United States v. Young, 4-70-Crim. 33.

• Decision Date: 01 October 1970
• Docket Number: No. 4-70-Crim. 33.,4-70-Crim. 33.
• Citation: 324 F. Supp. 69
• Parties: UNITED STATES of America, Plaintiff, v. John Thomas YOUNG, Defendant.
• Court: U.S. District Court — District of Minnesota

324 F. Supp. 69

UNITED STATES of America, Plaintiff, v. John Thomas YOUNG, Defendant.

No. 4-70-Crim. 33.

United States District Court, D. Minnesota, Fourth Division.

October 1, 1970.

Neal Shapiro, Asst. U. S. Atty., for the United States.

Peter Lindberg, Minneapolis, Minn., for defendant.

MEMORANDUM DECISION

LARSON, District Judge.

On January 19, 1970, an Indictment was filed against John Thomas Young for wilfully and knowingly failing to submit to induction into the Armed Forces of the United States, in violation of 50 App. U.S.C. § 462.

The defendant initially registered with Selective Service Local Board No. 121, Todd County, Long Prairie, Minnesota, in 1967. After submitting a request for an undergraduate deferment, he was classified II-S in January of 1968. As a result of financial problems, the defendant left college and was subsequently classified I-A on May 22, 1968. The defendant was later married and accepted employment at a food processing plant. On January 2, 1969, the defendant submitted a letter to the Local Board in which he expressed his wish to appeal his I-A classification. He stated that he had a wife and child, described his financial difficulties and those of his parents, and asked to be deferred as a father. Although the defendant's request came more than six months after the appeal period had expired, an appeal to the State Appeal Board was permitted. On April 19, 1969, the defendant was continued in Class I-A by the Appeal Board. In a letter dated May 13, 1969, the defendant was ordered to report for induction on June 4, 1969.

On May 26 the defendant requested Selective Service Form 150, Special Form for Conscientious Objector. Pursuant to instructions from the State Headquarters of the Selective Service System, the Local Board postponed the defendant's induction in order to review his claim of conscientious objection. The Local Board was expressly instructed to determine whether or not there had been a change in status resulting from circumstances over which the registrant had no control. A courtesy interview was scheduled.

The Board received the defendant's Form 150 on June 20, 1969. In Form 150 the defendant expressed his belief in the creation of all living things by God, and his belief that a man's life is of value to God, to himself, to his family, and to other people, and that no one has a right to take another's life. He described a background of religious training and stated that if God created us He would not want us to destroy one another. The defendant concluded that he could not kill or destroy others. The Board also received letters from a friend of defendant, the principal of his high school, and the pastor of his church, Howard W. Bredeson.

On June 25, 1969, the defendant and Pastor Bredeson appeared for the courtesy interview before the Local Board. According to the Board's Report of Oral Information, the defendant stated that he wished to be classified as a conscientious objector, and the chairman of the Board asked him to present all facts, in addition to those in his file, on which he based that claim. For about fifteen minutes the defendant presented his beliefs and his objection to the taking of life. The defendant expressed some difficulty in presenting his case due to nervousness, but stated at the end of the interview that he had nothing more to present. Pastor Bredeson did not speak. Members of the Board did not ask any questions of the defendant.

In its summary of the interview, the Board expressed its belief that the defendant was presenting mainly the viewpoints of Pastor Bredeson in the thoughts which he presented regarding war and the taking of life. The Board felt that the defendant had a vague fear of armed forces duty, based on an earlier letter in which he expressed fear of mistreatment of conscientious objectors at the induction center. The Board stated that it sensed an undercurrent of hostility toward the situation in which the registrant found himself and that he was struggling to find a way out. The Board concluded by stating in its Form 100 entry that it had "considered all evidence and determined that there was no change in circumstances beyond the defendant's control." The defendant's classification was not reopened.

The defendant later wrote to the State Director of Selective Service, expressing his belief that his classification should have been reopened and that he should have been classified as a conscientious objector. He asked the State Director to intervene and have the case reopened. The Deputy State Director requested the Local Board to forward the defendant's file to State Headquarters. The Local Board did so, and the file was returned to it on July 11, 1969, without any additional action having been taken.

The defendant was ordered to report for induction on July 28, 1969. The defendant's refusal to submit to induction led to the criminal charge against him.

At the close of the trial the defendant moved for dismissal, asserting that he had been denied due process in the appeal to the State Appeal Board in which he sought to have his I-A classification changed to a III-A fatherhood classification. Denial of due process has been found to be an appropriate defense to a criminal charge for refusal to submit to induction, even though the defendant received other classification subsequent to the time of the claimed due process denial. United States v. Freeman, 388 F.2d 246 (C.A. 7th Cir.). While it may be argued that any denials of due process are obviated by subsequent classifications, 32 C.F.R. § 1625.11 provides:

"When the local board reopens the registrant's classification, it shall consider the new information which it has received and shall again classify the registrant in the same manner as if he had never before been classified. Such classification shall be and have the effect of a new and original classification even though the registrant is again placed in the class that he was in before his classification was reopened.",

this Court will assume that a due process denial on the appeal seeking the III-A classification would be a defense to the current criminal charge. This view is supported, at the very least, by the fact that the order to report for induction would probably never have been issued had the defendant been granted the previously sought classification.

Since the scope of judicial review in Selective Service cases is narrow, the opportunity for full administrative review is essential to the fair operation of the system. Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362, decided June 15, 1970; United States v. Freeman, 388 F.2d 246 (7th Cir.); Olvera v. United States, 223 F.2d 880 (5th Cir.); United States v. Turner, 421 F.2d 1251 (3rd Cir.). It is, therefore a proper judicial function at a criminal trial for failure to submit to induction to determine whether or not the defendant has been denied due process in the Selective Service System. Blalock v. United States, 247 P.2d 615 (4th Cir.). The defendant, of course, has the burden of proving that he was prejudiced by the denial of a procedural safeguard. United States v. Hedges, 297 F.Supp. 946 (D.C.1969); Fore v. United States, 395 F.2d 548, 554 (10th Cir. 1968); United States v. Spiro, 384 F. 2d 159, 161 (3rd Cir. 1967).

The defendant's contention here is based on the number of files considered for classification by the Appeal Board during the meeting in which the disposition of defendant's appeal was made. He argues that the average amount of time spent on each file indicates that the Appeal Board could not have given the defendant's appeal consideration sufficient to comply with the traditional demands of due process. The defendant's argument is grounded on a recent decision in this District, United States v. Wallen, 315 F.Supp. 459. This Court is aware of no cases other than Wallen in which the average time spent by a Selective Service Appeal Board per file was found to deny a registrant due process. It is therefore on Wallen alone that the defendant relies in moving to dismiss.

In United States v. Wallen the defendant appealed to the State Appeal Board seeking to have his I-A classification changed to the classification for conscientious objectors. His file was "reasonably thick, containing 50 sheets of paper or more including a number of documents, letters, etc., from persons purporting to testify to his sincerity as a conscientious objector." (p. 460). The Court in Wallen found that the 59.01 seconds average time spent on each file by the Appeal Board on the day Wallen's appeal was decided indicated that he was not given a meaningful appeal. The Court concluded that Wallen had been denied due process of law, necessitating dismissal of the case. The Court did not consider whether or not the defendant was in fact entitled to classification as a conscientious objector.

At the Appeal Board meeting in which the defendant in this case was continued in Class I-A, 230 registrants were classified in a meeting which lasted three hours, an average of about forty-seven seconds per file. In determining whether Wallen or traditional notions of due process require that this case be dismissed, however, this Court believes that analysis of the case must go beyond mere comparison of numbers of seconds.

At the trial of this case, the Deputy State Director of Selective Service John Abrahamson, testified that the clerk of the Appeal Board prepares summaries of each file and sends copies of the summaries to Board members prior to each Appeal Board meeting. Copies of items from the files are frequently included. Members of the Board are thus given an opportunity to familiarize themselves somewhat with the claims of registrants prior to the meeting. If employed in a fair manner, this Court does not find efforts toward administrative efficiency repugnant to the demands of due process. It would be clearly impossible to require each...