United States v. Seeley

• Decision Date: 06 May 1969
• Docket Number: No. 7538.,7538.
• Citation: 301 F. Supp. 811
• Parties: UNITED STATES of America v. Clarence John SEELEY.
• Court: U.S. District Court — District of Rhode Island

301 F. Supp. 811

UNITED STATES of America v. Clarence John SEELEY.

No. 7538.

United States District Court D. Rhode Island.

May 6, 1969.

Edward P. Gallogly, U. S. Atty., District of R. I., Frederick W. Faerber, Jr., Asst. U. S. Atty., District of R. I., Providence, R. I., for plaintiff.

John D. Lynch, Providence, R. I., for defendant.

OPINION

PETTINE, District Judge.

This is a criminal prosecution for violation of 50 U.S.C. App. Sec. 462(a), Sec. 12(a) of the Selective Service Act of 1967. Defendant has moved to dismiss the indictment on the ground that there are certain defects in the classification process leading up to the defendant's refusal to submit to induction. The prosecution objects, at the threshold, to the timing of the defendant's motion to dismiss, to the procedural correctness of the defendant's motion to dismiss, and to the defendant's right, having failed to appeal, to raise defenses which go to the classification process. The prosecution further objects to the merits of the defenses raised by the defendant. I deal first with the threshold procedural problem.

On Tuesday morning April 22, 1969, this Court, prompted by concern to use the proper procedures in Selective Service cases and faced with a file which contained no motions and merely the indictment and the prosecution's subpoenas, requested an in-chambers conference with counsel for both parties. At that conference the Court received from defense counsel some indication that he intended to attack the classification processing of the defendant as a means of mitigating the requisite intent of the defendant. The Court, taking the view that the improper processing of the defendant would not be admissible before the jury to diminish the requisite intent but might well be an independant basis for either a judgement of acquittal or dismissal of the indictment, suggested to defense counsel that he move, pursuant to Fed.R.Crim.P. 12, to dismiss the indictment and for a Rule 12(b) (4) hearing on the motion to dismiss. For the remainder of Tuesday, April 22, 1969 and for a substantial portion of Wednesday, April 23, 1969, the Court heard testimony, in the absence of the jury, concerning the relationship and dealings between the defendant and the various components of Selective Service with whom the defendant had dealt. At the close of the testimony the government requested leave to file a brief, which was granted and the Court deferred ruling on the various problems raised.

The problem which has most perplexed the Court is the threshold one of whether, in a selective service prosecution for failure to report for induction in which the defense attacks the System's compliance with the statute or regulations, a motion to dismiss the indictment and a hearing thereon is an appropriate procedure. I am frank to acknowledge that I have been unable to discover any case which has dealt with this problem. I am likewise frank to acknowledge that the procedures which appear to have been most frequently and regularly used by the federal trial courts in this type of a case are either to admit before the jury all of the facts concerning the defendant's classification processing and then to rule on a motion for judgment of acquittal as to the correctness of the processing, see, e. g. United States v. Blaisdell, 294 F.Supp. 1303 (D.Me.1968), or to try the case to a judge without jury and to stipulate the entire classification matter to the Court to rule as a matter of law, e. g., United States v. Bryan, 263 F.Supp. 895 (N.D. Ga.1967). In the instant case the latter method is impossible because this is a jury trial. I am troubled by the former method. It seems to me to be a sham if all of the classification processing matters relevant to the particular defendant's claim of classification defect are given to the jury, even though it is not matter upon which they are permitted to decide guilt or innocence and which they ought not therefore to be permitted to consider, and is then upon motion for judgment of acquittal determined by the Court. It troubles my sense of orderly procedure to submit to a jury matter not proper for its deliberations so that the judge, for whom the matter is proper, can hear it and rule on it. Moreover, such a procedure may, in those cases in which the classification defect claim is the only realistic defense, cause waste by forcing a lengthy trial proceeding when a preliminary hearing by the judge would suffice. Finally, such a procedure invites confusion for the jury in those cases in which the Court, having decided as a matter of law that the alleged classification defect is not a sufficient defense to warrant acquittal, must then attempt by instructions to purge the jury of all that they have heard concerning the alleged classification defect which, while not compelling as a matter of law, may be exceedingly compelling as an emotional matter.

The prosecution argues in its brief that because the motion to dismiss here does not attack the sufficiency of the indictment on its face, it is incorrect as a matter of procedural law. With that I must disagree. While it is true that a motion to dismiss an indictment most often goes to the facial sufficiency of the indictment, that is not its exclusive function. For example, a Rule 12(b) (2) motion may be used to attack a "defect in the institution of the prosecution" such as illegal grand jury selection procedures, or irregular grand jury practice. See Committee Note to Fed. R.Crim.P. 12. Likewise, a Rule 12(b) (1) motion may be used to attack on any basis "capable of determination without a trial of the general issue," such as, former jeopardy, former conviction, immunity, or statute of limitations. See Committee Note to Fed.R.Crim.P. 12. While I am not prepared to state that a defect in Selective Service classification processes is a "defect in the institution of the (50 U.S.C.App. Sec. 462(a)) prosecution," I do think that the breadth of Rule 12(b) (1) permits a motion to dismiss a 50 U.S.C.App. Sec. 462(a) indictment to be made, as a procedural matter, to the Court when the defendant is attacking the classification process. Such a ruling is in my view a time-saving and fair procedure which admirably comports with the function of the courts in reviewing Selective Service System decision-making. See Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L. Ed. 567 (1946), Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1948). I therefore decide to proceed to the other problems raised by this motion.

The prosecution argues that the motion to dismiss is untimely because made on the morning of trial. In normal circumstances, there would be much merit to the prosecution's contention. However, in the instant case the court chose to do by pre-trial motion to dismiss the indictment what would, in any case, have been done subsequently by motion for judgment of acquittal. Hence, the government cannot claim any prejudice from the allowance of the motion, indeed, the invitation by the Court to make the motion. Moreover, it is settled that discretion lies in the trial judge to permit motions to dismiss even after the plea when justice requires. Accordingly, I hold that the defendant's motion to dismiss was timely made.

At this juncture I think that a proper consideration of the prosecution's arguments as to both the defendant's failure to exhaust the administrative process and the merits of the defendant's claim of defect in the classification process requires a recitation of the facts of the case as I find them to be.

Clarence John Seeley was born in April of 1948 and is a resident of Providence, Rhode Island. He is within the jurisdiction of Rhode Island Local Board No. 8. Since 1963 Seeley has studied the Jehovah's Witnesses religion. In 1966, shortly after he had turned 18 years of age, Seeley registered with the Selective Service System. His Classification Questionnaire shows that he stated his religion to be Jehovah's Witnesses, but that he did not indicate any conscientious objection. Moreover, at the time of his registration Seeley was a printer's apprentice and was in an ungraded classroom in high school because of his inability to satisfy the appropriate levels in basic English skills such as reading and writing. Since the time of his registration to the present Seeley has held the same religious beliefs, that is, the basic religious beliefs of the Jehovah's Witnesses, including those beliefs which underlie the conscientious objections of Witnesses to participation in war in any form. His formal status within the Witnesses has, however, been subject to change: (1) in April, 1968 Seeley became a baptized member of the Witnesses and (2) in April, 1969 Seeley received an extension of his "pioneering" service, which is a step on the way to full-time ministerial status.

In late November, 1967 Seeley received a notice from his local draft board that he had been reclassified 1-A. The notice of classification contained instructions concerning his right to personal appearance before the local board or to appeal to the State Board of Appeals. He further received notice of his right to the assistance of a Government Appeals Agent. Seeley does not recall reading about these rights and stated that even if he did read about them, he did not understand their meaning. Moreover, at the time of the receipt of his notice of classification and for a considerable time thereafter, Seeley assumed that he could do nothing about his status as a conscientious objector until he was baptized a Witness, which was to take place in April of 1968. This mistaken assumption, born of ignorance and compounded by Seeley's failure to discuss his reclassification with anyone, led Seeley to "sleep" on his administrative appellate rights.

Late in January, 1968, either immediately before or immediately after receipt of a notice to report for a physical examination, Seeley sent to his local board, upon the...