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WEINTRAUB v. UNITED STATES.

January 18, 1971

WEINTRAUB
v.
UNITED STATES.



C.A. 2d Cir. Reported below: 429 F.2d 658.

[ 400 U.S. Page 1014]

Certiorari denied.

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 ...


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