United States v. Lamberd, Crim. A. No. 22891-3.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Citation: 315 F. Supp. 1362
• Docket Number: Crim. A. No. 22891-3.
• Parties: UNITED STATES of America, Plaintiff, v. Jerry Dale LAMBERD, Defendant.
• Decision Date: 12 June 1970

315 F. Supp. 1362

UNITED STATES of America, Plaintiff, v. Jerry Dale LAMBERD, Defendant.

Crim. A. No. 22891-3.

United States District Court, W. D. Missouri, W. D.

June 12, 1970.

COPYRIGHT MATERIAL OMITTED

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

John R. Whitsitt, Kansas City, Mo., for defendant.

MEMORANDUM FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT OF ACQUITTAL OF DEFENDANT

BECKER, Chief Judge.

By indictment defendant was charged with refusing to submit to induction into the Armed Forces of the United States in violation of Section 462(a), Title 50-App., United States Code. It is undisputed that defendant was classified as I-A by his Local Board (Number 84 of Kansas City, Kansas), and that he reported to the Induction Center in Kansas City, Missouri, in response to an order from his Local Board; and that, after being found physically and mentally qualified for service in the Armed Forces of the United States, defendant willfully refused to take a step forward or take the oath of induction as ordered.

At the trial of this cause, Colonel Junior L. Elder, State Director of the Kansas Selective Service System, identified defendant's Selective Service file from the records of Local Board Number 84 of Kansas City, Kansas. This file revealed the following:

Defendant first registered with Local Board Number 84 on September 22, 1966, shortly after his eighteenth birthday. He was classified I-A by a 2-0 vote of the Local Board on January 12, 1967. Thereafter, on December 6, 1967, he was ordered to report for a physical examination. He reported for the examination on December 22, 1967, and was found "acceptable" for service in the Armed Forces. On December 29, 1967, he was informed by the Local Board on DD Form 62 that he was acceptable. Thereafter, on January 3, 1968, at defendant's request, SSS Form 150 (Special Form for Conscientious Objector) was "given to registrant for immediate return." Defendant returned the form to the Board on January 8, 1968. Therein, in describing the "basis of his belief," as required by the form, defendant stated as follows:

"I believe in neutrality. God created man to populate the earth not distroy (sic) it. I do believe in a Supreme Being."

Defendant apparently made no response to the item on the form requiring a statement of "whether or not your belief in a Supreme Being involves duties which to you are superior to those arising from any human relation." The inquiry in respect of "from what source you received the training and acquired the belief which is the basis of your claim" elicited the following from defendant:

"The source of my knowledge is from studies from the Bible in the past and the study of God."

Defendant further stated in the form that he believed in the use of force only "in the protection of my family and myself"; that "incidental speaking and reguralar (sic) Bible study" most conspicuously demonstrated the consistency and depth of his religious convictions; that he was not a member of any religious sect or organization; and that the following were "persons who could supply information as to the sincerity of your professed convictions against participation in war":

C. L. Lamberd, 1635 Holt, Kansas City, Kansas "Instructor", Brother of defendant

Rollin Domeriz, 4528 Tracy, Kansas City, Mo., "Computer Service", "Representative"

Mary Lamberd, 1635 Holt, Kansas City, Kansas "Housewife", sister in law

Mrs. R. Campbell, 3029 Charlotte, Kansas City, Missouri, "Housewife", mother of defendant

Thereafter, on January 18, 1968, by a vote of 3 to 0, the Local Board again classified defendant I-A. The minutes of the Local Board state that SS Form 110 (Notice of Classification) and SSS Form 217 (Advice of Right to Personal Appearance and Appeal) were mailed to defendant on January 26, 1968. SSS Form 110 (Notice of Classification), however, is omitted from defendant's Selective Service file. SSS Form 217 reads as follows:

"Enclosed is your Notice of Classification (SSS Form 110). Your right to ask for a personal appearance within 30 days is prescribed on the reverse side of that Notice of Classification.

"Each local board has available a Government Appeal Agent to aid you with a personal appearance, an appeal, or any other procedural right. The Appeal Agent or his representative will give you legal counsel on Selective Service matters only at no charge.

"If you should desire a meeting with him, this office will arrange a time and place for such meeting upon request."

The minutes of the Local Board then show that, on February 2, 1968, defendant made a "request for meeting with Mr. Weeks." A later letter of defendant's attorney (dated October 10, 1968) to the Assistant United States Attorney (which letter has been made a part of the Selective Service file) stated the following with regard to petitioner's intent to appeal the I-A classification made January 18, 1968:

"Mr. Lamberd has related to me that after he received his classification card (SSS Form 110) and the Advice of Right to Personal Appearance and Appeal (SSS Form 217) that he appeared in person at Local Board 84 for the express purpose of appealing the classification. Mr. Lamberd states that he signed a scrap of paper given him by the lady there on which was placed the words `I appeal', followed by his signature and his selective service number. He further states that he was then told about the Government Appeal Agent and his right to consult with such person, and was advised that such procedure was advisable and that the Appeal Agent would help him with the appeal he had filed. Mr. Lamberd acquiesced therein and then signed another scrap of paper requesting such help with his appeal."

Defendant's notice of appeal, however, is omitted from his Selective Service file. The only record representing the personal appearance of defendant before the Local Board was the following note, written in defendant's own hand:

"Dear Sir:

I Jerry Lamberd wish to make an appointment with the Appeal Agent at any convenyent (sic) date."

Thereafter, defendant was granted an appointment with the Government Appeal Agent on February 19, 1968. Defendant testified in the trial in this Court that he sought this appointment because he was "not satisfied" with the information which he had given to the Local Board on SSS Form 150; that he attempted to give the Appeal Agent more complete and updated information on the current condition of his status as a conscientious objector; that the Appeal Agent took notes, the substance of which defendant was not aware of and which notes defendant did not see; that he was not aware the notes would be made the subject of a later report by the Appeal Agent; and that the interview concluded with the Appeal Agent's announcing to defendant that "you're going to have to change your ways or go to jail."¹ The Selective Service file shows that on the same date, the Appeal Agent forwarded the following report of the interview to the Local Board:

"Gentlemen:

The above subject came to my office on Monday, February 19, 1968, at 9:30 a. m. pursuant to his request and the notice and appointment which was made. The subject stated that he had made application to your Board for a 1-O classification (conscientious objector), which apparently was refused. He bases his claim for this classification upon the fact that he believes that serving his country in any capacity would be putting his country ahead of God. He is not a member of Jehovah's Witnesses, but claims to be `studying' under his brother, Clarence Lee Lomberd (sic), who is 25 years of age and lives at the same address as the subject. He claims that he attends meetings of this body about once a week although he hasn't attended any lately `for about a month'. He says that he is a roofer by occupation and that he is generally too tired to attend the meetings. In addition to this, he is having `girlfriend' trouble. He says that this stems from the fact that more than one of them wants to marry him.

"He claims to have taken an appeal from the action of the Selective Service Board in refusing to classify him as I-O but I told him that in order to be completely sure of this, he should file a written notice of appeal if he intends to take an appeal."

The minutes of the Local Board state that the letter of the Appeal Agent was received by it on February 20, 1968, and that "no appeal has been received." On March 19, 1968, SSS Form 252 (Order to Report for Induction) was mailed to defendant. On April 1, 1968, defendant reported to the induction center but refused induction. Subsequently, prosecution of defendant was commenced in Division 2 of this District Court in Criminal Action No. 22675-2. Counsel for defendant moved to dismiss that action on the ground that defendant should be allowed to appeal his I-A classification to the state Appeal Board. Upon agreement of the United States Attorney for the Western District of Missouri that he had "no objection to the Local Board's reviewing the conscientious-objector application or processing of Jerry Dale Lamberd and the matter given complete and appropriate due process of law," that prosecution was dismissed. On November 1, 1968, the Order to Report for Induction on April 1, 1968, was cancelled by authority of the State Director and defendant's file was returned to the State Appeal Board for the purpose of its considering defendant's appeal. The minutes of the Local Board then show that defendant was classified I-A by 5-0 vote of the Appeal Board on January 28, 1969; and that SSS Form 110 (Notice of Classification) was mailed to the registrant. The file, however, does not contain any copy of the SSS Form 110 which was sent to defendant. Subsequently, defendant was again ordered to report for induction on March 7, 1969.² Again, defendant reported to the induction center but refused to be inducted. The indictment in this case is based on that refusal to be inducted.

This case was...