United States v. Holby

• Decision Date: 18 April 1973
• Docket Number: No. 643,Docket 72-2120.,643
• Citation: 477 F.2d 649
• Parties: UNITED STATES of America, Appellee, v. Leland Laird HOLBY, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

477 F.2d 649 (1973)

UNITED STATES of America, Appellee, v. Leland Laird HOLBY, Appellant.

No. 643, Docket 72-2120.

United States Court of Appeals, Second Circuit.

Argued March 2, 1973.

Decided April 18, 1973.

COPYRIGHT MATERIAL OMITTED

Marvin M. Karpatkin, New York City (Barry Satlow, New York Civil Liberties Union, New York City, of counsel), for appellant.

George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. S. D. N. Y., Peter L. Truebner, Asst. U. S. Atty., of counsel), for appellee.

Robert H. Turtle and Edmund D. Campbell, Washington, D. C., McNeill Smith, Greensboro, N. C., and James M. Nabrit, III, New York City, for American Bar Association, amicus curiae.

Before KAUFMAN and MANSFIELD, Circuit Judges, and BRYAN, District Judge.^*

FREDERICK van PELT BRYAN, District Judge:

Leland Laird Holby appeals from a judgment of conviction for knowing, wilful and unlawful refusal to submit to induction in the armed forces of the United States, in violation of 50 U.S.C. App. § 462(a). The judgment was entered in the Southern District of New York, after trial to the Court without a jury.

The District Court found that Holby had knowingly failed to exhaust his administrative remedies under the Military Selective Service Act. It held that he was, therefore, barred from asserting his defenses on the merits that the order of induction was invalid because there was no basis in fact for denial of 1-O classification as a conscientious objector and because no reasons have been given for such denial. The District Court thus did not consider or pass on these defenses. It further held that defendant had no right to legal counsel before his local board and that his induction order was not issued in violation of the order of call regulations. Holby was found guilty as charged. 345 F.Supp. 639 (S.D.N.Y.1972).¹

The facts are not in dispute.

Holby registered with the Selective Service on October 11, 1963. He attended Middlebury College and was classified 2-S (full time undergraduate student deferment). In June, 1967, upon his graduation from college, he filed Selective Service Form 150, the special form for conscientious objectors, with extensive supporting material. He presented a strong case for 1-O classification as a conscientious objector. On July 19, 1967, the local board rejected his conscientious objector application and classified him 1-A. The board gave no reasons for its decision.

Thereafter, at Holby's request, he was granted a personal appearance and he and his parish clergyman appeared, separately, before the local board. Following these interviews, the local board, on September 13, 1967, again refused to classify him as a conscientious objector and continued his 1-A classification. Again, no reasons were given. In the meantime, Holby had appeared for physical examination and was found physically fit for induction.

Holby appealed from the decision of his local board and on November 9, 1967, by a vote of 2 to 1, the New York State Appeal Board upheld the 1-A classification. It gave no reasons. Thereafter, on appeal to the Presidential Appeal Board, that Board also upheld his 1-A classification without stating any reasons.

On April 15, 1968, pursuant to an order to report for induction, Holby appeared at the induction center but refused to submit to induction on the ground of his religious objection to participation in war in any form. The case was then sent to the United States Attorney for the Southern District of New York for prosecution. The United States Attorney declined to prosecute Holby, advising Selective Service System afficials (1) that on the record, there appeared to be no basis in fact for the denial of his 1-O claim and (2) that no reasons had been given for the denial of 1-O classification. A request from the Selective Service System urging reconsideration was denied by the United States Attorney for the same reasons given for the initial refusal to prosecute.

The New York State Selective Service headquarters then advised Holby's local board that prosecution had been declined and directed the board to call Holby for a "discretionary" or "courtesy" interview. When Holby received that call, he requested permission to attend with his counsel and a stenographer or tape recorder so that he could obtain an accurate transcript of the proceedings. The local board refused his request under Selective Service Regulation 32 C.F.R. § 1624.1(b) providing that "no registrant may be represented before the local board by anyone acting as attorney or legal counsel."

Holby then wrote to the board declining to appear because there was nothing he could add to the record and because of its refusal to permit him to appear with counsel and to record the proceedings when he was under threat of criminal prosecution for his prior refusal to submit to induction. On November 13, 1968 the board refused to reopen his 1-A classification, without stating any reasons.

On November 27, 1968 the State Director directed the local board to reopen and reconsider. In March, 1969 the local board again requested Holby to appear for a "discretionary" interview. Holby again declined, on the same grounds. On May 6, 1969 he was advised that he was still classified 1-A. No reasons were given. He was sent the standard form, SSS Form 217, advising him of his right to a personal appearance and to an appeal. Holby did not exercise those rights. He was directed to report for induction on July 9, 1969. He appeared at the induction center but again refused induction on the religious grounds previously asserted. His prosecution and conviction for refusal to submit to induction followed.

Holby attacks the judgment of conviction on several grounds. First, he contends that the court below was in error in holding that the exhaustion of administrative remedies doctrine barred him from asserting his defenses on the merits. Second, he urges that the induction order was invalid because (1) there was no basis in fact for the denial of his application for 1-O classification as a conscientious objector, and (2) because neither the local board nor the appeals boards gave any reason or explanation for their classification decisions.²

I

The question of when the doctrine of exhaustion of administrative remedies should be applied in criminal cases under the Selective Service Act to bar defenses on the merits is not without difficulty. However, the basic principles have been well established in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), where the exhaustion doctrine was held not applicable under the circumstances of that case. As the Court stated in McKart,

It is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order. This deprivation of judicial review occurs not when the affected person is affirmatively asking for assistance from the courts but when the Government is attempting to impose criminal sanctions on him. Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review. . . . We must ask, then, whether there is in this case a governmental interest compelling enough to outweigh the severe burden placed on petitioner. Even if there is no such compelling interest when petitioner\'s case is viewed in isolation, we must also ask whether allowing all similarly situated registrants to bypass administrative appeal procedures would seriously impair the Selective Service System\'s ability to perform its functions. 395 U.S. at 197, 89 S.Ct. at 1664 (footnote omitted).

"Discrete analysis of the particular default"³ ascribed to Holby in the case at bar convinces us that the application of exhaustion doctrine here would be exceedingly harsh and that there is no governmental interest compelling enough to justify its application. Moreover, under the circumstances of this case, there is no danger that allowing similarly situated registrants to bypass administrative procedures would seriously impair the ability of the Selective Service System to perform its functions.

During the extensive proceedings culminating in Holby's first refusal to submit to induction on religious grounds, he meticulously complied with the Selective Service rules and regulations and diligently pursued every administrative remedy available to him. He submitted a full and convincing application for 1-O classification as a conscientious objector, with extensive supporting material including seven letters attesting to his sincerity. He took the required physical examination. When the local board denied his application he applied for and made a personal appearance with his parish clergyman, who testified before the board as to his sincerity.

When his application was again denied, Holby successively appealed to the State Appeal Board and, finally, to the Presidential Appeal Board, both of which upheld the local board's determination. At no point did any of the administrative bodies give any reasons for denial of his application for 1-O classification and no such reasons appeared from the record. Thus, at this point, he had fully exhausted all his administrative remedies and had been denied any relief.

When the Selective Service forwarded Holby's case for prosecution, the United States Attorney, with ample justification, twice declined to prosecute.

Thereafter, the local board invited Holby to appear for so-called "courtesy" or "discretionary" interviews. Holby did not ignore those invitations. He requested the board's permission to appear with counsel and a stenographer or tape recorder, in view of the already demonstrated threat of criminal prosecution. When the board refused his request, Holby declined to appear on the ground that...