United States v. Mitchell
| Decision Date | 06 December 1965 |
| Docket Number | Cr. No. 11486. |
| Citation | 246 F. Supp. 874 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America v. David Henry MITCHELL, III. |
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Jon O. Newman, U. S. Atty., Howard T. Owens, Jr., Asst. U. S. Atty., and Samuel J. Heyman, Asst. U. S. Atty., New Haven, Conn., for United States.
Conrad J. Lynn, of Lynn, Spitz & Condon, New York City, Anthony G. Apicella (Court-appointed), of Garber & Apicella, New Haven, Conn., and William K. Muir, Jr., of Gumbart, Corbin, Tyler & Cooper, New Haven, Conn. (New Haven Civil Liberties Council, amicus curiæ), for defendant.
Defendant David Henry Mitchell, III, after a three day trial was convicted by a jury of wilful failure to report for induction in the armed forces of the United States, in violation of Section 12(a) of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a). He was sentenced, under 18 U.S.C. § 4208(a) (1), to not less than 18 months and not more than 5 years in prison and was fined $5,000.1 His post-conviction motion for a judgment of acquittal or a new trial, supported on one issue by the New Haven Civil Liberties Council, was denied. He has appealed, pursuant to a notice of appeal filed by his court-appointed counsel, and has been enlarged on bail pending appeal.
Jurisdiction is founded on Section 12 (a) of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a).
Venue is laid properly in this District; the location of the Local Board having jurisdiction over the place of residence of defendant at the time he originally registered has continuing jurisdiction over him;2 and the Local Board with which he was registered and to which he failed to report for induction is the situs of the offense here charged,3 despite the fact he was living outside of the District at the time he failed to report for induction.4
The critical question here presented is whether, in view of the command of Congress in the section of the statute under which this prosecution was brought that trial of such cases shall be given precedence and shall be advanced for immediate hearing,5 a defendant on the very day his case has been assigned for trial may discharge counsel who has served him to his satisfaction for more than a year and, claiming inability to retain substitute counsel during a five day continuance because of his insistence that the case be defended on the ground of issues rejected by the Court in denying a motion to dismiss the indictment, may, after waiving right to counsel and electing to defend pro se and rejecting assistance of court appointed counsel, be granted a new trial more than four years after refusing to fill out his classification questionnaire, returning his classification card, "disaffiliating" himself from Selective Service and being declared a delinquent by his Local Board? The Court holds that a new trial will not be granted under such circumstances.
Defendant's post-conviction motion for a judgment of acquittal or a new trial raises issues regarding his claims as to the sufficiency of the evidence, the sufficiency of the indictment and his right to counsel. The Court makes the following findings of fact and conclusions of law upon the issues raised by defendant's claims — grouped for convenience of reference under the headings: I. Trial Issues And Evidence Adduced, and II. Issues On Motion To Dismiss Indictment And Their Relation To Defendant's Right To Counsel.
TRIAL ISSUES AND EVIDENCE ADDUCED
The issues upon which defendant was tried were simple and narrow:6
(1) Whether a valid induction order had been issued by defendant's local board requiring him to report for induction.
(2) Whether notice of such induction order had been given to defendant.
(3) Whether defendant failed to report for induction pursuant to such order.
(4) Whether defendant's failure to report was a wilful and knowing failure.
The evidence, largely documentary, was concise:7
(1) January 30, 1961, defendant, age 18, then residing at White Oak Shade Road, New Canaan, Connecticut, registered with Selective Service Local Board No. 17 in Norwalk, Connecticut, and was assigned Selective Service No. 6-17-43-18.8
(2) February 10, 1961, a registration certificate was sent to defendant by the Local Board.9
(3) August 3, 1961, a classification questionnaire was sent to defendant by the Local Board which he did not return.10
(4) October 10, 1961, the Local Board classified defendant IA as a delinquent who had failed to return his questionnaire.11
(5) October 11, 1961, a delinquency notice and a IA classification card were sent to defendant by the Local Board.12
(6) December 3, 1961, defendant wrote to the Local Board,13 acknowledging receipt of the delinquency notice and classification card mailed to him October 11, 1961, stating that "I refuse and enclose" (Emphasis that of defendant) the classification card14 and enclosing a "Statement of Selective Service Disaffiliation" dated December 3, 1961, signed by defendant.15
(7) August 11, 1964, the Local Board again classified defendant IA.16
(8) August 18, 1964, a IA classification card was sent to defendant at 1010 President Street, Brooklyn, N. Y. by the Local Board.17 This classification card was not returned by defendant,18 nor did he at any time request a hearing before the Local Board regarding his classification.19
(9) September 25, 1964, an order to report for physical examination on October 21, 1964 was sent to defendant by the Local Board.20
(10) October 21, 1964, defendant failed to report for physical examination as ordered.21
(11) November 10, 1964, the Local Board declared defendant a delinquent because of his failure to report for physical examination and sent him a delinquency notice.22
(12) December 14, 1964, the Local Board ordered defendant to report for induction on January 11, 196523 and sent the order to defendant at 150 Crown Street, Brooklyn, N. Y., under cover of a letter dated December 14, 1964;24 being a delinquent, he was in the category first to be called among those available for induction.25
(13) January 6, 1965, the Local Board received defendant's letter of January 4, 1965 acknowledging receipt of the Board's letter of December 14, 1964 under cover of which the Board had sent defendant the order to report for induction.26
(14) January 11, 1965, defendant failed to report for induction as ordered.27
(15) January 19, 1965, the Local Board reported defendant as a delinquent to the United States Attorney for the District of Connecticut; the Board reported that defendant, in addition to failing to report for induction as ordered December 14, 1964, had failed to complete and return the classification questionnaire sent to him August 3, 1961 and had failed to report for physical examination as ordered September 25, 1964.28
(16) During the period between December 14, 1964, when he was ordered to report for induction, and the time of trial, September 14, 1965, defendant did nothing to comply or attempt to comply with the order to report for induction.29
(1) Defendant's declaration that "I plan to use my trial as a forum in which to try the United States Government before the world * * * and utilize every other means available to stir up a storm" is set forth in a statement sent by defendant to his Local Board on June 9, 1964:30
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