UNITED STATES v. VALENTINE Crim. Nos. 6-67, 8-67, 15-67, 16-67, 67-67, 73-67, 74-67, 75-67, 77-67, 80-67, 81-67.
288 F.Supp. 957 (1968)
UNITED STATES of America, Plaintiff, v. Manuel Amedee Amy VALENTINE, Felix Juan Feliciano Rosario, Hernando Delgado Acevedo, Digno Rafael Ortiz Rivera, Miguel Quiñones Mendoza, Jose Del Carmen Garcia Miranda, Juan M. Rivera Negron, Ricardo Ivan Zengotita Ramos, Florencio Merced Rosa, Ruben Arcelay Medina and Edwin Feliciano Grafals, Defendants.
United States District Court D. Puerto Rico.
August 20, 1968.
Francisco A. Gil, Jr., U. S. Atty., Blas Herrero, Jr., Asst. U. S. Atty., San Juan, P. R., Marshall Tamor Golding, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff.
Marvin Karpatkin, New York City, Roberto Busó Aboy, San Juan, P. R., Rubén Berrios, Rio Piedras, P. R., Luis M. Villaronga, San Juan, P. R., Rabinowitz, Boudin & Standard, New York City and Olaguibeet López Pacheco, Hato Rey, P. R., for defendants.
MEMORANDUM AND ORDER *
Defendants herein have been individually indicted for refusing to submit to induction into the armed forces of the United States in violation of 50 U.S.C. App. §§ 454, 462 and Selective Service Regulations, § 1632.14(b) (5).
I. PROCEDURAL VALIDITY OF THE INDICTMENT
Defendants attack the procedural validity of their indictments (and of the petit jury array as well) upon three separate grounds. They contest the constitutionality of the statutory requirement that proceedings in this Court be conducted in English,
Their challenge raises interrelated questions the key to the solution of which lies in the resolution of their attack on 48 U.S.C. § 864. Clearly, if that statute constitutionally requires proceedings in this court to be conducted in English, it is equally constitutional to require adequate comprehension of English as a condition for jury service here; one could hardly serve as a juror if he could not understand the proceedings in court. See Miranda v. United States, 255 F.2d 9, 16-17(C.A.1).
A. Constitutionality of the English language requirements.
Defendants question Congress' constitutional authority to require that proceedings in a court which is part of the federal judicial system be conducted in English.
In any other district court, the contention would be too patently frivolous to require an answer. But Puerto Rico is unique among the judicial entities in which United States district courts are located. As the Supreme Court of Puerto Rico recently held, "the vehicle of expression, the language of the Puerto
It does not follow, however, that because proceedings in local courts are conducted in Spanish, proceedings in this court must also be conducted in that language. This court is not a local court of Puerto Rico. Rather, it is a United States district court, part of the federal judicial system, litigating cases arising under the Constitution and laws of the United States or by reason of diversity of state citizenship. See Balzac v. People of Porto Rico, supra, 258 U.S. at 312, 42 S.Ct. 343; Mora v. Mejías, 206 F.2d 377, 382 (C.A.1, 1953); Miranda v. United States, supra, 255 F.2d at 13; United States v. Montañez, 371 F.2d 79, 83-84 (C.A.2, 1967). Hence, the very reasoning which led the Supreme Court of Puerto Rico to conclude that proceedings in the Commonwealth courts need be conducted only in Spanish applies in reverse to justify conducting proceedings in this court in English. Just as Spanish is "the language of the Puerto Rican people" (People v. Superior Court, supra), the United States has from the time of its independence been an English-speaking nation. Although the American population has included occasional enclaves of foreign-speaking peoples, there has never been any tradition of official bilingualism, such as prevails in countries like Canada, Belgium, Switzerland or India. The past history of the United States discloses no more than occasional minor and temporary accommodations to the language preferences of foreign-speaking peoples where they comprised a substantial segment of the original population of newly acquired areas.
Indeed, it is difficult to conceive how this court could remain a viable part of the federal judicial system if proceedings here were conducted in Spanish. The basic civil function of federal district court "in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence" (see Balzac v. People of Porto Rico, supra, 258 U.S. at 312, 42 S.Ct. at 348) would be compromised and unreasonably restricted here, were litigants forced, in order to avail themselves of the facilities of this court, to litigate through interpreters in a language other than English. Similarly, this court's function as the forum in this district for the vindication of federal criminal laws and the resolution of civil controversies to which the United States is a party would be compromised were the Attorney General of the United States unable to appear here personally on the government's behalf unless he were conversant with Spanish, and were he limited by similar considerations in designating a member of his staff to appear. There would also be an anomalous limitation, unique within the federal system, on judges from other districts who could sit here by designation when needed. Moreover, the statutes which this court applies are (except in those instances where commonwealth or foreign statutes are at issue) written in English. The consequent necessity of phrasing an indictment or civil complaint in Spanish upon the basis of a statute written in English would manifestly lend itself to the strong possibility of injustice through distortion of meaning in translation. Similar possibilities of injustice would arise on appeal, where the entire record would have to be translated back into English.
These considerations are not counterbalanced by any prejudice to litigants arising from the English language requirements. There is no real risk of litigants being tried by juries unable to understand the evidence since if any veniremen lack sufficient facility with English to render competent jury service, they can be and are eliminated on voir dire. No evidence was adduced to show that the voir dire process is inadequate in practice for this task.
Defendants' main contention is that the English language requirements are unconstitutional because they preclude grand and petit juries drawn from a cross-section of the Puerto Rican community. There is no constitutional requirement, however, that juries be drawn from a cross-section of the total population without the imposition of any qualifications.
What the Constitution does prohibit is the denial to a litigant of a fair trial by an unbiased and impartial tribunal. Brown v. State of New Jersey, 175 U.S. 172, 175, 20 S.Ct. 77, 44 L.Ed. 119; Hayes v. State of Missouri, 120 U.S. 68, 71, 7 S.Ct. 350, 30 L.Ed. 578; Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 646, 6 S.Ct. 590, 29 L.Ed. 755. It is upon this basis that the deliberate legislative or administrative exclusion of Negroes from jury service (or the deliberate limitation of members of that race to token representation on jury lists, calculated to minimize the possibility that any of them will actually serve as a juror) is deemed a constitutional violation. Strauder v. State of West Virginia, supra, 100 U.S. at 308, 25 L.Ed. 664; Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676; Neal v. State of Delaware, 103 U.S. 370, 396, 26 L.Ed. 567. The Supreme Court explained, in establishing the rule against Negro exclusion in Strauder, that the denial upon racial grounds of the right to serve as a juror is "a stimulant to that race prejudice which is an impediment to securing to individuals of that race equal justice which the law aims to secure to all others." 100 U.S. at 308, 25 L.Ed. 664. More recently, the Court reiterated this rationale, stating that "a Negro who confronts a jury on which no Negro is allowed to sit * * * might very well say that a community which purposely discriminates against all Negroes discriminates against him." Fay v. People of State of New York, supra, 332 U.S. at 293, 67 S.Ct. at 1630.
It does not follow, however, that all exclusions can be presumed to prejudice jury fairness. If they could be, aliens could not be tried before juries composed only of citizens, minors could not be tried before juries composed only of adults, non-residents and new residents could not be tried before juries composed only of those with residence tenure, the unlettered could not be tried before juries composed only of those who are literate, and recidivists could not be tried before juries from which those with unamnestied convictions are excluded. As the Supreme Court explained in Fay, the presumption that exclusionary practices directed against Negroes "can carry such unjust consequences as to amount
There is nothing in the record before this Court which in any way suggests that the exclusion from jury service in this district of persons not literate in English—which the Court expressly finds to be the necessary consequence of the reasonable requirement that proceedings in this court be conducted in English—operates to deprive the defendants in these consolidated cases—or in any other case—of due process of law. No showing has ever been attempted that Puerto Ricans who are literate in English are prosecution prone, either generally or in regard to the specific offense with which defendants are charged here. There is no showing that any of the defendants are themselves not literate in English, or are members of or associated with any class or group which is precluded from jury service by the English language requirements.
B. Validity of Jury Selection Procedures
Defendants additionally contend that, irrespective of the constitutionality of the English language requirements, the jury list was not compiled in accordance with currently applicable law. A lengthy evidentiary hearing was held on this point, at which both Miss Carmen A. Carreras, the present court clerk, and Miss Mary Aguayo, who was clerk until July, 1964, testified concerning the methods by which the list was compiled. From their testimony, the following facts appear:
At the time of the drawing of the grand jury which indicted defendants, the active jury list for this District (using the term "jury list" to mean those names actually in the jury box plus those names held in reserve for inclusion in the jury box when needed) consisted of 853 names. Of that total, somewhat less than 300 names were placed thereon by the Commissioner and Miss Carreras. The remainder (approximately two-thirds of the total) were placed thereon by the Commissioner and Miss Aguayo. The primary method used by Miss Aguayo to obtain names of potential jurors was to write to companies and organizations listed in the yellow pages of the telephone books, requesting that they furnish her with a list of their employees or members who spoke English. Among the organizations canvassed by her were labor unions and women's clubs, and among the companies were the large sugar corporations maintaining plantations in Puerto Rico, and factories, including those which employ primarily women. Questionnaires were then sent to all persons whose names were furnished by these sources. Additionally, Miss Aguayo would ask jurors to give her the names of their wives and daughters, examine the lists of newly naturalized citizens and send them questionnaires, and—in a special effort to obtain jurors from the working class—personally canvass any members of that class, both male and female, whom she encountered and who appeared to possess a knowledge of the English language. She would also ask the latter group of persons to recommend their friends and associates. She found, universally, that the persons whom she personally approached, as well as their friends and associates, knew sufficient English to perform their jobs but not sufficient English to understand proceedings in court. She nevertheless continued these personal efforts until the end of her tenure. The primary method used by Miss Carreras was to select
Miss Carreras was also subjected to an extensive and painstaking examination concerning the determinations made by the Commissioner and herself from the face of returned questionnaires as to qualifications, excuses, etc. From this examination, it appears that she and the Commissioner applied only the statutory qualifications, and did not set any additional standards of their own. All persons who asserted on their questionnaires sufficient knowledge of the English language were accepted as meeting the statutory language requirements. Some individuals who disclaimed ability in English were nevertheless also found qualified (it being left to the Court to make the final determination on voir dire) if other information appearing on the questionnaire (such as occupation) made a knowledge of English appear likely. Occupation was considered only to the extent that it indicated that the person returning the questionnaire might know sufficient English despite his disclaimers. Pursuant to the oral instructions of former Judge Ruiz Nazario, all teachers were excused from jury service on the ground of hardship. All other proffered hardship excuses were evaluated by Miss Carreras and the Commissioner on an individual basis. There were only five instances in which an individual (otherwise qualified and not exempt by statute) who did not assert an excuse was not placed on the jury list. Two of the persons involved were teachers, and a third was a croupier who was left off because he worked nights and jury service was thus thought to be a hardship for him. The other two had been convicted of felonies. Miss Carreras did not realize that they were disqualified only if their civil rights had not been restored by pardon or amnesty and hence rejected them without further inquiry.
Defendants do not claim that any cognizable classes or groups qualified for jury service were deliberately excluded, and the Court specifically finds that the jury officials here engaged in no systematic and intentional exclusions, either in their initial selection of the persons to whom questionnaires were to be sent or in their evaluation of returned questionnaires. What defendants—relying primarily upon Rabinowitz v. United States, 366 F.2d 34 (C.A. 5, 1966)— urge instead is that, irrespective of the jury officials' intent, they failed to fulfill their duty of taking affirmative measures to insure that the jury list comprised a fair cross-section of the Puerto Rican community. The proof which they offered, through the testimony and affidavits of Dr. Howard R. Stanton, professor of social planning at the University of Puerto Rico, is that the list does not reflect the Puerto Rican population with statistical accuracy in regard to age, sex, residence and occupation, and more particularly that it contains substantial overrepresentation of members of what they designate as the urban white collar class and a substantial underrepresentation of members of the urban and rural working classes.
Before considering defendants' contention and supporting evidence, it is necessary to note a distinction between a jury challenge which is based upon constitutional grounds and one which invokes a court's supervisory jurisdiction over the administration of justice in federal courts. As set forth earlier in this opinion, the Constitution guarantees no more than the right to a fair trial by an unbiased and impartial tribunal, and hence a litigant raising a constitutional challenge must
Here, Congress has ordained that jurors for this court (as for every other federal court) be selected only from among those who understand and are literate in English. This Court has found that requirement to be constitutional. Defendants are thus left only with a "supervisory" challenge. They therefore cannot complain because the jury list does not reflect a cross-section of the total Puerto Rican population, since Congress has entitled them to no more than a jury drawn from that segment of the population which meets the language qualifications. The statistical evidence which they offered, however, did not purport to set forth the age, sex, residence and occupational divisions of the qualified segment of the population, and, in fact, their expert witness acknowledged that no data exists in this regard. Thus, even were they correct in their premise that "the prescribed standards of jury selection" require that statistically accurate cross-sections be achieved in compiling jury lists, their challenge would still fail because they did not demonstrate that the eligible segment of the Puerto Rican population is not represented on this list with statistical accuracy. See United States v. Hunt, 265 F.Supp. 178, 190-191 (W.D. Tex.,1967); United States v. Brown, 281 F.Supp. 31, 37 (E.D.La.,1968).
Defendants, through their expert, did attempt to prove that in any event the list was cross-sectionally defective because ninety percent of the persons on it (and ninety-five percent of the employed persons) were members of the urban white collar class, while that class provides no more than fifty percent of the eligible population. The witness based his conclusion as to the latter figure upon the premise that only fifty percent of those who reported to the census an ability to speak English were members of the white collar class, and that this proportion would not vary significantly no matter what level of English comprehension were used as a standard. The Court finds this testimony unconvincing. The census enumeration includes as English speakers all persons who "reported that they could make themselves understood in English," which is hardly a sufficient level of ability to render adequate service as a juror in trials conducted in that language. The witness' credibility was severely weakened both by his admission that he is not an expert in "levels of
The Court of Appeals for this Circuit held in an earlier case involving jury selection procedures in this court that, "although few wage earners are selected for federal jury service, the reason is that few in that class have sufficient knowledge of the English language to meet the statutory requirement for such service." Quiñones v. United States, 161 F.2d 79, 81 (C.A. 1, 1947), certiorari denied, 331 U.S. 833, 67 S.Ct. 1513, 91 L.Ed. 1846. There is no credible evidence in the record here to indicate that the situation is any different today.
Moreover, even if defendants had successfully proved that the jury list does not reflect the eligible population in this district with statistical accuracy, their challenge would still not be sustainable. The requirement that juries be "drawn from a cross-section of the community," as the Supreme Court explained in Thiel, 328 U.S. at 220, 66 S.Ct. at 985:
Similarly, in Ballard the Court held that it was "the purposeful and systematic exclusion of women from the panel" which constituted the "departure from the scheme of jury selection which Congress adopted" (emphasis added). 329 U.S. at 193, 67 S.Ct. at 264. The cross-sectional requirement of Thiel and Ballard has been construed by the Supreme Court, the Court of Appeals for this Circuit, and other circuit and district courts, as extending no further than to forbid systematic and intentional exclusions. Frazier v. United States, 335 U.S. 497, 504, 69 S.Ct. 201, 93 L.Ed.
Nor are jury officials presently required to use any particular source to obtain the names of prospective jurors. To the contrary, they are accorded "a wide discretion." United States v. Brandt, supra, 139 F.Supp. at 360; see also United States v. Dennis, supra, 183 F.2d at 217. Defendants' expert witness testified that a better cross-section could have been obtained had Miss Carreras used voter registration lists, utility subscribers' lists, or the random samples already compiled by the commonwealth Departments of Labor or Health, instead of the Polk's Directories and the telephone books. But "[t]he Jury Commissioners in the federal courts are not required either by statute or by judicial decisions to select names of prospective jurors from any particular list such as voters, registration or taxpayers lists, as may be required by the laws of some States" (emphasis added). United States v. Frankfeld, 101 F.Supp. 449, 452 (D.Md., 1951). Defendants also complain that Miss Aguayo used a "key man" system, which they contend is unlawful. Technically speaking, she did not. The "key man" system involves the request for selective recommendations from the key men, while Miss Aguayo requested to be supplied with lists of all English-speaking employees or members by the companies and organizations which she contacted. In any event, use of the system is not per se unlawful. Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 6 L.Ed. 2d 782, affirming 260 F.2d 21, 44-46 (C.A. 4, 1958); United States v. Hoffa, 349 F.2d 20, 29-30 (C.A. 6, 1965), affirmed, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; Padgett v. Buxton-Smith Mercantile Company, 283 F.2d 597, 598 (C.A. 10, 1960), certiorari denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705; Dow v. Carnegie-Illinois Steel Corporation, supra, 224 F.2d at 427; United States v. Cohen, 275 F.Supp. 724, 736 (D.Md., 1967); United States v. Hunt, supra, 265 F.Supp. at 185. To be sure, the new Jury Selection and Service Act of 1968 (P.L. 90-274, 82 Stat. 53) provides jury officials with specific directions as to the sources they must use to obtain the names of potential jurors and the methods they must follow in abstracting names from those sources, and is intended, among other purposes, to forbid the future use of the "key man" system. See H.Rep.No. 1076, 90th Cong., 2d Sess., p. 4. But the new legislation was enacted precisely because "existing statutory vagueness which is a substantial source of confusion in jury selection systems today" leaves jury officials without directions and free to use any sources and procedures which they deem proper. Id., p. 3, U.S. Code Cong. & Admin. News 1968, p. 749; see also S.Rep.No. 891, 90th Cong., 1st Sess., p. 10. Enactment of the new
Defendants' difficulty is that they erroneously assume the cross-sectional requirement to mean that a jury list must comprise a statistical cross-section derived from a random sampling, in the sense that sociologists and statisticians use those terms. The law makes no such demand. See United States v. Dennis, supra, 183 F.2d at 224. Courts have been unanimous in holding that proportional representation is neither a necessary nor a proper goal of jury selection. Cassell v. State of Texas, 339 U.S. 282, 286, 70 S.Ct. 629, 94 L.Ed. 839; Hoyt v. State of Florida, supra, 368 U.S. at 69, 82 S.Ct. 159; Brown v. Allen, supra, 344 U.S. at 471, 73 S.Ct. 397; Fay v. People of State of New York, supra, 332 U.S. at 291, 67 S.Ct. 1613; Gorin v. United States, supra, 313 F.2d at 644; Chance v. United States, 322 F.2d 201, 204 (C.A. 5, 1963), certiorari denied, 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34; United States v. Henderson, 298 F.2d 522 (C.A. 7, 1962), certiorari denied, 369 U.S. 878, 82 S.Ct. 1150, 8 L.Ed.2d 280; Dow v. Carnegie-Illinois Steel Corporation, supra, 224 F.2d at 428; United States v. Flynn, 216 F.2d 354, 388 (C.A. 2, 1954), certiorari denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713; United States v. Dennis, supra, 183 F.2d at 223; United States v. Greenberg, supra, 200 F.Supp. at 392; United States v. Romano, 191 F.Supp. 772, 774-775 (D.C.Conn. 1961); United States v. Foster, 83 F.Supp. 197, 208 (S.D.N.Y., 1949); United States v. Brown, supra, 281 F.Supp. at 38-39; United States v. Brandt, supra, 139 F. Supp. at 354-355; United States v. Fujimoto, supra, 102 F.Supp. at 894. In its most recent word on the subject, the Supreme Court cautioned in Swain v. State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759:
Nor will proportional representation or statistically exact random sampling be required by the new jury act. The Senate Committee on the Judiciary has stated that the selection system established by its legislation will "not be entirely random," since "[a]t various points in the process, candidates for jury service may be eliminated if they fall short of the requirements for service specifically enumerated in" the act, and that even the initial selection process which the act provides "does not insist upon randomness in the sense in which that term might be understood by statisticians." S.Rep.No. 891, op. cit. 16, n. 9. Both that committee and the House Committee on the Judiciary have explained that the act does not require the qualified jury wheel (the equivalent of the present jury list) to be comprised of "groups that accurately mirror community makeup." Id. at 17; H.Rep. 1076, op. cit. 5. Thus, even under the new legislation, defendants would not be entitled to the type of jury list which they assert they are entitled to now.
In evaluating the validity of a jury selection procedure it must be kept in mind that a "cross-section," in contemplation of law, and a "cross-section," as the term is used in sociology, are discrete concepts invoked to serve totally dissimilar functions. As the testimony of defendants' expert disclosed, the function of a sociologist is "descriptive"; his need is for a cross-section of the characteristics of the community as a corporate entity in order that he may "describe" the proportions in which an unknown characteristic which he wishes
Defendants assert, however, that the jury list here is, in effect, "the organ of [a] special group or class" because it consists almost entirely of members of what they designate as the "urban white collar" class and has few if any representatives of what they claim to be the other three "important" segments into which Puerto Rican society is divided: the urban working class, the coastal sugar plantation workers, and the jibaros or mountain farmers. Their contention does not bear scrutiny. Their classifications are based only on occupation, and take no account of other factors, such as actual income, personal history and family background. They include within the "urban white collar class" a wide range of persons, from the wealthy and powerful to the lowly clerk and secretary, or in other words from the upper class to the lower middle class. Indeed, their expert testified that the median annual income of the "class" is approximately $2,200. This attempted grouping thus can not be considered as only a single class for purposes of determining the adequacy of the jury selection process. Compare United States v. Hunt, supra, 265 F.Supp. at 201. On the other hand, their other three asserted "classes" are in fact merely the working class, trifurcated on the basis of the type and locale of work which its members perform. Indeed, the jibaros and sugar plantation workers could be further subdivided, based on such factors as residence in coffee growing or tobacco growing areas, employment by government-owned or private-owned corporations, those who own land, sharecrop or are landless, or upon the size of land holdings. Using defendants' approach, the possibilities are virtually limitless for defining a "class" and finding that it lacks representation on the jury list. Compare United States v. Local 36 of International Fishermen & Allied Workers, supra, 70 F.Supp. at 785-790. Nor is defendants' contention any more persuasive on the basis of their assertion that each of their four "classes" are subject to a separate "tradition," so that the jury list is unrepresentative of three of the four "traditions" which influence thinking in Puerto Rico. As appears from their expert's testimony, each individual is unique in respect to the various traditions by which he is influenced, and his current occupation is merely one of many factors in his total environment and history which shape his attitudes. For example, a white collar worker who arose to his present position from a working class start, whose father was originally a jibaro, and who has relatives who are sugar plantation workers, would be influenced by
The foregoing considerations supporting the lawfulness of the jury selection procedures here are not in any way vitiated by the opinion of the Court of Appeals for the Fifth Circuit in Rabinowitz. That court's holding that "[t]he Constitution and laws of the United States place an affirmative duty on the court clerk and the jury commissioner to develop and use a system that will probably result in a fair cross-section of the community being placed on the jury rolls" (366 F.2d at 57) is as far as this Court can ascertain, sui generis. It is in clear and direct conflict with the otherwise unanimous rulings, of which note has already been taken, of the Supreme Court and almost every other circuit, including this one, that jury officials are under only the negative duty to practice no intentional discriminations. The case is thus compelling authority only within its own circuit. Compare Pope v. United States, 372 F.2d 710, 724 (C.A. 8, 1967), remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317.
A determination of the authoritativeness of the case is unnecessary, however, since it is manifestly inapposite to the facts disclosed in the record here. In Pope it was concluded that the case was concerned solely with racial representation on jury lists (372 F.2d at 724), and this Court finds itself in agreement. The Court is impressed with the fact that the government confessed error in Rabinowitz to the extent of suggesting that the convictions be reversed because the extreme racial disproportion on the jury list there, combined with the all-white composition of the resultant petit juries, created "a possibility of injustice sufficient to warrant reversal of the trial verdicts." See Supplemental Brief for the United States, Nos. 21256 and 21345, C.A. 5, pp. 40-41. It is also impressed with the fact that the opinion took no notice of a female underrepresentation which the record disclosed was almost as great as the racial one. See Supplemental Brief for the United States, op. cit. 13, n. 7; see also 366 F.2d at 84 (Bell, J., dissenting). The cases upon which the opinion mainly relied were all concerned with racial discrimination in jury selection. See 366 F.2d at 57-58. The conclusion is inescapable that, although the opinion was phrased in terms of the use of "grossly inadequate sources" violating "the statutory scheme" (id. at 60; compare Ballard v. United States, supra, 329 U.S. at 193, 67 S.Ct. 261), its real genesis was the constitutional concern for impartial juries. The Court would appear to have concluded that, in parts of the country where racial segregation and its attendant "long history of unhappy relations between the two races"
It is in any event clear that Rabinowitz purported neither to require the use of any particular method of jury selection nor to declare unlawful per se the "key man" system which the jury officials there had used. The Court of Appeals in a later decision explicitly stated that it had condemned only the improper use of the otherwise lawful "key man" system. Mobley v. United States, 379 F.2d 768, 773 (C.A. 5, 1967). Nor did the opinion purport to require jury lists which comprise statistical cross-sections of the relevant communities. To the contrary, it quoted, as a "caution," the language from Swain advising that proportional representation is both unnecessary and impossible of attainment. 366 F.2d at 59. All that the opinion demanded was affirmative efforts to obtain a fair cross-section. Thus, even were this Court to conclude that Rabinowitz is controlling upon it and that the opinion's cross-sectional requirements are not limited to racial groups or other groups similarly subject to community prejudice, defendants' challenge here would still have failed of its proof. An evaluation of the adequacy of efforts to obtain a cross-section requires an analysis of the groups who were extended an opportunity for jury service, and not merely the limited analysis which defendants made of the groups actually represented on the list. United States v. Brown, supra, 281 F.Supp. at 37; compare Billingsley v. Clayton, 359 F.2d 13, 23 (C.A. 5, 1966), certiorari denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74. Representation on the list itself depends upon factors —e. g., the distribution of those who return their questionnaires, and of those who are unqualified, exempt, or who assert and are entitled to excuses—over which the officials have little effective control. United States v. Brown, supra.
The record here discloses, for example, that Miss Carreras sent out nine hundred questionnaires during her tenure, and yet was able to add only three hundred names to the list. Experience elsewhere shows that a substantially greater proportion of the working class and the less affluent than of the white collar and managerial classes and the more affluent fail to respond to solicitations for jury service, seek to avoid such service, or fail to qualify. Cf. United States v. Flynn, supra, 216 F.2d at 379, 381-383, 386; Billingsley v. Clayton, supra, 359 F.2d at 19-20; United States v. Brown, supra, 281 F.Supp. at 36. So also, the returned questionnaires in the record here disclose that most of those who failed to qualify for jury service because they could not speak or understand English were of the working class, rural residents, or in any event non-residents of San Juan. It is a reasonable assumption that many more persons in those categories who also lack knowledge of English did not bother to return their questionnaires. As far as the record shows, therefore, the persons to whom Miss Carreras sent questionnaires could in fact have comprised an exact cross-section of the total adult population of Puerto Rico; it is only in those who returned their questionnaires and qualified
To be sure, in Rabinowitz the dispositive disproportion was on the jury list itself. The Court, however, found the disproportion to have been caused by a fatal flaw in the methods used by the officials there: in a segregated society, the officials relied almost exclusively upon white key men and instructed them to apply standards of competency—impermissibly higher, in the court's view, than those required by statute—which tended to minimize their recommendation of Negroes. See 366 F.2d at 41-44, 55; see also Mobley v. United States, supra. No comparable flaw is disclosed in the record here. Miss Carreras used neutral lists, containing the names of men as well as women and working class people as well as of those in white collar or managerial occupations. Miss Aguayo, who compiled two-thirds of the list, solicited names from labor unions and women's clubs (compare United States v. Hunt, supra, 265 F.Supp. at 195; Rabinowitz at 366 F.2d 59, n. 61); asked factories and sugar plantations to supply her with the names of their employees, and gave her sources no more than the statutory standard to apply: viz., ability to understand English. In addition, she supplemented this approach, in an affirmative effort to achieve working class representation on the list, with the very type of personal canvass of which the Fifth Circuit approved in Billingsley. See 359 F.2d at 19, 23. Thus the officials here had done all that even Rabinowitz would require them to do.
Defendants assert, also in reliance upon Rabinowitz, an additional ground upon which they claim the jury list was compiled unlawfully: that Miss Carreras and the commissioner exceeded the scope of their statutory discretion and made determinations which were properly the function of the court. More particularly, they complain that the officials made capricious evaluations in determining whether the language requirements were met by potential jurors and whether excuses for hardship should have been granted; that hardship excuses were granted without obtaining information additional to that which appeared on the questionnaires, and that teachers and others were automatically excused despite the lack of a formal order from the Court to that effect. They also cite as specific abuses the exclusion of those convicted of felonies without inquiry as to whether they had been amnestied, as well as the grant of an unsolicited hardship excuse to a croupier.
This branch of defendants' challenge appears to assume that the jury officials have only ministerial functions under the current statutes. The law is otherwise. When the new jury legislation takes effect, the written plan for jury selection which each court must adopt will be required to specify, with supporting findings by the Court, the groups and occupational classes whose members will be either exempt or entitled to be excused upon individual request. Any additional individual exclusions or hardship excuses will be made or granted only by the court after the individuals have been actually summoned for jury service. Under current law, however, the duty of the jury commission "is to invoke its sound judgment and discretion in determining what persons should be called for jury service." United States v. Ware, 237 F.Supp. 849, 851 (D.C.D.C., 1964), affirmed 123 U.S.App.D.C. 34, 356 F.2d 787 (1965), certiorari denied, 383 U.S. 919, 86 S.Ct. 914, 15 L.Ed.2d 673. Among the determinations within the broad discretion granted to the commission is whether requested hardship excuses should be granted (United States v. Kelly, 349 F.2d 720, 778-779 (C.A.2, 1965), certiorari denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544; United States v. Flynn, supra, 216 F.2d at 387) and whether statutory qualifications are met in individual cases. United States v. Flynn, supra; United States v. Henderson, supra, 298 F.2d at 525; see also United States v. Brandt, 139 F.Supp. 362, 365 (N.D.Ohio, 1955). District judges may also direct the commission, as did former Judge Ruiz Nazario of this
For all of their extensive and painstaking examination of Miss Carreras, defendants developed no more than that, in retrospect, there was some inconsistency in the determinations which she and the Commissioner made in individual cases, and that perhaps some persons were left off the list who should have been placed thereon. This showing can hardly be deemed sufficient to overcome the presumption of regularity which attends the decisions and actions of jury officials. See United States v. Austrew, 190 F.Supp. 632, 634 (D.Md., 1961). The most that could be shown was "slight and harmless deviation from the prescribed procedure" which would warrant dismissal of these indictments only if defendants had shown, as they did not, that they were specifically prejudiced thereby. United States v. Brandt, 139 F.Supp. 349, 361 (N.D.Ohio, 1955). While some of the individual rejections reflected in the record may possibly comprise technical irregularities, they would invalidate the jury list only if they evidenced the intentional exclusion of the cognizable group. Ware v. United States, 123 U.S. App.D.C. 34, 356 F.2d 787, 790-791 (1965), certiorari denied, 383 U.S. 919, 86 S.Ct. 914, 15 L.Ed.2d 673. Clearly they do not. The individuals whose excuses for hardship or illness defendants question were for the most part members of the same white collar and managerial classes of whose preponderance on the jury list defendants complain.
This Court does not read Rabinowitz to sustain the proposition that the officials here abused their discretion. The pronouncement in that case that jury officials have no discretion to impose qualifications additional to the statutory ones is directly contrary to such prior authorities as Henderson, Flynn, Kelly and Ware, and, moreover, commanded the support of only a plurality of the participating judges. See 366 F.2d at 72. Its authority is therefore open to question even within the circuit (see United States v. Hunt, supra, 265 F.Supp. at 185-187), and not compelling without. See Pope v. United States, supra, 372 F. 2d at 723; United States v. Duke, 263 F.Supp. 828, 836 (S.D.Ind., 1967). Moreover, in the opinion of this Court, the pronouncement was inextricably intertwined with the underlying concern of the court of appeals for impartial juries in cases arising out of a racial conflict; the standards used by the jury officials there
One district court has said of the presumption of regularity which clothes the acts and conduct of jury officials that it is "a rebuttable yet very substantial presumption. It does not easily fall apart when attacked by a shotgun loaded with statistics." United States v. Fujimoto, supra, 102 F.Supp. at 894-895. This Court would add that it also does not easily fall apart when attacked by an extensive and intensive probe of the recesses of jury officials' memories in order to make them justify and correlate for consistency every individual determination which they have made from the commencement of their tenure.
II. SUBSTANTIVE VALIDITY OF THE INDICTMENTS
Defendants' attack upon the substantive validity of their indictments proceeds upon the premise that the Selective Service Act is not intended, and cannot constitutionally, apply to Puerto Ricans because citizens of the Commonwealth lack voting representation in Congress and do not participate in the election of the President.
Their contention that the act is not intended to apply to Puerto Ricans is easily disposed of. The act makes "every male citizen of the United States" between the requisite ages liable for training and service in the armed forces. 50 U.S.C. App. § 454(a). Puerto Ricans are citizens of the United States. 8 U.S.C. § 1402. Lest there be any question of Congressional intent, the act defines "United States," when used in "a geographical sense," to include "the several States, the District of Columbia, Puerto Rico, the Virgin Islands, and Guam" (50 U.S.C. App. § 466(b)), and, more importantly, specifies the manner in which quotas are to be determined "for each State, Territory, possession, and the District of Columbia." 50 U.S.C. App. § 455(b).
Defendants' constitutional contention causes no greater problem. Citizens of Puerto Rico lack national political participation for the same reason that such participation is withheld from citizens of the territories and (with the limited exception provided by the Twenty-third Amendment) the District of Columbia: the Constitution provides for participation in the national political
Defendants' error lies in assuming that the right to vote is an essential right of citizenship. The proposition is beguiling, but it will not stand analysis. The only absolute and unqualified right of citizenship is to residence within the territorial boundaries of the United States; a citizen cannot be either deported or denied reentry. The Supreme Court explained in Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627, that the major advantage (aside from "more certain protection against the world," id. at 311, 42 S.Ct. at 348) which Puerto Ricans acquired when they were made United States citizens while Filipinos were not was that they, as individuals, obtained the absolute right to enter continental United States and become citizens of any state while Filipinos could do so only by going through the process of naturalization. See id. at 308, 42 S.Ct. 343. The right to vote is not in terms granted to citizens by the Constitution; to the contrary, the matter is left to the states. Art. I, § 2; Seventeenth Amendment. Citizenship may be made a qualification for voting, as it is, e. g., for holding office or being a juror (but not necessarily so, since the Constitution does not enjoin the states to limit the franchise to citizens). Citizens who are otherwise qualified cannot be discriminatorily denied the franchise because of race, sex, or ability to pay a fee. Fifteenth Amendment; Nineteenth Amendment; Twenty-fourth Amendment; Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169. The reapportionment cases have established that the Constitution forbids a state to "debase" either the national or the local vote of a portion of its qualified citizenry by malapportionment. See, e. g., Wesberry v. Sanders, 376 U.S. 1, 5-6, 84 S.Ct. 526, 11 L.Ed.2d 481. But the Constitution does not make the franchise per se a right of citizenship. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. If it did, minors, Americans residing abroad (who may vote only if the state of which they are concurrently citizens permits absentee ballots) and, as in Minor, women prior to the adoption of the Nineteenth Amendment could not be considered citizens, and those who have changed their residence would have to be deemed to have lost their citizenship until such time as they acquired the requisite residence tenure in their new place of domicile
Since the franchise is not per se a right of citizenship, it follows that it is not a precondition to imposition of duties of citizenship. It has, in fact, been specifically held that the denial to minors of the franchise does not free them of their obligation for military service or bar their prosecution when they refuse to serve. George v. United States, 196 F.2d 445, 446, 454-455 (C.A.9, 1952), certiorari denied, 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656. If minors, who cannot vote at all (except in certain states), are constitutionally subject to military service, it follows even more clearly that the Constitution is no bar to imposing military service upon Puerto Ricans, who have full local self-governing and lack national political participation only because the Constitution makes no provision for them to have it
It is clear, however, that the compact does exist as a binding agreement, irrevocable unilaterally between the people of Puerto Rico and the Congress of the United States, transforming Puerto Rico's status from territory to commonwealth, or Estado Libre Asociado.
Since the people of Puerto Rico, in accepting the compact, rejected both independence and statehood (and reaffirmed their choice in the 1967 plebiscite, where the independence and statehood alternatives, being specifically presented, were specifically rejected), it cannot be said that the imposition of military service without national political participation comprises an invidious discrimination forbidden by the Fifth Amendment. By rejecting independence and accepting a free association with the United States and the United States citizenship, the people of Puerto Rico accepted the duties of citizenship, including liability for military service. By rejecting statehood and accepting the commonwealth status, they disclaimed any counterdemand for participation
Defendants argue, however, that the preamble to P.L. 600 recognizes "the right of self-government of the people of Puerto Rico," and that under the circumstances the Selective Service Act is inconsistent with that right and thus was repealed, in respect to Puerto Rico, by its section 6. They confuse self-government with either statehood or independence. "Self-government," in the context used, means plenary domestic political authority as a matter of right, rather than grace. This the Compact establishes. It is only statehood, however, which permits full participation in the process by which uniform national laws are enacted, and only independence which would allow Puerto Rico to determine for itself, with the exclusion of all other, whether compulsory military service would be imposed upon its citizens. By consenting to the Compact, the people of Puerto Rico have rejected both alternatives. It follows that the application here of the Selective Service Act is thoroughly consistent with the Compact and the will of the people of Puerto Rico.
Defendants also argue that the cession of Puerto Rico to the United States by the Treaty of Paris (30 Stat. 1754) was illegal under Spanish law. They do not ask this Court to declare that the cession was unlawful in toto and that Puerto Rico is therefore still a possession of Spain. Rather, they ask a declaration that, because of its illegality, the Selective Service Act can have no application here. It is difficult, however, to perceive how the cession could be void for one limited purpose without being void for all purposes. In any event, their contention was fully canvassed and specifically and correctly rejected in Ruiz Alicea, 180 F.2d at 871. See also DeLima v. Bidwell, 182 U.S. 1, 195-196, 21 S.Ct. 743, 45 L.Ed. 1041; Dooley v. United States, 182 U.S. 222, 234, 21 S.Ct. 762, 45 L.Ed. 1074. The Supreme Court explained long ago that questions concerning the power of a sovereign to annul by treaty a prior grant to his subjects "are political questions and not judicial" which "belong exclusively to the political department of government." Doe ex dem Clark v. Braden, 16 How. 635, 656, 14 L.Ed. 1090. Nor is defendants' contention aided by the argument that, since Spain had no legal right to impose compulsory military service upon the citizens of Puerto Rico, the United States could not have acquired that right by cession. To the contrary, the cession resulted, in the long run, in Puerto Ricans becoming citizens of the United States. Whatever limitations there were upon their duties as subjects of the King of Spain, it can hardly be thought that they now have less duties than do other citizens of this country. Compare Vilas v. City of Manila, 220 U.S. 345,
III. MOTIONS FOR OVERSEAS DEPOSITIONS AND DISCOVERY
The seven defendants in United States v. García Miranda, et al, Criminal Nos. 73-67, 67-67, 74-67, 75-67, 77-67, 80-67, 81-67, have moved under Rule 17(c) F.R. Crim.P., for an order directing the Secretary of Defense to produce certain documents for their inspection, and under Rule 15(a) for an order authorizing them to take the depositions of certain persons residing abroad. The documents which they seek to inspect consist essentially of orders and reports pertaining to the United States military activities in Vietnam. The depositions are sought from persons who, defendants aver, will testify that the United States troops' presence in Vietnam and their activities there are violative of settled international law.
The indictments in each of the cases here charge that the defendant "did knowingly fail, neglect and refuse to submit to induction and to be inducted into the Armed Forces of the United States as directed and ordered to do so by [his local selective service board], which was a duty required of him under and in the execution of the Universal Military Training and Service Act and the rules and regulations issued thereunder." Thus, in each case, only a narrow factual issue is presented: viz., whether "there was deliberate purpose on the part of [each defendant] not to comply with the Selective Service Act or the regulation[s] issued thereunder." Ward v. United States, 344 U.S. 924, 73 S.Ct. 494, 97 L.Ed. 711; see also United States v. Henderson, 180 F.2d 711, 716 (C.A.7, 1950), certiorari denied, 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372. The only evidence which may properly be submitted to the jury is that which pertains, not only to each defendant's failure to submit to induction on the date ordered, but of his knowledge of his duty to submit to such induction and whether his refusal to do so was deliberate or inadvertent. Cf. Graves v. United States, 252 F.2d 878, 882 (C.A.9, 1958); Pardo v. United States, 369 F.2d 922, 926 (C.A.5, 1966); Silverman v. United States, 220 F.2d 36, 39-40 (C.A.8, 1955); United States v. Weiss, 162 F.2d 447, 448 (C.A.2, 1947), certiorari denied, 332 U.S. 767, 68 S.Ct. 76, 92 L.Ed. 352; United States v. Hoffman, 137 F.2d 416, 419 (C.A.2, 1943); United States v. Trypuc, 136 F.2d 900, 901-902 (C.A.2, 1943). The nature and legality of American military activities in Vietnam are clearly irrelevant and immaterial to the narrow issue presented by the indictments. Discovery under Rule 17(c) is limited to items which are "admissible in evidence" (Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 95 L.Ed. 879), and depositions under Rule 15(a) may be taken only if the defendant carries the burden of establishing that the prospective witness' testimony will be material. United States v. Steel, 359 F.2d 381, 382 (C.A. 2, 1966); United States v. Broker, 246 F.2d 328, 329 (C.A.2, 1957), certiorari denied, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed. 2d 49; United States v. Glessing, 11 F. R.D. 501, 502 (D.Minn., 1951); see In re United States, 348 F.2d 624, 626 (C.A.1, 1965). The motions must therefore, of necessity, be denied.
In Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, the case that first established the principle of judicial review over the acts of the executive and legislative branches, Chief Justice Marshall very carefully circumscribed the area of that review, saying (id. at 165-166, 2 L.Ed. 60):
Shortly thereafter, the Supreme Court, in Williams v. Suffolk Insurance Co., 13 Pet. 415, 10 L.Ed. 226, applied these principles to hold that, where the executive branch had taken the position that a foreign government did not have title to certain territory, a court, despite the relevancy of the matter to the case at hand, had no competence to inquire further into the question. The Court explained (id. at 420, 10 L.Ed. 226):
More recently, the Court, in Chicago & Southern Air Lines v. Waterman SS Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, held that the grant of an overseas air route by the Civil Aeronautics Board, approved by the President, was—unlike the grant of a domestic route which did not require presidential approval—not judicially reviewable, because the former action involved considerations of national defense and foreign relations (id. at 108), and (id. at 111, 68 S.Ct. at 436):
Most recently, the Court undertook in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, to survey all facets of the "political question" subject. While cautioning that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," it found that those questions do which "turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature * * * [or] uniquely demand single-voiced statement of the Government's views." Id. at 211, 82 S.Ct. at 707. Thus, it noted, for example, that courts will construe treaties only if the executive has not done so, and that while, once sovereignty over an area is politically determined, courts will examine the resulting status and decide independently whether a statute (such as the Fair Labor Standards Act or tariff legislation) applies to the area, "recognition of foreign governments * * * strongly defies judicial treatment * * and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory." Id. at 212, 82 S.Ct. at 707. Finally, summing up the whole matter of "political questions," the Court held (id. at 217, 82 S.Ct. at 710):
Defendants' contention that this Court must decide the legality of the United States military forces' activities in Vietnam in order to determine whether they were under a duty to submit to induction flies directly in the face of these principles. Clearly, it may be said in this case—where the order defendants are charged with disobeying required merely their induction into the armed forces—what was said in Luftig v. McNamara, 126 U.S.App.D.C. 4, 373 F.2d 664, 665-666 (1967), certiorari denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332, where a person already a member of the armed forces sought an injunction against his being assigned to Vietnam on the grounds that the presence of the United States military forces there was unlawful:
No treaty can authorize the judiciary to undertake an inquiry forbidden to it by the Constitution. Compare Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 33 L.Ed. 642; Reid v. Covert, 354 U.S. 1, 15-18, 77 S.Ct. 1222, 1 L.Ed.2d 1148, (plurality opinion). Nor would this court or the jury be authorized to undertake
Nor is the evidence which defendants seek relevant and material on the theory that it will support either their claim to a right of conscience not to enter the armed forces or their contention that their refusal to be inducted lacked criminal intent because they did not act with "bad purpose or evil motive." The exemption for conscience contained in the Selective Service Act (50 U.S.C. App. § 456(j) does not extend to those who, like defendants, assert only selective scruples against a particular war, even if such scruples are grounded upon religious beliefs arising from adherence to an organized church. United States v. Spiro, 384 F.2d 159, 160-161 (C.A.3, 1967), certiorari denied, 390 U.S. 956, 88 S.Ct. 1028, 19 L.Ed.2d 1151. Moreover, since defendants have made no showing that they claimed an exemption for conscience from their local boards, they are precluded from raising the issue for the first time at trial. Falbo v. United States, 320 U.S. 549, 552-553, 64 S.Ct. 346, 88 L.Ed. 305; Estep v. United States, 327 U.S. 114, 123, 66 S.Ct. 423, 90 L.Ed. 567; United States v. Irons, 369 F.2d 557, 559 (C.A.6, 1966); United States v. Schoebel, 201 F.2d 31, 32 (C.A.7, 1953); compare United States v. Rubinstein, 166 F.2d 249, 257-258 (C.A.2, 1948), certiorari denied, 333 U.S. 868, 68 S.Ct. 791, 92 L.Ed. 1146. The "bad purpose or evil motive" requisite to criminal intent means no more than an intent to defeat the objective for which a legal duty is imposed or a legal prohibition is erected. Silverman v. United States, supra, 220 F.2d at 40; compare Heikkinen v. United States, 355 U.S. 273, 279-280, 78 S.Ct. 299, 2 L.Ed.2d 264; Screws v. United States, 325 U.S. 91, 101-107, 65 S.Ct. 1031, 89 L.Ed. 1495 (plurality opinion); Spies v. United States, 317 U.S. 492, 499-500, 63 S.Ct. 364, 87 L.Ed. 418. It does not require that the actor be motivated by ignoble or venal considerations. See Hamilton v. Regents of University of California, 293 U.S. 245, 268, 55 S.Ct. 197, 79 L.Ed. 343 (Cardozo, J., concurring); Cannon v. United States, 181 F.2d 354, 356 (C.A.9, 1950), certiorari denied, 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647; Warren v. United States, 177 F.2d 596, 600 (C.A.10, 1949), certiorari denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584; United States v. Miller, 233 F.2d 171, 172 (C.A.2, 1956); United States v. Madole, 145 F.2d 466, 468 (C.A.2, 1944); United States v. Mroz, 136 F.2d 221, 226 (C.A.7, 1943), petition for certiorari dismissed, 320 U.S. 805, 64 S.Ct. 23, 88 L.Ed. 487. Defendants are not within the narrow exception to the usual meaning of "bad purpose or evil motive" illustrated by United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 and Okamoto v. United States, 152 F.2d 905 (C.A.10, 1946). Their asserted belief that they were constitutionally excused from submitting to induction because of the unlawfulness of American activities in Vietnam (as well as because of the constitutional inapplicability of the Selective Service Act to Puerto Rico) is not bottomed upon a claim, as in Murdock, that the Constitution in terms excuses them from the performance
For the foregoing reasons, it is ordered that all defendants' motions, and each of them, be, as they are hereby, denied.
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