United States v. Jenkins, 71-CR-1315.

• Citation: 349 F. Supp. 1068
• Decision Date: 03 November 1972
• Docket Number: No. 71-CR-1315.,71-CR-1315.
• Parties: UNITED STATES of America v. Ronald S. JENKINS, Defendant.
• Court: U.S. District Court — Eastern District of New York

349 F. Supp. 1068

UNITED STATES of America v. Ronald S. JENKINS, Defendant.

No. 71-CR-1315.

United States District Court, E. D. New York.

October 24, 1972.

As Amended November 3, 1972.

Robert A. Morse, U. S. Atty., Paul Warburgh, Asst. U. S. Atty., Brooklyn, N. Y., for the United States.

James S. Carroll, New York City, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TRAVIA, District Judge.

This action having come on to be heard before this court on the 3rd day of October, 1972, and the defendant having, by duly executed stipulation approved by this court, waived a trial by jury, Court Exh. #1, and the evidence of the parties having been adduced, and the attorneys for the parties having submitted their pretrial and post trial memoranda and upon all the papers on file in this action, and after due deliberation this court hereby makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The defendant, Ronald S. Jenkins, is charged in a one count indictment with violation of 50 U.S.C. App. § 462(a), for failure to comply with an induction order to report and submit to induction into the Armed Forces.

2. Defendant registered with Local Board No. 50, Brooklyn, New York, on September 23, 1966.

3. On October 19, 1966, the defendant was placed in Class 2-S by the Local Board and such classification remained on an annual basis until November 18, 1970, when he was placed in Class 1-A by the said Local Board No. 50.

4. On January 20, 1971, the defendant was given a pre-induction physical at the Armed Forces Examination and Entrance Station, and was found to be medically qualified for induction.

5. On February 4, 1971, the Local Board mailed to defendant an SSS Form 252, an Order to Report for Induction, wherein the defendant was ordered to report for induction on February 24, 1971.

6. On February 17, 1971, after receiving his induction notice, the defendant wrote to the Local Board and requested SSS Form 150 for a conscientious objector classification.

7. On February 23, 1971, the defendant went in person to the Local Board and requested Form 150. He was advised to write a short statement as to his beliefs, which he did, and he was told to report for induction on the next day because his request for a postponement of his induction had been denied.

8. The defendant did not report for induction on February 24, 1971.

9. The defendant's SSS Form 150 was received by the Local Board on March 30, 1971.

DISCUSSION

The essence of the defendant's defense is that at the time of his alleged commission of the crime, viz., his refusal to submit to induction, the law of the Second Circuit was such that he was entitled to a postponement of his induction to enable the Board to pass on the merits of his claim for C.O. status. Defendant contends that the failure of the Board to grant such a postponement and hearing was clearly a "lawless" act under the circumstances.¹

In the case at bar, the defendant went to the Local Board and requested a Form 150 on February 23, 1971. At that time, he was asked to write a short note which not only requested the Form 150, but which also set out the basis for his claim. This court is of the opinion that this written note fulfilled the requirement of 32 C.F.R. § 1625.2, so that the "Board may reopen the classification."

At the time the defendant Jenkins was to be inducted into the Armed Forces, the opinion in the case of United States v. Gearey² had construed the meaning of § 1625.2 for the court. The defendant in that case had similarly requested conscientious objector status after he had received his order to report for induction. He was convicted in the Federal District Court after refusing to take the symbolic step forward, but the United States Court of Appeals, Second Circuit, vacated the judgment of conviction and remanded the case to the District Court for further action.

In Gearey, the court did not hesitate to squarely face the issue of whether a person could be classified as a conscientious objector by the board if his views crystallized after he had received his induction notice. The court concluded:

"The long history of exempting conscientious objectors, coupled with the specific statutory right of appeal, indicate to us a strong Congressional policy to afford meticulous procedural protections to applicants who claim to be conscientious objectors, and indeed to grant deferments in appropriate cases. Implementation of that policy requires that any individual who raises his conscientious objector claim promptly after it matures—even if this occurs after an induction notice is sent but before actual induction—be entitled to have his application considered by the Local Board. In light of this, the Local Board must first determine when an applicant's beliefs matured. If the Board properly concludes that the claim existed before the notice was sent, the classification may not be reopened. If the Board finds, however, that the applicant's beliefs ripened only after he received his notice, and that his beliefs qualify him for classification as a conscientious objector then a change in status would have occurred `resulting from circumstances over which the registrant had no control,' and he would be entitled to be reclassified by the Local Board."³ (Emphasis added.)

It is clear that in the instant case, the defendant Jenkins raised his claim during the period when Gearey was controlling in this circuit.⁴ However, the local board did not consider Jenkins' claim, as provided for under Gearey, and he was denied a postponement of his scheduled induction. The defendant Jenkins did not report for induction on February 24, 1971, and it is for that reason that he is before this court under indictment.

The defendant urges that the "lawless" action of the Board, in not considering his claim, should not be a basis for penalizing him, for he had been "acting consistently with applicable decisional law." The Government, in their original memorandum, maintained that the case of United States v. Ehlert, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), is retroactive, and "the local board need not consider post-induction conscientious objector claims." More recently, the Government in an effort to supplement their original argument of retroactivity, contends that the ruling in Gearey was clearly erroneous and as such the local boards were not obligated to follow its mandates. Such a ruling has not been made in the Second Circuit.

This court is aware that from April 21, 1971, the day Ehlert was decided, the Local Selective Service Boards do not have to entertain claims allegedly arising within the period between the mailing of a notice of induction and the scheduled induction date. The Government, in an effort to support their contention that the local board was not bound by Gearey, refers this court to the following cases: Capobianco v. Melvin Laird;⁵ United States v. Nordlof, 454 F.2d 739 (7th Cir. 1971); United States v. Collins, 445 F.2d 653 (9th Cir. 1971); United States v. Hand, 443 F.2d 826 (9th Cir. 1971); United States v. Kilby, 446 F.2d 1002 (5th Cir. 1971); and United States v. McKee, 446 F.2d 974 (4th Cir. 1971). Significantly, only one of the above mentioned cases was decided in our circuit and this court will, therefore, rely primarily on that case.

In Capobianco, supra, the Second Circuit initially applied the Gearey rule and thereby reversed an order of the district court which had denied an application from a member of the Armed Forces for a writ of habeas corpus. The applicant originally sought to have his conscientious objector claim considered by the Local Board, even though he had raised it after he had received his induction notice. The Court of Appeals for the Second Circuit, in light of Gearey, directed the district court to issue the writ. Thereafter, in a subsequent order, the same court reversed its earlier order and affirmed the district court's denial of a writ of habeas corpus. The basis of this subsequent order was the decision of the Supreme Court in the Ehlert case. While it appears that this second order lends support to the proposition that Ehlert is retroactive, we must not overlook the fact that Capobianco involved a soldier already in the Army who would not be subject to criminal penalties by the retroactive application of Ehlert.⁶ In the case at bar, the retroactive effect of Ehlert would be to render illegal the conduct of Jenkins, when at the time he pursued this course it was incumbent upon the local board to consider his claim prior to induction.

It is well settled, that where contrary rulings have been made in other circuits, this court would be permitted, in the absence of any decisional guidance from our own circuit, to chart its own course. However, the Gearey case was decided by our circuit and, therefore, this court is constrained to abide by its teachings. Further, even accepting arguendo that this court would follow the ruling of a foreign circuit, the Nordlof case, supra, would not be of any aid to the Government in its contention that Ehlert is retroactive. In that case, the settled law of the circuit at the time when Nordlof refused induction was that § 1625.2 did not allow post-induction notice claims to be heard by the Board.⁷ Thus, the defendant would not be prejudiced by a retroactive application of Ehlert, for it would only serve to affirm the settled law of the circuit. It cannot be overemphasized that the decisional law of this circuit, when Jenkins refused induction, was that the Board was obligated to entertain his claim and pass upon it. Similarly, the Collins, Hand, Kilby, and McKee cases, supra, all involved instances where Ehlert was not overturning the case law as it had previously existed in those circuits.⁸ Accordingly, those defendants would not be prejudiced, as the defendant Jenkins would be, by a retroactive application of Ehlert; when they refused induction they had not been...