order of call defense, which has been raised by the defendant with respect to Count 2 does not apply to Count 1.
The government has proved beyond a reasonable doubt that on July 15, 1970, Local Board 17 mailed to defendant at the address which defendant had previously told the board about, namely, Marion Junction, Alabama, an order to report for an Armed Forces physical examination, by ...