United States v. Aull

Citation341 F. Supp. 389
Decision Date20 April 1972
Docket NumberNo. 71 Cr. 509.,71 Cr. 509.
PartiesUNITED STATES of America, v. Robert Edwin AULL, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, New York City, for United States of America; George E. Wilson, Sp. Asst. U. S. Atty., of counsel.

Kunstler, Kunstler & Hyman, New York City, for defendant; Steven J. Hyman, New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

The defendant, charged with willful refusal to submit to induction into the Armed Forces,1 waived trial by jury. Upon conclusion of the trial, the court granted the defendant's request for leave to submit briefs and reserved decision on his motion for judgment of acquittal.

The essential fact that the defendant intentionally and willfully refused to take the symbolic one step forward on April 7, 1971, when he reported and was found acceptable for induction is not in dispute. His assigned reason was that he was a conscientious objector. The defendant urges he is entitled to a judgment of acquittal upon two grounds: (1) that the failure of the Local Board and the Appeal Board to state adequately the reasons for denial of his application for conscientious objector classification (Class I-O)2 was a denial of due process of law; and (2) that the Local Board's failure to forward to the induction center a letter from a psychologist and one from a drug center in support of his claim of medical disqualification was prejudicial error and in violation of Selective Service regulations.

Upon a thorough review of each document in defendant's Selective Service file, full consideration of the trial testimony, the arguments and briefs of counsel, I find that the claims are without substance and that upon the entire record the government has sustained its burden of proof as to each essential element, and accordingly find the defendant guilty.

The defendant registered with his Local Board in November 1968. In completing his classification questionnaire, he made no claim that he was a conscientious objector and was classified I-A on April 16, 1969. Previously, in September 1968, he had entered Syracuse University and in November 1969 was granted a II-S student deferment,3 effective until September 30, 1970. Before that date, however, on June 25, he advised his Local Board he was leaving college and requested a conscientious objector classification. The Board promptly sent him the required form for conscientious objector application (SSS Form 150), which after some delay the defendant completed and returned to the Board on September 14, 1970. In answer to the inquiry as to the nature of his beliefs, he stated:

"I am a human animal born onto a planet with the right to freely pursue my own peace of mind. I have found that the purpose we all are here is to unite ourselves with the Lord. I repeat, I was born onto a planet not into a country.... Countries are something that narrow-minded men have created ... I cannot see myself risking my life (my most precious possession) fighting or helping an entity that truthfully does not exist!"

In explaining the source of his beliefs, he wrote:

"I cannot give a source other than my entire life leading up to the point where total understanding occurred to me. All I can say is that it was similar to having the universe dissolve into a pool of clear and endless light. This experience happened in April of 1970."

His wife of three months provided the only support for his claim in a letter which, in addition to setting forth her own objections to the war in Vietnam and condemning the current state of American society, corroborated in conclusory terms the defendant's "beliefs against war in any form, and all killings regardless of motivations.... He believes no motivations are justifiable for the destruction of another human being."

The Board granted the defendant a discretionary interview, which was conducted on October 7, 1970. At its outset a problem arose when the oath was administered to the registrant, to which he replied, "I will do the best I can." He sought to hedge his answers under oath "with a qualification requested," but said he had "no objections to telling the truth, but truth is something he cannot explain." He finally took an unequivocal oath when he was advised no interview would be granted if he "could not make up his mind to what reply was going to be given." He was told that any questions he did not understand would be clarified.

Aull testified that his thoughts had "firmed up" when he entered college (September 1968), but had been advised by the resident advisor there not to submit the SSS Form 150 at that time due to priority of draft eligibility. He stated that all wars were "pointless"; however, he would not commit himself as to whether a war is moral or immoral or justified. The file reflects that the four Board members who interviewed the defendant listened to him, considered the evidence in his file, discussed his case, and concluded: "There is no valid reason for granting him a C.O. status. He failed to convince us that he was an objector who is sincerely conscientious about his claim, as he was not sure as to just why he was applying for a C.O. status." Accordingly, by a vote of 4-0, he was classified I-A. Upon his appeal,4 the Appeal Board continued his I-A classification.

The Supreme Court recently summarized the essential requirements to sustain a conscientious objector claim:

"In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. And he must show that this objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S. Ct. 392, 99 L.Ed. 428."5

The Board found defendant had failed to meet the last requirement.

The court's power to review this finding is circumscribed. The Board's determination that the defendant was not entitled to conscientious objector classification must be upheld unless it is without basis in fact.6 The record indicates there was ample basis in fact for the Board's determination that the defendant was not sincerely conscientious about his claim. The Board members at the interview listened to the defendant and noted his own statement that he was not sure "just why he was applying for C.O. status."

The defendant's demeanor, his answers and any fact which cast doubt as to his veracity7 were factors that could properly be considered.8 At the outset of the interview, the defendant's attempt to restrict his answers, which the Board members deemed of sufficient significance to note in defendant's file, could lead them to believe that he was parrying, and that his answers were evasive or calculated. When the Board sought information which was relevant on the issue of sincerity, he declined to commit himself as to whether a war is moral, immoral or justified, preferring to rely upon his original and general characterization that all wars were "pointless". And that the defendant, afforded ample opportunity to explain the basis of his views, did not himself appear to know why he was applying for conscientious objector status, also justified the Board's questioning the sincerity of his professed views.9 In sum, his responses, whether they be deemed evasive, unsupportive of his professed beliefs, or unresponsive to proper inquiry, afforded a basis upon which the Board could rationally find that he was not "sincerely conscientious about his claim," particularly so since it had observed his demeanor and listened to his explanation of his beliefs.10

Other objective facts, while not specified by the Board, give added support to its finding of lack of sincerity.11 Upon defendant's own statement, his thoughts firmed up when he entered college in September 1968 and had crystallized by April 1970; yet he delayed asserting his convictions to the Board until he was leaving college and faced imminent loss of his II-S classification.12 Although he ascribed the delay to the advice of a resident advisor at college, no statement from the latter was offered.13 Also it is significant that the SSS Form 150 gave wide latitude for submission of references14 — whether parents, friends, associates, teachers, advisors, or any person or source to support his claim — yet not a single person was listed and, with the exception of his wife's, no letter was submitted attesting to his sincerity.15

While the defendant contends that the Local Board's statement of reasons was inadequate, the Board found the defendant's objection was not sincere and set forth a rational basis grounded upon the record and the defendant's appearance at the interview.16 The Board's expressed reason for its finding of disbelief provided a basis for meaningful administrative review by the State Appeal Board17 and judicial review to determine whether its finding had a basis in fact and was untainted by an erroneous legal standard. Due process requires no more.18 A draft board composed of laymen is not, nor should it be, required to make detailed findings of fact as courts are, nor should its conclusions be so scrutinized.19 Here the Board went beyond the definitive finding of insincerity and explicated its reason therefor. This clearly was sufficient.20

The defendant next contends he is entitled to an acquittal because of alleged procedural errors in the denial of his claim for medical disqualification. This was first advanced after his conscientious objector claim had been rejected by the Local Board and he was directed to report for a pre-induction physical examination...

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4 cases
  • United States v. Orr
    • United States
    • U.S. District Court — Southern District of New York
    • 11 Mayo 1972
    ...707 (1971). 15 Gillette v. United States, 401 U.S. 437, 443, 91 S.Ct. 828, 832, 28 L.Ed.2d 168 (1971). 16 See United States v. Aull, 341 F.Supp. 389, 394 n. 20 (S.D.N.Y.1972) and cases cited therein. Although Congress, in the 1971 amendments to the Military Selective Service Act of 1967, Pu......
  • United States v. Stewart
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 25 Abril 1973
    ...of reasons of the type usually expected of professionals well versed in legal requirements for administrative review, see United States v. Aull, 341 F.Supp. 389, 394, aff'd, 469 F.2d 151 (2d Cir. 1972). However, at the same time there have been those who have consistently expressed apprehen......
  • United States v. Cotton
    • United States
    • U.S. District Court — Southern District of New York
    • 3 Agosto 1972
    ...(1970); United States v. Mangone, 333 F.Supp. 932 (S.D.N.Y. 1971), aff'd in open court, 456 F.2d 1336 (2d Cir. 1972); United States v. Aull, 341 F.Supp. 389 (S.D.N.Y.1972); cf. United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970), cert. granted, vacated and remanded 405 U.S. 1013, 92 S.Ct.......
  • United States v. Aull, 193
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 14 Noviembre 1972
    ...physical. Accordingly, I most respectfully dissent and vote to reverse his conviction. 1 The opinion below is reported at 341 F.Supp. 389 (S.D.N.Y.1972). 2 Aull does not here renew his claim, rejected below, that the Board erred in denying his conscientious objector 3 This letter has since ......

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