215 F.2d 210 (2nd Cir. 1954), 268, United States v. Vincelli

Docket Nº268, 23071.
Citation215 F.2d 210
Case DateAugust 17, 1954
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 210

215 F.2d 210 (2nd Cir. 1954)




Nos. 268, 23071.

United States Court of Appeals, Second Circuit.

August 17, 1954

Argued June 8, 1954.

Rehearing Denied Nov. 9, 1954. See 216 F.2d 681.

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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.

CHASE, Chief Judge.

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

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so and on February 19, 1951, a certificate showing his physical fitness for military service...

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