United States v. Neamand
| Decision Date | 30 June 1969 |
| Docket Number | Crim. No. 14506. |
| Citation | 302 F. Supp. 1296 |
| Parties | UNITED STATES of America, Plaintiff, v. Neal Thomas NEAMAND, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Bernard J. Brown, U. S. Atty., Scranton, Pa., for plaintiff.
Thomas Foley, Jr., Scranton, Pa., for defendant.
Neal Thomas Neamand has been charged with a violation of the 1967 Military Selective Service Act, 50 U.S.C. App. § 462, for refusing to submit to induction into the Armed Services on June 11, 1968. Defendant was indicted on August 15, 1968. His first arraignment before this Court on October 4, 1968, was postponed when defendant appeared without counsel. An Attorney was then appointed and on January 31, 1969, defendant entered a plea of not guilty to the indictment. He then waived a jury trial and the case proceeded before this Court on February 17, 1969. Upon consideration of the merits of this case, I now find defendant guilty as charged in the indictment.
To place this case in proper perspective, we must consider defendant's Selective Service background. From the evidence adduced at the trial, I make the following findings of fact.
1. Neal Thomas Neamand was born on November 4, 1942, and registered with Local Selective Service Board 114, Bethlehem, Pennsylvania, on November 14, 1960.
2. On February 12, 1963, Local Board 114 mailed defendant a Classification Questionnaire (SSS Form 100), which he completed and returned and which indicated that defendant was a full-time student at Lehigh University, Bethlehem, Pennsylvania, majoring in History. He did not claim status as a conscientious objector at this time.
3. Defendant was classified 2-S (the proper category for students) during his undergraduate years at Lehigh University. He received his Bachelor of Arts degree on June 8, 1964, and on June 22, 1964, Local Board 114 classified defendant 1-A.
4. On July 27, 1964, Local Board 114 classified defendant 2-S until June 15, 1965, upon being informed that defendant was accepted for admission to the Graduate School at Lehigh University beginning in September, 1964.
5. On June 22, 1965, Local Board 114 again classified defendant 2-S until June 1, 1966, upon being informed that defendant was a full-time graduate student at Lehigh University.
6. On March 23, 1966, defendant was ordered by his Local Board to report for an Armed Forces physical examination on April 19, 1966. He was subsequently found fully acceptable for induction.
7. On April 9, 1966, defendant requested a Conscientious Objector Form (SSS Form 150) from his Local Board and completed and returned it on April 21, 1966. Two members of the faculty at Lehigh University and one member of the faculty of Bloomsburg State College and defendant's sister wrote letters in support of defendant's claim.
8. On June 22, 1966, Local Board 114 again classified defendant 2-S, but on this occasion it was made effective only until October 1, 1966.
9. In August, 1966, defendant was appointed research assistant to Professor L. H. Gipson at Lehigh University and he so notified his Local Board.
10. On September 21, 1966, Local Board 114 considered defendant's Conscientious Objector Form and reclassified him 1-A. Defendant requested a personal appearance within the required time period. This was scheduled for October 18, 1966, but was later rescheduled for October 25, 1966.
11. In the interval before the personal appearance, Local Board 114 received correspondence from Professor Lawrence Henry Gipson and Glenn J. Christensen, Provost and Vice President of Lehigh University, urging an occupational deferment (2-A) classification for defendant to aid Professor Gipson in completing the final volumes of "The British Empire Before the American Revolution" (Volumes XIII, XIV and XV).
12. At defendant's personal appearance before his Board, he presented for consideration a five-page statement of his views on war and a copy of a Vietnam Resolution approved by the Student Peace Union.
13. At its November 22, 1966, meeting, Local Board 114 classified defendant 2-A until November 22, 1967.
14. In October and November, 1967, defendant mailed to Local Board 114 resolutions and articles concerning the war in Vietnam and various poems and prose which he had composed.
15. On November 17, 1967, defendant informed his Local Board of his intention to travel outside the United States for the following ten to twelve months.
16. On December 12, 1967, Local Board 114 unanimously classified defendant 1-A and properly notified him.
17. By letter dated December 21, 1967, received by the Local Board on January 2, 1968, defendant appealed his 1-A classification. His file was then forwarded to the Pennsylvania State Appeal Board.
18. In the meantime, on January 18, 1968, Local Board 114 received a four-page letter from defendant dated January 9, 1968, further explaining his reasons for opposing his 1-A classification. The State Appeal Board then returned defendant's file to Local Board 114 for consideration.
19. At its January 23, 1968, meeting, Local Board 114 unanimously determined that the information submitted by defendant by letter dated January 9, 1968, did not warrant the reopening of his classification. Defendant was so notified and the file was then returned to the State Appeal Board pursuant to defendant's previously filed notice of appeal.
20. The State Appeal Board unanimously classified defendant 1-A on April 16, 1968, and defendant was properly notified.
21. On April 24, 1968, defendant was ordered to report for induction on May 7, 1968. Defendant's mother then notified Local Board 114 that defendant was still out of the country. Accordingly, on April 29, 1968, with the approval of the State Selective Service Headquarters, the Local Board postponed the May induction date to June to allow defendant time to return to the United States.
22. On May 27, 1968, Local Board 114 ordered defendant to report for induction on June 10, 1968.
23. On June 5, 1968, defendant mailed Local Board 114 a letter expressing opposition to the Vietnam War and stating that he would "* * * not under any circumstances permit myself to be inducted into the military establishment."
24. On June 11, 1968,1 defendant refused to be inducted into the Armed Forces at Wilkes-Barre, Pennsylvania.
25. On June 13, 1968, by letter dated June 8, 1968, defendant requested certain information (addresses, ages, military connections and length of service with the Selective Service System) concerning the Board members. On July 17, 1968, the Local Board, pursuant to advice from State Headquarters, declined to provide defendant with his requested information.
26. Defendant was indicted by the Grand Jury on August 15, 1968, and his arraignment was scheduled for October 4, 1968, and continued on that date when defendant appeared without counsel.
27. On November 25, 1968, defendant requested a second Conscientious Objector Form (SSS Form 150). It was completed and returned by him on December 24, 1968.
28. This second Form 150 was reviewed by Local Board 114 at a subsequent meeting, but the Board took neither affirmative nor negative action on the Form.
29. Defendant testified at trial in this Court that when he inquired about the status of this Form, the Clerk of the Local Board informed him that it was being considered and had been sent to Harrisburg.
30. Defendant also testified that while his conscientious objection claim originally was confined to his opposition to the war in Vietnam, his views expanded to opposition to war in any form and these enlarged views matured and crystallized between the time he first filed Form 150 on April 21, 1966, and the time of the filing of his second Form 150 on December 24, 1968. He testified further that his original views had not changed at the time he refused to be inducted on June 11, 1968.
There are four issues before the Court for consideration:
1. Whether it was error for the Court to allow the Government to reopen its case, after it rested, to introduce defendant's entire Selective Service file into evidence;
2. Whether there was a basis in fact for the classification of defendant;
3. Whether the filing of defendant's second Form 150 was a change in status resulting from circumstances over which he had no control within the meaning of 32 C.F.R. § 1625.2;
4. Whether the 1967 Military Selective Service Act violates the First and Fifth Amendments of the United States Constitution.
At the close of the Government's case, defendant moved for judgment of acquittal on the grounds that defendant's entire Selective Service file was not introduced into evidence and that without its introduction, no basis in fact existed for defendant's classification. The Government then moved to reopen its case to introduce the defendant's entire file. This motion was granted. Defendant argues that this ruling was unfair and contrary to Rule 29 of the Federal Rules of Criminal Procedure.2 I am unable to agree.
It is settled law in the Third Circuit that a decision allowing the Government to reopen its case is a matter within the discretion of the Trial Court. United States v. Zeid, 281 F.2d 825 (3d Cir. 1960), cert. denied, 364 U.S. 901, 81 S.Ct. 234, 5 L.Ed.2d 194 (1960). See also, Rhyne v. United States, 407 F.2d 657, 661 (7th Cir. 1969); 3 Orfield, Criminal Procedure Under the Federal Rules, §§ 26:216-26.218. In the absence of a clear abuse of that discretion, reversible error does not occur. In this case, it is not as if there was insufficient evidence introduced by the Government at the time it rested. The Secretary of Local Board 114 testified, as did the Lieutenant at the Armed Forces Induction Station at Wilkes-Barre, before whom defendant refused induction. Various exhibits were admitted which, together with the testimony, established the prima facie requirement of...
To continue reading
Request your trial
- United States v. Neamand, 71-1252.
-
United States v. Green, Crim. No. 71-645.
...of the highest body within the Selective Service System which has determined the registrant's classification." United States v. Neamand, 302 F.Supp. 1296, 1301 (M.D.Pa.1969). Here, as in Neamand, the highest board was the state of Pennsylvania appeal As a result, where the Local Board acted......
-
Goguen v. Clifford
...Government which cannot be overridden by convictions of individuals, 380 U.S. 163, 173, 85 S.Ct. 850. Compare United States v. Neamand, 302 F.Supp. 1296 (M.D.Pa.1969), with which we are unable to agree. As we view the problem in its narrowest concept, the fundamental issue involved is the c......