United States v. Jose Emiliano Velazquez

490 F.2d 29, 1973 U.S. App. LEXIS 6225

• Court: Court of Appeals for the Second Circuit
• Decided: December 28, 1973
• Docket: 170, Docket 73-1869
• Status: Published

Opinions

LUMBARD, Circuit Judge:

This is an appeal by the government under 18 U.S.C. § 3731 (as amended) from an order of the Southern District (Pierce, J.) dismissing an indictment which charged Jose Emiliano Velazquez with failure to submit to an armed forces physical examination (count I) and with failure to report for and submit to induction (count II), both in violation of 50 U.S.C. App. § 462(a).

The indictment in the case was filed July 25, 1972, and on August 8, 1972, Velazquez pleaded not guilty. Over the following months he filed fourteen voluminous motions for dismissal, extensive discovery, and other forms of pretrial relief. The government filed brief affidavits in opposition to most of these motions. Trial had been tentatively set for December 4, 1972.

However no trial was held, nor any pretrial hearing. Instead, after several months’ delay, and without hearing counsel for either side, Judge Pierce dismissed the indictment on April 24, 1973, on the basis of one of Velazquez’ motions. In doing so he relied solely on the motion papers and presumably, although not explicitly, on the government's affidavit in opposition.

Velazquez’ successful motion was made under Rule 12, F.R.Cr.P., on the grounds that he had a valid defense to count I of the indictment. He asserted that he had not received adequate notice of his duty to report for a physical examination, and that therefore he had never been under an obligation to submit to it.

Judge Pierce agreed with this argument, and extended it to count II of the indictment as well. In his memorandum opinion of April 30, 1973, in support of his dismissal order, Judge Pierce considered that under Rule 12 the court was entitled to pass upon the alleged defense to the indictment on the grounds of inadequate notice, inasmuch as such a defense, if raised at trial, would be passed upon in the first instance by the trial judge. He therefore considered those portions of Velazquez’ Selective Service record which Velazquez had obtained on pretrial discovery and which had been included as part of the motion papers.

These revealed that on October 17, 1971, Velazquez’ local board in New York mailed him a notice to report for and submit to a pre-induction physical examination (SSS Form 223), the examination to be held on November 2, 1971. Due to a typographical error, the notice was misaddressed and was returned undelivered to the board by the post office. A second Form 223 was sent on October 27, 1971, for the same November 2nd examination date, and to the correct address. But as Velazquez had moved, evidently without notifying his local board of the fact, it too was returned undelivered. The board subsequently obtained Velazquez’ new address and on January 5, 1972, sent him notice (Form Letter #8) that he was under a continuing obligation to report for and submit to a physical examination. The letter informed him also that he was to appear for the examination at the Whitehall Street Armed Forces Entrance and Examination Station in Manhattan at 7:00 a. m. on January 20, 1972, a date later changed to January 21st. There is no dispute that Velazquez actually received this letter notice.

The motion papers further revealed that on January 21st Velazquez appeared as directed at the Whitehall Street station for his examination. However he refused to undergo the examination and refused to cooperate with Selective Service personnel, and he continued this refusal in spite of efforts by his local board to obtain the reasons for his failure to take the physical examination. Thereafter, on June 1, 1972, he was sent an order to report for and submit to induction because of his prior delinquency, the reporting date given as July 6, 1972. He again appeared at the Whitehall Street station on the required date, but he continued his refusal to cooperate.

Judge Pierce in his memorandum noted that Form Letter # 8 contained none of the procedural safeguards and information about the rights of registrants which are printed on Form 223.¹ Relying on the fact that 32 C.F.R. § 1628.-16(a) (1971) specified the use of Form 223,² and that the Selective Service apparently deemed notice of these rights to be of sufficient importance to be included on the required form, he held that Form Letter # 8 did not provide adequate notice of an obligation to report, and hence that no duty to report arose upon its receipt. He concluded that, absent the duty to report, even though Velazquez had reported as ordered, there was no violation of 50 U.S.C. App. § 462(a) for failure to submit to the examination, since such a violation is premised on avoidance of the obligation with prior knowledge of the conse-quenees. He accordingly dismissed the indictment as to count I.

Judge Pierce then went on to dismiss the indictment as to count II. He noted that a local board’s authority to order a registrant to report for and submit to induction rested on 32 C.F.R. § 1631.-6(a) (1972), which provides:

That notwithstanding Part 1628 or any provision of these regulations, when a registrant in whatever classification has refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination, he may be selected and ordered to report for induction even though he has not been found acceptable for service in the Armed Forces ....

It followed, Judge Pierce concluded, that “since the defendant was under no legal duty to report for a physical examination, he cannot be said to have ‘refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination.’ ”

The government seeks to appeal Judge Pierce’s dismissal of the indictment in respect to both counts. It relies for authority to appeal on 18 U.S.C. § 3731 (as amended) and contends that appeal is not barred in this case by the constitutional protection against double jeopardy, which is now the sole bar to government appeals from dismissals in criminal cases.³ On the merits it contends that receipt of Form Letter # 8 provides adequate notice of a Selective Service obligation to report for and submit to a physical examination. It also urges that mere mailing of the form gives rise to the obligation (see fn. 2).

In opposition Velazquez contends, on the jurisdictional point, that althoügh Judge Pierce styled his order a dismissal of the indictment, and although it was based solely on motion papers, it was nonetheless equivalent to an acquittal on the merits because the court had gone beyond the face of the indictment to consider “competent evidence” (the court’s term) contained in his Selective Service record. He therefore claims that an appeal would permit facts “peculiar to the defendant” — specifically receipt of Form Letter # 8 in place of SSS Form 223 — to be reconsidered by a second tribunal, contrary to the provisions of § 3731. He argues further that an instance of double jeopardy would be the more clearly made out because of the hybrid nature of Selective Service cases, since they are at once traditionál criminal proceedings and also proceedings for the review of administrative action which place in the hands of the judge issues of fact not usually left to his determination in ordinary criminal trials.

Velazquez also contends that even if an appeal is allowed, he should nonetheless prevail on the merits because Form Letter # 8 does not provide adequate notice of legal obligations the neglect of which may incur severe criminal and administrative sanctions.

I.

We hold that in this case an appeal by the government does lie under § 3731. We conclude that Velazquez was not placed in jeopardy by the determination of the trial court when it based the dismissal of the indictment against him solely on motion papers submitted prior to trial, before either the selection or waiver of a jury and without any opportunity for counsel on either side to be heard.

The Supreme Court has recently cautioned that the question of assessing whether jeopardy attaches is not to be decided by any mechanical test. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L.Ed.2d 608 (1970). Accordingly, it is not wholly dispositive of the claim raised by Velazquez to state that since the jury was neither waived nor empaneled, jeopardy could not have attached, although this gives rise to a strong presumption.⁴ United States v. Pecora, 484 F.2d 1289 (3rd Cir., 1973). Nor is it satisfactory to rely, as has been done in non-jury cases, simply on the fact that no evidentiary hearing was held by the trial court in disposing of the motion. See Newman v. United States, 133 U.S.App.D.C. 271, 410 F.2d 259, cert, den., 396 U.S. 868, 90 S.Ct. 132, 24 L.Ed.2d 121 (1969). The critical question is whether the government’s action in prosecuting Velazquez, in both its administrative and judicial phases, reached the point where the government’s power to retrace its steps is checked by countervailing interests of the individual protected by the double jeopardy clause of the fifth amendment. United States v. Jorn, supra, at 480, of 400 U.S., 91 S.Ct. 547; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Brown, 481 F.2d 1035, at 1040-1041 (8th Cir., 1973).

The present law of double jeopardy precludes retrial in instances when, regardless of the label,⁵ the trial court has ruled in favor of the defendant on facts going to the merits of the case if these facts were adduced at trial (United States v. Sisson, supra); if they were presented at an evidentiary hearing (United States v. Southern R. Co., 485 F.2d 309, at 312 (4th Cir., 1973)); or if they were stipulated by the parties (United States v. Brewster, 408 U.S. 501, 506, 92 S.Ct. 2531, 33 L. Ed.2d 507 (1972); United States v. Sisson, supra, at 285 of 399 U.S., 90 S.Ct. 2117; but see fn. 6, infra).

Retrial is permitted, however, when the trial court ruled in the defendant’s favor on the allegations in the indictment (United States v. Brewster, supra) ; on facts contained in the government’s bill of particulars (United States v. Boston & Maine R. Co., 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965)); or on any procedural defect which would manifestly require reversal on appeal if conviction resulted (Illinois v. Somerville, supra). Retrial is permitted in these situations even though the trial itself may have completed its course.

The underlying thrust of the protection against double jeopardy is thus not to limit the number of times a defendant may be summoned into court on a single offense. Under present law this may be done repeatedly. It is rather to limit to one the number of times that a defendant may be required to submit proof of his innocence to challenge or acceptance by the other side. This expresses the root function of the trial as a proceeding where litigants are to be heard before a neutral tribunal, where they appear and argue as adversaries and where their case is to be subjected to public scrutiny and is open to rebuttal.⁶ It is multiple trials in this sense which the double jeopardy clause is designed to prevent.

The district court’s granting of Velazquez’ motion presented a different situation. There was no trial. There was no evidentiary hearing. There was, in fact, no introduction of evidence as commonly understood in our adversarial system. There was no stipulation of facts. Rather, the court went to the motion papers of the defendant, which included copies of entries in his Selective Service record, and without giving either side an opportunity to be heard, and without even. having the defendant appear in open court, concluded as a matter of law that the defendant had been deprived of due process because of inadequate notice provided by Form Letter # 8.

The only way in which an appeal of this determination could place Velazquez in double jeopardy would be to claim that jeopardy attached in the trial court’s reaching beyond the face of the indictment to “[a] showing of eviden-tiary facts outside of the indictment, which facts would constitute a defense on the merits at trial.” United States v. Brewster, supra, at 506, of 408 U.S. at 2534 of 92 S.Ct.

There was, however, no such showing. It might have been argued that there has been such a showing had the facts for which the court reached been tested in the forge of open court, as the defendant’s sincerity had been in Sisson, or had the facts at least been accepted by the government without opposition. But this was not the case.

Reliance on facts is not in itself dis-positive of the issue. As we stated earlier, retrial is permitted, and consequently an appeal under § 3731 is also permitted, when dismissal of an indictment is based on facts alleged in the indictment. United States v. Brewster, supra, at 506-507, 92 S.Ct. 2531; see also United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956); United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). But it is also permitted when dismissal is based on facts revealed in other pretrial stages.

In United States v. Boston & Maine R. Co., supra, for example, an appeal was allowed under the old § 3731 when the trial judge had gone beyond the face of the indictment, which he considered as charging a valid offense in law, to reach the government’s bill of particulars, on the basis of which he concluded that no offense was chárged after all. As a consequence he had dismissed the indictment. The Supreme Court held on review that jeopardy did not attach in that situation.

In the more recent case of United States v. Martin Linen Supply Co., 485 F.2d 1143 (5th Cir., 1973), which involved an appeal under the newly amended § 3731, the Fifth Circuit similarly allowed an appeal where the trial court’s dismissal of the indictment had been made after “the government [had] disclosed the nature of its case in . extensive pre-trial procedures” but had not yet put its case to test in any “ ‘hearing’ of the evidence” prior to trial, much less at trial itself. Again it was held that jeopardy did not attach.⁷

The issue, then, is not whether the court has relied on facts outside the indictment, nor even on whether the trial judge may have considered such facts as “undisputable,” as Judge Pierce did here. Since facts are necessarily assumed as uncontroverted for the purposes of a dismissal made at this or any stage, the issue is how these facts have been treated.⁸ Consideration of such facts has not been thought to place a defendant in jeopardy when he has not ventured them before the court in the presence of his adversary. See United States v. Covington, 395 U.S. 57, 89 S. Ct. 1559, 23 L.Ed.2d 94 (1969); also United States v. Sisson, supra, fn. 19 at 290-291 and fn. 56 at 302-303 of 399 U. S., 90 S.Ct. 2117.

As Senator Bacon remarked during the passage of the original Criminal Appeals Act, “The words ‘being in jeopardy’ are entirely a technical phrase” and do “not relate to the fact that a man is in danger as soon as an indictment is preferred against him.” 41 Cong.Ree. 2191. The Constitution does not protect a defendant from being placed in danger as often as the state may wish, so long as he is put to his proof only once. Just as he would not have been put to his proof on facts alleged in the indictment, so he was not on facts made available to the trial court solely through pre-trial discovery and which the court and the parties have treated no differently than factual allegations in the indictment itself or which might have been contained in a bill of particulars.⁹ To conclude that a trial judge may forever bar proper prosecution of a criminal defendant after a dismissal at this stage would be to permit the trial judge to arrogate to himself the power to decide a case on the merits without ever having the defendant confronted with the evidence in open court.

Consequently we hold this court has jurisdiction to review the dismissal of the indictment.

II.

On the merits we find the defendant’s contentions unpersuasive. By the district court's assumptions there was no dispute that Velazquez received notice of the location, time, and date of his physical examination.¹⁰ It was also undisputed that he did report as ordered, but then refused to submit to the examination. Count I of the indictment did not charge him with failure to report for the physical, but only with failure to submit to it. His contention, accepted by Judge Pierce, is that since the duty to report was vitiated by inadequate notice of the consequences of failing to report and of certain procedural rights of registrants, then even though he did report he was yet under no duty to proceed further and cooperate with the Selective Service.

This argument might be more persuasive if Velazquez claimed in what way he had been prejudiced by the inadequacy of the notice provided him, if for example he had had a possibly valid claim to medical exemption or to an exemption for prior military service, or if he had stood in danger of losing employment because of the examination. See United States v. Wendt, 452 F.2d 679 (9th Cir. 1971). But the record, both before Judge Pierce on the motion and before this court on appeal, is barren of any such claim. Velazquez’ claim is rather that all his obligations to the Selective Service, including those to report for and submit to induction, regardless of their validity, must fall if the one on which no infraction of the law is charged contained a procedural defect which is not even shown to have been prejudicial to him.

This is too large a structure to build on so weak a foundation. In the first place, Form Letter # 8 does provide adequate notice of the obligation to report for and submit to a physical examination. The letter advises the registrant of the existence of the obligation, of the time, date, and location to report, and of an address or telephone number through which the registrant can communicate with the authority promulgating the order should he be unable for some reason to comply.

Adequacy of notice has been found in other cases on less than even these requirements. United States v. Abrams, 476 F.2d 1067, 1070 (7th Cir. 1973); United States v. Williams, 433 F.2d 1305, 1306 (9th Cir. 1970). Both of these eases involved oral notice to the registrant of a Selective Service obligation where there was no proof of receipt of any written order, nor any proof that the registrant was informed of the consequences of disobedience. As a matter of law no more than this was required at the time Velazquez’ letter order was received. See United States v. McGee, 460 F.2d 1287 (7th Cir. 1972); United States v. Zaugh, 445 F.2d 300 (9th Cir. 1971); United States v. Dombrouski, 445 F.2d 1289 (8th Cir. 1971); United States v. DeNarvaez, 407 F.2d 185 (2d Cir.), cert, den., 396 U.S. 822, 90 S.Ct. 62, 24 L.Ed.2d 72 (1969).

The government, when it has expressed through valid laws its need for the compulsory military service of its citizens, does not carry the burden of calling up those selected by only one detailed means. It may use a variety of means of communication which are in common use: letter, telegraph, telephone, personal contact. See Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943). This necessity for flexibility need only provide notice in sufficient detail so that those who fail to heed the-call will not be punished because they did not know the act required of them. A citizen’s possible defenses to performance of this act need not be specified to him in advance in an order to report so long as some mechanism is provided, as it is through the induction system, by which such claims may be raised. United States v. Irons, 369 F.2d 557 (6th Cir. 1966). See Schutz v. United States, 422 F.2d 991 (5th Cir. 1970).

If Velazquez had such claims, he could have tested them through cooperation with the Selective Service. Should he still have them, he is free to test their meritoriousness at trial. He may then place in issue any facts which he believes show that the obligations were unlawfully imposed on him to submit to a physical examination and later to report for and submit to induction, as well as any facts which may rebut any presumption supporting the validity of such obligations. We hold only that such obligations were not unlawfully placed upon him when notice of them was initially made through receipt of Form Letter # 8.

Beyond this, however, there is a well-established distinction in the decisions enforcing the draft laws between the obligation of reporting for examination or induction and that of submitting to them. See Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1944). Wilful refusal to comply with either obligation can constitute the foundation for a separate offense under 50 U.S.C. App. § 462(a) or its predecessor provision (see United States v. Dombrouski, supra, at 1293-1295; Schutz v. United States, supra, at 994), although a violation for failure to report is ordinarily merged into one for failure to submit if both are established. United States v. Irons, supra.

This distinction makes Velazquez’ claims all the more anomalous. Charged with refusal to' submit to a physical examination, he may of course raise all possible defenses to the charge, including inadequate notice of the consequences of such refusal. In so doing he may indeed be able to establish that, once at the examination station, he was never apprised of all the ramifications of disobedience or of failure to cooperate. To establish that, however, requires more than a showing that his order to report contained allegedly defective notice of his obligation merely to be at a certain place at a certain time. For, having reported, he must show more than defective notice to report in order to establish a defense that his refusal to submit to a physical examination was lawful.

We therefore hold that on the basis of the facts disclosed in the motion papers before the district court there was no legal ground for dismissing count I of the indictment. It necessarily follows that count II was also improperly dismissed. The indictment is therefore to be reinstated in all respects.

Reversed and remanded for further proceedings.

1 . Form Letter $ 8 informs the registrant that he is under a “continuing obligation” to report for a physical examination, refers to any outstanding order of the local board, and informs him of the place, date, and time for his examination. By contrast, a Form 223 order contains additional information on how the registrant may have the location of his physical examination transferred, how he may guard against loss of his job, and how he may present evidence of medical disability or prior military service. It also warns him of possible administrative and criminal sanctions for failure to obey the order.

2 . The applicable regulation during the period in issue here, originally § 1628.16 of 32 C. F.R., was renumbered to § 1628.10 effective December 10, 1971, and to § 1641.4 effective September 2, 1972. The section, in pertinent part, reads as follows :

When the local board mails to a registrant an Order to Report for Armed Forces Examination (SSS Form 223), it shall be the duty of the registrant to report for such examination at the time and place fixed in the order. ... [Emphasis added.]

3 . The relevant portion of the Criminal Appeals Act, 18 U.S.C. § 3731, as amended, which allows appeals by the government in criminal cases in certain instances provides:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

*****

The provisions of this section shall be liberally construed to effectuate its purposes.

This language was the result of an amendment added by the Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890, with respect to cases in which the indictment was brought after the effective date of the Act, January 1, 1971. Under the prior wording of the statute appeals by the government in criminal cases were more strictly limited than merely by the double jeopardy provision of the Constitution, and raised many difficulties beyond those concerning double jeopardy. See United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970).

4 . It is safe to conclude on the basis of his pretrial motions, which sought in part to discover material concerning federal jury selection procedures, that Velazquez did not contemplate waiving his right to a jury trial and that therefore the jury would be the ultimate trier of fact on the merits. However, the stage reached at the time of Judge Pierce’s dismissal of the indictment was too early for us now to state categorically that this was a jury or a non-jury case. Moreover, we are mindful, as Velazquez has argued, that in Selective Service cases before a jury the judge may initially decide some of the facts at trial. But these considerations relating to the course a trial may take once it is before a jury or simply a judge are not determinative where the defendant’s choice of trier of fact has not yet been made.

5 . While many of the problems discussed in Sisson (see fn. 3, above) concerning the characterization of motions may now be avoided, we do not see that the amended version of the statute in any way makes the law of double jeopardy more liberal. That law is rather the “constant” by which ap-pealability is to be measured. Consequently, solely insofar as jeopardy to the individual is concerned, we perceive no reason for distinguishing cases decided under the old wording of the act from those decided under the new.

6 . That an adjudication on stipulated facts would bar retrial is in keeping with this policy of openness. In such an instance facts have again been offered to the other side and made part of the public record, with the only difference that instead of inviting challenge they have engendered acquiescence. But at least both sides have had the opportunity to pass upon them in the process of submission to the court. We note, however, that the prohibition against an appeal on stipulated facts rests at present on dicta in the Brewster and Sisson cases and not on a specific holding of the Supreme Court. See United States v. Brewster, supra, at 506 of 408 U.S., 92 S.Ct. 2531; United States v. Sisson, supra, at 285 of 399 U.S., 90 S.Ct. 2117.

7 . Most of the recent draft cases cited by the defendant in support of his claim that jeopardy has attached, while close in point, are distinguishable because the trial court’s action had gone further than was the case here. In most of them there was either a hearing on the evidence raised in the motion to dismiss or a presentation of evidence at trial, thereby arguably carrying the defendant across the threshold of jeopardy. See United States v. Sisson, supra; United States v. McCreery, 473 F.2d 1381 (7th Cir. 1973) ; United States v. Ponto, 454 F.2d 657 (7th Cir. 1971) ; United States v. Findley, 439 F.2d 970 (1st Cir. 1971). But see fn. 8, infra. United States v. Rothfelder, 474 F.2d 606 (6th Cir.), cert, den., 413 U.S. 922, 93 S.Ct. 3066, 37 L.Ed.2d 1044 (1973), appears more favorable to the defendant from the opinion of the court of appeals, but the district court’s opinion, 338 F.Supp. 1164 (W.D.Mich., 1972), makes it clear that the motion was decided on facts which the parties had agreed were undisputed.

8 . See the dissenting opinion in United States v. Jenkins, 490 F.2d 868, at 880 (2d Cir. 1973), for further views on the critical role of factual allegations in determining the nature of a dismissal of the indictment. It is true that the procedural situation in Jenkins was markedly different than here, since trial there was well underway; consequently we do not believe that the majority’s opinion in Jenkins is contrary to our holding here.

9 . The defendant argues that were we to permit an appeal under § 3731 here, then no conscientious defense counsel would raise a motion to dismiss under Rule 12 until after trial had begun, thereby not only defeating the purpose of litigating defenses prior to trial, but also causing added expense to both the government and defendants so as to be ready in every case for a trial on the merits. See United States v. Findley, supra (fn. 7). We do not agree. At most counsel would only be sure to have pretrial motions under Rule 12 heard by the court, with both sides present, and with characterizations of evidence argued to the trier of fact. Where counsel has raised a defense which does not call for such a presentation of evidence, his client runs no more risk than on a motion for dismissal of an indictment based, for example, on the government’s bill of particulars.

10 . Since Velazquez concedes that he did receive Form Letter # 8, there is no need to consider the argument, suggested by the government and rejected by Judge Pierce, that the mere mailing of an order to report creates a “continuing” and valid legal duty to comply which is in itself sufficient to maintain a conviction under 50 U.S.C.App. § 462(a) if noncompliance is proven. See fn.