United States v. Newman

• Citation: 297 F. Supp. 678
• Decision Date: 26 March 1969
• Docket Number: Crim. No. 2658.
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Eugene Stewart NEWMAN, Defendant.

297 F. Supp. 678

UNITED STATES of America, Plaintiff, v. Eugene Stewart NEWMAN, Defendant.

Crim. No. 2658.

United States District Court C. D. California.

March 26, 1969.

Wm. Matthew Byrne, Jr., U. S. Atty., and Robert L. Brosio and Theodore E. Orliss, Asst. U. S. Attys., Los Angeles, Cal., for the Government.

J. B. Tietz, Los Angeles, Cal., for defendant.

MEMORANDUM AND DECISION FINDING DEFENDANT GUILTY AS CHARGED. 50 U.S.C. App. 462.

CRARY, District Judge.

Trial of the above entitled case was had by Court without a jury on February 28, 1969. Following oral argument, the case was continued to March 24, 1969, for further proceedings and the parties were authorized to file additional points and authorities in support of their respective positions.

Defendant waived appearance at the further proceedings held on March 24th and, at the conclusion thereof, the Court took the matter under submission and now files its written decision.

Defendant was indicted for knowingly failing and refusing to be inducted into the Armed Forces of the United States, as more particularly set forth in the Indictment filed October 2, 1968. He registered on December 2, 1959, and following a period during which he was classified 2-S, the Board, on May 11, 1967, changed his classification to 1-A. Thereafter, he made a personal appearance before the Board and appealed the 1-A classification. On July 28, 1967, the 1-A classification was sustained by the Appeal Board and on July 31, 1967, defendant was ordered to report for induction on August 16, 1967. On August 15th, defendant requested conscientious objector Form No. 150, which was completed and returned to the Board by him on September 1, 1967. By letter dated August 17, 1967, the Board transmitted to defendant Selective Service System Form 264, whereby defendant was notified by the Board that "By authority of the State Directory under Section 1632.2 (a) * * *" his order to report for induction on August 16, 1967, was postponed "until further notice". Emphasis added. The letter also advised the defendant that his induction date had been postponed "* * * pending the Board's review of new evidence." The new evidence was the Form 150 filed by the defendant with the Board on August 16, 1967. Section 1632.2(a) of Title 32, Code of Federal Regulations, allows the Board to authorize two postponements of induction, each for a period of 60 days. On page 12 of Exhibit 1 in the case at bar, defendant's Selective Service file, it is noted under "Minutes of Action" entered August 16, 1967, "Induction postponed 30 days".

The Board reviewed the conscientious objector claim of defendant, decided not to reopen the case, and on October 18, 1967, ordered the defendant to report for induction on November 8, 1967.

Defendant asserts that under the rule set forth in Hamilton v. Commanding Officer, Armed Forces Examining and Induction Station, 328 F.2d 799 (9 C.A. 1964), the postponement of his induction "until further notice" constituted a cancellation of his order for induction and that, therefore, the filing of his claim as to being a conscientious objector was before he was ordered to report for induction and it follows that the Board was required to reopen his classification, with attendant rights in defendant to seek a personal appearance before the Board and to appeal any order of the Local Board denying such claim.

Although this is a criminal case, the Court writes this opinion to focus on the major issue here involved, to wit, whether the postponement of a date to report for induction, until further notice, constitutes, in all circumstances, a cancellation of the induction order.

Referring to the Hamilton case, supra, it will be noted that the defendant there was, on February 25, 1963, ordered to report for induction on March 14, 1963. On March 6, 1963, induction was postponed "until further notice", "To extend appeal rights to registrant" and enable the claimant to submit additional information on dependency. (Pages 100-102, Selective Service record in the Hamilton case, hereafter referred to as H.R.) There was no mention of the period of postponement in the Hamilton case under "Minutes of Action". (14, H.R.) By letter of June 27, 1963, Hamilton was ordered to report for induction on July 8, 1963. (144, H.R.) This letter also advised Hamilton that under date of May 20, 1963, the Board had mailed him an order to report for induction on June 11, 1963, which order was thereby cancelled. The order of May 20, 1963, appears on page 143 of the Hamilton record.

The Court of Appeals in the Hamilton case held that the postponement "until further notice" cancelled the induction order, stating:

"But in our view the board did subsequently cancel its order to report by its postponement on March 6, 1963, `until further notice' of induction. Thus, after March 6, he was entitled to submit any proof of change of circumstance since his last classification of February 6, 1963."

In affirming Hamilton's conviction, the Court of Appeals goes on to say:

"But the trouble is that the material submitted after February 6, 1963, just does not show any change for the worse after that date. Neither does it indicate the condition of the mother on February 6, 1963, was any worse than he had previously described it. We assume the Board had a duty to examine whatever Hamilton sent in as papers. The record indicates the board did. They found no new change in circumstances requiring a reopening." Page 802.

It is to be noted that in the Hamilton case the postponement was actually for a period of five months and fifteen days, or a total of 168 days, whereas in the case at bar the postponement was for 84 days, less than the total of 120 days postponement authorized by the Local Board under the provisions of 32 C.F.R. § 1632.2(a).

In the case of Wolfe v. United States, 370 F.2d 388 (9 C.A.1966), decided two years after Hamilton, supra, the defendant Wolfe registered on May 23, 1960. On June 18, 1963, he was classified 1-A. After a change in classification to 2-S for a period of time he was again classified 1-A on February 11, 1965. On June 30, 1965, he was ordered to report for induction on July 27, 1965. Pursuant to his request of July 6th the Board sent him a Form 150 (conscientious objector) on July 12, 1965. The completed Form 150 was returned to the Board on July 26th and on that date the Board ordered postponement of his induction "until further notice" in order that it might consider the said conscientious objector claim. The Board, on August 6, 1965, after granting Wolfe a hearing, decided not to reopen his classification and so advised him. On August 10, 1965, the California headquarters of the Selective Service System advised the Board...