The only thing unusual about this direct criminal appeal from conviction for failing to obey a lawful order of a Selective Service Board (a violation of 50 U.S.C.A. App. Sec. 462), is that the Defendant here overcame the well-established presumption of regularity and validity normally attaching to official acts of Selective Service Boards1 and created a jury issue where usually there is none-and in fact, there really was none in this case (see note 21, infra). Since the Government was not relying exclusively on the presumption and offered other probative evidence that the Defendant had not been ordered to alternative service in lieu of induction into the Armed Services out of sequence, and because we reject other arguments less strenuously urged by the Defendant, we affirm the judgment of conviction based on a jury finding of guilt, but remand for resentencing.

Robert Edward Johnson was classified I-O (conscientious objector not available for military duty) by Selective Service Local Board No. 23 of Grenada, Mississippi. Pursuant to 50 U.S.C.A. App. Sec. 456(j), and as an alternative to military service, he was ordered2 by his Board to work at the Mississippi State Hospital in Whitfield, Mississippi. His work at Mississippi State Hospital proved unsatisfactory and, accordingly, he was dismissed. Subsequently he was reassigned to Rush Memorial Hospital in Meridian, Mississippi, and when employment there was terminated for poor performance, the State Director of Selective Service ordered him transferred to the University of Mississippi Medical Center in Jackson, Mississippi. On January 31, 1969, after he had served some 16 months of his two-year obligation, Johnson failed to report to the University of Mississippi Medical Center as ordered by the State Director. Thereafter he was prosecuted for a violation of 50 U.S.C.A. App. Sec. 462, by an indictment charging that he did "knowingly, wilfully, unlawfully and feloniously fail, neglect and refuse to" obey the orders of his local Selective Service Board.3 From a jury verdict of guilty and a five-year sentence, this appeal has been taken.

Johnson first claims that the indictment was fatally defective for two reasons.

First, Johnson protests that the indictment did not measure up to requisite standards of specificity. Relying on Lowenburg v. United States, 10 Cir., 1946, 156 F.2d 22 and United States v. Farinas, S.D.N.Y., 1969, 299 F. Supp. 852, he argues that the indictment was insufficient because it did not allege specific duties he failed to perform.

Assuming, without deciding, that we would follow these decisions of sister Circuits, these cases simply do not touch this record. In Lowenburg, the indictment alleged no specific order which had been disobeyed, but rather, only the general refusal of Defendant "to work and perform duties." Actually, Lowenburg was tried specifically for refusing to burn stumps and remove dirt therefrom. The Court held that the indictment was wholly insufficient to apprise Defendant that that specific act was to be the subject of prosecution.

Likewise in Farinas, the indictment alleged that Defendant "did fail, neglect and refuse to obey the orders of representatives of the Armed Forces of the United States * * *." Again, the specific order disobeyed was not set out and the indictment was held fatally deficient for that reason.

Unlike those cases, the indictment here specifies the particular criminal act for which Defendant was to be tried. The indictment alleged that "on or about January 31, 1969" Johnson did "knowingly, wilfully, unlawfully and feloniously fail, neglect, and refuse to report for and remain in employment with the University of Mississippi Medical Center at Jackson, Mississippi, for twenty-four consecutive months or until such time as released or transferred by proper authority as ordered * * *." (Emphasis supplied). Clearly that indictment fully informed the Defendant of the specific act for which criminal liability was sought to be imposed-complete with time, place and circumstance.

If a precedent need be marshaled, United States v. Wagoner, 7 Cir., 1944, 143 F.2d 1, cert. denied, 323 U.S. 730, 65 S. Ct. 67, 89 L. Ed. 586 is more than enough. In Wagoner the indictment alleged that the Defendant "unlawfully, knowingly, wilfully, and feloniously failed and refused to present himself for and submit to registration * * *." This indictment was held to state a "clear, definite, and general offense," and to be legally sufficient to withstand a due process challenge. If the word "registration" in that indictment is changed to the phrase "civilian employment at Mississippi State Hospital," the indictment here becomes virtually identical.

Johnson's second attack on the indictment is that no offense under the statute was made out since the order violated was not that of the local Selective Service Board, as alleged, but rather an order of the State Director of Selective Service.

That exact contention was before this Court and decided in Davis v. United States, 5 Cir., 1968, 400 F.2d 577, cert. denied, 394 U.S. 908, 89 S. Ct. 1019, 22 L. Ed. 2d 219. Although Johnson strenuously urges that the Davis case is not applicable here, we disagree.

The Order To Report For Civilian Work issued by Local Board No. 23 to Johnson specifically directed "you are ordered to report for employment pursuant to the instructions of the local board, to remain in employment for twenty-four consecutive months or until such time as you are released or transferred by proper authority." (Emphasis supplied.) As we pointed out Davis, the State Director had authority to transfer Appellant to other civilian work after his discharge from the Mississippi State Hospital under Selective Service System Local Board Memorandum No. 64 issued March 1, 1962, Section 8(b). Thus, on the Davis approach, the failure to obey a lawful command of the State Director-a command which the Director was authorized to issue-was simultaneously a failure to obey the order of the draft board, as charged in the indictment.

This indictment specifying precise dates and identifying particular places (University of Mississippi Medical Center) satisfied the underlying requirements that it "inform the accused of the nature of the charges against him, with such specificity and particularity that the accused is enabled to undertake and prepare an adequate defense." United States v. Levinson, 6 Cir., 1968, 405 F.2d 971, 977; United States v. Debrow, 1953, 346 U.S. 374, 74 S. Ct. 113, 98 L. Ed. 92; Hagner v. United States, 1932, 285 U.S. 427, 52 S. Ct. 417, 76 L. Ed. 861. And attributing the State Director's order to the Board related to its legal effect and did not mislead the Defendant as to the charges he faced.

Was Order Out of Order?

Johnson next asserts that his conviction should be reversed because the Government did not prove that he was ordered to report for alternative service in the proper sequence. The issue considered here has never been before this Court in precisely the form presented in this particular appeal.

We observe initially that this is a criminal prosecution. Johnson has been sentenced to five years in prison. It is an obvious rudiment of due process that in a criminal prosecution every essential element of the offense must be proved beyond a reasonable doubt.4

Implicit in the charge that Defendant failed to obey an order of the local draft board is the allegation that the underlying order was lawful. Johnson could not be punished for disobeying an unlawful order of the Board.5 Thus, since Johnson cannot be punished unless he failed to obey a lawful order of the Board, the lawfulness of the order is necessarily an element of the crime charged.6

The order to report for alternative service was not lawful if it was issued contrary to controlling rules and regulations governing the Selective Service System.7 One of these-a particularly important one-sets forth the order in which Selective Service registrants are to be inducted or ordered to alternative duty in lieu of military service. 32 C.F. R. Sec. 1660.20(a)(b)(c)(d)8 and Sec. 1631.7 (a).9 Adherence to the proper order of call is of more than mere technical importance. Manifestly, it affects substantial rights of the registrants. United States v. Baker, 9 Cir., 1969, 416 F.2d 202, 204. Moreover, Congress, the President, and the American people have expressed clear intent that the draft, when utilized, be conducted with as much servitude to objectivity as is humanly possible.10 We deem it of particular significance, for example, that Congress affirmatively mandated and reiterated in each of the four paragraphs of 32 C.F.R. Sec. 1660.20 that "such order [to alternative service] shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he has volunteered for such work." See note 8, supra. With possible consequences to those selected so awful and the opportunities for even good faith but inadvertent exercise of subjective choices undeniably present, it is certainly essential that objective standards spelled out in the law be scrupulously respected.

The order of call-as it stood in 196711-required that (i) delinquents (oldest first) be called to report first, (ii) volunteers (in the order in which they volunteered) be selected next, and (iii) unmarried nonvolunteers (ages 19 through 26) be called next "in the order of their dates of birth with the oldest being selected first." We have to determine what has been shown with respect to this sequence in the present case.

As a necessary general rule, the element of lawfulness of an order is established by a presumption that the local Board performed its duty in a regular and therefore legally valid manner. Greer v. United States, 5 Cir., 1967, 378 F.2d 931; Lowe v. United States, 5 Cir., 1968, 389 F.2d 51; Pique v. United States, 5 Cir., 1968, 389 F.2d 765; Campbell v. United States, 5 Cir., 1968, 396 F.2d 1. The presumption derives from the administrative necessity for such a rule.12 Quite obviously it would be completely unworkable to require the Government to present detailed affirmative proof in every case proving not only the technical validity of every act involved in or leading to the order in question, but the underlying validity of the structure of the local Board itself. The rule is born of necessity and a recognition of experience-proved assurance that the Board can be relied upon to discharge its duties with complete fairness and careful adherence to the regulations. Thus, in the normal case it is quite permissible to presume compliance with the predicating regulations and thereby establish that element of the offense charged.13

On the other hand, there is always the possibility that either by mistake or in very rare and isolated cases by capricious and arbitrary discrimination, the Board may undermine the validity of the order to service by a failure to comply with Selective Service law and regulations.14 In the usual case, absent a showing that either of these elements is likely present (mistake or design), the Government need not affirmatively demonstrate the lawfulness of the order to service-that element is established by the presumption. But where the registrant is able to show a substantial likelihood that the order to service was irregular, and thereby overcome the presumption, that element of the offense is in issue and the validity of the order must be established beyond a reasonable doubt.

Recognizing that once the presumption is dissipated by probative evidence to the contrary, and that once such evidence had been tendered, the presumption standing alone would no longer be sufficient to convict, Johnson set out to demonstrate a substantial likelihood that his order to call was irregular. Specifically, the strategy was to show a substantial likelihood that the Board, motivated in part at least by a desire to terminate Johnson's persistent civil rights activities in Grenada, had acted with undue haste to remove him from the community, ordering him to alternate service before another registrant who should have gone first.

We can only conclude, from the jury's pronouncement of guilty, after full and proper instruction on the issue of order of call that the strategy failed.

The first step in this approach was to demonstrate the Board's keen awareness of and reaction to certain civil rights activities in which Johnson was involved. Johnson had been a civil rights activist in Grenada.15 As putative leader of the Black people there, his vigorous participation in the civil rights movement had been well-publicized. He had brought and successfully maintained a civil rights action against various Judges in Grenada which resulted in an injunction prohibiting theretofore common systematic exclusion of Blacks from petit and grand jury panels. In late January and early February 1967 Johnson had been involved in a controversial courtroom incident with manifest civil rights implications which was only recently finally resolved when the United States Supreme Court summarily reversed his resultant contempt conviction.16 And all of this was "town talk" and "in all of the papers."

In this context, certain documents in Johnson's Selective Service file were presented to the jury. The first of these was a letter from the Executive Secretary of Local Board 23 to the State Director of Selective Service: "Colonel Weeks, this registrant is one of the leaders here at Granada who has been working as a civil rights worker all summer and has been out of one thing into another.17 You can see who receives copies of his letters * * *"18 (referring to various national civil rights leaders, including Dr. Martin Luther King, Jr.). The second item suggesting that the Board may have been desirous of removing Johnson from the local scene with the greatest dispatch was another letter from the Executive Secretary. In March of 1967, when the Selective Service was drafting no one younger than 19 1/2 years the Executive Secretary wrote the State Director for permission to order Johnson to service that next month-despite the fact that Johnson was then only 18 1/2 years old and Selective Service regulations then specifically prohibited taking anyone younger than 19. The Executive Secretary was also concerned that Johnson had not been reclassified from I-O into a draft-eligible class and stressed, in her letter, that Appellant had "NOT" been re-classified into I-A or I-A-O.19

Once Johnson had been ordered to alternative service and he had been securely removed from the Grenada civil rights struggle, the Executive Secretary expressed her relief in a letter to the State Director concluding that this is "another one behind us, I hope."20

Having established by the probative evidence the possibility that the Board was overly anxious to remove Johnson from the local scene-and clearly this evidence only tentatively suggested this possibility and in no way conclusively demonstrated improper action of the Board-the defense proceeded to solicit information about specific registrants. The highlight of the defense came when the Executive Secretary, during cross-examination, testified that there was at least one other registrant-a Mr. Dickman-who was classified I-O by Local Board No. 23, was older than Johnson, had taken (and presumedly passed) his physical examination, and yet was passed over when Johnson was ordered to alternative service. The Dickman evidence is skeletal and inconclusive, but the crucial testimony was as follows:

"Q. And he was older than the Defendant?

A. That's right.

Q. And under the regulations-

A. He went for a physical examination.

Q. Under the regulations he should have been called ahead of the Defendant, isn't that right?

A. I would have to check records but he took his physical examination."21

On the other hand, the Executive Secretary had repeatedly testified that Johnson was not taken out of sequence and that no other qualified registrant in the available pool had been passed over when Johnson was ordered to report for alternative service.

"Q. As I recall my question was at the time this Defendant was sent his order to report for work on September 20th, 1967 was he call in due course along with other registrants in that age group?

******

* * *

A. It was.

(TR 48-49).

******

* * *

A. At that time we just take them in order as they come. His number, we do not pass over, or we do not skip over them.

(TR 76).

******

* * *

Q. You would go through and select six men in class I-A and one person that was classified as I-O.

A. Provided he fell in order. We did not reach and get him, he had to fall in sequence, he had to fall in order.

Q. And you followed that procedure, notwithstanding the notice from the Selective Service System only asked for a I-A, is that right, is that right?

A. That's right.

(TR 78).

******

* * *

A. No, we would not substitute, we went right down the line in order, he had to fall in sequence. We took the oldest man's date of birth and when we came to him and he was a I-O, he was ordered to work in lieu of induction, but he was not pulled out of order.

(TR 79).

******

* * *

Q. Now its true isn't it that the relationship of the Defendant's civil rights activities passed to his selective service status is the question of whether or not he ought to be placed in classification of I-AO, so he could be inducted in the next call isn't that right?

A. If that was in sequence, if that was in sequence he would not have been called at all unless he was in sequence.

(TR 96).

******

* * *

Q. And your purpose here was to arrange, to organize the early induction of the registrant was it not?

A. Oh no indeed, we did not arrange the early induction of the registrant.

Q. But if he had been classify as I-AO-

A. He would have been ordered just like any other registrant, in sequence.

(TR 96).

******

* * *

Q. But there were older registrant who had been found accepted?

A. Not in class I-O.

Q. What about in class I-AO or I-A?

A. I would have to go back and check my records, but as far as I can remember there were none.

(TR 101).

******

* * *

A. We have available pool of I-A men and when we receive a call at that time we take the oldest one first and come right down the line in sequence, and that is the way we would do.

(TR 101).

******

* * *

A. When we reached him we ordered him in order.

(TR 102).

At this point, it became a jury question. The jury could credit the Executive Secretary's testimony to the effect that Johnson was not taken out of order, or it could infer from the testimony about Dickman and the evidence of the letters in Johnson's file that the order to report for alternative service was not duly and lawfully issued. The trial Court carefully instructed the jury on this element of the offense, twice charging the jury that if the Government failed to carry its burden to prove beyond a reasonable doubt that Johnson's order to call was regular and lawful, it must acquit him.

"Now you will thus be called upon to decide, (1) as to whether or not the Defendant was called up ahead of older previously qualified conscientious objectors or was called in regular order in his classified category or not. The Defendant contends that he was called out of order and you will decide from the evidence in the case whether he was or was not called out of order. The burden of proof is upon the government to prove that he was not called out of order."

"I charge you that should you find from the evidence at the time the Defendant was ordered to report for civilian service as a conscientious objector that other registrants older than the Defendant and who were classified I-O and had been previously found acceptable were passed over that you must acquit the Defendant."22

Moreover, the charge did not include a presumptive instruction giving the Government any advantage on this issue. The jury had to weigh the direct and circumstantial evidence and determine whether or not the Government had discharged its burden of proving, beyond a reasonable doubt, that Johnson had been taken in the proper sequence. They having done so and having found that the order of call was regular (as is inferentially manifest by the verdict) this Court will not set that jury verdict aside. It requires no citation of authority to hold that a jury, fully and properly instructed has the exclusive responsibility to resolve issues of fact created by conflicting evidence and inferences. Not only will appellate Judges not assume the roles of super-draft boards, super-school boards, super-prison administrators, or super-legislators, we are also constitutionally prohibited from anointment as super-jurors.

As a final substantive argument Johnson asserts that the exclusion of Blacks from local Selective Service Boards in Mississippi deprived him of due process of law in violation of the Fifth Amendment and 50 U.S.C.A. App. Sec. 455(a). The record contains a stipulation that at no time during Johnson's lifetime has any member of the Black race served on Local Board No. 23 in Grenada, Mississippi, or on any of the Appellate Boards of the State of Mississippi.

Although we have withheld decision in this case awaiting action by this Court en banc in United States v. Lemmons, No. 29149; United States v. Adams, No. 30868; and Smith v. Leach, 5 Cir., 468 F.2d 624, as well as other cases consolidated therewith which have now been disposed of without reaching this question, the simple answer in Johnson's case is that Johnson can show no prejudice from the alleged discriminatory practices because he received from the Board the precise classification which he requested-I-O. This washes it all out. He has nothing to complain about because he got all that he asked for, could have received or could have wanted even if the draft board had been composed exclusively of members of his race.

Johnson also alleges that the judgment of conviction must be vacated by reason of the District Court's pronouncement of sentence immediately upon receipt of the jury verdict and the Court's refusal to have a presentence investigation conducted as the Defendant had specifically requested. Of course, so long as the sentence is within the statutory limits, we give very great if not controlling deference to the discretion of the trial Judge. Thomas v. United States, 5 Cir., 1966, 368 F.2d 941; Mount v. United States, 5 Cir., 1964, 333 F.2d 39, cert. denied, 379 U.S. 900, 85 S. Ct. 188, 13 L. Ed. 2d 175; Herman v. United States, 5 Cir., 1961, 289 F.2d 362, cert. denied, 368 U.S. 897, 82 S. Ct. 174, 7 L. Ed. 2d 93. While it is not the function of this court to review the length of sentences imposed by district courts, it is observed that the appellant has served a substantial part of his period for alternate service. He expressly requested a pre-sentence report and gave some indication of his willingness to work in other Mississippi hospitals. The defendant was sentenced to the statutory maximum immediately after the jury returned its verdict. Under the provisions of Rule 35 F.R.Crim. P. the district court may reduce the sentence within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment on appeal. Needless to say, the reduction of a valid sentence after affirmance is within the discretion of the trial court. Substantial time has elapsed since the appellant was sentenced. Considerations based on compassion and mercy are to be determined by the trial court. We are confident that the distinguished trial judge in this case will give due consideration to all legitimate factors to be considered if a reduction in sentence is sought. See Lott v. United States, 5 Cir., 1962, 309 F.2d 115, 126.

AFFIRMED.