United States v. Cotton

• Decision Date: 03 August 1972
• Docket Number: No. 71 Cr. 935 D.N.E.,71 Cr. 935 D.N.E.
• Citation: 346 F. Supp. 691
• Parties: UNITED STATES of America v. Eugene Hoffman COTTON, Defendant,
• Court: U.S. District Court — Southern District of New York

346 F. Supp. 691

UNITED STATES of America v. Eugene Hoffman COTTON, Defendant,

No. 71 Cr. 935 D.N.E.

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

August 3, 1972.

Whitney North Seymour, Jr., U. S. Atty., SDNY by George Wilson, Asst. U. S. Atty., New York City, for plaintiff.

Michael N. Pollet, New York City, for defendant.

EDELSTEIN, Chief Judge.

OPINION

This is a criminal prosecution for refusal to submit to induction into the armed forces in violation of Title 50 Appendix, United States Code, Section 462(a) and Title 32, Code of Federal Regulations, Section 1632.14. Defendant having waived a trial by a jury his case was tried to this court on May 8, 1972. Defendant's refusal to submit to induction is not disputed. (Tr. pp. 5-6).

There is substantial agreement as to the facts. Cotton is a registrant of Selective Service Local Board No. 19 (hereinafter "Board"), having duly registered on March 2, 1963. From December 18, 1963, until August 13, 1968, inclusive, Cotton held a II-S classification (full-time student). On July 11, 1968, after a pre-induction physical examination, he was found medically acceptable for induction into the armed forces. A statement of acceptability (DD Form 62) was forwarded to him on July 19, 1968. Upon graduation from school Cotton was reclassified I-A (available for military service). Subsequently, on September 17, 1968, he was reclassified II-A. This reflected an occupational deferment for his employment as a teacher with the New York City Public School System. This classification was later withdrawn when Cotton's Board was notified of the cessation of his employment. Cotton was reinstated to I-A classification on August 19, 1970.

On November 17, 1970, Cotton was issued an initial order to report for induction (SSS Form 252). On November 25, 1970, the Board received a letter from the defendant claiming status as a conscientious objector and seeking postponement of his scheduled December 1, 1970, induction. On November 25, 1970, the Board postponed defendant's induction and forwarded to him the forms he requested. (SSS Forms 150 for Conscientious Objector, and 151 for voluntary service.)

Cotton's completed forms and five (5) accompanying letters attesting to his sincerity were received at the Board headquarters on December 9, 1970. On this date, after consideration and review of defendant's SSS Form 150 and complete selective service file, the Board declined to reopen the I-A classification.¹ Notice of this decision was mailed to Cotton the next day.² Thereupon the Board reissued an order to report for induction. The induction date was now set for December 28, 1970.

On December 11, 1970, Cotton wrote to his Board requesting a reconsideration of his classification and a personal appearance. His request was granted. Pending a discretionary interview to be held January 19, 1971, the December 28, 1970, induction date was postponed.

Cotton appeared for his personal interview as scheduled. The Board again refused to reopen his I-A classification. The reasons for this denial were recorded on New York Form 7 entitled "Summary of Appearance Before Local Board." (Defendant Exhibit H) The record was effected by checking Box No. 1 on Form 7, which reads:

"It is the local board's opinion that the registrant is not a genuine conscientious objector."

To explain this action the Board noted:

"Registrant's feelings do not justify a change in classification."

On January 21, 1971, Cotton was notified of the Board's action.

Subsequently, on January 25, 1971, another induction order was mailed to Cotton. The induction date was now February 11, 1971. Cotton reported as ordered but was declared a holdover pending a redetermination of his medical acceptability for service. This procedure was repeated on two other occasions. On April 26, 1971, Cotton was found fully acceptable for induction. Notification of this final determination was mailed to him on May 3, 1971. Cotton's induction date was now set for May 13, 1971. Cotton reported as ordered but refused to submit to induction. This prosecution ensued.

The government contends that the United States Supreme Court decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), decided April 21, 1971, is dispositive of this case. The decision in Ehlert simply involves settling in which forum³ late crystallizers⁴ must have an opportunity for a ruling on the merits of their conscientious objection claims. In light of the United States Army's assurance that such claims would be fully considered by it pursuant to its own regulations, 402 U.S. at 106-107, 91 S.Ct. 1319, 28 L.Ed.2d 625, see Army Regulation 635-20 and Department of Defense Directive (DOD) 1300.6, Section IV B 2, the Court opted for in-service processing as the proper remedy. Wherefore the government advocates the conclusion that if Cotton would have submitted to induction after the decision in Ehlert, he would not have been denied an opportunity for a complete review and determination.

The defendant contends that Ehlert does not apply to him inasmuch as his conscientious objection claim met the standards required for a reopening of his classification as set forth in United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966) cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967); United States v. Gearey II, 379 F.2d 915 (2d Cir. 1967) and Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). Further, he urges that his induction order is rendered invalid because his Board's refusal to reopen his classification based upon the finding that he was not a genuine conscientious objector is without basis in fact. Title 50 Appendix, United States Code, Section 460(b) (3); Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946). Thus since his claim pre-dated Ehlert, Cotton reasons that the application of Ehlert to him would sanitize the illegal action of his Board. This position is persuasive.

Prior to Ehlert the law of this circuit relating to post-induction order claims for conscientious objection was well settled. A local board was required to reopen a registrant's classification only if (1) a prima facie claim for conscientious objector status was presented, and (2) a change in the registrant's status resulting from circumstances over which he had no control had occurred. Paszel v. Laird, supra, see 32 C.R.R. § 1625.2. The requisite change in status was defined to be not merely a change in beliefs (as suggested in United States v. Gearey I and II, supra,) but a change in beliefs entitling the registrant to conscientious objector status. Paszel v. Laird, supra, 426 F. 2d at 1174. In setting this standard the Paszel court stated:

"We recognize this means that, where the alleged change in status is a newly crystallized conscientious objection, a decision to reopen will necessarily lead to a decision to reclassify in the absence of new evidence reflecting adversely on the claim and, conversely, that a decision not to reopen will mean that a registrant will not have the right to a personal appearance or appeal and will be left only with judicial review of the refusal to reopen * * *."

"But the alternative—that a prima facie showing requires reopening at this late stage even though the board is permissibly unconvinced of a change in status resulting from circumstances beyond the registrant's control—is even less attractive, * * *." Id.

Also, a selective service local board was not required to reopen a registrant's classification, if, predicated upon a basis in fact, it found a registrant to be insincere. United States v. Gearey II, supra, 379 F.2d at 920; see United States v. Gearey I, supra.

Thus, Cotton's prima facie post-induction order claim⁵ was reviewed preliminarily, Paszel v. Laird, supra, 426 F.2d at 1173, by his Board. The Board twice declined to reopen his classification. On each occasion it determined he was insincere. No showing has been made to support these findings. Yet it is important for courts to know the grounds upon which a board acted, Paszel v. Laird, supra, 426 F.2d at 1175, because of the severely circumscribed scope of judicial review applicable to actions of selective service boards.⁶ While it has been held that a local board need not state its reasons for declining to reopen, United States v. Campbell, 439 F.2d 1087 (9th Cir. 1971), especially when the reasons are clearly evident in the record, United States v. Morico, 415 F.2d 138 (2d Cir. 1969), vacated and remanded on other grounds, 399 U.S. 526, 90 S.Ct. 2230, 26 L.Ed.2d 776 (1970); United States v. Mangone, 333 F.Supp. 932 (S.D.N.Y. 1971), aff'd in open court, 456 F.2d 1336 (2d Cir. 1972); United States v. Aull, 341 F.Supp. 389 (S.D.N.Y.1972); cf. United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970), cert. granted, vacated and remanded 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972), "* * * a mere statement by the Local Board of lack of belief in sincerity, unaccompanied by any supporting detail, is not enough to overcome a prima facie claim of conscientious objection * * *." United States v. Deere, 428 F.2d 1119, 1122 (2d Cir. 1970). Accord, United States v. Jones, 447 F.2d 589, 592 (7th Cir. 1971); United States v. Mantione, F.Supp. (S.D. N.Y.1972).

The most that can be said for the Board's findings of Cotton's insincerity is that they are conclusory in nature. An independent review of the record discloses Cotton's late filing as the sole reason for the Board's determination. This is an insufficient basis under the applicable law in this circuit on which to predicate a finding of an applicant's insincerity. United States v. Gearey I, supra, 368 F.2d at 149-150; United States v. Gearey II, supra, 379 F.2d at 919; Paszel v. Laird, supra; United States v. Bornemann, 424 F.2d 1343 (2d Cir. 1970).⁷Accord, Ehlert v. United States, supra.⁸

Having concluded that the Board's finding of Cotton's insincerity lacks a basis in fact, it remains to be shown why...