United States v. Mercado, 838

• Decision Date: 10 May 1973
• Docket Number: Docket 73-1282.,No. 838,838
• Parties: UNITED STATES of America, Appellee, v. Ralph MERCADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

478 F.2d 1108 (1973)

UNITED STATES of America, Appellee, v. Ralph MERCADO, Defendant-Appellant.

No. 838, Docket 73-1282.

United States Court of Appeals, Second Circuit.

Submitted May 3, 1973.

Decided May 10, 1973.

George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and Richard J. Davis, Asst. U. S. Atty., of counsel), for appellee.

Steven J. Hyman, New York Civil Liberties Union, New York City, for defendant-appellant.

Before FRIENDLY, Chief Judge, HAYS, Circuit Judge, and JAMESON,^* District Judge.

PER CURIAM:

Appellant Ralph Mercado was ordered by his local draft board to report for induction on April 5, 1971. He appeared but refused induction despite being advised by induction center officials that this was a felony, claiming for the first time that he was a conscientious objector. Upon receiving notification that Mercado had refused to step forward on this ground, his local board prepared to consider his claim, as it was required to do under this court's decision in United States v. Gearey, 368 F.2d 144, 149-150 (1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), and sent him a notice to appear for a personal interview on May 12. On April 21, the Supreme Court handed down its decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), holding that Selective Service local boards need not reopen the classifications of registrants who first claim conscientious objector status after receipt of an order to report for induction. When Mercado appeared at his local board on May 12, the board, pursuant to a post-Ehlert local board memorandum, informed him that it could not consider his claim for conscientious objection, and set a new date, May 26, for him to report for induction. Mercado again refused induction; this prosecution and conviction ensued.

We see no merit in Mercado's claims on appeal. He first argues that the district court's finding that he was guilty of violating 50 U.S.C. App. § 462 (a) for refusing induction on May 26 was an impermissible variance from the indictment, which charged that he refused induction on April 5. But a refusal to submit to induction is a continuing violation of the statute, as appellant concedes, and the indictment here specifically charged that Mercado had refused to submit to induction "on or about the 5th day of April, 1971, and up to and including the date of the filing of this indictment, August 31, 1971." Indeed, Mercado was directed to report on May 26, not by a new order to report for induction, but by a letter which merely advised him that it was his continuing obligation to report for induction and set a particular date on which he could discharge this obligation.

Mercado also claims that the local board should have considered whether he was eligible for a ministerial exemption from military service. Yet Mercado never claimed this status. His claim on appeal is based solely on his use of the word "minister" in his application for conscientious objector status. Even if we were to assume that there is some obligation on a local board to consider a registrant for a classification which he has not requested if it becomes apparent that he may be eligible for it, it is well known, certainly to a draft board, that all members of Jehovah's Witnesses are known as "ministers" and that this alone is completely insufficient to establish a prima facie claim to the ministerial exemption. See, e. g., United States v. Pompey, 445 F.2d 1313, 1317-1318 (3 Cir. 1971). In any event, 32 C.F.R. § 1625.2 bars reopening of a registrant's classification after the mailing of an order to report for induction unless there has been a change in his status as a result of circumstances beyond his control, which is clearly not the case here. While the Court's decision in Ehlert, upholding the validity of this regulation as applied to claims of conscientious objection, is not strictly determinative of the issue of its validity here, since unlike the limited exemption from military service granted conscientious objectors, relied upon by the Ehlert Court, 402 U.S. at 102-103, 91 S.Ct. 1319, Congress has seemingly granted ministers complete exemption from service, 50 U.S.C. App. § 456(g), the Court's emphasis on the Selective Service System's need to make reasonable timeliness rules, 402 U.S. at 101-102, 91 S.Ct. 1319, is equally applicable, as is this court's reasoning in upholding the validity of this regulation in United States v. Gearey, supra, 368 F.2d at 149. See also United States v. Mohammed, 288 F.2d 236, 243 (7 Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 37, 7 L.Ed.2d 26 (1961); United States v. Whitaker, 395 F.2d 664 (4 Cir. 1968).

Indeed, Mercado's claims are so insubstantial that we would have affirmed his conviction from the bench but for fear that this might be taken as approving the district court's remarks that "No conviction could be had based on his April 5th conduct alone" because "Mercado either knew that...