United States v. O'ROURKE

• Decision Date: 16 March 1972
• Docket Number: No. 71 Cr. 1446.,71 Cr. 1446.
• Citation: 341 F. Supp. 622
• Parties: UNITED STATES of America v. Kevin O'ROURKE, Defendant.
• Court: U.S. District Court — Southern District of New York

341 F. Supp. 622

UNITED STATES of America v. Kevin O'ROURKE, Defendant.

No. 71 Cr. 1446.

United States District Court, S. D. New York.

March 16, 1972.

Whitney North Seymour, Jr., U. S. Atty., for Southern District of New York, for the United States of America; by George E. Wilson, New York City, of counsel.

Donald L. Doernberg, Levy, Gutman, Goldberg, & Kaplan, New York City, for defendant.

GURFEIN, District Judge.

The defendant was indicted under Title 50 Appendix, U.S.C. § 462(a), and 32 C.F.R. § 1632.14, for refusing to submit to induction into the armed forces of the United States. He moves to dismiss the indictment pursuant to Rule 12(b) (1) of the Federal Rules of Criminal Procedure upon the ground that "there are defenses capable of determination without the trial of the general issue."¹ The specific ground for the motion is that defendant's Selective Service file demonstrates that he was illegally denied conscientious objector status.

The facts, set out in the following paragraphs, are taken from the Local Board files which were presented in support of the motion to dismiss the indictment.

The defendant was registered with Local Board No. 8 at Yonkers, New York on May 6, 1966. About March 12, 1970, shortly before withdrawing from college on June 4, 1970, the defendant filed with the Local Board a request for classification as a conscientious objector (Class 1-A-O), and thereafter continued to seek such classification. On June 24, 1970 he was classified 1-A. This is the second of six dates on which the defendant was classified 1-A.

On February 22, 1971 the defendant submitted to the Local Board an application for classification as a conscientious objector (Class 1-O) in the form of a long letter which answered the questions on Form 150, the conscientious objector form. He relied on his religious views derived from specific Roman Catholic training. Two days after the defendant's application was submitted, the Local Board once again classified him 1-A, noting their conclusion "... that registrant is only trying to avoid draft."

On March 22, 1971 the registrant submitted a letter requesting a personal interview and an appeal of the 1-A classification.² The interview was granted, and the registrant met with the Local Board on April 13, 1971. There were three members present, and the interview (hearing) lasted twenty minutes. The Board continued him in classification 1-A. Following the interview, the Board prepared a summary of his appearance, which is set out in the margin,³ and a statement of the reasons for denying a 1-O classification. The Board's conclusion was: "It is the local board's opinion that the registrant is not a genuine conscientious objector ... The board listened and asked questions of registrant's beliefs and again concluded that registrant is only trying to avoid the draft." The reasons given for this conclusion were as follows:

"Reg. requested C.O. status on March 12, 1970, shortly before withdrawing from college on June 14, 1970, in his junior year.

He bases his claim on religious grounds. He repeatedly states that his reason for living is to love people and to `work with people so that we may all lead better lives' . . .

However, though he claims to be very deeply religious, he was arrested for Conspiracy, Placing Dangerous materials on a highway, Criminal Mischief, Loitering, Reckless endangerments. These convictions were made in May, 1970, after he had claimed C.O. status.

He also claimed on SF Form 89, dated 5 August 1970, that he had a drug or narcotic habit. Therefore, though he claims to be a peace-loving pacifist, deeply opposed to violence, etc., he has a criminal record for offenses which could have caused death or injury to people and he admits to a drug or narcotic habit, which is dangerous to his own life. It is the opinion of this board that the conduct of this registrant is not in keeping with the deeply religious, moral or ethical code of living that he claims as his basis for a C.O.

It is this board's conclusion that the registrant's convictions are not sincere due to the above reasons and that he claimed C.O. after withdrawing from college (and losing the protection of the student deferment) to avoid the draft."

On October 20, 1970, about six months before the Local Board denied the defendant a 1-O classification and classified him 1-A, the Youth Council Bureau of the Bronx had written to the Board that "The Honorable John Carro dismissed the matter pending against Kevin O'Rourke on September 24th, 1970, part 1E, Bronx Criminal Court."

On May 13, 1971, the defendant appealed his classification. On June 17, 1971, the Appeal Board classified the defendant 1-A by a vote of 3 to 0. It stated no reasons. On October 12, 1971, the defendant was ordered to report for induction on November 16, 1971.

On November 3, 1971, the defendant wrote to the Local Board saying he had read their "summary of my personal appearance of April 13, 1971 and the Local Board has made some errors of fact which I feel I must correct ..." He pointed out that "contrary to what the Local Board recorded, I was not put on probation and I was not convicted of any of the charges against me and in fact all of the charges were dismissed ... Before the charges were dismissed and before the Trial of the charges (which was never held; they were dismissed without any trial) I was counselled for a period of several months by the Youth Corrections Board of New York City. This is not a probationary status of any sort and I was not on probation because I was not convicted of anything and the Board is mistaken if it thinks I was."

In answer to the defendant's letter, the Local Board replied on November 11, 1971: "The important fact here is that you did commit these offenses. The fact that the charges were dismissed is irrelevant." In support of the conclusion that the defendant had actually committed the offenses charged, the Local Board stated:

"However, despite the fact that the charges against you were dismissed, and instead of a 4½ months probation you received counsel for several months by the Youth Correction Board of New York City, the fact still remains that on USAREC Form 191-R dated 9 December 1970, you signed a statement listing the following offenses which you claim to have committed:

1. Conspiracy — May 17, 1970

2. Placing dangerous material on a highway — May 17, 1970

3. Criminal Mischief — May 17, 1970

4. Loitering — May 17, 1970

5. Reckless endangerment — May 17, 1970."

This letter refers to the defendant's alleged admission that he had committed the offenses listed on USAREC Form 191-R. That form instructs each registrant, however, to state "... all ordinance and law violations and offenses (including minor traffic offenses) with which I have been arrested, cited, charged or held by Federal, state, county, city or other law enforcement authorities, or by juvenile court or juvenile probation officials, regardless of the outcome of my case" (emphasis added).⁴

It is clear that the Appeal Board did not have before it the defendant's subsequent letter of November 3, 1971 or the Local Board's reply of November 11, 1971. It is unclear whether the Youth Board letter was in the file that went to the Appeal Board.

At any rate, after this exchange of letters the Local Board did not reclassify the defendant, and no further appeal was taken. The defendant then refused to be inducted on November 16, 1971.

As appears from this review of the facts, the Local Board based its conclusion that the defendant was seeking to avoid the draft on three basic gounds.

1. That he had been convicted of an offense and that "these convictions were made in May, 1970, after he claimed C.O. status ... He has a criminal record for offenses which could have caused death or injury to people";

2. That "he admits to a drug or narcotic habit ... The conduct of this registrant is not in keeping with the deeply religious, moral or ethical code of living that he claims as his basis for a C.O."; and

3. That "he claimed C.O. after withdrawing from college (and losing the protection of the student deferment) to avoid the draft."

The first reason can hardly be supported, since the defendant was not convicted and does not have a criminal record. As the Supreme Court has said:

"In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant." Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1954).

But it must be a "fact," not a misconception, to be relevant, and the "disbelief" must be "honest and rational." United States v. Corliss, 280 F.2d 808, 814 (2 Cir.) cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960).

The second reason assumes that if a registrant has ever had a drug habit he cannot, ipso facto, be a religious conscientious objector. While the use of drugs is most deplorable and cannot be too strongly condemned, its correlation to absence of conscientious religious belief cannot be so easily proved. While a drug habit is a factor to be considered, it should not be determinative on this issue.

The third reason apparently assumes that an application for conscientious objector classification, after a change of a deferred status based on different grounds, comes too late. We have been instructed that this is not necessarily so, United States v. Bornemann, 424 F.2d 1343 (2 Cir. 1970). Here, in any case, the defendant anticipated his change of status by about three months and did apply for conscientious objector status, which he was not required to do, while he was a college student.

It is clear that at least one, and probably all of these grounds, are legally erroneous. Yet it must be noted that these erroneous assertions in support of the denial of conscientious objector status were made by the Local Board and not by the Appeal Board, which affirmed silently, recording the vote and nothing more.⁵ Judicial review,...