United States v. Vincelli
| Decision Date | 17 August 1954 |
| Docket Number | Docket 23071.,No. 268,268 |
| Citation | 215 F.2d 210 |
| Parties | UNITED STATES v. VINCELLI |
| Court | U.S. Court of Appeals — Second Circuit |
Hayden C. Covington, Brooklyn, N. Y., for defendant-appellant.
J. Edward Lumbard, U. S. Atty., Boudinot P. Atterbury, Asst. U. S. Atty., New York City, of counsel, for plaintiff-appellee.
Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.
Rehearing Denied November 9, 1954. See 216 F.2d 681.
The appellant was tried by court, a jury having been duly waived, in the District Court for the Southern District of New York on an indictment in one count charging his violation of the Universal Military Training and Service Act, Title 50 U.S.C.A.Appendix, § 462, by willfully refusing to submit to induction into the armed forces of the United States. He was convicted and sentenced to imprisonment for two years. This appeal is from that judgment.
The appellant relies for reversal upon two contentions, (1) that he was given a final classification of 1-A on evidence insufficient to support that and, (2) that his local board denied him procedural due process in refusing to reopen his case and reclassify him IV-D in the light of additional evidence which he offered without giving him notice of such refusal.
The appellant registered with Local Board No. 47, in Brooklyn, N. Y., in 1948 and in due course filled out and filed a classification questionnaire in which there was nothing to indicate that he was entitled to deferment. On December 12, 1950, he was classified 1-A and given notice of that.
Although the local board was unaware of it at the time the appellant was so classified, he had, according to the new evidence upon which he based his request for reopening, been visited in the spring of 1950 by a minister of the sect known as Jehovah's Witnesses and had soon after begun a study of the bible with members of that sect. His interest in the theological beliefs of Jehovah's Witnesses increased to the point of conviction and he became a member, receiving his baptismal immersion on August 13, 1950. Thereafter he preached from door to door, conducted home bible studies, and was active in congregational meetings. He had previously been employed at full time secular work but quit that job and took a part time one in order to devote most of his energies to religious activity.
After he received notice of his 1-A classification, he wrote a letter, dated December 26, 1950, to his local board in which he set forth his reasons for being given a ministerial, or conscientious objector, status and added: "I hereby appeal my 1-A classification for the above mentioned reasons — and would prefer a IV-D classification." He sent with this letter a signed statement of the minister in charge of the Bushwick Congregation of Jehovah's Witnesses which testified to the appellant's membership, and to his extensive activity, in the sect.
After his local board received this letter, it sent him SSS Form No. 150, a special conscientious objector form, which he filled out and returned on January 9, 1951. In that and accompanying papers he supplied the information that he had summarized in his letter and stated his beliefs and the creed of Jehovah's Witnesses as to temporal warfare. Without giving the appellant an opportunity to appear and be heard, the board unanimously voted not to reopen his classification and sent the file to the Appeal Board without giving the appellant notice of that action.
Thereafter his case was treated as on appeal and on March 21, 1951, the Appeal Board made a preliminary determination that the appellant was not a conscientious objector and was not entitled to exemption as a minister. The case was then referred to the Department of Justice for investigation and hearing. Meanwhile on February 14, 1951, his local board ordered him to take a pre-induction physical examination. He did so and on February 19, 1951, a certificate showing his physical fitness for military service was issued.
The appellant appeared before a hearing officer of the Department of Justice on July 26, 1951, pursuant to notice, and was then heard and examined for the first time since he had written his letter of December 26, 1950, to his local board. The hearing officer filed a report in which he outlined the claims of the appellant for deferment and recommended that the "registrant be retained in Class 1-A." This report and recommendation was reviewed by a special assistant to the Attorney General who concurred in the recommendation and so informed the Appeal Board which, on November 28, 1951, classified the appellant 1-A, having denied his claims both to conscientious objector status and to ministerial exemption. The file was on December 5, 1951, returned to the local board, which notified the appellant of his 1-A classification on the same day. He was notified on December 14, 1951, to appear for induction on January 8, 1952, and he then requested a postponement of induction which was granted on January 5, 1952. On January 25, 1952, he was notified to report for induction on February 15th and did so but refused to be inducted and filed a letter of protest with the local board. No further action was taken in respect to him until April 22, 1953, when he was again ordered to report for induction, this time on May 4, 1953. On that date he did report, but again refused to be inducted. That refusal resulted in his indictment and conviction.
We shall first consider the appellant's contention that the local board denied him procedural due process when it failed to give him notice of its refusal to reopen his classification following its receipt of his letter of December 26, 1950, and when it treated that letter as an appeal by him and, without notice to...
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