United States v. Lee

• Decision Date: 16 July 1970
• Docket Number: No. 3-70 Cr. 42.,3-70 Cr. 42.
• Citation: United States v. Lee, 315 F.Supp. 422 (D. Minn. 1970)
• Parties: UNITED STATES of America, Plaintiff, v. James Gordon LEE, Defendant.
• Court: U.S. District Court — District of Minnesota

315 F. Supp. 422

UNITED STATES of America, Plaintiff, v. James Gordon LEE, Defendant.

No. 3-70 Cr. 42.

United States District Court, D. Minnesota, Third Division.

July 16, 1970.

Joseph T. Walbran, Asst. U. S. Atty., for plaintiff.

Felhaber, Larson, Fenlon & Vogt, by Charles F. Bisanz, Jr., St. Paul, Minn., for defendant.

NEVILLE, District Judge.

Squarely before the court here is the "late crystallization" conscientious objector doctrine, raised by defendant's pretrial motion to dismiss an indictment against him charging failure to report for and submit to induction in violation of 50 App. U.S.C. § 462.

Defendant registered with his local draft board on May 1, 1965 and on May 12, 1965 was classified I-A. On October 20, 1965 he was given a student deferment (II-S) which was continued for three years and until December 18, 1968 at which time he was reclassified I-A. On January 28, 1969 defendant was ordered to report for a pre-induction physical, which he subsequently passed. On March 12, 1969 form 127 was mailed ordering him to report for induction on April 9, 1969. On March 13, 1969 defendant, then 22 years of age, sent a letter to his local board requesting a I-O (Conscientious Objector) classification. On March 21, 1969 defendant filed Selective Service Form 150 with the local board attesting to his conscientious objector beliefs and at such time stated that the basis of his claim was in part:

"My belief in Christianity and my commitment to following the example and teachings of Christ to the best of my ability, forbids me from participating in any form in the perpetration of warfare."

The defendant further stated as a reason for his late filing on form 150 that "My commitment, although developing, was never put on trial as it now is."

On March 21, 1969 defendant's local board postponed his induction and wrote him that the reason therefor was "so that the local board might have the opportunity to review your claim for conscientious objection." At the same time the board invited the defendant to appear for an interview since "the board members would like to talk with you personally regarding your claim. * * *"

On April 16, 1969 the defendant appeared before his local board. The summary of this interview is document #31 in defendant's Selective Service File and in part it states:

"The local board began reviewing this registrant's file at 1:50 P.M., and finished at 2:20 P.M., at which time the registrant was called into the room for his interview. He was told that the interview was delayed because the board wanted to read through the complete file and the letters which had been received.

* * * * * *

The members read Part 1625.2 of the Selective Service Regulations to the registrant and told him that his classification would not be reopened or the Order for Induction canceled since it had been determined there had been no change in his status resulting from circumstances over which he had no control."

The summary indicates that the defendant was interrogated as to all activities and events in his lifetime which led up to his conscientious objector claim as well as the reasons for the lateness of his request for a I-O classification.

On April 17, 1969 a notice of the local board's determination not to reopen his classification was mailed to defendant and on May 21, 1969 defendant was notified that his new date to report for induction was June 24, 1969. On June 24, 1969 defendant refused to submit to induction and was thereafter indicted pursuant to 50 App. U.S.C. § 462.

Two basic issues are presented to the court for its determination. First, whether defendant's request for a conscientious objector classification was timely in view of the requirements set forth in the Selective Service Regulations, especially 32 C.F.R. § 1625.2. Second, whether the interview conducted on April 16, 1969 during which time the local board inquired into the source and substance of defendant's beliefs amounted to a de facto reopening of his classification so that defendant should have been afforded all of the attendant rights that accompany a reopening, including a new right to appeal.

As to the first issue presented, the Selective Service Regulations provide in part:

"* * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) * * * 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." Emphasis added 32 C.F.R. § 1625.2

In the instant case the local board had mailed an Order to Report for Induction on March 12, 1969, one day before defendant initiated his request for a conscientious objector classification. Thus defendant's classification could only be reopened if the board specifically found that there was a change in his status "resulting from circumstances over which * * * hehad no control." Defendant predicates his motion upon the "late crystallization" theory which is that if the registrant's conscientious objector beliefs mature after his Order to Report for Induction has been mailed, this is a change in status over which he had no control and thus his classification should be reopened by the local board. This theory has been accepted by the Second and Tenth Circuits on the reasoning that "The realization that induction is pending, and that he may soon be asked to take another's life, may cause a young man finally to crystallize and articulate his once vague sentiments." United States v. Gearey, 368 F.2d 144, 150 (2d Cir. 1966); Keene v. United States, 266 F.2d 378, 384 (10th Cir. 1959). However, the majority of the Circuits which have considered the present issue have specifically rejected the "late crystallization" theory and have held that as a matter of law a change in beliefs is not the type of change of circumstances beyond the registrant's control referred to in 32 C.F.R. § 1625.2. United States v. Walker, 424 F.2d 1069 (1st Cir. 1970); United States v. Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966); Davis v. United States, 374 F.2d 1 (5th Cir. 1967); United States v. Jennison, 402 F.2d 51 (6th Cir. 1968); United States v. Schoebel, 201 F.2d 31 (7th Cir. 1953); Ehlert v. United States, 422 F.2d 332, 333 (9th Cir. 1970), cert. granted 397 U.S. 1074, 90 S.Ct. 1525, 25 L.Ed.2d 808 (1970). The Eighth Circuit has yet to rule on the late crystallization theory although in at least one instance it was presented with the issue but decided the case on other grounds. United States v. Rundle, 413 F.2d 329, 334 (8th Cir. 1969), see particularly fn. 3, p. 334. In Davis v. United States, 410 F.2d 89 (8th Cir. 1969), the Eighth Circuit court indicated that a rather liberal approach should be taken by local boards in deciding whether to reopen a registrant's classification based upon a conscientious objector claim made for the first time by that registrant.

The court stated in part:

"A person sincerely claiming to be a conscientious objector whose belief has matured subsequent to an original classification, is most likely to have his sincerity placed in question by the local board. Undoubtedly, where a registrant presents a claim for conscientious objector status when his induction is imminent and when he has already been deferred for other reasons, the board is likely to view his claim and motives with considerable suspicion. Yet moral and religious values are subject to change, particularly as a young man reaches and enters maturity. There is little likelihood that such a person can be afforded a fair hearing without being allowed to personally present his claim." 410 F.2d at 94.

The court in Davis noted that the cases relied upon by the government which denied the reopening of registrants' classifications were cases where the requested reopening came after the issuance of an order to report for induction, which was not the case in Davis. The court also indicated approval of a Ninth Circuit case which held that a local board is not required to reopen a classification upon a registrant's claim of conscientious objector beliefs if an order to report for induction already had been mailed to the registrant. See Palmer v. United States, 401 F.2d 226 (9th Cir. 1968). Thus since the Eighth Circuit has not to date specifically ruled on the "late crystallization" theory this court gleaning what it can from the above references will follow the reasoning of the majority of the circuits in rejecting this theory.¹ The court opines that a change in one's beliefs towards wars and fighting is not a change in one's status resulting from circumstances beyond the control of that person. In a concurring opinion in Ehlert v. United States, 422 F.2d 332, 335 (9th Cir. 1970), Judge Duniway stated in part:

"The word `circumstances' indicates to me some fact, act or event external to the mind or consciousness of the registrant, rather than the mysterious and unfathomable internal mental and spiritual processes of the registrant himself. Whether those processes are beyond the registrant's control I leave to the philosophers among us. I think that, whatever the answer to that question may be, they are not circumstances beyond his control." 422 F.2d at 334.

It would appear that the regulation must have been and was intended to cover situations where a registrant for instance was stricken with some physical disability after his order to report for induction had been mailed or where there occurred a death in his family which...