United States v. Woloszczuk, Crim. No. 71-24-G.

• Decision Date: 02 July 1971
• Docket Number: Crim. No. 71-24-G.
• Citation: 328 F. Supp. 696
• Parties: UNITED STATES of America v. Stephan WOLOSZCZUK.
• Court: U.S. District Court — District of Massachusetts

328 F. Supp. 696

UNITED STATES of America v. Stephan WOLOSZCZUK.

Crim. No. 71-24-G.

United States District Court, D. Massachusetts.

July 2, 1971.

Frederic Kellogg, Asst. U. S. Atty., for Government.

Charles Donelan, Worcester, Mass., for defendant.

MEMORANDUM OF DECISION

GARRITY, District Judge.

Defendant was indicted for his unlawful, knowing and wilful failure to comply with an order of his local draft board to report to his local board at Worcester, Massachusetts, for instructions to proceed to the Massachusetts General Hospital in Boston, Massachusetts, for employment in civilian work contributing to the maintenance of the national health, safety and interest on or about May 1, 1969, in violation of 50 U.S.C. App. § 462(a). The case was tried jury-waived on May 27, 1971. The evidence consisted of defendant's Selective Service Record, several exhibits concerning the proceeding before the Massachusetts State Appeal Board and the testimony of the Clerk of the Appeal Board. At the conclusion of the evidence, oral argument was held on defendant's motion for judgment of acquittal; and the court took the matter under advisement. On the basis of the evidence adduced at the trial, oral argument and memoranda of law filed by the parties, the court makes the following findings of fact and conclusions of law.

Findings of Fact

1. The defendant was born on September 19, 1949 and registered with the Selective Service System, Local Board No. 38 in Worcester, Massachusetts, on September 25, 1967. On October 11, 1967 defendant filed with the Local Board SSS Form No. 100, Classification Questionnaire, in which he stated that he would be starting November 1, 1967 "devoting my time to the full-time ministry" in the Jehovah's Witness faith. He also claimed to be a conscientious objector and requested the Board to furnish SSS Form No. 150, the Special Form for Conscientious Objector.

2. On October 20 defendant filed SSS Form No. 150; in this form he again stated that he would be entering the full-time ministry as of November 1, 1967 and would be devoting most of his time to bible study and preaching. On October 30 the Board classified defendant I-A.

3. On November 7, 1967 the Board received a letter from defendant "requesting a personal appearance so as to appeal my classification of 1-A as of October 31, 1967." On November 30 the Board received a letter from the Watch-tower Bible and Tract Society stating that defendant had been appointed a Vacation Pioneer for the period November 1 to November 30, 1967. A personal appearance was scheduled for December 5.

4. The Board's summary of the December 5 hearing reads in part as follows:

Mr. Woloszczyuk stated he wished a 4-D Classification as a minister, as he is actively working in the Ministry of Jehovah's witnesses—this ministry involves going house to house talking to people, attending meetings, home study, conducting house bible studies. He stated he has been working in the ministry full time since November 1, 1967—he attends meetings (five a week) and studies the bible at Kingdom Hall-Jehovah's Witnesses, gives student talks, and learns to better present God's message. He conducts bible studies, and goes from house to house and will talk to anyone who will listen to his message.

Registrant stated he regularly attends and participates in all meetings, studies and discusses the bible with the other members of his congregation. He stated he was ordained into the Ministry on Oct. 27, 1962, when he publicly declared himself a minister. He is now engaged actively in the ministry, working over 100 hours a month —house to house calling on people.

Last year he attended Trade School as a cabinet maker, and worked for Gagner Woodworking when he graduated; all this time he was working in the Ministry on a part-time basis. He gave up his position at Gagner to work full-time in the Ministry. He stated he does not get paid for his Ministry work—he does it freely, as we receive freely, we give freely. He is working 4 nites a week—five or six hours a night—at Nick's Grille. He earns approximately $35.00 a week in this manner for food, clothing rent etc. He shares an apartment with another full-time minister on Tower St.

Every morning he stated, he actively engages in his ministry by making house to house calls, sometimes with other full-time ministers, and he attends meetings regularly. At the Friday meeting, he goes up to the platform and instructs from the platform. He devotes all his time to the ministry, house to house calls, field work— everything that constitutes a full-time minister. He stated that God told his followers to Go Forth and preach among the nations, and that is one of the duties of a Jehovah Witness.

Registrant stated he expects his Dec. 1-31 Pioneer Appointment letter any day now. His appointments right now will be monthly. Eventually he hopes he will receive a 6 month appointment-extension. Eventually he also hopes to be a regular pioneer, which would mean spending 100 hours a month making house to house calls, and does not include meetings, etc. in the 100 hours.

At the end of the hearing, the Board voted to retain defendant in I-A, and mailed to him his classification card and notice of right to appeal on December 6.

5. On January 2, 1968 the Board received from defendant a copy of his appointment as a Vacation Pioneer for the period ending December 31, 1967, and a notice of appeal from the decision of December 5. On January 11 three letters from representatives of the Jehovah's Witnesses in support of defendant's claim for a ministerial exemption, together with a notice of defendant's appointment as a Vacation Pioneer for the four-month period through April 30, 1968, arrived at the Local Board office. On January 12 the Executive Secretary transmitted defendant's file, including the above documents, to the Massachusetts State Appeal Board.

6. During January, 1968, on a date which does not appear in the file, defendant had an automobile accident which resulted in his incurring liabilities and discontinuing his full-time ministry. He did not report this to the Local Board until February 26, 1968, when he wrote as follows:

This is to let you know that due to financial difficulties encountered as a result of an automobile accident that I had in January '68, I am unable to continue in the full-time ministry and have obtained full-time employment to defray these expenses. However, I am still an active member of the Worc. South Unit of Jehovah's Witnesses and am still a preacher of the `Good news of the Kingdom'. If circumstances permit, I shall wish to resume the pioneer ministry in the future.

7. The Appeal Board, which has five members, meets approximately once each month, generally considering 100 to 300 cases at each meeting. The general practice is for the clerk to group the cases by category, e. g., requests for II-S are grouped together, and to present the cases to the chairman with a short synopsis for each case. While the Appeal Board gives less attention to frivolous cases, e. g., an appeal for the purpose of delay so that a registrant might enlist, it gives more careful attention to cases of substance. In cases involving claims for conscientious objector or ministerial status, each Appeal Board member reads the folder prior to discussion and decision.

8. The Appeal Board convened on February 16, 1968. There were 235 cases before it, including defendant's appeal from his I-A classification.¹ The meeting lasted 3½ hours. Defendant's file was given to the members of the Appeal Board for review with the following synopsis prepared by the clerk:

"WOLOSZCZUK, Stephan L. B. #38 (Worcester) #XX-XX-XX-XXX 1-A to 4-D (Reg.) Age 18. DOB 9/19/49. Reg. filed Form 150 and appeals for 4-D Class. He is a Jehovah's Witness. He is presently a VACATION (Not REGULAR) PIONEER until Apr. 30, 1968. (Elig. for 1-O but not 4-D)."

By vote of 3-0 the Appeal Board placed the registrant in I-O, i. e., conscientious objector status.² On March 15, 1968 the Local Board received a notice of the decision from the Appeal Board and duly notified defendant.

9. In December, 1968, defendant was found physically acceptable. On January 20, 1969, on a special form report for Class I-O registrants, defendant reported that he was the supervisor and manager of the dairy department of a super-market, earning $75 per week, and stated, "I am presently attending Kingdom Hall of Jehovah's Witnesses in order to become more fully qualified in the preaching work." In response to a form request that he list three types of civilian work which he would do in lieu of military duty, defendant stated, "I am prepared to work as a minister to preach the `good news of the Kingdom' under the direction of the Watchtower Bible & Tract Society of Brooklyn, New York, a non-profit religious organization."

10. On January 23, 1969, at the Local Board's request, defendant appeared before it and answered questions regarding his refusal to designate three types of acceptable civilian work. A rough transcript of the colloquy includes the following:

You preach full time?

Do not preach full time; work to support myself. I do this in order to be of no burden on the State; we are self supporting law abiding people furthering the Kingdom.

You are not consistent—your statements are not consistent; you could be working and preaching at one of the institutions.

If I were not working and supporting myself full time.

If I work in a hospital, I would be putting myself into the military; I am working now full time in order to pay bills; incurred debts and as soon as these debts are paid expect to go into full ministry.

* * * * * *

I asked for a 4-D classification because I am a minister that is a classification I should have received. Why it was not given to me only the Local Board members know.

There are different rules that spell out a 4-D classification—one is work full time as a minister.

I was unable to do that; I was in

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