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November 16, 1970


The opinion of the court was delivered by: Robson, Chief Judge.


The government moves this court to reconsider that part of its order of June 25, 1970, pertaining to information sought by the defendant for discovery and inspection*fn1 in this prosecution for refusal to submit to induction into the armed services. For the reasons set forth below, this court is of the opinion the motion should be granted and, further, that the portion of the order in question should be vacated.

In his pretrial motions, the defendant sought and the court granted an order directing the government to disclose the names, home addresses, military affiliations, dates of birth, and dates of appointment of the members of the defendant's local selective service board at each of the following points in time:

  (1) The time or times when the board classified the
      defendant 1-A;
  (2) The time or times when the board considered or
      reconsidered defendant's classification, or
      status (including but not limited to any
      declaration of delinquency or denial or
  (3) The time or times when the board issued an order
      to report for pre-induction physical examination;
  (4) The time or times when the board issued an order
      to report for induction.

In his brief supporting this motion, the defendant stated that the information in question was relevant and material to the preparation of his defense. He sought to ascertain whether his local board was constituted in conformity with qualifications imposed by the Military Selective Service Act of 1967*fn2 and the Selective Service Regulations*fn3 at all points in time when his draft status was affected. As authority, he cited decisions rendered by two judges of the Northern District of California permitting a collateral attack upon the qualifications of selective service board members as an absolute defense to a criminal prosecution for refusal or failure to obey orders issued by that board. United States v. Machado, 306 F. Supp. 995 (N.D.Cal. 1969); United States v. Beltran, 306 F. Supp. 385 (N.D.Cal. 1969). See also United States v. DeMarco, F. Supp., 2 S.S.L.R. 3204 (N.D.Cal. 1969). It is the defendant's contention that a deficiency in the qualifications of any selective service board member compels an acquittal of the charge in this indictment.

Discovery of the information sought is properly material and relevant to preparation of the defense only if, as a matter of law, successful collateral attack upon the qualifications of a selective service board member, or members, would constitute a defense to a criminal prosecution. The government has failed to address itself to this threshold question in either the brief it originally filed in opposition to this motion or in its brief in support of the motion for reconsideration. Rather, the government continues to oppose disclosure on the grounds that the information sought is confidential under the Selective Service Regulations*fn4 and disclosure might subject such members to "harassment and abuse by the defendant or his friends and comrades." The government also contends that such an order improperly forces it to disclose the names of its witnesses prior to trial. Both these objections beg the issue, and the court does not base its conclusions on the grounds asserted by the government. Certainly, were the defense tendered a valid one, an appropriate protective order covering the matter disclosed would obviate the "confidentiality" problem. The defendant has indicated in his briefs on this issue that he would willingly accede to such an order limiting disclosure. The government's objection predicated on the theory that it cannot be compelled to disclose names of its witnesses prior to trial under any circumstances is also without merit. Again, were the defense asserted a legally tenable one, the information sought could or might be exculpatory and, if so, the government would be compelled to produce such information in accordance with the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Attempted collateral attacks upon the qualifications of the members of administrative boards, governmental officers, or judges as grounds for invalidating their orders, or as justification for refusing to obey their orders, is not a new phenomenon in the law. With the exception of the two decisions relied upon by the defendant, such an approach has been universally discredited. In the earliest reported case in this area, a prisoner unsuccessfully sought to have his conviction set aside on the grounds that the commission of the judge who presided at the trial was defective. Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899). There, the Supreme Court held that

  "* * * the title of a person acting with color of
  authority, even if he be not a good officer in point
  of law, cannot be collaterally attacked * * *" Id.,
  at 456, 19 S.Ct. at 460.

Similarly, the United States Court of Appeals for the Seventh Circuit, in affirming the dismissal of a habeas corpus petition, ruled that a person actually performing the duties of an office under color of title is an officer de facto, and his acts in such a capacity are valid so far as the public or third parties who have an interest in them are concerned. United States ex rel. Doss v. Lindsley, 148 F.2d 22, 23 (7th Cir. 1945). There, the Seventh Circuit held that a defendant in a state criminal proceeding could not collaterally attack the qualifications or eligibility for appointment of the special state's attorney who prosecuted him on the grounds that "neither his eligibility to appointment nor the validity of his official acts can be inquired into except in a proceeding brought for that purpose." Id., at 23.

This long-standing principle has also been applied to attempted collateral attacks upon members of selective service boards. In Jessen v. United States, 242 F.2d 213 (10th Cir. 1957), the defendant was prosecuted for refusing to obey an order issued by his draft board to perform certain civilian work pursuant to his conscientious objector classification. The defendant collaterally attacked the qualifications of the chairman of the local board on the grounds that previous to issuance of the order he had moved his residence outside the territorial limits of the board, and outside the counties encompassed by the board as well. Judge Alfred P. Murrah, on behalf of the court, wrote that although the nonresident draft board chairman ceased to be a de jure member of the board after he moved, he was a de facto member "and his acts as such are valid so far as the public and third parties * * * are concerned." Id., at 215. See also DuVernay v. United States, 394 F.2d 979, 983 at n. 6 (5th Cir. 1968), aff'd 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969); United States v. Richmond, 274 F. Supp. 43 (C.D.Cal. 1967).

While two judges of the Northern District of California have allowed a collateral attack upon an improperly constituted selective service board as a defense to a criminal prosecution, two other judges of that court have barred such attacks as contrary to the well-established principles of law discussed above. United States v. Nussbaum, 306 F. Supp. 66 (N.D.Cal. 1969); United States v. Kaul, ...

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