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United States v. Gearey

decided: July 3, 1967.


Lumbard, Chief Judge, and Friendly and Kaufman, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge.

We previously vacated the conviction of David Arthur Gearey for refusing to submit for induction into the armed forces, in violation of 50 U.S.C. App. § 462(a), and remanded the case to the District Court for a hearing on areas that were in need of elucidation. 368 F.2d 144 (1966). Judge Murphy, who had been the trial judge, conducted the hearing. Thereafter, he reinstated Gearey's conviction and sentence of 2 years' imprisonment. Appellant asks us, once more, to set aside his conviction, claiming, inter alia, that the District Court failed at the hearing to follow the directions contained in our opinion. In addition, he urges that the Local Board's refusal to reclassify him as a conscientious objector was based on an erroneous view of the law.


The facts leading to Gearey's conviction are set forth fully in our prior opinion and we shall therefore avoid a detailed recital of the tortuous Selective Service proceedings that stretched over a 6-year period. Between October 1960, when Gearey first registered with his Local Board, and January 1965, he received student deferments, never claiming to be a conscientious objector. In mid-February 1965, appellant's Draft Board was notified by St. Francis College that Gearey was no longer enrolled as a student. When appellant failed to provide proof of attendance, the Board revoked his student deferment (2-S) and reclassified him I-A (available for military service). On April 19, an Order to Report for Induction on May 5 was mailed to appellant. But on April 23 Gearey asked that his I-A classification be reviewed and that the date of induction be postponed. The Board complied by rescheduling his induction for July.

It was not until May 24, however, that Gearey for the first time asked the Board to send him the special questionnaire for conscientious objectors (SSS Form #150). After the form was returned to the Board, Gearey was invited to appear for an interview on July 6. Upon the conclusion of that hearing, Gearey was informed by the Board that it did not believe he was a "genuine c.o." and, therefore, a change in his classification was not warranted.*fn1 Two days later appellant appeared for induction, but refused to take the symbolic step foward when ordered to do so. He was subsequently arrested, tried by Judge Murphy, sitting without a jury, and convicted.


On his first appeal, Gearey's principal argument was that he had been improperly denied the procedural safeguards (including the right to present his case to the Selective Service Appeal Board) contained in § 6(j) of the Universal Military Training and Service Act, 50 U.S.C. App. § 456(j).*fn2 The government, on the other hand, contended that the Local Board was barred from considering appellant's claim of conscientious objection by 32 C.F.R. § 1625.2, which provides in part:

The local board may reopen and reclassify anew the classification of the registrant * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.

We recognized that § 1625.2 was a reasonable regulation, designed to require registrants to raise their claims for deferment as soon as they had matured, thereby avoiding a process of endless challenges. Any other construction, we believed, would work havoc upon the Selective Service System and manpower quotas could rarely be met with any reasonable degree of certainty. We therefore concluded that it was entirely just to require that claims be raised within reasonable time limits in the interest of orderly administrative proceedings. Thus, it was proper to apply § 1625.2 to registrants whose claims, though maturing before an Order to Report for Induction had been mailed, were not presented to the Board until after the receipt of that order. Such individuals, it seemed clear to us, were afforded ample opportunity to raise their claims before receiving an order to report, and had no justifiable complaint when the Board refused to reopen their classification.

But, we went on to note, "[the] considerations are quite different * * * when a claim of conscientious objection, raised for the first time after receipt of an induction notice, is based on a claim which had not previously matured. * * * It would be improper to conclude that an individual is not a genuine conscientious objector merely because his beliefs did not ripen until after he received his notice * * *." 368 F.2d at 149-150. (Emphasis added; footnote omitted.) This country's long history of exempting conscientious objectors, together with the statutory rights afforded to such claimants, led us to conclude that one who raised a claim of conscientious objection promptly after it matured, had a right to have the Board consider his request for reclassification -- even if the claim was not raised until after an induction notice had been sent. Applying these principles to Gearey's case, we concluded that the District Court should determine whether the Board had erroneously refused to consider appellant's claim solely because it was not raised until after he received his induction notice.

Upon remand, Judge Murphy conducted a hearing at which Board Chairman Frank Barbiere, Board Secretary William Hatterschied, and Board Member Thomas Elmezzi were questioned by an Assistant United States Attorney, and then subjected to intense cross-examination by defense counsel.*fn3 The Judge, however, declined to permit Gearey to testify or to introduce in evidence a memorandum (Defendant's Exhibit A for Identification) containing his recollections of the July 6 interview with the Board.

Based upon the testimony elicited at this hearing, Judge Murphy concluded that when the Board interviewed Gearey on July 6, the members were ready to reclassify him as a conscientious objector, despite the induction notice, if they could be persuaded that his claim was sincere. Judge Murphy found that the Board believed that Gearey "was not then, and never had been a genuine conscientious objector," 266 F. Supp. 161 (S.D.N.Y.1967) and for this reason refused to reclassify him. The District Judge also held that the evidence adduced both at the ...

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