United States v. Case, 23655-4.

• Decision Date: 16 May 1972
• Docket Number: No. 23655-4.,23655-4.
• Citation: 344 F. Supp. 169
• Parties: UNITED STATES of America, Plaintiff, v. Robert Cutler CASE, Jr., Defendant.
• Court: U.S. District Court — Western District of Missouri

344 F. Supp. 169

UNITED STATES of America, Plaintiff, v. Robert Cutler CASE, Jr., Defendant.

No. 23655-4.

United States District Court, W. D. Missouri, W. D.

May 16, 1972.

COPYRIGHT MATERIAL OMITTED

Wendell K. Smith, U. S. Asst. Dist. Atty., Kansas City, Mo., for plaintiff.

H. Jackson Zinn, Mission, Kan., for defendant.

MEMORANDUM AND ORDER ENTERING JUDGMENT OF ACQUITTAL

ELMO B. HUNTER, District Judge.

The defendant, Robert Cutler Case, Jr., is charged by indictment returned January 12, 1972, with a violation of the provisions of Title 50 Appendix, U.S.C. § 462(a)¹ in his refusal to submit to induction into the Armed Forces of the United States on or about November 15, 1971, as ordered by Local Board No. 33, Olathe, Kansas. On January 21, 1972, defendant tendered a plea of not guilty to the charge set forth in the indictment. On March 23, 1972, this cause came before the Court for trial. At that time, after having been fully advised by his counsel and the Court with regard to his constitutionally-protected right to jury trial, defendant waived jury trial and this case was tried to the Court without jury. Defendant and the Government further waived the right to request any specific findings of fact as provided by Rule 23(c), F.R.Crim.P. This matter is presently before the Court upon defendant's motion for judgment of acquittal and plaintiff's counter-motion for judgment of conviction.

FINDINGS OF FACT

The majority of the facts of this case are undisputed by the parties, and they have entered into the following factual stipulation:

1. The Selective Service file of the defendant submitted to the Court from Selective Service Board No. 33, Johnson County, Olathe, Kansas, is the authentic, full and complete file of the registrant, Robert Cutler Case, Jr.

2. That the defendant received an order on or about February 23, 1971, ordering him to report for induction into the Armed Forces of the United States, and to report at the Armed Forces Induction Station, 2420 Broadway, Kansas City, Missouri, on March 8, 1971 at 6:00 a. m.

3. On March 8, 1971, the defendant submitted an application requesting transfer of his Selective Service records from Local Board 33, Olathe, Kansas, to Local Board 9, Boulder, Colorado, by signing SSS Form 230, titled "Transfer for Armed Forces Physical Examination or Induction."

4. The Selective Service records of the defendant were transferred to Local Board 9, Boulder, Colorado, on March 11, 1971.

5. On the 15th of March, 1971, the defendant requested Local Board 33, Olathe, Kansas, to forward him the forms necessary to file as a conscientious objector, and on April 13, 1971, the defendant completed SSS Form 150 requesting classification as a conscientious objector and returned the request to Local Board 33, Olathe, Kansas.

6. On March 15, 1971, Local Board 33, Olathe, Kansas, mailed to the defendant an SSS Form 264, titled "Postponement of Induction," wherein the induction date of March 8, 1971, was postponed until the Board could review the defendant's completed SSS Form 150, Claim for Conscientious Objector.

7. On April 20, 1971, Local Board 33 considered the claim of conscientious objection submitted by the defendant and did not reopen his file pursuant to 32 CFR 1625.2, the Local Board finding no change in status resulting from circumstances over which the registrant had no control.

8. On April 21, 1971, Local Board 33, Olathe, Kansas, notified the defendant by letter to report for induction on May 3, 1971, at the Armed Forces Induction Station, 2420 Broadway, Kansas City, Missouri, at 6:00 a. m.

9. That the defendant received an order on or about April 30, 1971, ordering him to report for induction into the Armed Forces of the United States and to report at the Bus Station, 1765 14th Street, Boulder, Colorado, on May 25, 1971, at 5:50 a. m.

10. That on May 25, 1971, at the Armed Forces Examination and Entrance Station, Denver, Colorado, when the defendant's name and service was called he failed and refused to submit to induction, and this he did after he was informed that such refusal constituted a violation of the Military Selective Service Act of 1967.

11. That the defendant received an order on or about October 15, 1971, ordering him to report for induction into the Armed Forces of the United States and to report to the Armed Forces Induction Station, 2420 Broadway, on November 15, 1971, at 6:45 a. m.

12. After having received the order to report for induction, the defendant appeared at the Armed Forces Induction Station, 2420 Broadway, Kansas City, Missouri, on November 15, 1971, but when his name and service were called he refused to submit to induction, and this he did after being advised that such refusal was a violation of the Selective Service Act of 1967.

13. That between the dates of February 22, 1971, and November 15, 1971, inclusive, the Selective Service file of the registrant was not reopened by Local Board 33, Olathe, Kansas, or Local Board 9, Boulder, Colorado, nor has any Board subsequently reopened the file and reconsidered the defendant's classification.

14. If the defendant were called as witness he would testify that he is conscientiously opposed to participation in war in any form, that his belief is based upon religious training and belief.

Other than the defendant's Selective Service file submitted to the Court by Stipulation No. 1 above, the only other evidence before the Court is the testimony of defendant's witness, Grace E. Myers, Executive Secretary of the Selective Service Local Board No. 33, Olathe, Kansas. Mrs. Myers' testimony related to procedures followed by Local Board 33. Her testimony has been carefully reviewed by the Court and will be referred to where pertinent.

In addition to the factual stipulation, the parties have submitted issues of law for decision. It is agreed that:

"The basic legal issue is whether or not the induction order issued February 22, 1971, created a continuing duty on the part of the defendant to report for induction up to and including the date of November 15, 1971."

In determining this basic issue, the parties have submitted legal sub-issues to be determined. These sub-issues will be dealt with in the order submitted.

(1) Whether or not the induction order issued on February 22, 1971, expired of its own weight after 120 days.

Defendant has not cited, and the Court has not found any statutory authority imposing a time limitation on the validity of an Order to Report for Induction into the Armed Forces. Section 1632.2(a) of 32 CFR does not impose a time limitation, but merely limits the power of the Local Selective Service Board to grant a formal postponement of induction to 120 days.² This regulation in no way purports to limit the operative effect of the Induction Order itself. United States v. Wagner, 292 F. Supp. 1 (W.D.Wash.1967), aff'd 403 F. 2d 1 (9th Cir. 1968). Furthermore, by providing that the Director of Selective Service or any State Director may, for good cause, postpone an induction indefinitely, with no time limitation, Section 1632.2(a) implies that an Order to Report for Induction remains valid until cancelled by the Local Board or higher authority. See: Zerillo v. Local Board No. 102, 440 F.2d 136, 140 (8th Cir. 1971).³ Thus, the Court finds that the Order to Report for Induction issued to defendant on February 22, 1971, did not expire of its own weight prior to November 15, 1971.

(2) Was the Order to Report for Induction issued on February 22, 1971 postponed in violation of 32 CFR § 1632.2(a).

A review of defendant's Selective Service file reveals that the Induction Order of February 22, 1971 was postponed formally only once. This postponement occurred on March 15, 1971, and defendant was notified as to the postponement on SSS Form 264 as required by 32 CFR § 1632.2(b).⁴ Under this Form 264 order, defendant's induction was "Postponed until SSS 150 form completed, returned and reviewed by local board." On April 21, 1971, Local Board 33 notified defendant that he was to report for induction on May 3, 1971 (within 60 days of the postponement). Because of defendant's earlier request for transfer to Local Board 9, Boulder, Colorado, that board notified him to report on May 25, 1971.

It is settled that if the postponement does not exceed 120 days, a postponement "until further notice" does not cancel the order to report for induction. United States v. Whalen, 451 F.2d 755 (8th Cir. 1971); United States v. Watson, 442 F.2d 1273 (8th Cir. 1971); United States v. Martinez, 427 F.2d 1358 (9th Cir. 1970), cert. den. 400 U.S. 879, 91 S.Ct. 122, 27 L.Ed.2d 117 (1970); Parrott v. United States, 370 F.2d 388 (9th Cir. 1966). See also: United States v. Newman, 297 F.Supp. 678 (C. D.Cal.1969). In the instant case, the defendant was sent the appropriate Form 264 and thus the circumstances herein can be distinguished from Liese v. Local Board No. 102, 440 F.2d 645 (8th Cir. 1971).

The short delay in induction from May 3 to May 25, was due to the defendant's transfer application and was not a formal postponement governed by Section 1632.2, and did not require a Form 264 notice of postponement under that section. Rather, the delay in induction due to defendant's transfer to Local Board 9 in Boulder, Colorado, is governed by 32 CFR § 1632.9(g) which does not require that a short delay in induction due to transfer be transmitted to the inductee by a Form 264 postponement order.⁵ A review of defendant's Selective Service file reveals that the requirements of Section 1632.9(g) were complied with by Local Board 9, Boulder, Colorado by its mailing of SSS Form 253 to defendant.

Unlike the case of United States v. Abernathy, 334 F.Supp. 1201 (D.Colo.1971), cited by the defendant in support of his contentions, Local Board 33, in the instant case, complied with all pertinent regulations and the Transfer Board No. 9 complied with Section 1632.9(g). See: United States v. Dannehy, 437 F.2d 341 (9th Cir. 1971). When...