United States v. Westphal

• Court: U.S. District Court — District of South Dakota
• Writing for the Court: NICHOL
• Citation: United States v. Westphal, 304 F.Supp. 951 (D. S.D. 1969)
• Decision Date: 20 October 1969
• Docket Number: No. CR69-60S.,CR69-60S.
• Parties: UNITED STATES of America, Plaintiff, v. Dennis DeVerne WESTPHAL, Defendant.

304 F. Supp. 951

UNITED STATES of America, Plaintiff, v. Dennis DeVerne WESTPHAL, Defendant.

No. CR69-60S.

United States District Court D. South Dakota, S. D.

October 20, 1969.

R. D. Hurd, Asst. U. S. Atty., Sioux Falls, S. D., for plaintiff.

Robert C. Heege, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for defendant.

NICHOL, Chief Judge.

MEMORANDUM DECISION

The defendant, Dennis DeVerne Westphal, following indictment for wilful failure to submit to induction into the Armed Forces of the United States, in violation of 50 App. U.S.C. Sec. 462, waived in writing his right to a jury trial, pursuant to Rule 23 of the Federal Rules of Criminal Procedure, and with the consent of the government, the case was tried to the Court.

The chronological sequence of events giving rise to the charge herein was brought out at the trial through a review of the cover sheet, Ex. 1, and the complete file and documents contained therein, numbered 1 through 50.

Defendant first registered with the Selective Service system on May 23, 1966, at age 18, at Local Board No. 1 in Sioux Falls, South Dakota. At the time of his registration, he made no claim to being a conscientious objector. Registrant filed an appropriate student certificate, which was verified by the University of South Dakota, where he was attending college.

On November 21, 1968, when he was no longer enrolled in college, the defendant was classified I-A, and notice of said classification and advising registrant of his right of a personal appearance and appeal was mailed to him on the same date. On December 19, 1968, the board received registrant's request for an appeal. Said appeal was forwarded to the Appeal Board on December 24, 1968, and on February 20, 1969, the Appeal Board, by a vote of five to nothing, classified registrant as I-A. He was ordered to report for induction on April 9, 1969.

On April 14, 1969, five days after having been mailed the order to report for induction, he requested permission from the Local Board to file as a conscientious objector. On April 23, 1969, the Local Board postponed his induction, theretofore fixed for May 13, 1969, until June, 1969, and notified the registrant of the postponement. On April 24, 1969, registrant filed a 12-page letter outlining in great detail his personal history and reasons why he claimed to be entitled to conscientious objector status, and further expressing a willingness to undertake civilian employment for the benefit of mankind to fulfill any obligation to the United States, in lieu of military service. On April 30, 1969, he returned to the Selective Service System a special form for conscientious objectors, in which he again set forth his beliefs and reasons why he should be considered as a conscientious objector, and in which he further alluded to his 12-page letter of April 24th. He further submitted in support of his request for conscientious objector status letters from two Methodist ministers and various friends attesting to his beliefs, and also several rather detailed letters from his mother, and further requested a hearing before the board.

On April 23, 1969, prior to the receipt of the documents above mentioned by the board, he was notified by the executive secretary not only that his induction had been postponed until the June call, but also that the Local Board requested him to appear for a personal interview. Registrant personally appeared before the Local Board No. 1 of Sioux Falls at its regular board meeting on May 27, 1969. Item No. 33 of the file contained within the cover sheet, Ex. 1, sets forth in summary from the action of the board at said personal appearance, as follows:

"He stated he is conscientiously opposed to killing. He thinks his having to come before the board and explain his reasons is absurd. He feels very strongly against fighting. His minister Rev. Ritter has talks with him and he agrees with his beliefs. Attended 2 years college at the University. Has been a CO about 2 years. Employed at Fantles in the advertising department since Nov. 68. He stated being a I-A-O would be like aiding and abetting the enemy. Does not want to go to the service.

"All evidence considered nothing presented by the registrant, beyond his control, to justify reopening his classification. He is to be retained in a I-A and a new date sent him for his induction."

As indicated in the last paragraph above quoted, the board refused to reopen his classification, and later on the same date, May 27, 1969, ordered him to report for induction into the Armed Forces on June 16, 1969. It was stipulated at the trial that registrant refused to report for induction on June 18, 1969. His file was then forwarded to the state headquarters, and the United States Attorney was requested to take appropriate action. Indictment followed and the resulting trial to the Court.

The registrant contends that by according the registrant a hearing on his request for a conscientious objector classification, the board was considering on the merits his conscientious objector status, and that therefore, they in effect reopened his classification, which entitled him to an appeal to the State Appeal Board, which appeal was denied him on June 11, 1969. The executive secretary of the Local Board, in notifying the registrant on said date, used this language: "This is to inform you that you have no appeal rights as your classification was not reopened." See Item 38 of the file. Item 46, however, being a summary of a phone conversation with registrant's mother concerning her son's appeal, seems to contradict this language, inasmuch as the summary states that the executive secretary or clerk advised the mother that "since his appeal period was up and he had received an order for induction he had no appeal as such."

The government contends, however, that the hearing accorded the registrant on May 27, 1969, was merely a personal interview, and was not a hearing on the merits of his claim that he was a conscientious objector, and that since the Local Board found that the evidence considered at the hearing presented to the board no change of status which was beyond the control of the registrant, they therefore were justified in refusing to reopen his classification.

Mr. Justice Holmes, in Rock Island, Arkansas, and Louisiana Railroad Co. v. United States, 1920, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188, stated that "Men must turn square corners when they deal with the Government." The Fifth Circuit Court of Appeals, in the case of Robertson v. United States, 404 F.2d 1141 (5th Cir. 1968), in commenting on this statement, states as follows:

"But the government in dealing with its citizens owes them an equal obligation to right its angles. Since the scope

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