United States v. Davis

• Decision Date: 18 March 1968
• Docket Number: Crim. No. 4-1231-C.
• Parties: UNITED STATES of America, Plaintiff, v. Ardith Alvin DAVIS, Defendant.
• Court: U.S. District Court — Southern District of Iowa

284 F. Supp. 93

UNITED STATES of America, Plaintiff, v. Ardith Alvin DAVIS, Defendant.

Crim. No. 4-1231-C.

United States District Court S. D. Iowa, Central Division.

March 18, 1968.

James P. Rielly, U. S. Atty., Des Moines, Iowa, for plaintiff.

Dan Johnston, Des Moines, Iowa, for defendant.

MEMORANDUM OPINION

STEPHENSON, Chief Judge.

On December 5, 1967, the Grand Jury indicted the defendant, Ardith Alvin Davis, on the charge of wilfully and knowingly failing and neglecting to comply with an order of his local board to report for and submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462. The defendant waived a jury trial in writing and requested that he be tried by the Court. The Government consented thereto. The cause was tried to the Court on January 30, 1968.

The chronological sequence of events giving rise to the charge herein was brought out at trial and stands largely undisputed. Defendant first registered with the Selective Service System on November 27, 1959, at Local Board No. 57 of Oklahoma City, Oklahoma, which later became Local Board No. 119 and hereafter referred to as Local Board. After entering Westmar College, Le Mars, Iowa, in September 1960, defendant received a student deferment and was classified II-S. Defendant was retained in the II-S classification from July 21, 1961 until January 2, 1962, at which time the Local Board received a communication from the United Theological Seminary, Dayton, Ohio, certifying that defendant was enrolled in advance and was to enter said institution on completion of his pre-theological training at Westmar College. On this basis defendant's Local Board classified him as a ministerial student, IV-D. Defendant, however, by his own testimony decided not to study for the ministry in the summer of 1963, but failed to notify his Local Board of this change in his intentions. In September 1964, the defendant began graduate work in sociology at the University of Iowa and was reclassified II-S in November 1965. Upon notification by the University of Iowa in March 1966, that defendant had registered as a part-time student (Exhibit 1-C), the Board reclassified defendant into Class I-A(4). This classification was appealed by the defendant (Exhibit 1-D), and the Appeal Board put defendant back into Class II-S until February 1, 1967, the date listed by defendant for completion of his graduate work.

In May 1966, the Local Board received notification from defendant and James F. Loper, Dean, that defendant had accepted a teaching position at Muscatine Community College for the 1966-67 school year. This information was not acted on at that time, but was forwarded to the Appeal Board which had the appeal referred to above before it. Upon completion of the period granted by the Appeal Board for retaining defendant in Class II-S, the Local Board reclassified defendant I-A. Defendant appealed again requesting an occupational deferment and transfer to the Appeal Board having jurisdiction over Muscatine, Iowa (Exhibit 1-F). On appeal defendant was granted a II-A, occupational deferment, until June 15, 1967. Defendant had previously been ordered to report for his Armed Forces physical (Exhibit 1-J), which he did, and was found qualified (Exhibit 1-K).

On June 6, 1967, defendant was reclassified I-A(4) by his Local Board. Defendant again appealed and requested a further occupational deferment on the basis he would be teaching at Muscatine Community College during the 1967-68 school year (Exhibit 1-M). Defendant's request was denied on appeal and he was retained in Class I-A.

On August 9, 1967, the Local Board mailed defendant an Order to Report for Induction (Exhibit 1-O). On August 11, 1967, the Local Board received a letter from defendant dated and postmarked August 8, 1967 (Exhibit 1-P) stating:

"I wish to apply for classification as a conscientious objector to war and militarism. Please send Form 150 immediately."

This was the first indication the Local Board had that defendant was claiming exemption as a conscientious objector. The Clerk of the Local Board did not send a Form 150 as requested, but consulted with members of the Board who informed her that the defendant should be advised to make a more complete statement, i. e., whether his conscientious objection related to religious or pacifist beliefs before sending Form 150. Defendant was advised of this in a telephone conversation August 15, 1967. On that same date, defendant mailed a second request for Form 150 complying with the Local Board instructions, but, before receiving his Form 150 from his Local Board, he obtained one from a Selective Service Board in Muscatine, Iowa. The Form 150 filled out by defendant (Exhibit 1-Q) was received by the Local Board August 21, 1967. In addition, numerous letters were received from clergymen, friends and colleagues of the defendant testifying to his sincerity.

Shortly after sending the Form 150 to his Local Board, the defendant wrote a letter (Exhibit 1-R) to Col. Herbert Hope, Oklahoma State Director of the Selective Service System, stating in part:

"I wish to describe to you my current status within the Selective Service System in hope that you will act in the best national interest to see that my lawful appeal rights are secured."

Pursuant to this request Col. Hope undertook to appeal in defendant's behalf (Exhibits 1-S and 1-T). Upon being notified of this, however, defendant requested that his Form 150 be considered under the normal procedure and no appeal be taken on his behalf (Exhibit 1-U). The Local Board reviewed defendant's file and his Form 150, and, in a letter dated September 11, 1967, informed defendant of their decision that his classification not be reopened (Exhibit 1-W). In a letter dated September 13, 1967, defendant notes his receipt of the above letter notifying him of the denial of the Local Board and requests a personal appearance before the Local Board. Defendant's request for a personal appearance was not acknowledged, but Col. Hope initiated an appeal in defendant's behalf to insure his procedural rights (Exhibit 1-X). The Oklahoma Western Appeal Board classified defendant in Class I-A by a unanimous vote and his Local Board mailed him a new Order to Report for Induction (Exhibit 1-Z).

The induction location was transferred to Iowa at the request of defendant, where, on November 7, 1967, the date set for induction, defendant refused to be inducted into the Armed Forces. It is not disputed by defendant that he did, on the above date, refuse to submit to induction in violation of an Order of his Local Board (Exhibit 1-DD) as charged in the indictment.

Both at the end of the prosecution's evidence and the completion of all the evidence, defendant moved for judgment of acquittal by written motion. The essence of the defendant's motion for acquittal is that the Local Board acted improperly and illegally in refusing to reopen and reclassify defendant after receipt of his claim for conscientious objector status, thereby rendering the Order of the Local Board void and outside its jurisdiction. The illegality of the action of the Local Board in refusing to reopen defendant's classification is likewise a necessary prerequisite to the contention of defendant that he was denied procedural due process in not being granted a personal appearance, because a valid refusal to reopen carries with it no right of personal appearance or appeal. 32 C.F.R. § 1625.4¹. See also United States v. Beaver, 309 F.2d 273 (4th Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963). The right of personal appearance and appeal is available only when there has been a reopening and classification. 32 C.F.R. § 1625.11,² § 1625.13.³

The Court, however, does not reach this question in the first instance. It is contended by the prosecution that any consideration by the Local Board of the defendant's claim as a conscientious objector was restricted by 32 C.F.R. § 1625.2, which provides:

§ 1625.2. When registrant's classification may be reopened and considered anew.

The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification; * * * provided, * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252 * * * 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. (Emphasis added)

The validity and reasonableness of § 1625.2 has been uniformly upheld by the courts and is not here attacked by the defendant. Davis v. United States, 374 F.2d 1, 4 (5th Cir. 1967); Parrott v. United States, 370 F.2d 388, 394 (9th Cir. 1966); United States v. Taylor, 351 F.2d 228, 230 (6th Cir. 1965); United States v. Porter, 314 F.2d 833, 836 (7th Cir. 1963); United States v. Schoebel, 201 F.2d 31, 32 (7th Cir. 1953); Keene v. United States, 266 F.2d 378, 383 (10th Cir. 1959). Defendant, however, contends § 1625.2 is not applicable in the present case.

As noted above, the Local Board mailed defendant an Order to Report for Induction on August 9, 1967. On August 11, 1967, the Local Board received a letter from defendant (Exhibit 1-P) postmarked August 8, 1967, indicating his intention to apply for the classification as a conscientious objector and requesting the appropriate form. The defendant contends the date of the mailing of the above letter was controlling, and, being timely, placed a duty on the Local Board to reopen. The Court disagrees with this argument. The regulation is not permissive, but mandatory, and divests the Local Board of jurisdiction to...