United States v. Mendoza

• Decision Date: 15 January 1969
• Docket Number: No. 67-CR-468.,67-CR-468.
• Citation: United States v. Mendoza, 295 F.Supp. 673 (E.D. N.Y. 1969)
• Parties: UNITED STATES of America v. William MENDOZA, Defendant.
• Court: U.S. District Court — Eastern District of New York

295 F. Supp. 673

UNITED STATES of America v. William MENDOZA, Defendant.

No. 67-CR-468.

United States District Court E. D. New York.

January 15, 1969.

Joseph P. Hoey, U. S. Atty. E.D. New York, for United States of America; Michael Rosen, Frank R. Natoli, Asst. U. S. Attys., of counsel.

Koozman & Hartman, New York City, for defendant; George H. Hartman, New York City, of counsel.

ZAVATT, Chief Judge.

This is a criminal prosecution under the Military Selective Service Act of 1967, 50 U.S.C. App. §§ 451-71, tried to the court without a jury pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure. Defendant is charged with knowingly failing and neglecting to perform a duty required of him under that Act, namely, to report for civilian work at Kings Park State Hospital in lieu of induction, in violation of 50 U.S.C. App. §§ 456(j), 462(a). There is no dispute as to whether defendant did in fact knowingly fail and neglect to report to Kings Park State Hospital, and the court finds beyond a reasonable doubt that he did knowingly fail and neglect to so report. However, defendant raises several questions of law in support of his position that his failure to report was not in violation of the aforesaid statutes.

Defendant claims that

(1) no valid order was ever issued by his Local Draft Board directing him to report for civilian work;

(2) he was denied due process of law in that he was not furnished a copy of the report of the Government Appeal Agent, included in his Selective Service file, and was not given an opportunity to reply thereto;

(3) he was denied due process and equal treatment under the Selective Service Regulations because his "processing" for civilian work was not commenced within ten days after he was found physically acceptable, as allegedly required by 32 C.F.R. § 1660.20(a);

(4) he was denied the right to be represented by counsel before the Local Board contrary to the Fifth and Sixth Amendments to the Constitution.

Defendant was duly registered with Selective Service Local Board No. 8, New York, N. Y. He was classified I-A by that Board on April 4, 1962, and again on July 11, 1962 following a personal appearance before the Local Board. He appealed this classification and on October 16, 1963 was classified I-A by the Appeal Board. Subsequently, the Local Board ordered defendant to report for a physical examination, which was conducted on April 17, 1964. On April 24, 1964 a Statement of Acceptability (DD Form 62) was mailed to the registrant indicating that he was physically qualified for duty in the armed forces. He was ordered to report for induction on April 8, 1965. On that date he did so report and passed a physical examination at the induction station. Defendant refused to submit to induction on April 8, 1965.

Following this refusal and on May 14, 1965 the Local Board mailed to the defendant New York City Form No. 54, a questionnaire to be answered by a registrant claiming to be a conscientious objector and/or minister of religion. The defendant typed his answers and returned the said form to his Local Board on or about May 25, 1965. He stated his gainful employment as operator of a circular knitting machine, 35 hours per week, at a weekly compensation of $100; his membership in the East Harlem Unit of the Congregation of Jehovah's Witnesses; that he was appointed a "Publisher" on November 22, 1957 devoting 25-30 hours per month to "field ministry"; that he was not a "Pioneer"¹ (later and on March 31, 1966 the defendant filed a second Form 54 advising the Local Board that he had been appointed a "Vacation Pioneer" for the period September 1 to November 30, 1965); that, during the preceding month, he devoted 15-18 hours to distributing literature. He attached a typewritten sheet listing his Bible studies and stating his opposition to all war, with citations to Books of the Bible. Thereafter, on July 14, 1965, the Local Board reopened his classification and reclassified him I-O. On July 28, 1965, the defendant notified the Local Board that he wished to appeal the I-O classification to the Appeal Board. On August 14, 1965, after the defendant had appeared in person before the Local Board in response to his request of August 2, 1965 for reconsideration of his classification by the Local Board, his I-O classification was continued on the ground that the defendant had failed to furnish any new evidence to warrant a change of his I-O classification. On August 16, 1965 and before the Local Board forwarded the defendant's appeal to the Appeal Board, it referred the defendant to the Government Appeal Agent. On that day the said Agent prepared a written statement for inclusion in the defendant's Selective Service file that was to be sent to the Appeal Board but did not give a copy thereof to the defendant.

The Appeal Agent testified that, while he did not specifically remember this meeting with the defendant, his general practice, when a registrant is referred to him for consultation about his appeal, is first to familiarize himself with the registrant's file and then have the registrant brought in. The Agent then tells the registrant that he will take his statement in the form of "an appeal" to be presented to the Appeal Board. He then asks the registrant to state his reasons for his objection to his present classification. At the conclusion of the interview, the Agent asks the registrant if there is anything he wishes to add. The registrant is advised that he has a right to submit additional information within thirty days and is then excused. After the registrant leaves, the Appeal Agent prepares a handwritten statement from the notes he has taken during the interview. Later, this statement is typed by a local board employee and placed in the registrant's Selective Service file and the entire file is forwarded to the Appeal Board. Both the handwritten and typewritten statements with reference to this defendant's appeal are in the defendant's Selective Service file.

The statement of the Government Appeal Agent recited that the defendant was single; 22 years of age; lived at home with his parents; was employed as a knitter, working a thirty-five hour week with occasional overtime; was now a Jehovah's Witness, having been ordained in 1957; was a "Publisher" in the East Harlem Congregation, located at 175 West 120th Street, and was devoting all of his time, except that spent working as a knitter, in the ministry of the Jehovah's Witnesses. It recited three reasons upon which defendant based his claim for a ministerial exemption (Class IV-D):

(1) that the full-time civilian work he might be called upon to perform in lieu of induction might hinder him from performing his ministerial duties;

(2) that he had a pending application for Pioneer status in his Congregation which, if granted, would require him to devote 100 hours per month to field service and

(3) that he considered his ministerial responsibilities paramount in his life and could not willingly relinquish them.

This statement was consistent with the Form 54 previously filed by the defendant and articulated, in addition, these three specific grounds for the classification he sought.

On August 30, 1965, defendant's file was forwarded to the Appeal Board. On September 22, 1965, that Board voted to retain him in Class I-O. This was the last classification given the defendant who has stipulated that his I-O classification has a basis in fact.

Not until July 8, 1966, was Selective Service System Form 152 mailed to the defendant. This form provides a Class I-O registrant with an opportunity to propose three types of civilian work which he offers to perform in lieu of induction. See 32 C.F.R. § 1660.20(a)² and Local Board Memorandum No. 64,³ directions from the Director of Selective Service (Director) to all local boards. On July 20, 1966, the said form was returned, uncompleted, by the defendant. On July 26, 1966, pursuant to 32 C.F.R. § 1660.20(b),⁴ the Local Board, by letter, offered the defendant three types of civilian work he could perform in lieu of induction. On August 5, 1966 the defendant appeared at the Local Board and refused all three types of work. Accordingly, on November 21, 1966 the Local Board held a meeting pursuant to 32 C.F.R. § 1660.20(c)⁵ at which Captain Thomas Maher, a representative of the New York City Director's office, and the defendant were in attendance. The defendant refused to perform any civilian work. The Local Board then recommended that he perform currently available institutional work at King's Park State Hospital and so advised the defendant.

On December 14, 1966 the defendant's file was forwarded through appropriate channels to the Director for his approval of the work recommended by the Local Board. See 32 C.F.R. § 1660.20(d).⁶ By letter dated December 30, 1966, the Director approved the civilian work recommended by the Local Board, and on January 3, 1967 the Local Board received notice to that effect from New York City Selective Service Headquarters. The Board did not meet to discuss the defendant's case from November 21, 1966, the date of the meeting attended by Captain Maher, through January 13, 1967. On that date a Selective Service System Form 153, signed by the Clerk of the Local Board, was mailed to the defendant. It ordered the defendant to appear at the Local Board on January 25, 1967 for instructions concerning civilian work to be performed by the defendant at Kings Park State Hospital. The defendant appeared at the Local Board on that date and was so instructed but did not, thereafter, appear at Kings Park State Hospital, whereupon this indictment was returned.

Order to Report for Civilian Work

The substance of defendant's contention is that the "order" (SSS Form 153), issued January 13, 1967, was not the order of the Local Board but at most that of its Clerk and, therefore, that he was under no duty to obey it. This is not the first time this point has been raised,...