United States v. Purcell, Crim. No. 71-432.

• Decision Date: 22 March 1972
• Docket Number: Crim. No. 71-432.
• Citation: 339 F. Supp. 366
• Parties: UNITED STATES of America v. Frank Busser PURCELL.
• Court: U.S. District Court — District of Massachusetts

339 F. Supp. 366

UNITED STATES of America v. Frank Busser PURCELL.

Crim. No. 71-432.

United States District Court, D. Massachusetts.

March 22, 1972.

Joseph L. Tauro, U. S. Atty., Alan R. Hoffman, Asst. U. S. Atty., for plaintiff.

Michael N. Pollet, Karpatkin, Ohrenstein & Karpatkin, New York City, for defendant.

OPINION

CAFFREY, District Judge.

Defendant Frank B. Purcell was indicted in a one-count indictment charging him with violation of 50 App. United States Code, Section 462, in that he did fail and neglect and refuse to comply with an order of his local draft board to submit to induction. Purcell waived trial by jury, the case was tried to the Court, and at the conclusion of the Government's case the defendant filed a motion for judgment of acquittal which was briefed by the parties.

The facts may be summarized as follows: The defendant duly registered with his local draft board and after receiving 2-S classifications while attending Harvard College, from which he graduated in 1966, and Columbia Graduate School from which he graduated in 1968, he was reclassified 1-A on October 23, 1968. He wrote to his local board requesting classification as 1-O (conscientious objector) on November 15 and December 19, 1968. He also filed an SSS Form 150 relative to his claim of conscientious objection with the local board. He requested and was granted a personal appearance before the board on January 22, 1969, after which the board denied his request for 1-O classification and continued him in 1-A.

On February 13, 1969, defendant requested an appointment with a Government appeal agent, having been advised of his right to such an appointment by SSS Form 217 sent to him by the local board. On the Government's evidence it is uncontradicted that the local board with which Purcell was registered did not have a Government appeal agent nor did it have an associate Government appeal agent. It is equally uncontested that although authorized so to do by regulation 32 C.F.R. 1604.71(d), and by local board Memorandum No. 82, Purcell's board failed to obtain the services of an appeal agent from another local board to grant Purcell the requested interview. The only action taken in response to his request for an appointment with an appeal agent was a referral of Purcell to Lieut. Colonel Remo G. Gandin, who is presently the Manager of the Operations Division, Massachusetts Selective Service Headquarters. Colonel Gandin has been employed by the Selective Service System since March 1951. He is not an attorney at law nor has he attended law school at any time. Purcell had an interview with Colonel Gandin on February 28, 1969. Thereafter, the Massachusetts State Appeal Board denied an appeal taken to that Board by Purcell and continued him in Class 1-A. On May 19, 1969, the local board issued an order directing him to report for induction on June 5, 1969. He failed to so report and the instant indictment was subsequently returned.

32 C.F.R. 1604.71 provides in pertinent part:

"(a) For each local board a government appeal agent shall be appointed by the President upon recommendation of the Governor.

. . . . .

(c) Each government appeal agent and associate government appeal agent shall be, whenever possible, a person with legal training and experience.

(d) It shall be the duty of the government appeal agent and in his absence or inability to act or at his direction, the duty of the associate government appeal agent:

(1) To appeal ... from any classification of a registrant by the local board which ... in his opinion, should be reviewed by the appeal board.

. . . . .

(3) To suggest to the local board a reopening of any case where the interests of justice, in his opinion, require such action . . . . .

(5) To be equally diligent in protecting the interests of the government and the rights of the registrant in all matters."

32 C.F.R. 1626.61 provides in pertinent part as follows:

". . . (b) At any time before the registrant is mailed an Order to Report for Induction . . . the government appeal agent . . . may prepare and place in the registrant's file a recommendation that the State Director of Selective Service either request the appeal board to reconsider the determination or appeal to the President. . . ."

In 1967, the then Director of Selective Service, Lewis B. Hershey, issued Local Board Memorandum No. 82 which provided in pertinent part:

"Whenever a local board places a registrant in . . . Class 1-A . . . it shall . . . also inform the registrant that the government appeal agent is available to advise him on matters relating to his legal rights including his right of appeal."

The narrow question presented on the uncontested facts recited above is whether the denial to defendant of an interview with a Government appeal agent was sufficiently prejudicial to him as to render illegal the order for induction with which he refused to comply.

In Steele v. United States, 240 F.2d 142 (1956), the Court of Appeals for this Circuit ruled that a local board's failure to comply with the regulation regarding a government appeal agent was not by and of itself sufficient to render illegal an order to report for induction. The Court noted, additionally, that violation of the regulation must result in prejudice to the registrant before it vitiates the legality of the order. Significantly, however, the Court then went on to rule that once it appears that a procedural right has been denied the registrant, the burden of proof beyond a reasonable doubt rests on the Government "to establish as part of its case that deprivation of the right to counsel and aid of advisors could in no way have harmed appella...