United States v. McGee

• Decision Date: 31 March 1970
• Docket Number: No. 177,Docket 33568.,177
• Citation: 426 F.2d 691
• Parties: UNITED STATES of America, Appellee, v. Vincent Francis McGEE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

426 F.2d 691 (1970)

UNITED STATES of America, Appellee, v. Vincent Francis McGEE, Jr., Defendant-Appellant.

No. 177, Docket 33568.

United States Court of Appeals, Second Circuit.

Argued September 30, 1969.

Decided March 31, 1970.

Alan H. Levine, New York City (Marvin M. Karpatkin, J. Edward Meyer, III, New York City, on the brief), for defendant-appellant.

Ross Sandler, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, James D. Zirin, Asst. U. S. Atty., on the brief), for appellee.

Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

Vincent Francis McGee, Jr. appeals from a judgment of conviction for violating 50 U.S.C.App. § 462(a), following a trial before Judge Murphy and a jury in the District Court for the Southern District of New York. McGee was convicted on all four counts of the indictment and was sentenced to imprisonment for two years on each count, the terms to run concurrently. The indictment charged him with refusing to submit to induction (Count 1), to report for a physical examination (Count 2), to possess a valid notice of classification (Count 3), and to submit information that his local board had requested (Count 4).

I.

McGee is a Roman Catholic who is currently a student at the Union Theological Seminary in New York City. He registered with Local Board 15 in Manhattan in August 1961, and informed the board a month later that he was "a student preparing for the ministry at the Cathedral College of St. Joseph's Seminary * * * under the direction of Roman Catholic Church." He took a leave of absence from the College in 1963, during which period his board classified him I-A. In August 1964, he passed the preinduction physical that his board had ordered. A short time later, after enrolling in the University of Rochester, he was granted a II-S (student) deferment. He was temporarily reclassified I-A in September 1965, but his II-S classification was renewed shortly thereafter. In February 1966, while still classified II-S, McGee requested conscientious objector status, stating that it was his "intention to continue on to actual ordained Priesthood." The clerk of his board wrote him on March 23:

This will advise that the recent evidence submitted, concerning your case has been reviewed by the Local Board. It is the decision of the Board that such evidence does not justify the reopening of your case and reconsideration of your present classification.

However, we wish to advise that your claim as Conscientious Objector will be considered when you no longer qualify for a student classification.

McGee did not appeal this decision; he later requested and was granted a further II-S classification in October 1966.

In April 1967, while still classified II-S and enrolled in the University of Rochester, McGee wrote President Johnson, enclosing remnants of his torn and burnt draft card. This letter stated that even though he had "already been accepted for graduate study in a program where" he "would probably qualify for the theological deferment," he felt it necessary to "sever every link with violence and war" and to refuse to cooperate "with the military-industrial complex which seems to be dictating our international policy." McGee's local board received a copy of this letter, apparently considered reopening his classification and decided against it, and, in any event, did not change his II-S classification and deferment. Following McGee's graduation from the University of Rochester in June 1967, his board sent him a Current Information Questionnaire. McGee returned it unanswered, and in a covering letter announced that "further correspondence" from the draft board would "simply be returned unopened," consistent with his belief that "cooperation is approval." On September 19, 1967, almost two months after receipt of this letter by the local board, McGee was reclassified I-A. The Board mailed him a notice of classification and a letter clearly informing him that he had a right to ask for a personal appearance or an appeal within 30 days, that the board had a Government Appeal Agent to aid him "with a personal appearance, an appeal, or any other procedural right," and that the Appeal Agent or his representative would give him legal counsel on Selective Service matters at no charge. McGee returned this unopened, writing on the envelope

Returned pursuant to previous declaration and notification.

McGee also returned unopened an order directing him to appear for a physical examination scheduled for October 18, 1967, and did not appear for it. He returned a delinquency notice sent on November 22, 1967. McGee did open his induction notice, which was sent on January 11, 1968, and did report for and pass a physical examination at the induction center. However, he refused to submit to induction.

Meanwhile, McGee had matriculated in the Union Theological Seminary as a full-time student on September 27, 1967. At no time did he request a IV-D (student for the ministry) classification from his draft board, but he claims that his letter to the President in April 1967, an interview with two FBI agents in May 1967, and testimony before a grand jury in November 1967, gave his board sufficient information to require classifying him IV-D. At trial, it was established that the Union Theological Seminary is non-denominational, and that McGee's parish priest recommended him to the Seminary. The chairman of McGee's draft board testified outside the presence of the jury that before McGee was classified I-A in September 1967, all pertinent information in his Selective Service file was reviewed. Judge Murphy found that the board considered and rejected appellant's conscientious objector claim.

McGee argues that his local board acted unlawfully in classifying him I-A in September 1967, when in his view he should have been classified IV-D or I-O. On that premise he claims that he cannot be convicted of refusing to submit to induction (Count 1) because his order to report for induction was illegal; that he cannot be convicted of refusing to report for a physical examination (Count 2) because if he had been properly classified, he would not have been called for a physical or, if called, could have waived the examination without penalty; and that he cannot be convicted of failing to possess a valid notice of classification (Count 3) because his I-A classification was invalid. He also argues that he cannot be convicted of failure to supply information to his local board (Count 4) because he substantially complied with its request and because any information not supplied was favorable to him.

II.

We shall deal first with McGee's claim that he was entitled to exemption from military service as a matter of law under 50 U.S.C.App. § 456(g), which provides that:

Students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools * * * shall be exempt from training and service (but not from registration) under this title.

McGee contends that the statutory policy is so strong that the exemption may not be denied any registrant who meets the qualifications. He concedes that he did not request the exemption from his board, but claims that no such request is required by the statute or regulations. In any event he argues that the local board had sufficient knowledge of his qualification for the exemption to require its issuance.

It is true that section 456(g) is a mandatory provision in the sense that a draft board may not deny a IV-D exemption to one who qualifies for it. Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968).¹ However, it does not follow that a registrant may totally disregard the administrative procedures established by the Selective Service System, and rely on his own evaluation of his right to a IV-D classification in the hope that a court will subsequently support his interpretation. While McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969), states that "in Selective Service cases, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system Congress has created," it recognizes that the exhaustion doctrine may well be applicable to IV-D claims like McGee's, where the registrant is relying on facts never clearly presented — or indeed presented at all — to his local board.

Of course, it is necessary that the local board, which has the responsibility of classifying registrants in the first instance, be given the information necessary to perform its function. However, the present case does not present an instance where a registrant is trying to challenge a classification on the basis of facts not presented to the local board. In such a case, the smooth functioning of the system may well require that challenges to classifications based upon facts not properly presented to the board be barred.

395 U.S. at 198 n.15, 89 S.Ct. at 1665.

McKart dealt with the proper interpretation of the "sole surviving son" exemption, 50 U.S.C.App. § 456(o), which the Court found to be only a question of statutory interpretation and "certainly not a matter of discretion." Id. at 198, 89 S.Ct. at 1665. Accordingly, it refused to apply the exhaustion doctrine in that case because there was "simply no overwhelming need" to have the Selective Service System "resolve this question in the first instance, at least not where the administrative process is at an end and the registrant is faced with criminal prosecution." Id. at 199, 89 S.Ct. at 1665. McKart's claim was thus in sharp contrast to "classification questions which do involve expertise or the exercise of discretion, both by the local boards and the appeal boards." Id. at 198, 89 S.Ct. at 1665. Thus,

Conscientious objector claims * * * or

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