United States v. Gearey

• Decision Date: 14 March 1966
• Docket Number: No. 65 Cr. 828.,65 Cr. 828.
• Citation: United States v. Gearey, 260 F.Supp. 7 (S.D. N.Y. 1966)
• Parties: UNITED STATES of America v. David Arthur GEAREY, Defendant.
• Court: U.S. District Court — Southern District of New York

260 F. Supp. 7

UNITED STATES of America v. David Arthur GEAREY, Defendant.

No. 65 Cr. 828.

United States District Court S. D. New York.

March 14, 1966.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Paul K. Rooney, Asst. U. S. Atty., New York City, for the United States.

Marvin M. Karpatkin, New York City, for defendant.

MEMORANDUM

THOMAS F. MURPHY, District Judge.

Defendant waived a jury and was tried by the court on February 16 and March 1, 1966, on an indictment charging him with knowingly refusing to submit to induction into the Armed Forces of the United States pursuant to the Universal Military Training and Service Act, 50 App. U.S.C. § 451 et seq., in violation of 50 App. U.S.C. § 462(a) and 32 C.F.R. § 1632.14. On the last mentioned date he was found guilty by the court. Although not requested to find the facts specially pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure, we believe it desirable to do so.

In 1960 defendant registered with his local draft board. On November 14, 1961, he was classified 1-A but upon receiving notice from St. Francis College that the defendant was attending that institution and pursuing a normal course of study in his sophomore year, the local board reclassified the defendant 2-S. This last classification continued through June, 1964, when the defendant was to graduate. On November 5, 1964, he was again reclassified 1-A and on November 24, 1964, was ordered to report for a pre-induction physical on December 18, 1964. On December 7, 1964, the board received a letter from the defendant dated November 30th advising that he was taking three credits to fulfill his course requirements for a B.A. degree which he would receive in January of 1965, and that he expected to return to school full time in February to pursue a Master's Degree.¹ The pre-induction physical was had and on January 5, 1965, a notice of acceptability was mailed to the defendant. On January 5, 1965, the local board reviewed the file in light of the defendant's correspondence and voted "no change." Notification was sent on January 6, 1965. On January 19, 1965, the local board received a letter from the defendant wherein the latter advised that he had registered in one school and was "in the process of registering at another college in the area of Cinematography;" he expressed his belief that he would be entitled to a student deferment upon beginning studies at both schools and stated that he "would like to apply for a hearing * * * in order to discuss my status as a student." On the same day, the board directed the defendant to report for an interview. On February 2, 1965, the board interviewed the defendant; the minutes reflect the following:

"Registrant appeared with evidence of attendance at a School for Motion Picture Arts and asked us to defer him so that he could finish his seminar. Also claimed he would reregister at St. Francis and was asked to have St. Francis forward to the Board evidence of such attendance. A vote was taken and registrant was classified 2S."

On February 18, 1965, the board received a communication from St. Francis College advising that the defendant was no longer in attendance there. A request for evidence of attendance was immediately mailed to the defendant. On April 6, 1965, nothing having transpired in the meantime, the board voted and reclassified defendant 1-A and sent him notice the next day. On April 19, 1965, the board mailed the defendant an Order to Report for Induction on May 5, 1965. On April 23, 1965, the board received a letter from the defendant, dated April 21st, wherein the defendant acknowledged receipt of the notice of his classification and the induction order; he acknowledged also that he was aware that he had not appealed within the prescribed time; he asked however, that the board "defer my impending draft notice and review my classification as a student, at least until the termination of this term;" he indicated that he was prepared to submit proof of attendance at City College, in addition to the School of Motion Picture Arts. On the day his letter was received the defendant was mailed a request for proof of attendance, notified his induction was postponed until July, and advised for the future to notify his local board of any change in status within ten days of its occurrence.

On May 24, 1965, the local board received a letter dated May 21st from the defendant which stated as follows:

"For the past several years, I have been concerned with the problem of the conscriptive service as it effects me. I have tried to work out the problem in my own mind and have occassionally discussed it with friends. I realized that if and when I came to the draft board, I would not be in a position to discuss the problem with you, rather, I would have to confront the board with my feelings and beliefs. Once I had resolved the problem in my own mind, I refrained from notifying the board because I felt quite secure with my status as a student, and I thought that I would have plenty of time to inform you after completion of school. However, my recent call to the service has rocked me out of that lethargy, and cured me of my proscrastination. Therefore, I am requesting the necessary papers required in order that I may legally apply for the classification of conscientious objector."

The form for conscientious objectors was sent to the defendant the same day, to be returned on or before June 4, 1965. It was received completed on June 7, 1965. On June 17, 1965, the board wrote the defendant to report for an interview on July 6, 1965, and on the same day notified him on the appropriate form that his induction date was July 8, 1965. On July 1, 1965, the board received a letter from the defendant, dated June 29, 1965, wherein he stated that he would like to change his answer to that question on the conscientious objector's form which asked if he was a member of a religious sect or organization from "no" to "yes," and advised that he was a baptized member of the Catholic Church, and expressed his opinion that "membership in the Catholic Church does not contradict anything I may claim as an objector." On July 2, 1965, the board received a letter dated July 1, 1965, from the principal of Bishop Ford High School wherein it was stated that the defendant had been hired to teach at that institution as of June, 1965, apparently to commence teaching in the fall. On July 6, 1965, the defendant was interviewed by his local board which recorded the following:

"Registrant interviewed, had decided just recently to become a c. o., said he had been thinking about it but never mentioned it. We reviewed the c. o. form #150, also reviewed letter sent by Bishop Ford High School. Registrant claims he is not working there nor that he would be definitely working there in September. Said he would like to go to Europe and take pictures since this is the vocation he wants to pursue or maybe teach when he returns. The board after reviewing the evidence submitted and registrant's claims felt he did not qualify to be a genuine c. o. All facts considered did not warrant a change in classification. He was advised to report as scheduled. Vote was 4 to 0."

On July 8, 1965, the defendant appeared at his induction center but refused to be inducted.

The Universal Military Training and Service Act contains an exemption from combatant training and service for conscientious objectors which provides, in pertinent part:

"Nothing contained in this title * * * shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. * * * Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing." 50 App. U.S.C. § 456(j).

The statute does not limit the time within which the claim must be made but the Code of Federal Regulations under which the Act is administered prescribes the classification procedure. Thus, after a registrant is notified of his classification, he may, within ten days, either appeal the classification to an appeal board, 32 C.F.R. § 1626.1 et seq., or request a personal appearance before his local board, § 1624.1(a). If he elects to follow the latter course, the board may reopen and reclassify the registrant, or refuse to reopen, § 1624.2(c), and in either case, the registrant is again entitled to notice of the decision, § 1624.2(d) and has the same right of appeal as in the case of the original classification, § 1624.2(e). Further, should some fact occur which might result in a different classification, the registrant is required to report such fact within ten days after its occurrence, § 1625.1(b). The board is empowered to reopen the registrant's classification upon a written request presenting facts not previously considered, which, if true, would justify a change in classification, provided, however, "the classification * * * shall not be reopened after the local board has mailed * * * an Order to Report for Induction * * * 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," § 1625.2. If a registrant's request fails to present facts not previously considered, or such facts are presented but the local board is of the opinion that, if true, they would not justify a change in the registrant's classification, it shall not reopen the classification, § 1625.4. But once a local board does reopen a classification, it shall again classify the registrant in the same manner as if he had never...