The opinion of the court was delivered by: LEVET
The defendant, Frank Richard Bartell, is charged with having failed and refused to obey an order of his local draft board, pursuant to Sections 456(j) and 462, Title 50 U.S.C.A.Appendix, to report for civilian work contributing to the maintenance of the national health, safety and interest in lieu of induction into the Armed Forces. .with the approval of this Court, the government has consented to defendant's written waiver of a jury trial in accordance with Rule 23(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
Although defendant has not requested special findings of fact, and, therefore, none are required pursuant to Rule 23 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., this Court will note certain salient facts in addition to the general finding in order to advise the defendant of the basis for such finding.
On December 5, 1949, the defendant registered with Local Board No. 75, Rochester, New York. Thereafter, he communicated with said draft board by letter dated March 5, 1951, in which he requested that he be deferred as a student preparing for the ministry. In this letter he stated:
'The fact that I already serve in an army to the Almighty Jehovah God and have confessed to the fact that I am a student of this great force of preachers of the word, service to any other power would brand me a traitor to him and place me in a line of death. Because I do desire to serve Jehovah God and no other, my support to any wordly force is impossible.'
The Classification Questionnaire (SSS Form 100: Ex 1A) which the defendant answered and signed on March 18, 1951, contains a statement by him that he was a student preparing for the ministry under the direction of the Watch Tower Bible and Tract Society, Inc., and that he was attending the Kingdom Hall Theocratic Ministry Course at Rochester, New York. Defendant also stated in said questionnaire that he was employed by the Mohican Food Markets in Rochester, where he worked on an average of forty-five hours per week. Defendant indicated that he was conscientiously opposed to war and requested a IV-D classification.
The local board classified the defendant IV-E as a conscientious objector and mailed to the defendant a special form for conscientious objectors (SSS Form 150: Ex. 1C). In answer to the questions contained in said form, the defendant said that he was a member of the Watch Tower Bible and Tract Society and that both his parents are members of this sect and that he had been reared as a Jehovah Witness since birth. The defendant was thereafter twice classified I-A and subsequently reclassified I-O.
On December 22, 1952, the defendant was notified to report to the New York State Employment Service for processing as a conscientious objector. The defendant declined to accept the work prescribed under the Selective Service Regulations on the ground that he expected to report at Owego, New York, for training in the Seminary of Jehovah's Witnesses. After investigation by the Department of Justice, it was recommended by said Department that the defendant be classified I-O.
A special questionnaire (Ex. 1N) was answered by the defendant in April, 1954, in which he stated that he was regularly employed as a receiving clerk in a retail store in Pennsylvania. His answers also indicated that he devoted forty hours per week to said employment and that he preached and taught the principles of religion 'On the average of 12-15 hrs. per month.'
The defendant was twice found physically acceptable for service in the Armed Forces. On July 8, 1954, a Special Report for Class I-O Registrants (SSS Form 152) was mailed to the defendant, which he completed and returned with a note requesting a list of approved civilian work. A list of the agencies approved in Pennsylvania for the assignment of I-O registrants for civilian work in lieu of induction was mailed to the defendant on July 26, 1954.
The defendant did not obtain approved civilian work in Pennsylvania, and on February 24, 1955, the New York State Headquarters gave him until March 15th to advise the local board as to the results of his job applications. The defendant did not advise the board as requested, and on March 30, 1955, Local Board No. 75 offered him three types of work in Wassaic, New York. Defendant thereafter informed the board that he had returned to Rochester and requested work in Rochester. The defendant was again furnished with a list of approved civilian agencies, but he did not obtain employment as required.
At a meeting with a representative of the State Director of Selective Service, the defendant stated that he would refuse any and all civilian work in lieu of induction into the Armed Forces. (See Ex. 1-JJ)
On January 12, 1956, the local board ordered the defendant to report for civilian work on February 1, 1956 (SSS Form 153). He reported to Local Board No. 75 on said date and was given instructions to proceed to his place of employment, namely, the Wassaic State School, Wassaic, New York. He was also informed that a failure to report as ordered would constitute a violation of the Universal Military Training and Service Act, as amended, which is punishable by fine or imprisonment, or both. The defendant failed to report as ordered by his local board, and this fact he conceded at the trial.
Although defendant now resides at Rochester, New York, the venue for the alleged violation of the order to perform civilian work at the Wassaic State School lies in this district since said school is located in the Southern District of New York. 'Where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime.' Johnston v. United States, 1956, 351 U.S. 215, 220, 76 S. Ct. 739, 742.
The defendant contends that he is a minister of religion of the Jehovah Witness sect and, therefore, entitled to a IV-D classification. He relies upon the fact that said sect considers all of their members as ministers of religion. It appears from the record that the defendant is a sincere and religious individual who conscientiously objects to both combatant and non-combatant military service by reason of his religious training and belief. Nevertheless, his right to act pursuant to his belief is not absolute and may be limited by legislation necessary for national security. Thus, in Gara v. United States, 6 Cir., 1949, 178 F.2d 38, affirmed, 1950, 340 U.S. ...