January 18, 1971
C.A. 2d Cir. Reported below: 429 F.2d 658.
[ 400 U.S. Page 1014]
MR. JUSTICE DOUGLAS, dissenting.
I dissent from a denial of certiorari in this case.
The Selective Service Regulations*fn1 provide the sequence in which registrants shall be ordered to report for induction. Petitioner was in the group of nonvolunteers who are to be inducted "in the order of their dates of birth with the oldest being selected first."*fn2
It seems clear that the order-of-call provisions are mandatory and that the local board's failure to observe them is a defense to an indictment*fn3 On the trial of
[ 400 U.S. Page 1015]
petitioner for failure to submit to induction, his counsel proffered evidence that some 18 registrants older than this petitioner and classified as I-A were available for
[ 400 U.S. Page 1016]
induction on the day he was ordered to report but were not sent notices of induction. The District Judge indicated he probably would grant a motion for a judgment of acquittal unless the Government rebutted the evidence of violation of the regulations. The Government thereupon called the clerk of the board who advised the court that the Selective Service records of other registrants were confidential and could not be released except with the permission of the Director*fn4 The court suggested that permission of the Director be sought.*fn5 It was so sought
[ 400 U.S. Page 1017]
but refused. The court thereupon examined the files in camera, reading into the record some of their contents but refusing to let counsel examine all of them. Petitioner was convicted and appealed.
The Court of Appeals disagreed with the District Court, saying:
"The principal contention of the appellant is that counsel for the defense should have been allowed to see the files and determine for himself whether any material therein could have based an attack on cross-examination on the board's determination which might have demonstrated a lack of basis in fact for the determination. We think this contention well founded. A defendant is entitled to such an inspection, subject to protective order by the court to mask the names or by other means prevent public disclosure of the content of the files, so that without violating the confidentiality of the files he may properly determine for himself whether there is a proper foundation for the board's apparent deviation from the order of call suggested by the Form 102, see Alderman v. United States, 394 U.S. 165 ... (1969), and so that a proper record may be preserved for appeal." 429 F.2d 658, 661.
It held, however, that the error was harmless.
One of the summaries concerned E.S. and the Court of Appeals made the following statement concerning him:
"E.S. was not available for induction on June 8, 1967. He was a registrant who had already signed up for the Reserves. While his request for an appeal or personal appearance may have been untimely because it was made 12 days after the mailing of his notice of classification, rather than the required 10 days, he was still unavailable for induction
[ 400 U.S. Page 1018]
because he had not had a pre-induction physical or mental examination. He was finally classified I-D, which means he was a member of a Reserve Unit or the National Guard." Id., at 662 n. 4.
If "signed up" means application for the Reserves, then the enlistment requirement of Rule 1622.13 (f)*fn6 would not be satisfied and E.S. should have been called before petitioner. The error could not be "harmless" if petitioner was called up ahead of his time; and there is no way of determining whether E.S. had enlisted without probing the facts and cross-examining the Board's witness. The test we used in Alderman v. United States, 394 U.S. 165, 181, for determining what wiretap records should be turned over by the judge who makes his in camera investigation of them is whether the record is "arguably relevant" to the question whether "tainted evidence" had been used to convict. Application of such a test would make at least the file of E.S. available to counsel for petitioner.
I dissent from a denial of certiorari on the issue so posed.