Full opinion text
MEMORANDUM OPINION DELEHANT, Senior District Judge. On November 16, 1966, an indictment was found, returned and filed by a duly constituted Grand Jury within and for this court against Norman Earl Richmond (hereinafter referred to generally as “the defendant”) as defendant. In and by such indictment, it was and is charged against the defendant that: “Defendant NORMAN EARL RICHMOND, a male person within the class made subject to selective service under the Universal Military Training and Service Act, registered as required by said Act, and the regulations promulgated thereunder and thereafter became a registrant of Local Board No. 119, said Board being then and there duly created and acting, under the Selective Service System established by said Act, in Los Angeles County, California, in the Central District of California; pursuant to said Act and the regulations promulgated thereunder, the defendant was classified in Class I-A and was notified of said classification and a notice and order by said Board was duly given to him to report for induction into the armed forces of the United States of America on October 18, 1966, in Los Angeles County, California, in the district aforesaid; and at said time and place the defendant knowingly failed and neglected to perform a duty required of him under said Act and the regulations promulgated thereunder in that he then and there knowingly failed and neglected to report for induction into the armed forces of the United States as so notified to do.” Also on November 16, 1966, and upon such indictment, a warrant for the arrest of the defendant was issued out of this court by the Clerk thereof, which warrant was executed by the United States Marshal of this district (through one of his duly appointed and qualified deputies) on November 18, 1966. On December 19, 1966, pursuant to earlier setting by this court, the defendant appeared in person and by counsel of his own selection, before this court, the Honorable A. Andrew Hauk, one of the judges of this' court presiding, for arraignment and plea, and then and there was arraigned in due form, and pleaded not guilty to the single charge against him made in the foregoing indictment. Thereafter, and on March 8, 1967, the defendant, in writing, and with the approval in writing of both of his counsel, made and filed herein a waiver of the right to trial by jury, and a request that the court try all charges against him, but without any waiver of the right to request any special findings of fact as provided by Rule 23(c), Federal Rules of Criminal Procedure; subjoined to which was a signed consent by the United States Attorney that the ease be tried without a jury, coupled with a tendered waiver by the United States Attorney of the right to request any special findings of fact as provided by Rule 23(c), Federal Rules of Criminal Procedure. Also on March 8, 1967, the court (the present judge presiding), after conference with the attorneys for both parties and with the defendant in person within the presence of, and with the stenographic recording of the proceedings of such conference by, the court reporter, approved the foregoing waiver of trial by jury, of course, with the reservation to the defendant of the right under Rule 23(c), Federal Rules of Criminal Procedure to request any special findings of fact. Thereafter, and on March 14, 1967 and March 15, 1967, trial of this cause was publicly had to the court, without a jury, John W. Delehant, Senior United States District Judge presiding. In harmony with an informal discussion in open court at the close of the trial, between counsel and the court, counsel for the several parties, as of March 23, 1967, the defendant personally approving as of March 17, 1967, entered into a stipulation in writing, which was lodged in the clerk’s office on March 24, 1967, and formally filed therein on March 30, 1967, after the approving order of the judge as of March 24, 1967. A copy of that stipulation appears as a footnote hereto. It appears to be appropriate at this point for the writer of this memorandum opinion to make two observations. The first is that, as the judge presiding over the trial, he considers that the striking, through the use of ink, both by the defendant and by his counsel, of the language in the typed form of waiver employed on March 8, 1967 designed to waive the right to request special findings as provided by Rule 23(c) should be liberally construed as operative actually to request such findings generally. The court, therefore, without requiring any further or more explicit demand in that behalf, is announcing herein its factual findings. Secondly, since it is preparing and filing this memorandum opinion, it is incorporating such findings herein, without any formal findings of fact separate and distinct from this memorandum opinion. However, as will presently be obvious, the court’s formal announcement of judgment will be made in open court by the judge. The several exhibits introduced and received in evidence upon the trial have been assembled and considered. The court has had access to a transcript of the testimony received in behalf of the parties, as well as to selected material presented prior to the instant trial in the course of the trial of Criminal Case No. 62 in this court, and has been favored with the exhaustive briefs of counsel, as well as the oral arguments of counsel in the course of the trial. It is preliminarily observed that the reporter’s transcript of the proceedings in the course of the trial fairly discloses such evidentiary issues as were tendered during, as well as at the threshold of, the trial. That record speaks for itself, and is not presently recalled or discussed. References, however, are later and briefly made to some, though not all, reservations of questions (e. g., of relevancy or of materiality) on occasions when the court provisionally and precautionarily received certain offered testimony, to which objection had been advanced. Norman Earl Richmond is a male person. He was bom March 6, 1946 in the community known as Arcadia in the state of Louisiana, United States of America. On March 18, 1964, he was, therefore, eighteen years, twelve days of age. He was five feet and seven and three-eighths or eight inches tall, and weighed one hundred forty pounds. He then resided at 1920 West 95th Street, Los Angeles, California. On March 18, 1964 the defendant executed, signed and filed a Selective Service System Registration Card (SSS form No. 1, revised March 14, 1962). His local board in the Selective Service System was “Local Board No. 119, Los Angeles County, 14911 Crenshaw Boulevard, Gardena, California. By that local board, a Selective Service System Classification Questionnaire was, on April 15, 1964, transmitted to him by United States mail at his place of residence, supra. He timely received that questionnaire; and thereafter and on April 24, 1964, returned it to Local Board No. 119. In it, as returned, and among other things, he identified the date and place of his birth, his name, height (specifying five feet, seven and three-eighths inches), weight, and place of residence as already disclosed, supra; identified a telephone number through which he might be reached, his Social Security Number, the name and address of a woman who would always know his address (incidentally, but immaterially, a person with a name different from that of a woman mentioned for the same purpose on his registration card); stated that he had never been married; identified as members of his immediate family his 38 year old father, his 39 year old mother, and his two sisters respectively 16 and 14 years of age; stated that he had graduated from high school; denied conviction of any criminal offense “other than minor traffic violations” (a phrase, in the printed form, not of his insertion); and disclaimed being a sole surviving son of a family of which one or more sons or daughters were killed in action or died in line of duty while serving in the nation’s armed services, or subsequently died of injuries received or disease incurred in such service. Besides those statements, he left uncompleted and quite blank the spaces involving (a) any military record, (b) marital status and dependency, (c) occupation (note, however, that in his registration card he had declared that he was a “student L. A. C. C.,” presumably meaning “Los Angeles City College”), (d) agricultural occupation, (e) all questions touching any claim of status as a minister of religion, or as to preparation for that occupation, (f) all questions oriented to the status of a conscientious objector, (g) all questions touching education, except his graduation from high school, and current college attendance, supra, (h) all questions touching alien-age, and (i) all questions touching possible disqualification for military service by reason of physical or mental infirmity. He volunteered no information in the spaces inviting such information generally. He executed that questionnaire on April 23, 1964. On May 4,1964, the defendant’s status was considered by a three member panel of Local Board No. 119, and he was classified as in Class 1-A, that is, subject to military service, by the unanimous vote of the panel. And on May 6, 1964, notice of such action was sent to him through United States mail by Local Board No. 119. On August 14, 1964, Local Board No. 119, on SSS Form 223, by mail directed the defendant to present himself for Armed Forces Physical Examination to the Local Board, by reporting at “L. A. Examining and Induction Station 1033 South Broadway, Los Angeles, Calif.” on September 18, 1964 at 7:30 A.M. He received the Notice and complied with it; and upon examination, was “found fully acceptable for induction into the armed forces,” and Local Board No. 119 was promptly so notified. So was the defendant on October 6, 1964. Through obvious inadvertence, Local Board No. 119 again, and on August 11, 1965, transmitted by mail to the defendant another notice on SSS Form 223 directing him to present himself, that time on August 28, 1965, at 7:30 A.M., at the same “L. A. Examining and Induction Station” for Armed Forces Physical examination. The defendant duly received that notice, but, instead of reporting as it directed, transmitted on August 24, 1965 a statement which Local Board No. 119 received on the same day, in which he said, “I do not wish to take the physical examination on 8-28-65 because I have already had one” signed “Norman Richmond 8-24-65, 4-119-46-158”, which is his Selective Service number. On August 27, 1965, Local Board No. 119, by its clerk, transmitted the following letter to the defendant: “ August 27, 1965 4-119-46-158 Norman Earl Richmond 1920 W. 95th St., Los Angeles, California Dear Sir: “ This is to advise that your Order to Report for Examination on August 28,1965 has been cancelled. “ When your number is reached for Induction, if you are still classified as available, you will be ordered to Report for Induction on the basis of the Statement of Acceptability (D.D. Form 62) which was mailed to you after your examination at 18 years of age. Very truly yours, By Direction of the Local Board Clerk" On September 13, 1965, Local Board No. 119 reexamined the defendant’s classification in the light of a then presented certificate of the Dean of Student Personnel, Los Angeles City College, which indicated that as of that date the defendant was “entered upon and satisfactorily pursuing a full-time course” in that institution; and by an unanimous three member panel vote, reclassified him as 2S, that is, in a deferred student classification, until October, 1966, on condition, however, that he continue meanwhile satisfactorily to pursue such full-time course, and on September 15, 1965, so notified the defendant on SS Form 110. However, on December 20, 1965, Local Board No. 119 received a further report from the Dean of Student Personnel, Los Angeles City College, wherein it was declared that the defendant was then pursuing only a part time course, and as of November 9, 1965 had “dropped to 8Yz units.” Thereafter, on January 4, 1966, Local Board No. 119 reclassified the defendant in Class 1-A, and on the following day so notified him by mail on SSS Form 110. As of January 15, 1966, by letter then dated, and received by Local Board No. 119 on January 17, 1966, the defendant addressed to the Local Board, a request in this language: “Dear Sir: I would like to request a personal interview concerning my draft status. Norman Richmond” To that request, by direction of the Local Board, its clerk, on February 21, 1966, addressed and transmitted to the defendant, by mail, a letter, of the body of which the following is a copy: “Dear Sir: “ Your request for a personal appearance before your Board is acknowledged. “ We have made an appointment for you to appear before your local board at the address given above at 11:00 A.M. on March 1st, 1966. “ Section 1624.2(b) of the Selective Service Regulations provides that ‘At any such appearance, the registrant may discuss his classification, may point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file which he believes the local board has overlooked or to which he believes it has not given sufficient weight. The registrant may present such further information as he believes will assist the local board in determining his proper classification. Such information shall be in writing, or, if oral, shall be summarized by the registrant and, in either event, shall be placed in the registrant’s file.’ BY DIRECTION OF THE LOCAL BOARD (signed) Margie S. Sellers, Clerk" The defendant appeared before a panel of three members of the local board on March 1, 1966. Of the ensuing conference, the following summary was made in behalf of the Board, and entered in typewritten characters in the registrant’s file before the Local Board. “Summary of Personal Appearance of Norman Earl Richmond 4-119-46-158 Board meeting held on March 1, 1966. Board members present, Mr. Doyle Wheeler, Mr. Jack Dameron, Mr. Robt. McGurk. Registrant sworn in by Board member. Registrant stated he was no longer in school, had dropped out to work to help out at home as both Mother and Father had had major surgery, father makes about $80,00 per week as a sand tester at a foundry in Pomona. Registrant stated he makes about $10.00 per house, works with uncle contracting work such as putting in windows, doors, etc. Also sings in night club, has made one record, going to make another. Board member asked if family objected to his being drafted, registrant stated he didn’t think so. Stated that a lot of his people fed “(sic)” this isn’t their country. Board member explained that color meant nothing here, he had a duty to his country and would get every fairness as an American. Consensus (sic) of Board Classify I-A after PA Notes by P. H. Mateer ” During his personal appearance on March 1, 1966, there was personally handed to the defendant an SSS Form 118. That is a form for the registrant’s use in making a dependency claim, which is called a “dependency questionnaire.” It was not then or thereafter completed or filed by the defendant. If it had been so filed and returned, a further reexamination of the defendant’s classification would thereby have been precipitated. At the session of the panel of Local Board No. 119 held on March 1, 1966, supra, and following the defendant’s personal appearance, supra, his classification was again considered and, by unanimous vote, he was retained in Class I-A, supra. And on March 2, 1966, he was notified in writing on Form 110 of such classification. He actually received that notification on March 2, 1966. On March 13, 1966 (see covering envelope) the defendant wrote, and by United States mail transmitted, to Local Board No. 119 a handwritten letter, which was received by the Local Board on March 14, 1966, of which the following is a complete copy: “ I-A Norman E. Richmond (119) 1920 W. 95th St. Los Angeles 47, Calif. 757-3868 Dear Sir: I received your selective service notice of classification #4-119-46-158 date March 2, 1966, classifing me Norman E. Richmond (slave name) in Class I-A presumably for the purpose of determining my fitness or qualifications to be in the armed defence or armed forces or army of the Government of the United States of America. Could you please answer the follow question for me. Why have I been taught from birth to Love my Enemy and to ‘Turn the other cheek’ and ‘Thou Shall Not kill.’ here in America. But now you say I am qualified to serve in the armed forces and possibly lose my one and only life in the defense of your country. (2) I have attended Jr. College and have otherwise performed burdens of government which includes paying taxes, education, following your culture, community improvement. I have fell in line and acted like most of my other Uncle Tom, deaf, dumb, and blind brothers (the your-called Negro’s — or niggers) here in the wilderness of North America. But in the last few years I have been thinking and researching on my status in the framework of the U. S. government and my foreparents were chattel slaves and brought to America kidnaped is a better word against their will and never at any time willingly or with their consent agreed or accepted the status of citizens in the government. I felt like a fool when I was awakened to the fact that I have been duped into thinking I am a citizen. Again, my people never at any time willingly with their consent (3) agreed or accepted the status of citizen in this U. S. GOVERNMENT and the present burdens of government and citizenship forced upon me through birth in captivity does not legally qualify me to perform military service and I firmly believe that the ends of justice will be served if I am first allowed self determination in this matter and not have burdens of government forced on me. Thank you Norman E. Richmond ” And on March 14, 1966 (see covering envelope) the defendant wrote, and by United States mail transmitted to Local Board No. 119 a communication received by such Board on March 15, 1966, of which a copy follows: “Dear Sir 4-119-46-158 I-A* (119) I would like to appeal my classification. Thank you Norman E. Richmond ” On its receipt, the foregoing communication was, by the Local Board regarded as an appeal of the defendant’s classification within Class I-A, and so noted on its record of minutes in his file. On March 21, 1966, the defendant’s Selective Service file before the Local Board was, by that Board, forwarded to the Appeal Board for the Selective Service System in the Southern Federal Judicial District of the State of California, Panel No. 3, at 1206 South Maple Avenue, Los Angeles, California. (Parenthetically, as of March 15, 1966, when the defendant’s notice of appeal was received by Local Board No. 119, the locations of that Local Board and of the place of residence of the defendant were both within the territorial area of the then Southern Federal Judicial District of California, of which, by legislation shortly thereafter effective, division was made with the consequence that both of such locations are now within the territorial area of this judicial district, that is to say, the Central District of California. The Appeal Board to which the defendant’s record was thus transmitted was and is the Appeal Board having jurisdiction over appeals from Local Board No. 119). On April 28, 1966, the foregoing Appeal Board, four members participating, considered the appeal last above mentioned and, by the unanimous vote of the participating members, classified the defendant in Class I-A, and so notified Local Board No. 119, by which Local Board such notification was received on May 3, 1966, along with the return to such Local Board of the defendant’s Selective Service file. Also on May 3, 1966, Local Board No. 119, by United States mail, using Form 110, notified the defendant in writing of such action of the Appeal Board. On May 17, 1966, on SSS Form 252, Local Board No. 119 in writing notified and ordered the defendant to report for induction into the Armed Forces of the United States at Los Angeles Examining and Induction Station, 1033 South Broadway, Los Angeles, California on June 14, 1966 at 7:30 o’clock A.M. But on May 20, 1966, the Local Board Group F, comprising Board No. 119, among other Local Boards, received from the Chief of the Evaluation and Placement Branch of VISTA a telegram declaring that the defendant “has accepted Vista invitation to begin training on June 21st 1966 at the University of Maryland, Baltimore, Maryland. Mr. Richman “(sic)” will train for six weeks and then be assigned as a Vista volunteer to serve for one year plus the training period;” and requesting that consideration be given the defendant “to permit him to serve in our nation’s war on poverty." And on May 26, 1966, Local Board No. 119 received through the United States mail a handwritten letter from the defendant in this language: “Dear Sir: I have been selected to be a volunteer in (Vista) in service to America for one year. I am to report June 21 for a six week training program to be conducted by University of Maryland, Baltimore, Maryland. I applied for (Vista) in Jan. 66 while attending Los Angeles City College. I have submitted proof in a form sent to me by John Hutchison (sic) Chief and Placement Selection Div (Vista)’ (sic). I would like to know if it is possible for me to go in (Vista) as I have been selected to report June 21. I have be “(sic)” called for induction June 14. Thank you Norman Richmond ” With that communication was also received some publicity respecting the agency named, “Vista.” On June 7, 1966, Local Board No. 119, by the unanimous vote of its then acting three member panel voted to direct the defendant to report for induction as ordered. And, also on June 7, 1966, that Local Board caused the sending to the defendant of a letter in this language: June 7, 1966 4-119-46-158 Norman Earl Richmond, 1920 West 95th Street Los Angeles, California 90047 Dear Sir: This will acknowledge receipt of your communication relative to your Selective Service Status. The information contained therein has been considered by this board and it is of the opinion that the facts presented do not warrant the postponement of your induction. You must report as ordered for induction on June 14, 1966. Very truly yours, BY DIRECTION OF THE LOCAL BOARD Patricia H. Mateer, Clerk ” Also on June 7, 1966, Local Board No. 119 transmitted by United States mail to the office of (Vista), Washington, D. C., for the attention of the writer of that agency’s telegram of May 20, 1966 to the Local Board {swpra) a brief letter acknowledging receipt of the telegram of May 20, 1966, and imparting to (Vista) the same information communicated to the defendant in the letter to him last above quoted. Meanwhile, the defendant sought, through proceedings for a Writ of Habeas Corpus, to intercept and prevent his induction into the Armed Forces of the United States; but on or prior to October 14, 1966, such relief was denied by this court wherein it was pending. Thereupon, and as of October 14, 1966, California Selective Service System, Southern Area Headquarters, by United States mail, so advised Local Board No. 119, and also informed such Local Board of the availability of October 18, 1966 at 7:30 A.M. as a time for the defendant to report for induction. And on October 14, 1966, by Special Delivery, United States mail, Local Board No. 119, transmitted to the defendant the following notice: SS No. 4-119-46-158 “October 14, 1966 Mr. Norman Earl Richmond 1920 West 95th Street Los Angeles, California 90047 Dear Sir: We have been advised by the United States Attorney that your case has been heard on a writ of habeas corpus and that the writ was denied. Therefore, the date of October 18, 1966 has been set for you to report for the continuing Induction processing under the outstanding Order to Report, at 7:30 A.M., 1033 South Broadway, Los Angeles, California. Very truly yours, BY DIRECTION OF THE LOCAL BOARD SPECIAL DELIVERY Lillian M. Lamb, Coordinator” Though so notified, the defendant failed to, and did not, report for induction, or for any other purpose at the time and place thus directed. Nor has he since reported in any way. By Title 50 App., U.S.C., section 453, it is declared that: “Except as otherwise provided in this title * * * it shall be the duty of every male citizen of the United . States * * * who on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.” By Title 50 App.U.S.C., section 454, it is provided that: “Except as otherwise provided in this title * * * every male citizen of the United States * * * who is between the ages of 18 years and 6 months and 26 years, at the time fixed for his registration, or who attains the age of 18 years and 6 months after having been required to register pursuant to section 3 of this title (section 453 of this Appendix)” vide supra * * * “shall be liable for training and service in the Armed Forces of the United States: Provided, That each registrant shall be immediately liable for classification and examination, and shall, as soon as practicable following his registration, be so classified and examined, both physically and mentally, in order to determine his availability for induction for training and service in the Armed Forces.” By Title 50 App.U.S.C., section 462, it is provided, inter alia, that: “Any member of the Selective Service System or any other person charged as herein provided with the duty of carrying out any of the provisions of this title * * * or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty * * or who otherwise evades or refuses * * * service in the armed forces or any of the requirements of this title * * * or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * * * or rules, regulations or directions made pursuant to this title * * * shall, upon conviction in any District Court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,-000, or both. Touching United States citizenship, it is provided by Title 8 U.S.C., section 1401(a) (1), that: “(a) The following shall be nationals and citizens of the United States at birth: (1) a person born in the United States, and subject to the jurisdiction thereof.” Indeed, Section 1 of the Fourteenth Amendment of the Constitution of the United States, since its adoption, dominant upon the question, is couched in this language: “All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (emphasis added) Obedient primarily to that unequivocal constitutional language, but also to the lately quoted Title 8 U.S.C., section 1401(a) (1), it has consistently been held judicially that one born in the United States and subject to its jurisdiction is, from birth, a citizen of the United States; that such citizenship does not depend upon like citizenship of his or her parents, or of either of them (except in the case of the children of ambassadors etc.); and that upon the subject, his or her color or racial origin is immaterial. United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890; Perkins v. Elg, 69 App. D.C. 175, 99 F.2d 408 (modified on other grounds 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320); In re Gogal (D.C.Pa.) 75 F.Supp. 268; Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643; SlaughterHouse Cases, 16 Wall. 36, 83 U.S. 36, 21 L.Ed. 394. It results that, despite his personally advanced contention to the contrary, Norman Earl Richmond is and, continuously since his birth on March 6, 1946, has been a citizen of the United States. Any other view of his status is simply intolerable and squarely repugnant to the cited and pertinent constitutional and statutory provisions. The defendant, as a citizen of the United States, was, accordingly, obliged under Title 50 App.U.S.C., section 453, supra, to “present himself for and submit to registration” under the Universal Military Training and Service Act, Title 50 App.U.S.C., section 451, et seq. He did so present himself and submit to registration in unquestioning, and unquestioned, compliance, to that extent, with the requirement of the statute. In view, also, of the date of his birth and of his resulting age, supra, the defendant, by virtue of Title 50 App.U.S.C., section 454, at the time of his registration was, ever since has been, and still is, a person “liable for training and service in the Armed Forces of the United States.” And, in consequence of his place of residence, once registered, he was and still is a registrant within the jurisdiction of Local Board No. 119, which was a “Board then and there duly created and acting under the Selective Service System established by” the Universal Military Training and Service Act “in Los Angeles County, California,” within this Federal Judicial District. So far in respect of the defendant’s legal obligation to register and liability for training and service in the Armed Forces of the United States. That he did so register, and, at least inceptively, enter into participation in the classification and selection process is made certain from the factual narrative earlier in this memorandum opinion set out. In fact, he pursued such classification and selection process to its final issue. That pursuit is not nullified or obviated by the circumstance that, after his classification, selection and final order to report for induction into the Armed Forces of the United States, he knowingly failed to obey that final order, infra,. His classification, selection and order and notice to report are briefly but not repetitively recalled. He received, and answered and returned, his classification questionnaire. On being classified in the first instance in Class I-A and receiving notification thereunto, he reported for and underwent his Armed Forces Physical examination, wherein he was found acceptable, as he was timely notified in writing. Later, upon a showing by him, and with the support of evidence in his behalf he was granted a deferred 2-S classification for a limited and specified period, and was so notified by Local Board No. 119. Shortly thereafter, his educational pursuits having first been diminished, and later abandoned, he was again classified in Class I-A. Upon being notified in writing of that reclassification, he sought and was granted a personal appearance. The personal appearance or conference was held and, at its completion, he was confirmed in Class I-A by his Local Board, and was so notified in writing. He immediately tendered an appeal from that classification. His appeal was submitted. Upon its consideration the Appeal Board, by unanimous vote, adhered to his classification in Class I-A, and made report accordingly to the Local Board. His Local Board thereafter selected him for induction into the Armed Forces, and entered an order for induction. His brief and fruitless effort to obtain assignment to “Vista,” with some support from that Agency, ensued; but that request was not granted, and he was promptly so advised. Thereupon, the defendant sought, without success, to intercept through a Writ of Habeas Corpus his induction into the Armed Forces of the United States. Upon its notification of the denial to the defendant, by this court to which he had resorted, of a Writ of Habeas Corpus, the Southern Area Headquarters of California Selective Service System, by and through the military officer in charge of its administration, in writing on October 14, 1966, advised Local Board No. 119 to that effect, and suggested October 18, 1966 at 7:30 A.M., and 1033 South Broadway, Los Angeles, California, as the time and place for the defendant’s report for induction. Also, on October 14, 1966, by direction of Local Board No. 119, and in its name, the defendant was directed and ordered by letter sent through United States mail “to report for the continuing Induction processing under the outstanding Order to Report, at 7:30 A.M., 1033 South Broadway, Los Angeles, California.” He did not report at the time or place so prescribed, or at any other time or place. Upon the record of pleadings and evidence under consideration, it is also found by this court that the failure of the defendant so to report for induction into the Armed Forces of the United States in pursuance of the Local Board’s order and notice to that end occurred knowingly, within the meaning of Title 50 App.U.S.C., section 462, supra, and of the indictment in this case. The entire conduct of the defendant incident to his classification, selection and order to report for induction serves inescapably to demonstrate his determination, if possible, to prevent his induction into the Armed Forces of the United States. In that behalf mention is now made of his communications with his Local Board, including, but without limitation to, his oral declaration to the Local Board in the conference of March 1, 1966, and his letters severally received by the Local Board on March 14, 1966 and May 26, 1966. Notice is also taken of his effort to obtain entry into “Vista.” It is certainly true that there was nothing unlawful about that effort. Still, it may not be understood apart from the context of his then imminent induction into the Armed Forces of the United States, for the interception of which it was quite obviously a diversionary venture. And there is, finally, his resort to this court for the protective shelter of a Writ of Habeas Corpus. It may not be rationally or honestly contended, in the light of the evidence, that he did not proceed knowingly in his failure to obey the order to report for induction. The court finds that the evidence proves beyond a reasonable doubt that he did so proceed knowingly, perhaps by way ■of dernier resort, but knowingly nevertheless. His failure to report was a knowing and deliberate pursuit of the “self determination in this matter,” and .avoidance of the “burdens of government” of which he had so recently theretofore written in the final sentence of the letter from him, which he transmitted to Local Board No. 119 on March 13, 1966, and the addressee received on March 14, 1966. The sequence of events in the defendant’s registration, classification, selection, and orders or order to report for induction, as already set out in this memorandum opinion, is supported by, and reflected in, the defendant’s file in the office of Local Board No. 119 introduced and received in evidence upon the trial herein before the court as Plaintiff’s Trial Exhibit 1. The court does not understand the defendant seriously to challenge the mere fact of the occurrence of any of those events; but it readily understands that, for asserted reasons advanced during the trial and in his subsequent brief, he denies the operative validity of some, perhaps all, of such events, and ultimately of his classification, selection and order to report for induction into the Armed Forces of the United States. As briefly as their nature and the technique of their tender allow, the court next adverts to those challenges. So doing, it presumes to consider once, and, without needless repetition, each individual objection, in the asserted impact upon more than one aspect of the defendant’s Selective Service System process. Throughout the trial, (and also by items of evidence received in the slightly earlier trial before this court with a jury, the writer hereof presiding as judge, of United .States v. Von Key, Cr. 62 in this court, which, by agreement and from considerations of convenience and economy, have been received and are being considered herein) the defendant has challenged the legal validity of the constitution and erection and entire composition, both of Local Board No. 119 and of the Appeal Board, whose action upon the defendant’s Selective Service status, supra, has been discussed herein. While defendant’s counsel argue that point more directly in orientation to Local Board No. 119, the court understands it to be aimed with comparable, if not identical, application to the Appeal Board. This challenge is based upon the proved fact that upon Local Board No. 119, and the panel or panels thereof dealing with the defendant's status, all members were of the white race, and, actually, since its initial existence all members of Local Board No. 119 have been of the white race; whereas, the defendant is a negro and the population of the area within the jurisdiction of Local Board No. 119 includes a substantial and generally increasing number or percentage of members of the negro race, of which also about thirty percent of the Local Board’s registrants are members. Digressing for the moment, it is also recalled that, at least through some twenty years, the membership of the Appeal Board here involved, despite some changes in personnel, has consistently been unanimously of the white race. The defendant’s argument appears to insist that, with a view to the assurance to colored registrants of the area of Local Board No. 119, and, by analogy, of the jurisdictional area of the Appeal Board, of an understanding and sympathetic approach to their problems, those negro registrants are entitled to have proportionate, or at least some, representation of their race upon the membership of the Local Board, and, as well, upon the membership of the Appeal Board. By Title 50 App.U.S.C., section 460, it is provided, among other things, that: “(b) The President is authorized: (1) to prescribe -the- necessary rules and regulations to carry out the provisions of this title (Sections 451-454 and 455-471 of this Appendix) ****** “(3) to create and establish within the Selective Service System civilian local boards, civilian appeal boards, and such other civilian agencies, including agencies of appeal as may be necessary to carry out its functions with respect to the registration, examination, classification, selection, assignment, delivery for induction, and maintenance of records of persons registered under this title (said sections), together with such other duties as may be assigned under this title (said sections). He shall create and establish one or more local boards in each county or political subdivision corresponding thereto of each State, Territory, and possession of the United States, and in the District of Columbia. Each local board shall consist of three or more members to be appointed by the President from recommendations made by the respective governors or comparable executive officials. * * * each member of any local board shall be a civilian who is a citizen of the United States residing in the county or political subdivision corresponding thereto in which such local board has jurisdiction. * * * Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President, have power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption from training and service under this title (said sections) of all individuals within the jurisdiction of such local boards. The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. There shall be not less than one appeal board located within the area of each Federal judicial district in the United States and within each territory and possession of the United States, and such additional separate panels thereof, as may be prescribed by the President. Appeal Boards within the Selective Service System shall be composed of civilians who are citizens of the United States and who are not members of the armed forces. The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title (said sections), and the determination of the President shall be final.” (Emphasis added) In the way of implementation, it is further provided by Title 32 C.F.R., section 1604.52 that: “(a) A local board of three or more members shall be appointed for each local board area by the President upon the recommendation of the Governor. * * * * * * (c) The members of local boards shall be male citizens of the United States who shall be residents of a county in which their local board has jurisdiction and who shall also, if at all practicable, be residents of the area in which their local board has jurisdiction.” (emphasis added) And, with regard to appeal boards, it is provided by Title' 32 C.F.R., section 1604.22, that: “For each appeal board area an appeal board, normally of five members, shall be appointed by the President, upon recommendation of the Governor. The members shall be male citizens of the United States who are not members of the armed forces or any reserve component thereof; they shall be residents of the area in which their board is appointed; and they shall be at least 30 years old. The appeal board should be a composite board, representative of the activities of its area, and as such should include one member from labor, one member from industry, one physician, one lawyer, and, where applicable, one member from agriculture. If the number of appeals sent to the board becomes too great for the board to handle without undue delay, additional panels of five members similarly constituted shall be appointed to the board by the President, upon recommendation of the Governor. Each such panel shall have full authority to act on all cases assigned to it. Each panel shall act separately. The State Director of Selective Service shall coordinate the work of all the panels to effect an equitable distribution of the work load.” From the related language quoted (nuper supra) from Title 50 App. U.S.C., section 460, and Title 32, C.F.R., section 1604.52, it is clear that neither any statutory, nor any regulatory, requirement exists, whereunder the appointment to membership either on a Local Board or on an Appeal Board in the Selective Service System must be made under any restriction or limitation rooted in the color or racial origin of an individual appointee, or whereunder the total membership upon either such board must be proportionalized according to the racial composition of the population of the area involved. Such a requirement would be a departure from American tradition, so wide as to evoke marked surprise. Granting the existence of localized regions within the country which in practice reject the nation’s constitutional dedication to equality of right, its citizens, on a broad pattern, insist that justice be color blind, and live and act accordingly. But, whatever may be said of tradition, there is simply no requirement in the legal structure of the Selective Service System requiring selection of its administrative personnel upon any racially oriented pattern. There is, moreover, no evidence that the defendant’s classification, selection or order to report for induction was actually responsive to any consideration of race. On the contrary, his successive classifications and the changes therein, supra, were directed and timely related to reported and demonstrated changes in his educational program. His race did not operate to intercept the liberalization of his classification when his position in school warranted it. It ought not now to shield him from the withdrawal of that indulgence on the disclosure that it was no longer logically supportable. Finally, despite the detest-ability of persecution on whatever pretext, society should not, too readily or without mature consideration, grant its existence upon its every assertion, much less, on the prompting of suspicion. Noted, too, in regard to Local Boards is the foregoing language of Title 32, C.F.R., section 1604.52. It contains a requirement (a) that members of any such board “be residents of a county in which their local board has jurisdiction, and (b) that, if at all practicable, they be residents of the area in which their local board has jurisdiction. Requirement “(a)” is mandatory, and it has here been complied with strictly. Requirement “(b)” manifestly allows the exercise by the appointing authority of judgment on the score of “practicability.” It appears to have been exercised negatively. Certainly, there is no proof to the contrary. In respect of the membership of the Appeal Board, so far as appears, the membership conforms to Title 32 C.F.R., section 1604.22. It, too, has no requirement of the conformity of membership on the Appeal Boards to any proportionalized racial pattern. Finally, it is noted that the eligibility and qualification of members of the two boards here involved may not be challenged in a proceeding of this character. By way of summarization, it has been said that “the title of a person acting with color of authority, even if he be not a good officer in point of law, can not be collaterally attacked.” Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765; Johnson v. Manhattan Railway Company (2 Cir.) 61 F.2d 934; United States ex rel. Doss v. Lindsley (7 Cir.) 148 F.2d 22, 23, 158 A.L.R. 525; Jessen v. United States (10 Cir.) 242 F.2d 213. This court considers that the actions severally taken in relation to the status of the defendant by the Local Board, and by the Appeal Board, supra, may not by this court be nullified or disregarded on the ground of any racial or residential disability of either such board, or of any of its members. And it is persuaded that the evidence before the court is inadequate to warrant a finding that the defendant has been subjected to discriminatory, or otherwise unjust, treatment because of his race, by either of those boards. The defendant asserts that “the failure to provide defendant with an ad-visor, as required by the applicable regulations, denied defendant a right indispensable to a fair hearing.” And he cites, and quotes from, Chernekoff v. United States (9 Cir.) 219 F.2d 721, 724, in support of his thesis. His position is not well taken; and in his citation of the Chernekoff case, supra, he leans on a broken reed. It is true that in the case thus cited the Court of Appeals for the Ninth Circuit, speaking on February 24, 1955, asserted that if it were true that in Los Angeles County, a “practice persisted” of “[t]he failure of the local board to comply with the posting of names and (sic) advisors as provided by 32 Code Fed.Regs., § 1604.41, supra,” a problem of due process was presented, and, on that premise, declared that “we have serious doubt as to the validity of such a practice by the local boards.” Its reference to 32 C.F.R., section 1604.41, was fortified by an ostensible copy of the cited section of C.F.R. in a footnote to the opinion. But the footnote, although quite obviously reflecting the language of the section of the Regulation as of the date of the accused conduct of Chemekoff under scrutiny in that opinion, was already “out of date.” Effective as to facts arising on and after January 1, 1955, thus one month and twenty-four days before the filing of the Chemekoff opinion, 32 C.F.R., section 1604.41 had been amended to read as follows: “ADVISORS TO REGISTRANTS— APPOINTMENT AND DUTIES. Advisors to registrants may be appointed by the Director of Selective Service upon recommendation of the State Director of Selective Service to advise and assist registrants in the preparation of questionnaires and other selective service forms and to advise registrants on other matters relating to their liabilities under the selective service law. Every person so appointed should be at least 30 years of age. The names and addresses of advisors to registrants within the local board area shall be conspicuously posted in the local board office.” Investigation reveals that the amended —and presently effective — form of the regulation under study differs from the same numbered regulation in its earlier form, and as quoted in the footnote above mentioned to the Chemekoff opinion, only in this particular, that as the fburth word of the body of the regulation, it substituted the word “may,” for the earlier word “shall.” Thus, it made permissive the appointment of advisors, which had, immediately theretofore and at the effective date of the alleged offense in the Chernekoff case, been mandatory. And by inevitable construction, it completely nullified its own final sentence in regard to those Local Boards which elected not to appoint advisors to registrants. For, if and where no ad-visors are appointed, there are no ad-visors “so appointed” within the Local Board area whose names must be “posted in the local board office.” This court offers no criticism of the Chernekoff opinion. It is simply disregarded as inapplicable to the current permissive regulation. See also Uffelman v. United States (9 Cir.) 230 F.2d 297; Clark v. United States (9 Cir.) 236 F.2d 13; Frank v. United States (9 Cir.) 236 F.2d 39; Yaich v. United States (9 Cir.) 283 F.2d 613, with their emphasis on the necessity of the establishment that failure to comply with Selective Service Regulations, even if actual failure be shown, be disregarded unless it be also shown that such failure actually resulted in prejudice to the registrant. Such prejudice in fact is not shown in the record presently before the court. Besides, in the matter of the provision of advice to registrants, before the Local Board, it is credibly shown by testimony that the Board’s coordinator and assistant coordinator customarily answer the questions of registrants, and that registrants may and do obtain advice from the government appeal agent, whose name and address are shown on the Board’s bulletin board. The defendant contends, and by evidence sought to prove, that the several boards, Local Board No. 119 and the Appeal Board, failed to devote adequate time to the consideration of problems of classification and selection, the defendant advancing that position especially in reference to his personal appearance before the Local Board on March 1, 1966, and also concerning the time devoted by the Appeal Board to his case on appeal. At the outset, it is found that on his appearances before the Boards, the defendant was allowed to say whatever he had to offer in his own behalf. The Local Board’s record reflects certain disclosures of that character by the defendant. It is true that in the sessions of the several boards each of them generally handles a substantial number of registrants, many of them to the point of decision. But this is also true; the Boards have experienced and competent clerical assistants, who contribute to the processing of the work of the Boards by the study of files, by interviews . with registrants, and others in their behalf, and by the preparation for, and presentation to, the Boards of memoranda both in aid of recollection, and as newly garnered information. The processing of the files before the Boards requires study, concentration, close reflection, and application to the task at hand. But the volume is not insuperable, nor its dispatch, within the available intervals of time, incredible. It is also to be presumed that the several boards acted regularly and in accordance with regulations in the performance of their respective tasks. Storey v. United States (9 Cir.) 370 F.2d 255; Keene v. United States (10 Cir.) 266 F.2d 378. This presumption is not persuasively, or at all, rebutted in this proceeding. Besides, upon the trial of this action, explicit and credible and credited testimony was given of the care which the members of the Local Board actually and regularly gave to the files before them, especially to those presenting claims to dependency or hardship, as those terms are understood in the selective service process. Upon the subject adverted to in the last preceding paragraph, the defendant, through his competent counsel, argues earnestly that the defendant, before his Local Board, presented a claim to deferment which should be regarded as based upon dependency, or upon hardship, or upon both such situations in combination. In the first place, there is explicit evidence in his Selective Service file before the Local Board, that such claim as he tendered in reference to his own, or his family’s, economic situation was considered by that board. But reasonably — even liberally — regarded, it may not be concluded that he ever tendered to the board a supported claim either of dependency or of hardship, in a rational understanding of those terms. He did not advance either such claim in his initial classification questionnaire. Neither did he complete or return to the Local Board S.S.S. Form 118, the dependency questionnaire personally handed to him during his personal appearance before the Local Board on March 1,1966. It is true that he stated at that time to the panel of his Local Board that he “had dropped out” of school “to work to help out at home as both father and mother had major surgery.” But what major surgery, or the extent or duration of working disability consequent upon it, is not reflected. Nor is the family’s economic position, or his own, instructively shown, beyond the statement that “Father makes about $80.00 per week as a sand tester at Pomona. Registrant stated he makes about $10.00 per house, works with uncle contracting work such as putting in windows, doors, etc., also sings in night club, has made one record, going to make another.” The Local Board’s persistence in his I-A classification in view of such a showing, thus obliquely, if at all, supportive of a really untendered request for deferment on the ground of either dependency or hardship, or both, was not either unsupported or unreasonable. And on appeal, it was affirmed by the Appeal Board, supra. To the defendant’s contention that the practice of Local Boards not to allow registrants to be represented in the classification and selection process by legal counsel involves a denial of due process of law, two negative answers are at once obvious. First, the defendant does not show that he sought or was actually denied such representation. Secondly, the admittedly prevailing practice thus assailed is not a denial of due process of law, or of any other right, and does not nullify or impair a registrant’s classification. United States v. Pitt (3 Cir.) 144 F.2d 169; United States v. Sturgis (3 Cir.) 342 F.2d 328, 332, cert. den. 382 U. S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120; United States v. Kovalchick (D.C.Pa.) 255 F.Supp. 826. This court does not consider that the absence of any showing that the several Boards formally advised the defendant of the reason or reasons underlying any board action adverse to him in the course of his classification and selection resulted in the denial to him of due process of law. It is demonstrated beyond question that he was explicitly and timely advised of any and all board actions touching his status, whether favorable or adverse to his position. That is what matters. And no more is by law required. Defendant objects to the course of each of the Local Board and of the Appeal Board in basing its action respecting the classification and selection of registrants on a “case to case” basis, determining each registrant’s status upon the ground of its own underlying facts, rather than by rigid measurement according to an established formula. That contention is not well taken. Selective Service classification deals so intimately with a registrant’s personality, circumstances and problems that the case to case method of arriving at conclusions is virtually the only practical and just one. Nor is it made here to appear how, if at all, the defendant was injured by the employment of that method, in his classification or in his selection. Argument is advanced by the defendant which is patently based upon the supposition that the Local Board’s final order and notice to him to report for induction, with which he failed to comply, was inspired through the denial by this court of his Petition for a Writ of Habeas Corpus. The supposition is simply unfounded. That he had earlier been ordered and notified to report for induction, supra, is clearly demonstrated. In the face of, and during, the pendency of the Habeas Corpus proceeding, the Local Board respectfully refrained from pressing for compliance that earlier order and notice. But when the Habeas Corpus proceeding, in due time, failed to achieve the defendant’s objective in its institution, the occasion for restraint came to an end; and the issuance of the final, and really supplemental, order and notice to report for induction became the obvious course to pursue. It was so pursued. The denial to him of due process of law is also asserted by the defendant because, as he puts it, the government of the United States proposes to require him to enter into its military service, without providing him an appropriate equivalent in terms of economic and social security. That position is not well taken. Beyond question, military service presents one who performs it with hazards, physical, economic, moral and otherwise. But that is simply a solemn and sobering exposure to which any citizen in position, comparable or approximable to that of the defendant is, and historically has been, subject. The burden is, indeed, very personal to him. But it is in no wise unique. His fellow citizens of similar ages, state of health, family status and the like, irrespective of race or, saving indulgence in favor of conscientious objectors, of creed, are confronted by the same problem, with appropriate individual variations. As has already been foreshadowed, the court does not in this ruling identify or discuss, item by item, the several rulings by it made during the trial upon the admission or rejection of evidence or testimony. They are preserved in the record of the trial. And the court stands generally upon its several rulings by the record reflected. Certain of such items probably require or deserve very brief mention. At several points in the trial, items of evidence were introduced in evidence, to whose reception objections were tendered, generally on the ground of competency or relevancy, or materiality. On several of those occasions the court, in the persuasion that with a view to factual adequacy the tendered material should be brought into the record, admitted it with reservation of the questions in which the objections were rooted. It may be understood that upon the factual reality of the objected items, the court has considered them to the extent that they were admitted. The ruling now foreshadowed and announced in advance will, it is thought, adequately disclose to what extent, if at all, it was affected or influenced by any evidence so admitted with reservation. The court might proceed, item by item, through all such material and signify and discuss the extent of its ministry to the ruling. But that appears to be neither neces