United States v. Longworth

• Decision Date: 07 June 1967
• Docket Number: Crim. No. 11181.
• Citation: 269 F. Supp. 971
• Parties: UNITED STATES of America v. William Frederick LONGWORTH.
• Court: U.S. District Court — Southern District of Ohio

269 F. Supp. 971

UNITED STATES of America v. William Frederick LONGWORTH.

Crim. No. 11181.

United States District Court S. D. Ohio, W. D.

June 7, 1967.

Thomas R. Smith, E. Winther McCroom, Asst. U. S. Attys., Cincinnati, Ohio, for plaintiff.

Arnold Morelli, Cincinnati, Ohio, for defendant.

FINDINGS AND OPINION

HOGAN, District Judge.

The defendant was indicted for refusing induction. A jury was waived. The defense is that the classification order of the Draft Board and the Board of Appeals, based on which the order of induction was issued, was invalid.

Findings of Fact

1. Defendant William F. Longworth, born August 21, 1942, registered for the draft at the appropriate time and, for purposes of this case, was classified 1-A by the appropriate Draft Board.

2. He married Shirley Ann William prior to 1965 and lived with her as man and wife until on or about July 5, 1966.

3. On April 14, 1966, he duly informed his Draft Board (Local No. 51, Hamilton County, Ohio) that his wife was pregnant and furnished a medical certificate indicating an expected date of delivery of September 25, 1966.

4. On April 19, 1966, he was reclassified as 3-A.

5. On or about July 5, 1966, he left his wife and unborn child (who remained at their residence in Cincinnati and apparently they still do) and shortly thereafter took up residence in Lexington, Kentucky. In Lexington, Kentucky, he began living with Kathleen (then aged 18). They lived together as man and wife, she using his name, and apparently still do.

6. Defendant advised his Draft Board of his Kentucky address on August 9, 1966.

7. That Draft Board periodically sends questionnaires to its registrants and it sent such a questionnaire to the defendant early in October, 1966. In filling out the questionnaire the defendant, on October 8, 1966, indicated to his Draft Board as follows:

"I am married—I do not live with my wife. Her address is Richfield Drive, Cincinnati, Ohio. * * * We were married July 7, 1962. * * * I have no child other than an unborn child and have already sent in a statement from a physician showing the basis of his diagnosis of pregnancy and the expected date of birth. * * * I do have dependents other than those * * * above."

The Draft Board, in accordance with its usual practice, attempted to verify the birth of the child of Shirley Ann (William) Longworth in October, 1966, and ascertained that her child, being the defendant's child, was born in September, 1966, and further verified that the defendant was no longer living with his wife and child by her.

7. Based upon that the Board on October 19, 1966, reclassified the defendant from 3-A to 1-A and notified the defendant.

8. Immediately upon the receipt of that notification and on October 22, 1966, the defendant advised his Draft Board by a letter writing as follows:

"A few weeks ago I received a questionnaire, in which asked if my wife and I were living together and if not, what was her address. I stated we were not and gave her address and also stated that a statement of her pregnancy had already been sent in. As you have contacted her and found out no support money has been sent, you have reclassified me from 3-A to 1-A. Since we are seeking a divorce, my lawyer has told me not to send any money (she has received some support money before I saw my lawyer). Until the courts have decided the amount, whereas I will be supporting her and her child.

"The questionnaire also asked about other dependents and I stated yes. I am now living with a girl who is expecting our baby any day now. (Enclosed is a doctor's statement.) She is using my name because I do not want the birth certificate to read illegitimate. We are planning on marrying as soon as my divorce is final. I am now supporting her and soon her and the baby plus my wife and her baby. Therefore, I will have four dependents, which I believe should entitle me to another classification. If drafted it would work a hardship on this girl and my baby and all of my dependents, so please reconsider my draft status to see if I would be qualified for another classification."

9. A medical certificate accompanied that letter, signed by a Lexington Doctor, certifying that Mrs. Kathy Longworth (i. e., Kathy) was in his care for maternity reasons and that her expected date of delivery was October 5, 1966.

10. As a matter of course, this Draft Board accepts at face value statements of fact received orally or in writing from its registrants. As stated above, it does, as a matter of course, verify births based on which classifications are changed.

11. The defendant's 10/22 letter was received by the Board on 10/25. On October 25, the defendant wrote the Board a letter (received October 27) in which he said, "I hereby appeal the decision of the Local Board reclassifying me to 1-A and ask for a Dependency Reclassification of 3-A. Because of children and a wife to support. The entire situation is explained in a previous letter which you already have." On October 28, a lawyer for registrant visited the Local Board office and discussed the case. Registrant is "living with a girl (not common-law) and she is pregnant. Using registrant's name."

12. On October 28, the registrant's file was sent to the Appeal Board and the "Classification" involved was the "Classification of October 19." The Local Board did not have, on October 19, the knowledge imparted to it by defendant's letter of October 22 and by the lawyer's call of October 28, shown on the Board's Records to be "New Information" and the classification by the Local Board was therefore made without considering that information. The Local Board has never classified defendant in the light of that information or reconsidered his classification in the light thereof.

13. The Board of Appeals for the Southern District of Ohio, on December 27, 1966, and acting on the appeal, classified the defendant as 1-A.

14. The defendant, prior to any of the events described herein, in 1966, had been medically examined and found fit for military service. He exhausted his administrative remedies with respect to the reclassification—or classification as 1-A—he received an order in the usual form to report for induction on 8 March 1967, received all the usual and preliminary processing and at the induction ceremony, refused to take a forward step when requested so to do and/or to take the oath and declined induction. This occurred in this District. The only questions involved in this matter are stated in the opinion below.

15. The foregoing are all of the relevant facts which appear from the files and records of the Draft Board and/or the Appeal Board (same one referred to in footnote 1 below).

16. The defendant, at no time prior to the final action of the Appeal Board on December 27, 1966, advised the Draft Board of any further facts and the foregoing, to repeat, are all the relevant facts in the records of the Selective Service Agencies (Board and Appeal Board).

Supplemental Findings of Fact

These supplemental findings of fact may or may not be competent, but are made in several obvious interests and to the extent that objections were made at the trial to the evidence supporting these findings, such objections are overruled.

1. On October 26, 1966, Kathy Long-worth gave birth to William David Long-worth in Lexington, Kentucky.

2. Since July of 1966, the defendant and Kathy had been living together as man and wife in Lexington and still do.

3. The defendant is the father of that child and, since that child's birth, the father, mother and child have been living together as a family unit in an apartment which is under lease expiring in July, 1967, in Lexington.

4. The de facto relationship between the defendant and the child William David, is and has been since October 26, 1966, the normal de facto relationship between father and son. The apartment in which the three live was leased by the defendant for one year in July, 1966.

Rejected Evidence and Findings

The expert testimony offered in this case through the sociologist William Poten has not been considered and is not being considered, and the objection thereto and to other oral evidence tendered at the trial (except such as has been dealt with above) is sustained.

Opinion

This case involves two questions, one procedural and one substantive. The procedural question is whether or not the proceedings before the Local Board conformed to the regulations—if not, the defendant was deprived of due process and the induction order was invalid. We decide it initially. The result flows from an easily understandable error on the part of the Local Board. It construed the word "appeal" in the defendant's letter which it received on October 27 in a technical legal sense—i. e., transferring the whole matter before the Appeal Board and divesting the Local Board of jurisdiction. Construing the word in that technical sense, the Board was absolutely right and this Court recently had the point in a legal sense in United States ex rel. Shott v. Tehan. However, it is abundantly clear by overwhelming Federal appellate authority that the word "appeal," when used by a registrant in a communication to a Board, particularly when it is used in conjunction with the word "reclassification" (as it was used in this case) and most particularly when it is used in connection with imparting to the Board of new information which may, to any reasonable mind, affect the classification—to repeat, that word "appeal" when used by a draft registrant in such a context means a request for a reconsideration of his classification by the Board.

We will not quote liberally from the regulations or reported decisions. We simply refer to the decisions and the regulations and sum them up.

The regulations, 32 C.F.R. 1625.2, et seq., as construed by the courts, require a Board to consider a request for an "appeal" as a request to reopen a classification and mandate the Board into reopening and considering anew the...