United States District Court, Northern District of Illinois, E.D
August 9, 1971
UNITED STATES OF AMERICA
THOMAS FREDERICK LEICHTFUSS. UNITED STATES OF AMERICA V. LINAS MINTAUTAS. UNITED STATES OF AMERICA V. MICHAEL JOHN TARIO.
The opinion of the court was delivered by: Campbell, Senior Judge.
MEMORANDUM AND ORDER
The defendants in these cases have been indicted for violation
of the Military Selective Service Act of 1967 ("The
Act").*fn1 These cases are not factually related, but are
decided together because substantially identical pretrial motions
have been presented in each case. These are but three of
approximately 150 cases which have been assigned to me pursuant
to a general order of this court referring to my calendar all
cases involving a violation of the Selective Service laws.
Pursuant to this general order it is my responsibility to accept
the return of indictments brought under the Selective Service
laws; to accept pleas of guilty and impose sentence where such a
plea is entered; and, where a plea of not guilty is entered, to
rule upon all pretrial motions and to generally supervise
pretrial discovery. After the disposition of all pretrial motions
each case is assigned by lot to the active judges of this court
under the provisions of our General Rules relating to the
assignment of cases. See Rule 10, General Rules, Northern
District of Illinois.
The posture of the present motion is best understood by a brief
explanation of the discovery practice in this district as
established by our Local Rules of Criminal Procedure. Discovery
is now initiated not by motion but by a simple request. Local
Criminal Rule 2.04 provides that upon request by defendant's
attorney the United States Attorney shall:
"(1) Permit defendant's attorney to inspect and copy
or photograph any relevant written or recorded
statements or confessions made by the defendant, or
copies thereof, within the possession, custody or
control of the government, the existence of which is
known, or by the exercise of due diligence may become
known to the attorney for the government;
(2) Permit defendant's attorney to inspect and copy
or photograph any relevant results or reports of
physical or mental examinations, and of scientific
tests or experiments made in connection with the
case, or copies thereof, within the possession,
custody or control of the government, the existence
of which is known, or by the exercise of due
diligence may become known to the attorney for the
(3) Permit defendant's attorney to inspect and copy
or photograph any relevant recorded testimony of the
defendant before a grand jury;
(4) Permit defendant's attorney to inspect and copy
or photograph books, papers, documents, tangible
objects, buildings or places which are the property
of the defendant and which are within the possession,
custody or control of the government;
(5) Permit defendant's attorney to inspect and copy
or photograph the Federal Bureau of Investigation
Identification Sheet indicating defendant's prior
(6) Permit defendant's attorney to inspect, copy or
photograph any evidence favorable to the defendant;"
The information required to be turned over under this Rule is,
of course, routinely granted whenever requested by motion and it
is the purpose of our Local Rule to relieve the court and counsel
of the time consuming and pointless effort of obtaining this
information by formal motion. As to matters not the subject of
automatic discovery, the defendant must, within ten days of
arraignment, request the information at a conference with the
Assistant United States Attorney assigned to the case. At the
conference the parties are required to attempt to satisfy any
remaining requests for discovery "in a cooperative atmosphere
without recourse to the Court." Local Rule 2.04(c). For further
explanation of the background, purposes and mechanics of the Rule
see, MacCarthy and Forde,
"The New Local Criminal Rules for the Northern District of
Illinois." 1 Loyola U. (of Chi.) L.J. 51, 67-73 (1970); MacCarthy
and Forde, "Discovery In Criminal Cases Under the New Local Rules
of the Federal Court" 52 Chi. Bar Rec. 41 (1970). I add only the
comment that in my experience working with our new Rules, their
proper application has substantially reduced the needless work
previously related to pretrial discovery in criminal cases.
In the cases presently before me all of the information
required by the Rule has been given to defense counsel and
conferences have been held and further requests have been
satisfied. Therefore, the motions I am confronted with relate
only to such further discovery as the government has refused.
Upon the filing of these motions for additional discovery I
ordered the filing of briefs in support and in opposition thereto
and set the cause for oral argument. Thorough briefs relating to
all issues raised in the motions were filed by counsel for these
defendants and by the government. I also heard lengthy oral
argument on the issues. Because it was anticipated by the
government and the criminal bar of this district that the
disposition of these motions would necessarily govern the
disposition of similar motions to be filed in numerous other
pending cases, I thought it necessary to make a rather complete
analysis of these issues. To supplement my own research I
appointed the Federal Defender Program of our court Amicus Curiae
for the purpose of filing a brief relating to the issues
presented in the pending motions. Pursuant to that order the
Federal Defender Program, by its Director Terence F. MacCarthy,
Thomas D. Decker and Joseph Beeler, filed a most comprehensive
and scholarly brief, which together with its appendix runs well
over 200 pages and thoroughly considers each issue presented in
the motions before me. I extend my sincere thanks to the Defender
Program and these counsel for their considerable efforts in this
undertaking. The response of the government, while perhaps less
voluminous, was equally enlightening.
Predictably, the Amicus has called for broad if not complete
discovery in these cases. In this regard I should state that I
generally share this view. I believe it most unfortunate that
discovery in criminal cases has lagged so far behind the
progressive developments we have experienced in civil
discovery.*fn2 In civil cases I employ a simple two word order
to resolve all discovery disputes: — "exchange files!" As the
authors of the above cited Article appearing in the Chicago Bar
Record have noted, I have recently been applying this same simple
order in criminal cases and find its application equally
productive. Based on my experience I submit that complete
discovery in criminal cases results in fairer, more orderly
trials and a substantial increase in the number of guilty pleas.
With this experience in mind I take up consideration of the
motions presented in these cases.
Discovery Voluntarily Granted
In its brief, and in oral argument, the government has
correctly stated that it has fully complied with all of the
requirements for voluntary disclosure as required by Local Rule
2.04 and has even attempted to substantially comply with my much
broader general order to "exchange files."
Specifically, in compliance with Rule 2.04(a) the government
has provided or offered to provide each defendant with the
following where available:
(1) Any written or recorded statement or confession
made by a defendant
within the possession of the government. (These would
generally be contained in the defendant's Selective
Service file which is made available to him.)
(2) The results or reports of physical or mental
examinations and scientific tests. (These consist of
medical and security records.)
(3) Any recorded testimony of a defendant before a
(4) Any books, papers, documents or tangible objects
which are the property of a defendant.
(5) Any available arrest record of a defendant.
(6) Any evidence favorable to a defendant.
Commendably, the United States Attorney has also expressed his
willingness to produce certain documents in all cases and others,
"whenever defense counsel * * * shows the reasons from his file
for the discovery requests." He urges, however, that this court
should compel only minimum discovery, complimented by
"guidelines" for solution of certain other limited specific
issues, thus permitting the bulk of discovery questions to be
resolved on an ad hoc, case-by-case basis. While there is certain
merit to the suggested approach, I believe that, because of the
many pending cases which will be decided in accordance with the
resolution of the issues in these cases, sound judicial
administration requires a ruling on all issues presented in these
cases. In so doing, I now order discovery in all cases of all
documents which the government has commendably offered to provide
upon request. These consist in the main of all documents in the
Selective Service file relating to the defendant and which are
forwarded to the office of the United States Attorney by the
Selective Service System. See also Appendix A of this opinion
which sets forth a "Table of Forms Normally Provided to the
Defense," an appendix to a brief of the United States Attorney
INFORMATION SOUGHT BY THESE DEFENDANTS
In addition to the above described documents contained in the
registrant's Selective Service File and which have been
disclosed, the defendants seek substantial additional discovery
some of which may be described as "general discovery," that is,
similar to that sought in any criminal case. The remainder of
their requests seeks information possessed by the Selective
Service System, but not contained in the file of a registrant.
Under the caption "General Discovery" are numerous requests
which are common to most criminal cases and are not unique to
Selective Service cases.
Evidence Favorable to Accused.
The duty of the government to advise an accused of any evidence
it may possess which may be favorable to the defendant's case and
relates to the issues of guilt, innocence or punishment is
expressed in the Supreme's Court landmark decision in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
While such evidence is here sought by motion, the obligation in
Brady is not dependent upon a pretrial request for such evidence.
Rather, Brady and subsequent decisions, notably Giles v.
Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967),
impose an affirmative duty upon the prosecutor to disclose
favorable evidence regardless of whether such evidence has been
formally requested by the defendant.
Ordinarily, in ruling on defendants' motions for such evidence
it would suffice to merely cite our Local Criminal Rule 2.04
discussed above which requires disclosure of such evidence upon
request. In fact, in the opening pages of its brief the
government acknowledges the Rule and states that such evidence is
"always produced," a representation I believe to be accurate.
The motions in these cases, however, go beyond the usual Brady
request and seek production of "all reports, memoranda, documents
and evidence relating to this case, including all § 3500
statements and Form 302 reports, if any * * *." In other words,
relying on the Brady principle, defendants seek to review all
evidence of any kind in the possession of the government to
determine if any of that evidence is "favorable to their cause."
The basis of their request is that defense counsel and not the
government should determine what evidence is favorable to the
defendant and that defense counsel can make such a determination
only after reviewing all of the evidence. As an alternative
proposition, the defendants urge that all of the government's
evidence should be reviewed by the court in camera and the court
will then make the determination as to what evidence may be
favorable to the defendant.
In considering the proposed alternatives I find myself in
agreement with the Amicus in concluding that both are
"unacceptable," and that in final analysis the interests of all
would best be served if we continue to rely on the judgment and
integrity of the government to determine what, under Brady, it
has a duty to disclose.*fn3
Grand Jury Testimony.
The defendants seek an order requiring the government to
produce for inspection by defendant and his attorney or in the
alternative to submit to the court for in camera inspection, the
recorded testimony of each witness who testified before the grand
jury concerning the events alleged in the indictment. In support
of this request the defendants state: (a) the grand jury testimony
may prove helpful or even necessary for defendants to properly
evaluate the evidence and present defenses; (b) the testimony may
prove necessary to proper preparation for and cross-examination
of trial witnesses who testified before the grand jury; and (c)
there is no compelling necessity for secrecy.
Discovery and inspection of a defendant's own testimony before
a grand jury is of course required by Rule 16(a)(3),
Fed.R.Crim.P., and by our Local Criminal Rules. Rule 2.04. As to
other grand jury witnesses, Rule 6(e), Fed.R.Crim.P., limits
production to cases where there is "a showing that grounds may
exist for a motion to dismiss the indictment because of matters
occurring before the grand jury." There is no such showing here.
As pointed out by the Amicus Curiae, however, courts have
granted discovery of grand jury testimony in numerous situations
where "the ends of justice require it." See Dennis v. United
States, 384 U.S. 855, 869-870, 86 S.Ct. 1840, 16 L.Ed.2d 973
(1966). In its brief it correctly states: "Discovery of the
testimony of witnesses who appeared before the grand jury has
developed, not because of or in relation to Rule 6(e), but is
rather the product of judicial decisions in the main ignoring the
Rule." The Dennis case redefined what has developed to be a
"particularized need" prerequisite to obtaining discovery of
grand jury testimony and courts have ordered disclosure in a
growing number of cases. See United States v. Amabile,
395 F.2d 47 (7th Cir. 1968), vacated on other grounds sub nom. Giordano v.
United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297
(1969); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476
(D.C. Cir. 1968); National Dairy Products Corp. v. United States,
384 F.2d 457 (8th Cir. 1967); United States v. Youngblood,
379 F.2d 365 (2nd Cir. 1967).
In Amabile, our Seventh Circuit Court of Appeals held that
defendants are entitled to the grand jury testimony of a
government witness as to the subject matter about which he
testified at trial, except where the government can show some
reason for denial of such discovery. As the government points
out, this places the production of grand jury testimony in the
same status as § 3500 statements. And, while it has long been my
practice to require pretrial disclosure of § 3500 statements, see
United States v. Hilbrich, 232 F. Supp. 111, 119 (N.D.Ill. 1964),
aff'd, 341 F.2d 555 (7th Cir. 1965), this is not a standing
practice among judges in this court. Furthermore, in Selective
Service cases seldom does a witness who testified before the
grand jury testify at trial so no useful purpose would be served
by production before trial in these cases. I therefore decline to
require pretrial disclosure at this time. After the cases are
assigned for trial the judge to whom the case is assigned can
determine whether disclosure should be made prior to trial or
only after the witnesses have testified.
Names and Addresses of Potential Witnesses.
The defendants have requested an order requiring the
government to disclose all names and addresses of potential
witnesses upon whose testimony the government will rely at trial.
In opposing this request, the government states that discovery of
the names of witnesses is inappropriate in a criminal case,
citing United States v. Chase, 372 F.2d 453 (4th Cir. 1967):
United States v. Wolfson, 294 F. Supp. 267 (D.Del. 1968); United
States v. Lavery, 161 F. Supp. 283 (M.D.Pa. 1958). The government
also adds that it is "well known * * * that the witnesses in
Selective Service cases are always a clerk of the local board or
some other Selective Service employee, and the F.B.I. agent who
arrested the defendant."
It is clear that federal courts have the power to require the
government to disclose the names of potential witnesses where
this information is necessary or useful in the defendant's
preparation for trial. See Will v. United States, 389 U.S. 90, 88
S.Ct. 269, 19 L.Ed.2d 305 (1967); see also United States v.
White, 370 F.2d 559 (7th Cir. 1966). Certainly there is nothing
"inappropriate" about ordering such a request in a criminal case.
Some States specifically provide for the discovery of the names
and addresses of witnesses. See Ill.Rev.Stat. ch. 38 § 114-9
(1969). Moreover the proposed amendment to the Federal Rules of
Criminal Procedure, in my opinion, will soon require the
government to disclose the names and addresses of all government
witnesses. The proposed amendment to Rule 16 provides:
"(vi) Government Witnesses. Upon motion of the
defendant the court may order the attorney for the
government to furnish to the defendant a written list
of the names and addresses of all government
witnesses which the attorney for the government
intends to call at the trial together with any record
of prior felony convictions of any such witness which
is within the knowledge of the attorney for the
government. Names and addresses of government
witnesses shall not be subject to disclosure if the
attorney for the government certifies that to do so
may subject the witness or others to physical or
substantial economic harm or coercion. Where a motion
for discovery of the names and addresses of witnesses
has been made by a defendant, the government may move
the court to perpetuate the testimony of such
witnesses in a hearing before the court or a United
States magistrate, in which hearing the defendant
shall have the right of cross-examination.
A record of the witness' testimony shall be made and
shall be admissible at trial as part of the
government's case in chief in the event the witness
has become unavailable without the fault of the
government or if the witness has changed his
testimony." (48 F.R.D. at 589).
While the proposed amendment provides only that a court "may"
order production of a list of witnesses, in my opinion the courts
will continue to interpret the word "may" in Rule 16 as "shall".
See United States v. Isa, 413 F.2d 244 (7th Cir. 1969); MacCarthy
and Forde, 1 Loyola U. (Chi.) L.J. supra, at 69-70.
The American Bar Association Proposals on Minimum Standards for
Criminal Justice also require a prosecutor to disclose the names
and addresses of persons whom the prosecuting attorney intends to
call as witnesses at the hearing or trial, together with their
relevant written or recorded statements. ABA Standards Relating
to Discovery and Procedure Before Trial § 2.1(a)(i).
I see no justification for withholding the names and addresses
of government witnesses in these cases. As the government itself
points out the only witnesses in most cases will be a Selective
Service clerk from the Local Board and perhaps the F.B.I. agent
who arrested the defendant. Certainly there is no apparent threat
that disclosure of the identity of these witnesses prior to trial
will subject the witness to physical or economic harm or to
threats designed to make him unavailable to testify or to
influence him to change his testimony. If in any case the
government has reason to believe that there is a danger of
witness intimidation of any kind it may seek a "protective order"
to restrict, defer or deny disclosure of the names of its
witnesses. See rule 16(e) Fed.R.Crim.P. As to the availability
and use of protective orders, I fully agree with the suggestion
of the Amicus when it states: "Possibly the most significant
contribution to the 1966 amendments to rule 16 was the inclusion
of subdivision (e) `protective orders'. It is probably the least
utilized subdivision of the rule as well." The obvious purpose of
the amended Rule 16 was to expand discovery. Appreciating this
fact, the advisory committee felt it necessary and appropriate to
control possible abuses in connection with broad discovery by
including the "protective order" provisions found in subdivision
(e). However, the government seldom seeks the protection
contemplated. The Amicus suggests the obvious reasons why
"protective orders" are so seldom sought. Courts are either not
liberally interpreting Rule 16 so as to occasion government
requests to employ subdivision (e) — a conclusion supported by a
reading of the ABA Standards, supra, or most cases do not justify
a protective order predicated upon realistic fears of "a
particular danger of perjury or witness intimidation, for
protection of information vital to national security, and the
protection of business enterprises from economic reprisals." Rule
16(e). It is my personal belief that the interests of justice
will best be served when courts adopt a general policy of broad
discovery in criminal cases except where the government seeks,
with factual support, a protective order. Such a salutary
development will in my opinion also substantially improve the
administration of our court system.
In resisting disclosure of a list of its witnesses in these
cases the government also argues that the disclosure of the
identity of these witnesses (Local Board Clerk and F.B.I. agent)
will be of little value to a defendant and that in many cases
their identity is not known until just a few days before trial
when it is determined which clerk will appear. There is merit to
these arguments. But rather than refuse disclosure for these
reasons, I believe the appropriate solution is to require
disclosure a short time prior to trial. Accordingly, 30 days
before trial the government is ordered to advise each defendant
of the name and address of each witness who will be called
to testify in support of the government's case.
Although not requested by the government, I suggest the
propriety in these cases of requiring reciprocal discovery.
Subparagraph (c) of Rule 16 specifically authorizes discovery by
the government if the court grants defendant's motions for
discovery under Rule 16(a) and (b), and the court may so
condition its order of discovery. The discovery authorized in
paragraph (c) is very appropriate in these cases. The Rule
provides that the court may condition its discovery order by
requiring that the defendant permit the government to inspect and
copy or photograph scientific or medical reports, books, papers,
documents, and tangible objects which the defendant intends to
produce at trial and which are within his possession, custody or
control. For the same reasons I have very liberally applied the
discovery provisions to grant defendants a list of government
witnesses, I condition such discovery upon the defendants
providing the government with their lists of witnesses. Under no
circumstances, however, will a defendant be required to disclose
for inspection any "report, memoranda or other internal defense
documents made by the defendant, or his attorneys or agents in
connection with the investigation or defense of the case, or of
statements made by the defendant or by the government or defense
witness, or by prospective government or defense witnesses, to
the defendant, his agents or attorneys." These materials are
protected from disclosure by the specific provisions of Rule
16(c) and any order requiring their disclosure would of course
have substantial constitutional implications.
This District has achieved remarkable success in attempts to
improve judicial administration in the civil practice. It is
generally recognized that during the last ten years while courts
in every metropolitan area in the country were plagued with
docket delay, we managed to maintain our position of current
status. One of the innovations which has contributed to this
position is our requirement by general order that all parties in
every civil case file prior to trial, a final pretrial order
which eliminates many of the non-essential and uncontested issues
from litigation and also facilitates and greatly expedites
routine court procedures such as the marking of documents and the
proof of the authenticity of documents. Furthermore, it requires
lawyers objectively to assess the merit and strength of their
case and the possible advisability of settlement. I believe
similar procedures must now, in so far as constitutionally
possible, be applied in criminal cases, particularly if, as I
urge above, the courts begin to authorize broad discovery to both
sides of criminal cases in the same manner as in civil cases.
Accordingly, and upon the assumption that the government will
accept the court's invitation to present a motion for reciprocal
discovery, I hereby order that in all Selective Service cases
counsel for the government and for the defendant shall submit to
the court at least thirty days before trial, the following:
A. A written stipulation or statement of any
B. Schedules of all exhibits which will be offered in
evidence at the trial, except those defendant
exhibits which have been excluded from this order.
This schedule shall also contain an indication of
those exhibits agreed to be admissible and the
grounds for objecting to any others. Only exhibits
so listed shall be offered in evidence at the
trial except for good cause shown. All exhibits
shall be properly marked and ready for
introduction into evidence without delay.
C. The names and addresses of all prospective
witnesses. The qualifications of any expert
witnesses shall be stipulated.
I believe that strict adherence to this order will greatly
facilitate the preparation and trial of these many Selective
Service cases and reduce the time required for trial. In many of
the cases the entire file and its introduction into evidence is
stipulated. In those cases where it is not, the government has a
right to know prior to trial what defenses it will be forced to
Statements of Persons Who Will Not Appear As Witnesses.
The defendants have requested an order requiring the government
to disclose all statements of persons with information relative
to the defendant or the facts alleged in the indictment who will
not testify, or persons the government does not propose to call
It is clear from the response of the government, however, that
generally no such statements exist in Selective Service cases.
While this general representation may end the matter in most
cases, there exists the possibility that in a few of the many
cases to which this order is applicable, such statements do
exist. Where the government has such statements, any which
contains evidence favorable to the accused must be produced under
the mandate of Brady v. Maryland. Any other statements should be
produced by virtue of my directive to exchange files. I therefore
order production of any statements of witnesses in the possession
of the government, where the government is reasonably certain
they will not be called to testify at trial.
The defendants also seek disclosure and inspection of "all
notes or other forms of recordation, if any, of any attorney for
the government taken at the time of or in any way related to
their interview of witnesses or potential witnesses."
Prosecutors' notes, as described in defendants' motion, may be
subject to disclosure at trial under the Jencks Act (18 U.S.C. § 3500)
if they are statements of government witnesses within the
meaning of the Act. See United States v. Hilbrich, 232 F. Supp. 111
(N.D.Ill. 1964) aff'd, 341 F.2d 555 (7th Cir. 1965). Such
notes must also be produced if they contain evidence favorable to
the accused within the meaning of Brady v. Maryland.
If such notes exist, and if they constitute "statements of
government witnesses" within the meaning of the Jencks Act, they
are produceable at trial. If said notes constitute evidence
favorable to the accused within the meaning of Brady, the
government is obligated to produce such evidence now. In all
other respects the motion is denied.
Names of Government Informers, Agents and Employees Who Have
Knowledge of Defendant or the Facts of this Case.
Similar to the above motions, the defendants have requested
disclosure of all names of "government informers, agents,
employees or special employees who in any way have knowledge of
defendant or the facts alleged in the indictment."
This motion appears to go well beyond my broad orders already
entered in these cases as stated above. Accordingly, to the
extent that this motion seeks discovery beyond that which has
already been granted, it is denied, except, of course, if any
informer, agent, employee or special employee has knowledge of
the defendant or the facts of this occurrence which are favorable
to the accused, such facts must be brought to the attention of
the defendant under the teachings of Brady v. Maryland.
The Criminal Records of the Defendant and Government Witnesses.
The defendants have requested an order for the government to
disclose all of the criminal records, if any, of (a) the
defendants; and (b) all government witnesses.
As observed above the defendant's prior criminal record is
always available to a defendant upon simple request under Local
Rule 2.04. See specifically subparagraph (a)(5). This Local
Rule, which permits defense counsel discovery of his own client's
criminal record, is intended to assist counsel in
obtaining more accurate information on the subject without
relying exclusively on the defendant's memory. See MacCarthy and
Forde, 1 Loyola (Chi.) L.J., supra at 70; "Proposed Amendment to
Rule 16," 48 F.R.D. at 588.
As to the criminal record of government witnesses, such
information may well be evidence "favorable to the accused"
within the meaning of those terms as expressed in Brady v.
Maryland. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17
L.Ed.2d 737 (1967). The impeachment value of a prior criminal
record is fully appreciated by the prosecution and its use should
be available to both sides of a criminal trial.
In opposing the motion, the government appropriately relies on
the Eighth Circuit's opinion in Hemphill v. United States,
392 F.2d 45 (1968), which held that it was not an abuse of discretion
to refuse the defendant's request for pretrial discovery of the
criminal record of the government's witnesses. But that case does
not dispose of the issue. First, I do not believe that the
Hemphill case holds that it would be an abuse of my discretion to
order the production of such criminal records. More important in
my view, the rationale of the court in Hemphill is out of step
with current thinking on pretrial discovery in criminal cases and
with the teachings of the Supreme Court in Brady v. Maryland.
In criminal cases before me I have routinely ordered the
production of the criminal record of all government witnesses. I
have no reluctance to do so in these cases (although I do doubt
the application of this motion in these cases where the only
government witnesses will be Selective Service Board clerks and
The motion for the production of the criminal records of all
defendants and all government witnesses is hereby granted.
Because the government may not know at this time who its
witnesses will be, this information need not be furnished until
thirty days prior to trial.
The defendants have requested the government to state whether
any electronic eavesdropping has been conducted by any federal or
local governmental agency upon the defendant and/or his attorney.
In response to this request by the defendants, the government
states, "As far as this office knows, there has not been any
electronic eavesdropping conducted with respect to any present
defendant, or with respect to any individual reported to this
office for allegedly violating the Military Selective Service
Act." (Emphasis added.)
Admittedly, it is an unusual case where a defendant in a
Selective Service prosecution has been the subject of
eavesdropping. If he has been such a subject, however, he is
entitled to know about it so that he may determine whether his
prosecution might be "tainted". See Alderman v. United States,
394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). And, the "lack
of knowledge" of the office of the United States Attorney does
not remove the taint.
Accordingly, the government is ordered to inquire of the
various federal investigative agencies as to whether any of these
defendants were the subject of electronic eavesdropping. This
order extends to conversations of defendants' counsel if the
overheard conversations were with a defendant or related to his
case. If such inquiry should reveal that any defendant was the
subject of such eavesdropping, he shall be so advised before
trial. At that time the court will determine the legal issues as
to the "legality" of the electronic surveillance and the
defendant's standing to challenge that legality. See United
States v. Hoffa, 436 F.2d 1243 (7th Cir. 1970).
Press Releases and Photographs Issued by the Government.
The defendants also seek disclosure of all copies and the
distribution lists of any news or press releases or photographs
prepared by any agency of the
government relating to the defendant or the matters alleged in
I presume that this request is based on the possibility that
the government may have caused the release of prejudicial
publicity which may affect a defendant's case. I would agree that
a defendant in an appropriate case — where the issue of
prejudicial publicity exists — would be entitled to such
discovery and information. There is no representation, nor do I
think there can be, that such a case is presently before the
court. Accordingly, the request is denied.
Preservation of Evidence.
In what they describe as a "motion for the preservation of
evidence" defendants assert that an order is necessary to
preserve evidence which may at some future stage of the
proceeding be helpful to a proper resolution of the case. In
their argument in support of these motions, the defendants imply
that unless restrained from doing so, the government is inclined
in some instances to destroy or conceal or alter certain
Other than to state that my experience with the office of the
United States Attorney in this district and with the other
government agencies refutes such baseless implications, I find it
unnecessary to comment at length on the motion. In any event, I
see nothing that could be accomplished by such an order that
would not be accomplished as effectively if and when any such
destruction or alteration should occur.
Bill of Particulars.
Finally, the defendants also seek a written bill of particulars
in which the government is asked to state:
1. The specific section and subsections of the
Military Selective Service Act and the Rules and
Regulations promulgated thereunder and the
specific directives made pursuant thereto which
the defendants are alleged to have violated.
2. The precise time of day the defendants are alleged
to have failed or refused to submit to induction
3. The precise place (by street address and room
number) where defendants allegedly did neglect,
fail and refuse to submit to induction as ordered;
4. The name, precise residence address and official
address, position or title and military rank of
the person who allegedly ordered the defendants to
submit to the induction.
The granting or denying of a request for a bill of particulars
is left largely to the discretion of the trial court. This point
was rather emphatically reiterated by the Supreme Court in Will
v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305
(1967). In that case Judge Hubert L. Will of this court ordered
the government to provide a defendant in a criminal tax evasion
prosecution with certain information sought by a request for a
bill of particulars. The government refused to comply with his
order for a bill of particulars and sought and obtained a Writ of
Mandamus from the Court of Appeals directing Judge Will to
"vacate his order directing the Government to answer" the
defendant's motion for bill of particulars. The Supreme Court
granted certiorari (386 U.S. 955, 87 S.Ct. 1022, 18 L.Ed.2d 102),
vacated the writ and remanded the case. In its opinion the
Supureme Court expressed certain thoughts relevant here:
"We do not understand the Government to argue that
petitioner was in any sense without `jurisdiction' to
order it to file a bill of particulars. Suffice it to
note that Rule 7(f) of the Federal Rules of Criminal
Procedure specifically empowers the trial court to
`direct the filing of a bill of particulars', and
that federal trial courts have always had very broad
discretion in ruling upon requests for such bills,
compare Wong Tai v. United States,
273 U.S. 77, 82 [47 S.Ct. 300, 302, 71 L.Ed. 545]
(1927)." (389 U.S. at 98-99, 88 S.Ct. at 275).
Significantly in a footnote in that opinion the Court also
noted that Rule 7(f) was amended, effective July 1, 1966, to
eliminate the requirement that a defendant seeking a bill of
particulars make a showing of "cause". As stated in the Advisory
Committee Note, this amendment was intended to "eliminate the
requirements of a showing of cause * * * to encourage a more
liberal attitude by the courts towards bills of particulars
without taking away the discretion which courts must have in
dealing with such motions in individual cases." Advisory
Committee Note, 39 F.R.D. 69, 170 (1966); see United States v.
Tanner, 279 F. Supp. 457, 474 (N.D.Ill. 1967).
As the Amicus Curiae points out, it is rather ironic that the
government generally opposes a motion for a bill of particulars,
because Rule 7(f), authorizing bills of particulars, was enacted
not to aid defendants but to relieve prosecutors of the onerous
task of preparing the hyper-technical indictments required under
common law. With the simplification of criminal pleading it was
contemplated that defendants would receive the essential
information upon which a charge is based by the means of a bill
of particulars. Yet while indictments and criminal complaints
have been simplified to a point that they merely restate the
prohibition set forth in the statute, bills of particulars are
seldom granted to defendants required to defend the simplified
charges. As stated above, by requiring the government to provide
the information sought by bill of particulars, i.e., the time,
place and essential circumstances of the offense charged, the
defendant will be in a better position to meet these charges. In
many cases, seeing the substance of the government's case, pleas
of guilty are promoted. All of these factors contribute to my
determination that these motions for bills of particulars should
Accordingly, the motions of the defendants for bills of
particulars are granted. The information sought may be provided
by the government in a written answer to the motion or in a
further informal conference held pursuant to Local Rule 2.04.
DISCOVERY OF ADMINISTRATIVE PROCEDURE
The defendants have requested discovery of a number of
Selective Service System directives, policy statements, manuals,
forms and advisory memos pertaining to the classification and
processing of registrants. Much of this information is generally
unpublished. The requests include:
1. All documents detailing general policies of
defendants' Local and Appeal Boards on such
matters as the rights of registrants to appear, to
present witnesses, to have an attorney present and
to record the proceedings.
2. The Selective Service Form Manual or a copy of all
Selective Service Forms which are not published in
the Federal Register or by the Government Printing
3. Each Illinois State Selective Service System
special form adopted pursuant to Selective Service
System Regulation 1606.52
(32 C.F.R. § 1606.52), along with the National Director's
approval of the use of each form;
4. Any compilation of documents used as a Manual for
Government Appeals, Agents, issued by either the
Illinois or National Selective Service System.
5. All memoranda issued to Government Appeals Agents
by the Illinois or National Selective Service
6. All official policy statements or directives of
the Director of Selective Service pertaining to
the classification or processing of registrants.
7. All memoranda, bulletins, advices, letters,
manuals, etc., issued by the Illinois State
Director to Local Boards.
As is well known and particularly clear from the description of
the information requested herein, the Selective Service System is
a complex bit of legal machinery, a "mind — numbing maze of
statutes, regulations and memoranda * * * which are inscrutable
not only to laymen but also to most lawyers." United States ex
rel. Vaccarino v. Officer of the Day, 305 F. Supp. 732, 735, 736
(S.D.N.Y. 1969). This complex machinery is governed by some 45
pages of statute, 300 pages of regulations and about 85 pages of
local board memoranda and other advisory memoranda. There are
also other information bulletins and other materials issued by
National Headquarters. The machinery is further complicated by
guidelines issued by the various State Directors.
There are a number of sound reasons which support discovery of
the above described regulatory materials. These manuals,
directives, rules and bulletins may well contain mistaken
interpretations of substantive or procedural laws which may void
or taint the classification or processing of a registrant. They
should therefore be available for inspection by a defendant and
his counsel. Furthermore, rules and policies established by an
Administrative Agency are binding on the agency and must be
followed by them. E.g., United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954);
United States v. Heffner, 420 F.2d 809 (4th Cir. 1970). This
principle applies to the Selective Service System. Olvera v.
United States, 223 F.2d 880, 882 (5th Cir. 1955). Obviously a
registrant cannot determine if the Selective Service System
followed its own rules and policies in processing his induction
unless he has an opportunity to know what those rules and
There are still further reasons which support discovery of
these materials. Examination may disclose that certain rules are
not authorized by statute or regulation, Gutknecht v. United
States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), or
exceed authority delegated to the Service, cf. Peters v. Hobby,
349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129 (1955), or exceed the
authority of the State agency issuing them. Ex parte Asit Ranjan
Ghosh, 58 F. Supp. 851, 857 (S.D.Calif. 1944). Discovery of these
directives may also disclose a discriminatory application of the
rules as to certain registrants.
Finally, it would appear that disclosure of the directives and
other material issued by the Selective Service System is required
by the Freedom of Information Act, 5 U.S.C. § 552. The general
provisions of the Act are applicable to the Selective Service
System. See Tuchinsky v. Selective Service System, 418 F.2d 155
(7th Cir. 1969). Any interpretation by way of memorandum or
directive of the regulations is subject to disclosure under the
Freedom of Information Act as "statements of general policy."
5 U.S.C. § 552(a)(1)(D).
The Selective Service Form Manual, which contains forms
specified for use by the system along with accompanying
directives, is also producible under the Act. These forms are
made a part of the regulations but are not published in the
Federal Register. Local and Appeal Board personnel routinely
refer to the Form Manual and directives in determining the rights
of registrants. As stated in the legislative history of the Act:
"In addition to the orders and opinions required to
be made public by the present law * * * (the new
Freedom of Information Act) would require agencies to
make available statements of policy, interpretations,
staff manuals, and instructions that affect any
member of the public. This material is the end
product of Federal administration." (1966 U.S.Code
Cong. & Adm.News 2424).
In its response to the brief of the Amicus Curiae the
government advises that copies of the Form Manual are now
available in the office of the United States Attorney for
inspection and use by defense counsel. The government also
advises that Selective Service Regulations and Local Board
Memoranda are available from the Government Printing Office and
are printed in the Selective Service Law Reporter, and that
"Operations Bulletins" may be inspected at the offices of the
Local Board, State Headquarters and National Headquarters. As to
certain other unpublished directives, policy statements and the
like, the government contends that this information should not be
ordered disclosed until an interested defendant has first
requested the material from the Director of Selective Service and
otherwise exhausted his administrative remedies.
Upon consideration of all of the arguments presented by all
parties it appears clear to me that a defendant in a criminal
Selective Service case has a right to inspect and review all
Selective Service administrative rules and similar materials, any
number of which may have illegally affected his classification or
processing. It also seems appropriate that the exercise of this
right should not be delayed or circumvented by requiring the
accused to first seek discovery by administrative petition.
Requiring a defendant to "exhaust his administrative remedies"
while he is already engaged in the defense of criminal charges
brought by the government would be senseless and would serve only
to delay the criminal proceedings. On the other hand, it is
certainly not necessary to impose upon the government the burden
of disclosure in every case. Rather, I suggest that the desired
information, all of which is of a general nature, be made
available in a convenient location to any defense counsel
desiring to review it. To comply with this order the government
need only establish and maintain a library of the requested
documents and information at a convenient location, e.g., the
office of the United States Attorney, the library of this
courthouse, or the Selective Service Office most conveniently
located near this courthouse. Said library shall contain the
following materials — unless the same are otherwise published and
(a) Memos to All State Directors, Letters to All
State Directors, Letters to All State Directors
and Regional Service Centers, Administrative
Bulletins, State Director Advices, Memoranda to
Government Appeal Agents, News Releases,
Inspection Services Newsletters, and any other
directives and policy statements, advisory memos
or manuals of the Selective Service System
National Headquarters pertaining to the
classification or processing of registrants.
(b) State Memoranda, Special Memos, Clerical
Procedures, Special Forms adopted pursuant to
Selective Service System Regulation 1606.52, and
any other directives, policy statements, advisory
memos and manuals pertaining to the
classification and processing of registrants in
(c) Reference Manual Releases, Memos to All Local
Boards, Special Forms adopted pursuant to
Selective Service System Regulation 1606.52, and
any other directives, policy statements, advisory
memos or manuals pertaining to the classification
or processing of registrants in Indiana.*fn4
(d) Copies of any local and appeal board
authorizations and resolutions or other recorded
policy statements, advisory memos or manuals
pertaining to the classifications or processing
of registrants by the board.
(e) Policy guidelines for the use of medical
personnel in processing
medical claims and reaching medical decisions,
including any unpublished medical standards for
testing and/or profiling, issued by the Surgeon
General, Department of the Army, or the U.S. Army
ADMINISTRATIVE PROCEDURE APPLIED TO INDIVIDUAL DEFENDANTS.
At oral argument and in its brief the government advised that
it had turned over to each defendant all of the information
contained in his Selective Service file, that is, all the
information the Selective Service System has given to the office
of the United States Attorney relating to each registrant. The
defendants acknowledge this fact but also request a number of
documents and other information relating to their cases and not
contained in their individual files. These requests generally
relate to the procedures which were followed in the processing of
each defendant's registration.
The information sought falls into two separate categories: (a)
Documents and records of the Local and Appeal Boards which may
relate to the processing of a registrant's file; and (b)
information relating to Local and Appeal Board members and other
Documents and Records of Local and Appeal Boards.
The many requests under this category may be summarized as
1. All documents relating to the processing and
classification of each defendant's case, i.e., all
documents bearing his name or Selective Service
number, not already included in his file as
produced by the government.
2. A statement of the number of registrants whose
files were considered by a defendant's Local or
Appeal Board on any occasion when the defendant's
classification or processing was considered or
acted upon. Relating to this request, the
government is also asked to specify the time each
meeting was commenced and adjourned, and the
number, if any, of personal appearances allowed
and time consumed on each appearance.
3. The minutes of all meetings of each defendant's
Local and Appeal Boards at which his status was
4. Any summary, prepared by the Selective Service
System, presented to or considered by the Appeal
Board which classified the defendant.
5. The docket book (Form No. 121) of the Appeal Board
which classified each defendant.
6. The Register of Conscientious Objectors kept by
each defendant's Local Board (See
32 C.F.R. § 1623.8).
7. Any written authorization or designation of a
defendant's Local Board which purports to
authorize its clerk to sign and issue notices to
report for physical examination and induction and
to sign notices of classification.
8. All communications and/or instructions from any
State Director and the National Director of
Selective Service and/or the Department of Justice
to each defendant's Local Board concerning general
advice or instructions as to the processing of
In its response to these requests the government has listed
many of the documents sought and summarized the contents and
general availability of each. It also offers to produce much of
the information requested upon a showing of "good cause." The
government has also advised the court that certain information
would be difficult to produce or photocopy for the defense, but
is available for inspection at the Local and Appeal Boards. For
example, I am advised that Selective Service Form 102 consists
of a comprehensive public record of all actions taken by Local
and Appeal Boards with respect to the registration,
classification and induction of all persons registered at the
particular Local Board. It consists of multiple sheets listing
the registrants, in birth date order. "Owing, to its size,
composition, and the different colors of ink used in making
various entries, it is difficult if not impossible to duplicate
While I am aware of some of the problems which full disclosure
may involve, I nevertheless believe that a registrant facing
criminal charges is entitled to inspect all documents relating to
his classification and processing. Such broad discovery is made
necessary by the very nature of a Selective Service prosecution.
In a Selective Service trial the government relies almost
exclusively on documentary evidence to prove its case. Such proof
is generally sufficient to support a conviction because of the
federal business records act, 28 U.S.C. § 1732, and because of
the presumption of regularity of administrative proceedings. See
generally Keene v. United States, 266 F.2d 378 (10th Cir. 1959).
The government's prima facie case is customarily established by
the testimony of one witness, a clerk from defendant's Local
Board, and the introduction into evidence of the defendant's
Selective Service file. In sum, the file (along with the
defendant's registration card) establishes all of the elements of
the offense: that he was duly classified; ordered to report; and
that he refused to so report. (Identity of the defendant as the
registrant is generally stipulated).
The burden then shifts to the defendant, who must rebut the
presumption of regularity. As well summarized by the Amicus: "The
problem of the defense thus may be generalized as the task of
showing irregularity or illegality in an administrative
proceeding the record of which reposes in the nearly exclusive
custody, control and possession of the administrative agency."
Irregularity may be shown from the file itself, introduced in
the government's case in chief or by going outside the
government's evidence which consists only of his file to rebut
the otherwise fatal presumption of validity. The need for
additional discovery is thus summarized by the Amicus:
"Indeed, the most valid defenses, vital to rebut
the presumption of regularity, may well be found
outside his Selective Service file, but in the
custody of the government in the very documents and
materials the defendant desires to — and must —
Selective Service cases are thus unique in that the need for
discovery is even more compelling than in most other criminal
cases. This compelling need outweighs any administrative
inconvenience this discovery may cause the government. I am also
of the opinion, however, that the discovery I here order can be
implemented with little burden on the government by merely
requiring that any such discovery sought be made available at
defendant's Local or Appeal Board.*fn5
Information maintained at
State or National Headquarters can be readily forwarded to the
Local Board or to the office of the United States Attorney.
It is therefore ordered that all documents relating to the
classification or processing of a defendant be made available for
inspection at the office of the United States Attorney or at his
Local or Appeal Board office.
If defendant's Local or Appeal Board is not located within this
district, then said information shall be obtained by the United
States Attorney and made available to defendant in this district.
I think it appropriate to stress that I have fashioned the
relief in the manner just described for the convenience of the
United States Attorney and the Selective Service System and
expect their full cooperation in executing this relief.
Unfortunately there have been cases before this court where the
Selective Service System has not cooperated with discovery
orders, but has required counsel to wait for hours before being
permitted to review voluminous records without the assistance of
Board personnel. Such lack of cooperation by the Selective
Service System in these cases I here warn could well result in a
dismissal of the prosecution.
As to the defendants' request for copies of the minutes of
their Local and Appeal Boards, I first observe that local boards
are required by regulation to keep such minutes.
32 C.F.R. § 1604.58 (1971). Copies of the minutes of local board meetings
(SSS Form 112) are not contained in the file of an individual
registrant, but are maintained at the Local Board office.*fn6
The minutes of the Local Board meeting reveal the duration of the
meeting, the names of Board members and others in attendance, the
powers delegated to the executive secretary, the reasons
supporting some of its decisions as well as other information
relating to the registrants considered. Obviously the minutes may
contain evidence that the Board failed to comply with basic
requirements or misunderstood the law or the facts of a
particular claim. See United States v. Thomas, 3 SSLR 3306
(N.D.Ill. 1970). See also Paszel v. Laird, 426 F.2d 1169, 1175
n. 10 (2d Cir. 1970); United States v. Condon, 70 CR 539 (N.D.
Ill. 1971); United States v. Branigan, 299 F. Supp. 225, 238
The government has advised the court that minutes of Local
Board meetings are provided for the defense in many cases, but it
urges that such production be limited to cases where there is a
showing of "materiality." In my opinion materiality is
established by virtue of the burden on the defendant to rebut the
otherwise fatal presumption of regularity.
Information relating to the processing of other registrants at
the time each defendant's status was considered and also such
information as the time each meeting commenced and adjourned,
will be available in the minutes of the meetings of the Local and
Appeal Boards. Those minutes should also disclose whether
personal appearances were permitted.
Accordingly, I believe the defendants are entitled to the
minutes of all meetings of the Local Board in which the
defendant's classification or processing was considered.
State Appeal Boards are likewise required to keep minutes of
their meetings. 32 C.F.R. § 1604.27 (1971). These minutes may
also contain evidence of misunderstandings of law or fact or
failure to follow regulations in the processing of a registrant.
See Nevarez Bengoechea v. Micheli, 295 F. Supp. 257, 258 (D.P.R.
It would also appear as a general proposition that prior to an
Appeal Board deciding a registrant's appeal he should be entitled
to inspect any summary or resume submitted to the Appeal Board by
Selective Service personnel. Under such a procedure a defendant
could correct any error of law or misstatement of fact contained
in the résumé. See United States v. Fisher,
442 F.2d 109 (7th Cir. 1971); United States v. Manke,
259 F.2d 518 (4th Cir. 1958); United States v. Bova, 300 F. Supp. 936
(E.D.Wis. 1969); see also Gonzales v. United States,
348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); and Simmons v. United
States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955). More
importantly, a defendant is entitled to a judgment of acquittal
if he can establish that the Appeal Board relied on a file
summary rather than the full de novo review which is required by
regulation. See United States v. Wallen, 315 F. Supp. 459 (D.Minn.
1970). Under such circumstances the existence of a resume or
summary itself may be evidence favorable to the accused within
the meaning of Brady v. Maryland, supra. Accordingly, the motion
for production of any summary or resume presented to or
considered by an Appeal Board or panel thereof is granted.
The Docket Book of the Appeal Board (SSS Form 121) is a
ledger-like record prepared by the Appeal Board concerning all
registrants within its jurisdiction. The government resists its
disclosure only because "the same information, with respect to
each registrant, is contained in his Selective Service file."
While this generally may be so, I believe a defendant should be
permitted to inspect the source document, i.e., the Appeals Board
docket book, if for no other reason than to assure the accuracy
of his personal file. Inspection of the docket book may also be
necessary to establish patterns and to otherwise show what has
happened to other registrants whose appeals may have been heard
by the same Board.
The Register of Conscientious Objectors is undoubtedly a public
record available for inspection at the defendant's Local Board.
See 50 U.S.C. App. § 456(h)(2).
Local Board authorization permitting a clerk to issue notices
to report for physical examination and induction and to sign
notices of classification is material, because lack of proper
authorization may disclose a violation of regulations.
All relevant communications or instructions from the State
Director, National Director and Department of Justice will be
disclosed pursuant to other orders entered herein.
For the reasons stated, it is ordered that upon request by
defense counsel, the Docket Book; the Register of Conscientious
Objectors kept by each defendant's Local Board; and the written
authorizations of the Local Board permitting a clerk to issue
notices to report for physical examination and induction and to
sign notices of classification, shall be made available for
inspection at the Local and Appeal Board offices.
Again, if a defendant's Local or Appeal Board is not located
within this district, the United States Attorney shall make this
information conveniently available to the defendant within this
Information Relating to Board Members and Selective Service
The defendants seek extensive information about the makeup of
Local and Appeal Boards and other Selective Service personnel.
Specifically the government is asked to state, presumably in the
form of a bill of particulars:
1. The names and addresses of each member of the
Local and Appeal Boards that classified or
otherwise considered a defendant's case.
2. The military position or affiliation, if any, the
race, religion, date of appointment and criminal
record, if any, of each member of the local and
3. The geographical boundaries of the Local and
4. The name, business address and residence address
and criminal record, if any, of each legal
advisor, government appeal agent, medical advisor,
clerk and secretarial staff member of the Local
and Appeal Board at any time defendant's case was
The requested documents include Selective Service
Forms No. 401 (Personal History Statement), No.
402 (Personnel Action-Uncompensated Personnel),
No. 405 (Recommendation for Uncompensated
Personnel Action) and No. 461 (Uncompensated
Personnel Control Card).
5. The Selective Service System records indicating,
during the relevant time period from February 1,
1965 to date, every residence address and every
date of appointment to and termination of Board
membership of each person residing within the
geographical area of defendant's Local Board who
served as a member of any other Selective Service
Local or Appeal Board during the period of his
residence within the area. Again the requested
documents are to include Selective Service System
Forms No. 401, 402, 405 and 461.
6. If the membership of defendant's Local Board is
divided into panels, all documents giving the
composition of the panel to which defendant's case
was assigned on each occasion when it was
(a). Information relating to Board members.
By law Local Board members must be citizens of the United
States, of civilian status, of at least 30 years of age, but not
more than 75 years, and reside in the county or political
subdivision in which the Local Board has jurisdiction. And, where
a Local Board is comprised of more than one county or
corresponding political subdivision, there shall be at least one
member from each county included within the Local Board area. 50
U.S.C. App. § 460(b)(3); 32 C.F.R. § 1604.52 (1971). The same
statutes and regulations provide that no one may be barred from
membership on account of sex and that no member shall serve on
any Local Board for more than twenty-five years.
The same basic qualifications are required for Appeal Board
members except that the area residence requirement for an Appeal
Board member applies to the area in which the Appeal Board is
appointed and there are certain occupational requirements.
Specifically, there must be a member from labor, one from
industry, a physician, a lawyer and, where applicable, a member
from agriculture. 32 C.F.R. § 1604.22 (1971).
The residence requirements for Local Board members have two
aspects. A regulation in effect until 1970,
32 C.F.R. § 1604.52(c) (1970), provided that all members "shall if at all
practicable be residents of the area in which their Local Board
has jurisdiction." This language was deleted from the regulation
in September of 1970, Executive Order No. 11555, 35 Fed.Reg. No.
175, at 14191, but was in effect when the files of these
defendants were processed. The Selective Service Act requires
that Local Board members be residents of the county in which the
Local Board has jurisdiction. 50 U.S.C. App. § 460(b)(3);
32 C.F.R. § 1604.52(c) (1971).
In United States v. Krueger, 319 F. Supp. 225 (N.D.Ill. 1970),
Chief Judge Robson of this Court held that personal data
regarding Selective Service Board members was not material since
their qualifications could not be attacked collaterally as a
defense to a criminal prosecution.
Judge Robson's thorough opinion in Krueger adequately disposes
of all of the issues presented in defendants' motions. A brief
quotation from that opinion illustrates its merit and application
to the arguments in this case.
"Unpopularity of compulsory draft laws,
particularly among those most vitally affected, does
not justify a cavalier attitude by the court in
disregarding fundamental legal principles so that
such laws may be subjected to attacks without legal
precedent or foundation. The qualifications of
selective service board members, as well as the
members of any other governmental body or officer,
cannot be collaterally attacked as a defense to a
criminal prosecution. It necessarily follows that the
personal information sought by the defendant is
neither relevant nor material to the preparation of
his defense, and is therefore not a proper subject
for discovery. Rule 16(b), Federal Rules of Criminal
See also Czepil v. Hershey, 425 F.2d 251
(7th Cir. 1971).
The request for personal information relating to the
qualifications of Local and Appeal Board members is therefore
(b). Information relating to Selective Service personnel other
than those who are Board members.
The defendants as set forth above have also submitted a broad
claim for information relating to other Board personnel. I
presume much of this information is sought with the intention of
interviewing these employees of the Selective Service System and
perhaps subpoenaing them as trial witnesses. As with many of the
requests, there is little attempt to justify the disclosures in
the brief of the defendants. Nevertheless it would seem
elementary that a defendant has the right to contact or call as
a witness any person whom he believes may be helpful to his
defense. Accordingly, on request the Selective System shall
provide defense counsel with the name of any legal advisor,
government appeal agent, medical advisor, clerk and secretarial
staff member of a defendant's Local or Appeal Board who at any
time considered the defendant's case. I see no materiality to the
"criminal record" of these employees except of course if the
employee is intended to be a government witness as discussed
above. Nor do I see any relevance to the defendants' request for
permission to browse through the various personnel records of
these persons. These requests are therefore denied. Except as
specifically granted above, all other requests relating to
Selective Service personnel are denied.
ORDER AND METHOD OF CALL
The defendants have submitted requests for information aimed at
determining whether the Selective Service System properly
followed its regulations relating to the proper order of call for
induction. The specific requests are set forth in the footnote
It is well established that failure to follow a lawful quota or
order of call is a defense in a criminal prosecution. See Yates
v. United States, 404 F.2d 462 (1st Cir. 1968); United States v.
Weintraub, 429 F.2d 658 (2nd Cir. 1970); Lowe v. United States,
389 F.2d 51 (5th Cir. 1968); United States v. Baker, 416 F.2d 202
(9th Cir. 1968); Little v. United States, 409 F.2d 1343 (10th
Cir. 1969). In opposing the defendants' request for discovery of
information relating to the order of call, the government argues
that the defendant has the burden of placing the order of call in
issue and that in any event the inspection of Selective Service
Form 102 (Classification Record) is adequate to inform the
Selective Service registrant of whether or not the order of call
is properly followed in his case.
First, the question of where rests the burden of proof on this
issue has led to differing views. Compare United States v.
Lybrand, 279 F. Supp. 74 (E.D.N.Y. 1967), with United States v.
Sandbank, 403 F.2d 38 (2nd Cir. 1968). The Court of Appeals for
the First Circuit suggests that the burden of proof is properly
assigned to the government but that it is generally sustained
simply on the strength of the presumption of regularity in the
process. Yates v. United States, 404 F.2d 462 (1968), on
petition for rehearing, 407 F.2d 50 (1969). Regardless of who has
the burden of proof, it is obvious that if irregularities in the
order of call are a complete defense to a criminal prosecution,
a defendant is entitled to the information in pretrial discovery.
See United States v. Condon supra. Indeed, imposing either the
burden of proof or the burden of proceeding upon a defendant
would compel granting access to the records necessary to meet
The second suggestion, that adequate information is contained
in the Classification Record (SSS Form 102), was recently
answered by the Second Circuit Court of Appeals in United States
v. Weintraub, 429 F.2d 658, 660 n. 1 (2nd Cir. 1970):
"For many reasons this Form 102 is not intended to
and does not contain all of the data pertaining to
the many thousands of registrants. Nor is this Form
used or even referred to in the preparation of the
calls for induction, which are uniformly based upon
the more reliable files of the individual
The Form 102 merely lists registrants in the order in which
they registered with the Board. 32 C.F.R. § 1621.6. Under the
new lottery system, however, the birth dates of the registrants
are scrambled and an entirely new order of call is established.
Random sequence numbers are not required to be recorded in the
Classification Record. Compare Local Board Memorandum No. 99
(Nov. 26, 1969) with Local Board Memorandum No. 99 as amended
(Nov. 18, 1970). As the Amicus points out
it would be an "arduous and unnecessary task to require defense
counsel to look up and reassign the proper random sequence number
of each of the thousands of registrants listed in the
Classification Record and then to rearrange and list those
registrants in order of random sequence number, which of course
is now the order of call." Apparently the Selective Service
System in the ordinary course of business does perform this task
and has such a record available. If so, it should be made
available to defense counsel at the Local Board. If no such
document is available, then defense counsel should be permitted
access to whatever systems are used by the Local Board personnel
in determining the proper order of call. Because of the possible
confidential nature of some of the Selective Service files, any
attorney granted access to this information is enjoined from
disclosing this information at any time except as may be
necessary to assert a proper defense.
Relative to the Order and Method of Call, defense counsel may
upon request also inspect at the Local Board or State
Headquarters and for each local Board in the State if necessary,
the following forms, all of which may be necessary to determine
if there has been any pertinent irregularity.
SSS Form 116. This "Report of Availability" contains
a summary of Local Board registrants and their
classification. It is submitted by the Local Board to
State Headquarters, and there used by the State
Headquarters for its report to National Headquarters.
SSS Form 117. This "Report of Availability" contains
a summary of Class 1-A and 1-A-O registrants and
random sequence numbers. This report is also
submitted monthly by the Local Board to State
Headquarters and is then used by State Headquarters
in its report to National Headquarters.
SSS Form 200. This form is described as the "Notice
of Call on State" and is used by the National
Director to notify each State Director of the number
of registrants to deliver for induction during a
specified period, generally one month.
SSS Form 201. This form is described as "Notice of
Call on Local Boards" and is used by State Director
to notify Local Boards of the number of registrants
they are to deliver during a specified period,
generally one month. This notice sets the limit on
the number of men who may be inducted by a Local
SSS Forms 261 and 261-A. Described as "Delivery
Lists", these forms are prepared by the Local Boards
for completion by the induction center to determine
the disposition of registrants ordered to report.
SSS Form 262. This monthly report indicates the
number of deliveries, inductions and physical
examinations within the State.
All of the information just described is to be made available
to defense counsel only and shall not be disclosed by counsel
except as shall be necessary to assert a proper defense. As so
limited the motions of the defendants for information relating to
the Order and Method of Call are granted. In all other respects,
the motions are denied.
This lengthy memorandum and order discusses quite specifically
most of the requests presented in the motions of these
defendants. I have employed such detail primarily because
disposition of the requests in these cases is intended to apply
to similar requests in the many cases pending before me wherein
counsel have adopted the motions in these cases, as well as to
other cases presently pending before me and to those which have
already been assigned for trial. A limited number of requests
have not been discussed in detail. Such a lack of
discussion was not oversight, but a determination that these
requests were plainly without merit. Therefore, to the extent
that any defense request has not been specifically granted it is
The parties shall complete discovery promptly. On August 31,
1971 all pending cases shall be assigned for trial in accordance
with the rules of this court. Pleas of guilty in these cases may
be entered before me until that date.
TABLE OF FORMS NORMALLY PROVIDED TO THE DEFENSE
Form No. Title
SSS Form 1 Registration Card
SSS Form 2 Registration Certificate
SSS Form 100 Classification Questionnaire
SSS Form 101 Cover Sheet
SSS Form 103 Graduate or Professional College Student
SSS Form 104 Request for Undergraduate Student
SSS Form 109 Student Certificate
SSS Form 118 Dependency Questionnaire
SSS Form 119 Report of Oral Information
SSS Form 120 Individual Appeal Record
SSS Form 127 Current Information Questionnaire
SSS Form 150 Special Form for Conscientious Objectors
SSS Form 151 Application for Volunteer Civilian Work
SSS Form 153 Order to Report for Civilian Work and
Statement of Employer
SSS Form 171 Apprentice Deferment Request
SSS Form 217 Advice of Right to Personal Appearance
SSS Form 219 Notice to Registrant to Appear for
SSS Form 223 Order to Report for Armed Forces
SSS Form 230 Transfer for Armed Forces Physical
Examination or Induction
SSS Form 252 Order to Report for Induction
SSS Form 253 Order of Transferred Man to Report for
SSS Form 264 Postponement of Induction
SSS Form 301 Delinquent Registrant Report
SSS Form 304 Delinquency Notice
SSS Form 340 Appointment of Leader or Assistant
DA Form 46 Record of Emergency Data
DD Form 47 Record of Induction
SF 88 Report of Medical Examination
SF 89 Report of Medical History
DD Form 98 Armed Forces Security Questionnaire
180-R Acknowledgment of Service Obligation
DD Form 398 Statement of Personal History
809-R Declaration of Civil Offenses