United States v. England, Crim. A. No. 23387-3.

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Citation348 F. Supp. 851
Decision Date16 June 1971
Docket NumberCrim. A. No. 23387-3.
PartiesUNITED STATES of America, Plaintiff, v. Roy Eldon ENGLAND, Defendant.

COPYRIGHT MATERIAL OMITTED

Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

Richard B. Globus, Stephen B. Millin, Kansas City, Mo., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT DISMISSING INDICTMENT

WILLIAM H. BECKER, Chief Judge.

In the indictment returned herein on January 29, 1970, defendant is accused of knowingly, wilfully and unlawfully failing and refusing to report for induction on May 14, 1969, in violation of Section 462, Title 50-App., United States Code. The defendant claimed after the order of induction was lawfully issued that he was entitled to a hardship deferment and conscientious objector reclassification because of late crystallized beliefs.

The Court has now conducted its examination of defendant's Selective Service file in accordance with the rule of Cox v. United States, 332 U.S. 442, 453, 68 S.Ct. 115, 120, 92 L.Ed. 59, that the issue of whether the procedures were lawful and whether there is a basis of fact for the Board's classification of petitioner are questions for the Court to decide rather than for the jury. Further, a plenary pretrial hearing and conference were held in this cause on April 12, 1971, on the initiative of the Court. At that time counsel and the parties were granted an opportunity to present their views relative to the contents and sufficiency of the Selective Service file to support the order of induction. All pending motions, written and oral, were also heard at that time.

The persistent erratic, contumacious, and belligerent misconduct of defendant's originally employed and later appointed counsel has made it impossible to hold in chambers an orderly pretrial conference. Only in open Court under conditions justifying full use of the powers of direct contempt, has it been possible to preserve order and provide hearings on the real issues in this case. Power is reserved to give further consideration to this misconduct of originally employed counsel for the defendant. The result in this case is not reached because of the efforts of defendant's originally employed counsel but in spite of them. When it appeared conclusively that the real issues in this case could not be exposed and heard on the distracting, provocative and immaterial pretrial motions of defendant's original counsel, the government was ordered, on the initiative of the Court, to submit the Selective Service Board File of the defendant and a plenary pretrial conference and hearing was held in open Court. This was necessary because of the ineffective, detrimental misconduct of defendant's original counsel. The appearance for the defendant at the final hearings and conference of Stephen B. Millin, Esquire, seemed somewhat to deter the originally employed counsel in his misbehavior. As a result of the pretrial conference directed by the Court, it has been possible to arrive at the following findings of fact and conclusions of law.

Based on the facts evidenced by the file and the applicable law, the conclusion has been reached that the indictment herein should be dismissed without prejudice to further proceedings in the Selective Service System because of the invalidity of the order to report for induction.1

The Selective Service file in this case shows that the Board continued to consider the conscientious objector and hardship claims of defendant after the date on which defendant was to have reported for induction and after the date the indictment herein was found; that the Board actually did consider the conscientious objector claim on its merits but under an erroneous legal conclusion that they had no power to reopen defendant's case; that the Board refused to hear the hardship claim on its merits under the same erroneous conclusion but determined the issue of "change of circumstances" under inapplicable legal standards and without hearing evidence on the merits of the issue; that the Board at one time formally postponed defendant's induction notice; erroneously refused reconsideration of the claims on March 1970 pursuant to Regulation § 1625.2(b) when that regulation was no longer applicable, and finally denied defendant's conscientious objector claim on its merits without according defendant any right of appeal. The Court therefore concludes that, under the applicable law, under the peculiar facts of this case, the indictment herein must be dismissed. This conclusion is not to be considered a precedent generally, in the absence of the peculiar facts of this case.

The following constitutes a chronological summary of defendant's Selective Service file.

On May 22, 1967, defendant registered with Local Board #43 of Hickory County, Missouri. The questionnaire form filed out by defendant at that time does not contain expressly or by implication any conscientious objector claim by defendant, although a space is provided thereon for making such a claim. On May 29, 1967, defendant was classified 1-A and reclassified 2-S on September 25, 1967, upon his becoming a student at St. Paul's College. (This eliminated his privilege to submit a timely claim for reclassification solely on the ground that his wife might thereafter become pregnant.) After notification from St. Paul's College dated June 13, 1968, that defendant was not eligible to return to that college, defendant was again classified 1-A on June 24, 1968. On September 12, 1968, defendant was ordered to report for a physical examination, and was subsequently found to meet the physical and mental standards for induction. Defendant was then ordered to report for induction on October 21, 1968. On September 19, 1968, plaintiff requested a deferment in order to do farm work for one Lee Bright. The deferment was granted, and defendant was granted a 2-C classification and the order to report for induction on October 21, 1968, was cancelled. On November 25, 1968, defendant was reclassified 1-A after an audit of local deferments by the State Selective Service System revealed that defendant was not entitled to the 2-C deferment. After being granted an opportunity for a personal appearance which he did not exercise, defendant's 2-C claim was considered on appeal and denied by the State Director on February 17, 1969. A physical examination conducted on March 25, 1969, again found defendant fit for military service. On April 10, 1969, the Navy Recruiter in Lebanon, Missouri, wrote defendant's Local Board stating that defendant had applied for a Navy commission and was scheduled to enlist in the Navy's 120-day delay program on May 8, 1969. On April 24, 1969, the Local Board issued its order for defendant to report for induction on May 14, 1969. Thereafter, on April 29, 1969, the Navy Recruiter requested the Local Board to release defendant from the induction order so that he might enlist in the Navy on May 13, 1969. The Local Board replied on May 1, 1969, that the induction order would be cancelled on receipt of DD Form 53, indicating that defendant had enlisted in the Navy. Subsequently, on May 5, 1969, the Local Board was notified by the Navy Recruiter that defendant had withdrawn from the Navy program. On the same date, defendant asserted his conscientious objector claim by requesting that the Board issue him SSS Form 150 upon which he might make his claim. While the claim subsequently submitted by plaintiff on May 6, 1969, was disjointed and wordy, it stated a prima facie claim of conscientious objection and stated further, that the claim had not fully crystallized until April 20, 1969, a date immediately prior to the date of mailing of the notice to report for induction, when defendant claimed to have experienced a religious conversion at a prayer meeting.2 On May 6, 1969, the Board notified defendant that, because of his withdrawal from the Navy program, the order to report for induction on May 14, 1969, was "still valid." On May 12, 1969, defendant requested a reopening of his classification to consider his conscientious objector claim. The State Director3 replied on May 13, 1969, that plaintiff's letters had been received and that it was necessary for plaintiff to report for induction. This action by the State Director rather than the Board at this point is crucial, for it evidences the Board's erroneous conclusion that it had no power itself to act under the provisions of 32 C.F.R. § 1625.2. Plaintiff failed to report as ordered on May 14, 1969. Subsequently, on June 11, 1969, a letter of B. M. Carnell, M.D., reported the pregnancy of defendant's wife, and defendant's letter of the same date requested a IIIA hardship deferment because of the pregnancy of his wife and the unusual emotional strain4 and financial support problems5 accompanying it. It is apparent that the cumulative circumstances stated in these letters make a prima facie hardship claim.6 The Board replied by letter dated August 6, 1969, that it had no authority to reclassify defendant after the order to report for induction had been issued. Subsequently, on January 12, 1970, the Board formally refused to reopen, without stating any reasons, to consider the IIIA claim. The refusal, it must be noted, came after the induction date. Thereafter, on January 29, 1970, the indictment in this action was returned.

On March 4, 1970, a letter was written to the Local Board by the Assistant United States Attorney. It reads as follows:

"I have now received the supplemental portion of the cover sheet in this case.
"However, upon my review of the total file, I find several items which should be completed before we can successfully prosecute this case.
"I do not find that the local board has documented its consideration of the defendant's belated conscientious objector claim, nor his belated III-A claim based on hardship reasons.
"Accordingly, I respectfully make the following
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