United States v. Khan
| Decision Date | 03 December 1971 |
| Docket Number | Crim. No. 23375. |
| Citation | 336 F. Supp. 354 |
| Parties | UNITED STATES of America v. Mohammed Ateek KHAN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Louis Bechtle, U. S. Atty., Faith Whittlesey, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Edward H. Weis, Defender Assn. of Philadelphia, Philadelphia, Pa., for defendant.
The defendant, Mohammed Ateek Khan, was tried before the Court on a waiver of jury trial. The charge is set forth in a one count indictment under 50 U.S.C. App. §§ 454 and 462 — failing to perform a duty required by the Selective Service Act in refusing to submit to induction. The court finds the defendant not guilty for the reasons summarized below.
The following facts have been stipulated to by counsel:1
1. Mohammed Ateek Khan is a permanent resident alien from the Fiji Islands as of April 29, 1966, having entered the United States as a temporary visitor on November 2, 1964.
2. Defendant registered for Selective Service in 1966 at the age of twenty-three.
3. On November 1, 1966, a Classification Questionnaire, (Form 100), was mailed to the registrant to his then current address.
4. A completed Questionnaire was returned to the Local Board on February 6, 1967.
5. At Series III of Form 100, entitled "Marital Status and Dependents," the registrant indicated he gave partial support to his mother, father, thirteen and fifteen year old brothers, in the amount of $1000.00 out of $3000.00 income.
6. At Series IV of Form 100, entitled "Registrant's Family," he listed seven sisters and brothers, six live in Fiji, one brother lives in Canada, all are over twenty-one years of age; all but one is older than the registrant.
7. At Series V, entitled "Occupation," he indicated that he had been a dental technician since January 1967 and works for Resigno Dental Laboratories.
8. Registrant did not complete Series VIII for Conscientious Objector.
9. At Series IX, entitled "Education," he stated he was a part-time student at Philadelphia Community College.
10. On February 16, 1967, at a meeting of the Local Board, Khan was classified 1-A by a 3-0 vote. He was notified of his classification on February 17, 1967, and advised of his appeal rights and rights of personal appearance. At that time, he had ten days within which to seek a personal appearance or appeal.
11. There is nothing in the Selective Service file to indicate that the Defendant sought a personal appearance or appeal within the ten days permitted.
12. On April 17, 1967, the Local Board received a Form 109 from Philadelphia Community College indicating that Khan was an evening student from September 28, 1965, through January 21, 1966, and took seven credit hours. He was also currently enrolled taking three credit hours.
13. On April 28, 1967, an Order To Report on May 11, 1967, for Pre-Induction Physical Examination was issued. He was ultimately examined at the Armed Forces Examining and Entrance Station on August 7, 1967, and was found acceptable.
14. In the meantime, on June 14, 1967, the Local Board received a letter from the Defendant's then current employer, Morris Foxman, D.D.S., requesting a 2-A deferment on registrant's behalf. Said letter states as follows:
15. On June 15, 1967, the Local Board considered the registrant's classification again with the letter of Dr. Foxman before it. He was again classified 1-A. A Notice of Classification and rights of personal appearance and appeal were mailed to him on June 16, 1967, Although the thirty day appeal period was not effective until June 30, 1967, the notice given Defendant at this time permitted him thirty days within which to appeal.
16. On June 23, 1967, Foxman wrote a letter of appeal to the Local Board reiterating his position once more. Khan was not notified by the Local Board of this appeal. Khan did learn from Foxman that an appeal had been taken on his behalf.
17. On August 28, 1967, the Selective Service file was forwarded to the State Headquarters for transmittal to the Appeal Board. On the document entitled "Check Sheet for Appeals," Question Number 6 states, "Did the registrant request appearance before Local Board within ten days period?" Typed in an answer appears the word "yes."
18. The Appeal Board classified Khan 1-A on November 1, 1967, by unanimous vote of 3-0.
19. The registrant and his employer were advised of the Appeal Board action on November 1, 1967, and November 2, 1967.
20. On November 22, 1967, the Order to Report for Induction on December 5, 1967, was issued.
21. The Delivery List for December 5, 1967, shows four names being submitted to the Armed Forces Examining and Entrance Station of which Mr. Khan was the second name and the oldest registrant being ordered. This was to fill a call on the Local Board for two inductees.
22. The registrant called the Local Board and spoke to Mrs. Warr, the Executive Secretary, on November 27, 1967. The substance of the conversation was summarized for the file. The summary indicates that Khan told Mrs. Warr that he wanted to speak to the "Board of Directors," that he had to get his affairs in order, that he would not report on December 5, 1967, that he had a lawyer, that he had dependents at home abroad, and that the money from the Army would not be enough. The summary also indicates that Mrs. Warr advised him of the availability of legal help for his personal affairs, and that he should write to the Local Board with his message since she couldn't convey the message. Mrs. Warr also told him that if he did not report for induction he would be reported to the United States Attorney as delinquent.
23. On November 29, 1967, the Local Board received a letter from Foxman, his employer, reiterating his position and requesting "re-examination of the case" and provided his phone numbers if the Local Board wanted to speak to him.
24. On December 1, 1967, the Local Board received a letter from the registrant's father with the following information and requesting the Local Board to reconsider his son's case:
25. That same day, Khan called the Local Board, checking the receipt of his father's letter. He requested Mrs. Warr not to write his father that he had to leave on December 5, but rather say the Appeal Board considered the case and Khan was turned down.
26. By the testimony of Mrs. Warr, on December 1, 1967, she telephoned each of the three members of the Local Board and read the letters from Foxman and Khan's father, together with a verbal review of the file, to each member. Each member separately indicated that there was no new information to warrant reopening. She further testified that if two of the members had indicated the file should be reopened, she would have requested a postponement of induction from State Headquarters.
27. On December 1, 1967, letters were sent to Khan's father and employer indicating that no further consideration would be given to the file. Carbon copies of these letters were sent to registrant. Mrs. Warr testified that no meeting of the Local Board was scheduled between December 1, 1967, when Khan's father's letter and Dr. Foxman's reconsideration letter were received, and the date of induction, December 5, 1967.
28. On December 5, 1967, Khan reported to the Induction Station, was processed and refused to be inducted.
29. Defendant worked as a dental technician. His specific duties were making impressions, bridges, dentures, etc. Foxman is a treating dentist and sees an average of twenty patients a day.
30. Defendant testified that in 1967 he sent two paychecks out of four each month, approximately $200 a month, to his family in Fiji.
31. Defendant testified that he had a high school education in Fiji and had attended dental technician school in the United States prior to becoming a permanent resident.
32. Defendant's family in Fiji resided on a sugar cane farm of eight to twelve acres. Defendant testified that because of a drought the income for the family was $500.00, but may have been as much as $800.00, in 1967. The family income has increased to approximately $800.00 to $1000.00.
33. In 1967, all farmers in Fiji suffered from drought and their income was in the range of $800.00.
34. Money from crops on the family farm went to a bank which distributed the fund to pay off a debt to the bank and to creditors.
35. Defendant's family in Fiji consists of Mother, Father, two younger brothers and a younger sister, an older sister with three...
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Frolov v. Delo
...supra), public housing (Lopez v. White Plains Housing Authority, 355 F.Supp. 1016, D.C.N.Y.), selective service exemptions (United States v. Khan, 336 F.Supp. 354, D.C.Pa.) and employment licenses (Arias v. Examining Board of Refrig. & Air Con. Tech., 353 F.Supp. 857, I can perceive no legi......