United States v. Bruce, Crim. No. 70-92.

• Decision Date: 05 February 1971
• Docket Number: Crim. No. 70-92.
• Citation: 322 F. Supp. 363
• Parties: UNITED STATES of America, Plaintiff, v. Wendell Asbury BRUCE, Jr., Defendant.
• Court: U.S. District Court — District of South Carolina

322 F. Supp. 363

UNITED STATES of America, Plaintiff, v.Wendell Asbury BRUCE, Jr., Defendant.

Crim. No. 70-92.

United States District Court, D. South Carolina, Columbia Division.

February 5, 1971.

Joseph O. Rogers, Jr., U. S. Atty. for District of South Carolina, and Marvin L. Smith, Asst. U. S. Atty., Columbia, S. C., for plaintiff.

Jack McGuinn, Columbia, S. C., for defendant.

HEMPHILL, District Judge.

On May 7, 1970, the United States instituted this criminal action by filing the return of an indictment charging in two counts that the defendantWendell Asbury Bruce, Jr., unlawfully did violate the provisions of the Military Selective Service Act of 1967¹ and the Rules, Regulations and Directions duly made pursuant thereto, in that the defendant did wilfully fail and refuse to report for an Armed Forces physical examination on July 14, 1969, after having been ordered by his Local Selective Service Board(hereinafter called the Board) to so report, and the defendant did further wilfully fail and refuse to report for induction into the Armed Forces of the United States on October 6, 1969 after having been ordered to so report by his Local Board.

Upon Motion of the defendant, and with the consent of the United States, the defendant waived trial by jury and requested that he be tried by the court.His request was granted.Defendant entered a plea of not guiltyJune 3, 1970, and was tried by the court without a jury, at Columbia, South Carolina, on June 22, 1970, at which time he was represented by privately employed counsel.The trial consisted principally of Exhibits and Stipulations agreed upon between the parties, there being no apparent dispute as to the facts.

The parties hereto have filed briefs setting forth their respective legal positions and it now becomes the duty of the court to make special findings of fact and state its conclusions of law in accordance with the provisions of Rule 23(c) of the Federal Rules of Criminal Procedure.²After the trial before the court, counsel for defendant suffered an illness which incapacitated him.The court indulged, thus the delay in bringing the matter to a conclusion.

Upon the credible evidence before it, including a copy of pertinent parts of defendant's record before Selective Service System Local BoardNo. 40, Columbia, S. C., and other exhibits (none of which were objected to) constituting the record before the court, and in accordance with Rule 23(c)this court publishes its:

FINDINGS OF FACT

1.On December 28, 1964, Wendell Asbury Bruce, Jr., the defendant herein, timely registered with Local BoardNo. 40, Selective Service System, Richland County, South Carolina, (hereinafter referred to as the Board) in accordance with the provisions of the Universal Military Training and Service Act.³Upon application by the defendant,⁴ the Board granted him a student deferment (I-SH and II-S) from March 3, 1965 until June 17, 1969, the defendant during such period having completed a four-year college course and graduated from the University of South Carolina on May 31, 1969.

2.On June 15, 1969 the Board mailed a Current Information Questionnaire to defendant, and in reply to inquiry as to present occupation, wrote "none" but advised he was qualified to teach mathematics.On June 17, 1969, he was classified I-A by the Board, which, on June 19, 1969 mailed to him his Notice of Classification (SSS Form 110) and a form giving "Advice of Right to Personal Appearance and Appeal."Insofar as the record is concerned, he did not appeal and, on July 1, 1969, the Board mailed to the defendant an Order to Report for Armed Forces Physical Examination (SSS Form 223), ordering the defendant to report for an Armed Forces physical examination on July 14, 1969.⁵Defendant did not report as directed, nor communicate with the Board about his failure to report.

3.On August 1, 1969, the Board directed a letter to the defendant advising him that his failure to report for the physical examination made him guilty of a violation of the Military Selective Service Act of 1967 and if he did not immediately contact his Local Boardhe would be ordered for induction, and that failure to comply with such an Order would result in his prosecution.On September 4, 1969, the Board mailed to the defendant a Delinquency Notice (SSS Form 304), directing the defendant to report to his Local Board immediately with the notice that his failure to so report would render him subject to imprisonment and a fine.The defendant did not respond to the letter or to the Delinquency Notice.

4.On September 22, 1969, the Board mailed to the defendant an Order to Report for Induction (SSS Form 252), ordering the defendant to report for induction on October 6, 1969, at 8:00 A.M.It was stipulated at trial that the defendant received this Order and that he did not report for induction.

5.On the afternoon of October 6, 1969, the defendant⁶ placed a telephone call to personnel of the Local Board and inquired if the Local Board had received a letter from him in that day's mail.The defendant stated that the Local Board would receive a letter the following day, and he did not mention the contents of the letter.On October 7, 1969, the Board received a letter from the defendant, dated October 5, 1969(introduced into evidence and not denied), and the envelope containing the same was postmarked "October6, 1969 P. M."The letter set forth, inter alia, that the defendant refused to obey the Order to Report for Induction in that "You have no constitutional basis on which to demand my services and I have no moral basis on which to accept."⁷

6.The defendant has, at no time, appealed his classification.He has, at no time, requested a special form for conscientious objectors.He has never requested a conscientious objector status, nor has he requested any status other than that assigned to him by his Local Board.From the time that the defendant was classified I-A on June 17, 1969 until after his scheduled date and hour to report for induction, the defendant did not contact his Local Board and neither he nor anyone on his behalf submitted to his Local Board any information indicating that he desired a deferment or a change in classification.He has given no explanation for his faiure to report for an Armed Forces physical examination and his failure to report for induction, other than the letter, dated October 5, 1969.

7.It was stipulated that the defendant received the Order to Report for an Armed Forces Physical Examination and that he received the Order to Report for Induction.It was further stipulated that the defendant did not report for his physical examination and he did not report for induction,⁸ and that the Order to Report for Induction was not accelerated by the defendant's failure to report for his physical examination.⁹

8.There is no factual dispute in the record of this criminal prosecution.Defendant does not contend his failures were other than deliberate or willful.From the evidence before the court, direct and circumstantial, this court makes the finding of fact that the failures to report, as directed, were, beyond a reasonable doubt, deliberate and willful.The court finds as a fact that the letter of October 5, 1969 was not a claim for conscientious objection.

Upon these facts,¹⁰this court publishes its

CONCLUSIONS OF LAW

A.This court has jurisdiction of the cause and the subject matter.18 U.S.C. § 3231.¹¹

B.The court determines as a matter of law that defendant did willfully, knowingly and unlawfully violate the provisions of the Military Selective Service Act of 1967,¹² and the Rules, Regulations and Directives duly made pursuant thereto as to both counts of the indictment.He knowingly, willfully, did fail and refuse to report for the required physical examination on July 14, 1969, after having been ordered to do so by Local BoardNo. 40.Likewise, he did knowingly and willfully fail and refuse to report for induction as ordered by Local BoardNo. 40.

C.Had defendant met the test (standard) of a conscientious objector as propounded in United States v. Seeger¹³(1965), 380 U.S. 163, 176, 85 S.Ct. 850, 859, 13 L.Ed. 733, repeated and followed in United States v. Vlasits (1970), 422 F.2d 1267(4th Cir.), such would not be a defense in this action.Initially, the facts reveal that for four years, eleven months and seven days (December 28, 1964 to October 4, 1969)he remained silent as to his conscience or his objection.During such period his communications with the Local BoardNo. 40 never, at one time, claimed classification as a conscientious objector.More than three months elapsed after ordered to report for physical examination before the letter was written.After his induction, he wrote.At such late date Local BoardNo. 40 was not required to rescind its order to report.United States v. Helm, 386 F.2d 434(4th Cir.1967).Section 1625.2 of the Selective Service Regulations¹⁴ provides that once an Order to Report for Induction has been mailed to a registrant the classification of the registrant shall not be reopened "unless the Local Board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control."

D.The decided cases are consistent in holding that the defendant must pursue his administrative remedies within the Selective Service System and that a registrant is not entitled to have his Local Board reopen his classification where no claim is made until after he has failed to report or submit to induction.In United States v. Irons, 369 F. 2d 557(6th Cir.1966), the defendant was convicted of a wilful failure to report for an armed forces physical examination and a wilful failure to report for induction.The defendant had submitted information to his Local Board which would indicate that he was a conscientious objector.Upon receiving his Order to Report for a Physical...