United States v. Coon, Cr. 49-57.

• Decision Date: 01 July 1957
• Docket Number: No. Cr. 49-57.,Cr. 49-57.
• Parties: UNITED STATES of America, Plaintiff, v. Wane William COON, Defendant.
• Court: U.S. District Court — District of Utah

153 F. Supp. 96

UNITED STATES of America, Plaintiff, v. Wane William COON, Defendant.

No. Cr. 49-57.

United States District Court D. Utah, Central Division.

July 1, 1957.

A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, C. Nelson Day, Asst. U. S. Atty. for Dist. of Utah, Salt Lake City, Utah, for plaintiff.

Gayle Dean Hunt, Salt Lake City, Utah, for defendant.

CHRISTENSON, District Judge.

The defendant, Wane William Coon, was charged by indictment¹ with violation of 50 U.S.C.A.Appendix, § 462(a), to which he entered a plea of not guilty. Immediately preceding the trial he was permitted to withdraw this plea in order to interpose a motion to dismiss the indictment, which was made upon the following alleged grounds: (1) For want of jurisdiction of the Court to prosecute the defendant because the offense, if any, was committed in the State of South Dakota and not in Utah; (2) that the defendant was denied due process in that the local board in forwarding his file to the state board of appeal submitted to that board a summary containing prejudicial arguments, all without notice to the defendant, opportunity for hearing, or opportunity to present his arguments for reclassification, and that as a consequence, his appeal was denied; (3) that the order to the defendant to report for work in Utah was void because its regular form was altered to have him report directly to the hospital rather than to report for further orders to the local board.

Defendant's motion was denied. His plea of not guilty was renewed. In writing he waived trial by jury in accordance with Federal Rules of Criminal Procedure, rule 23(a), 18 U.S.C.A. Trial has been had before the Court to which the defendant has again submitted upon the testimony and exhibits received the foregoing contentions as well as the contention that there is no competent evidence to support the determination of the local and appeal boards that he was not a minister within the exemption provided by 50 U.S.C.A.Appendix, § 456(g).

The proceedings of the local board with respect to this registrant were extensive. Some forty-eight separate letters, meetings, or other actions are reported in the minutes received in evidence, and the file of documents is thick. It seems enough to note generally here, before turning to the specific matters involved in the defendant's contentions, that on September 5, 1951 the defendant submitted to Local Board No. 14, Winner, South Dakota, a classification questionnaire in which he represented himself to be not physically or mentally disqualified for service in the Armed Forces; he was, on September 12, 1951, by the local board classified as I-A; on July 9, 1952 he was reclassified as III-A (hardship) because of dependents; on January 13, 1954 the classification I-A was reinstated; on February 11, 1954 he was again classified as III-A; on February 26, 1954 he was ordered to report to the local board for Armed Forces physical examination on March 8, 1954; on the latter date a report of such examination was made; a "certificate of acceptability" for service was filed with the local board on March 10, 1954; on July 14, 1954 he was reclassified as I-A, and on June 24, 1955, by action of the State Board of Appeal, he was reclassified as I-O (conscientious objector) by reason of which latter classification he was ordered to report to the Salt Lake County General Hospital, which he failed to do.

Now, more in detail concerning the facts on which a decision in this case must turn: In the answer to the original classification questionnaire, the defendant indicated that he had a conscientious objection to war, and he later filled out the special form for conscientious objectors. No evidence was submitted to the board for this classification and the claim was rejected as "not substantial". In 1954, after he had been advised that by reason of his brother's return from the Army, he could not be continued in the hardship category, he requested a change of classification from I-A to IV-E (an obsolete designation but intended to refer to the classification now known as IV-D.)²

On July 21, 1954, he wrote a letter to the local board at Winner, South Dakota, requesting the re-opening of his classification and asserting that he was entitled to classification as a conscientious objector and as a minister and also that he was still entitled to a III-A classification because there had been no change in his dependents since 1952.³ As a result of this letter the question of his classification was opened, but a ruling was made and noticed retaining the defendant in I-A. Thereafter, a letter was received from the registrant dated August 20, 1954 requesting a change of classification, and on September 24, 1954 the board notified the defendant that his request for change of classification had been interpreted as a request for appeal and that his file was being transmitted to the state board of appeal. On September 24, 1954 the local board forwarded to the state board a "summary" of the record of the local board and also transmitted its file.

The Court has carefully examined this summary and has concluded that it was clearly factual and fair, with the possible exception of the following language which will be discussed hereinafter: "It appeared he did not care which classification he received as long as he was not drafted."⁴ In a letter dated August 12, 1954 to the defendant, transmitting notice of classification as I-A, the statements later contained in this summary, with the exception of the sentence quoted immediately above, were reported to the registrant as reasons for the board's action.

On June 24, 1955 the file was returned from the board of appeal to the local board with a minute showing that the defendant had been reclassified as I-O, the action of the board of appeal being unanimous. The defendant was duly notified of this classification.

Repeated extensions of time were granted for the defendant to obtain civilian employment acceptable to the board, he having indicated that he was endeavoring to find work that would be suitable. Finally, the board was insistent that he attend a meeting to bring the matter of employment to a head. On December 7, 1955 the defendant notified the board that it was impossible for him to attend such a meeting. He was then residing in Nampa, Idaho. On May 14, 1956 the local board advised the defendant by letter that it did not consider that the information he had submitted in April, 1956 concerning his health and family obligations justified the opening of his case and it transmitted to him a standard application form for work at the Salt Lake County General Hospital at Salt Lake City, Utah. Request was made by the local board that he apply for employment there and he was advised "that if you fail to do so you will be ordered to a suitable position in accordance with the Selective Service Regulation." On June 25, 1956 the defendant completed the application form and returned it to the hospital. He listed therein his "trade of (sic) occupation" as "Dairyman", and "type of work wanted" as "Janitor". Under "previous employment" he listed only "Pacific Fruit Express, Nampa" and "Dairy farming — Own Place." He listed as his religion "Jehovah's witnesses."

On October 23, 1956 there was issued and mailed to the defendant by the local board an "Order to report for civilian work * * *." From the regular printed form (SSS Form 153) there was stricken out the usual direction to report in the first instance to the local board for further instructions to proceed to the place of employment, and the following was inserted: "You are ordered to leave Nampa, Idaho in sufficient time to enable you to report to the hospital named above on the 9th day of November, 1956."⁵

The evidence without doubt establishes, and the Court finds, that the order to report to the Salt Lake County General Hospital was received by the defendant and that he knowingly and wilfully failed to comply with that order.

Under date of November 5, 1956 he did write to the board again requesting a reopening of his case.⁶ This letter, however, was not received by the board until November 13, 1956 which was four days after he was ordered to report to the hospital. Defendant's testimony leaves no room for doubt that he refrained from reporting because of his view that he should not submit to the order. The only possible bearing the letter could have would be to lend color to his present contentions that if he had been directed to report in the first instance to the local board rather than directly to the hospital, a physical examination there might have resulted in a reopening of his case or an authorized delay in proceeding to the hospital. No evidence was offered at the trial to substantiate such possibility, but the matter will be further noticed in a discussion of the change in the printed form.

I adhere to my pro forma ruling prior to the trial that the indictment states an offense within the jurisdiction of the Court and is sufficient as against the motion to dismiss interposed by the defendant. A similar conclusion is reached on the evidence, that venue was properly laid in the District of Utah within which the hospital is located. So much is settled by Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097; see also United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529.

It was proper for the local board to prepare a summary for submission to the appeal board with the file. Such a summary is intended primarily to cover information considered by the local board which does not appear in the written information on file. § 1626.13 of the Regulation, Title 32, C.F.R. p. 333. A prior regulation, Regulation 627.13, mentioned in United States ex rel. Kulick v. Kennedy, D.C.D.Conn.1946, 66 F.Supp. 183; Id., 2 Cir., 157 F.2d 811, reversed on other grounds 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, rehearing denied 332 U.S. 785, 68 S.Ct....