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January 15, 1969

Frank Alex SMITH, Defendant

Zavatt, Chief Judge.

The opinion of the court was delivered by: ZAVATT

ZAVATT, Chief Judge.

This is a criminal prosecution under the Military Selective Service Act of 1967, 50 U.S.C. App. §§ 451-71, tried to the court without a jury pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure. Defendant is charged with knowingly failing and neglecting to perform a duty required of him under that Act, namely to report to his local draft board for instructions concerning his assignment to perform civilian work at New Jersey State Hospital in lieu of induction, in violation of 50 U.S.C. App. §§ 456(j), 462(a). There is no dispute as to whether defendant did in fact knowingly fail and neglect to report to his Local Board for such instructions, and the court finds beyond a reasonable doubt that he did knowingly fail and neglect to so report.

 Defendant raises several questions of law in support of his contention that his failure to so report was not in violation of the aforesaid statutes. He claims:

 (1) that no valid order directing him to report for civilian work was ever issued by the Local Board;

 (2) that he was denied due process of law in that he was not furnished a copy of the report of the Government Appeal Agent, included in his Selective Service file, and was not given an opportunity to reply thereto;

 (3) that he was denied due process and equal treatment under the Selective Service Regulations because his "processing" for civilian work was not commenced within ten days after he was found physically acceptable, as allegedly required by 32 C.F.R. § 1660.20(a);

 (4) that he was denied the right to be represented by counsel before the Local Board contrary to the Fifth and Sixth Amendments to the Constitution.

 This is one of three similar cases tried to the court on the same day, in each of which the defendant was represented by the same counsel. The others are United States of America v. Mendoza, 295 F. Supp. 673 and United States of America v. Gilmore, 295 F. Supp. 684. A comprehensive opinion in Mendoza is being filed simultaneously herewith.

 Defendant was duly registered with Selective Service Local Board No. 48, Brooklyn, N.Y. Thereafter, and on November 25, 1964, the Local Board mailed to the defendant Selective Service System Form No. 150, a special form for conscientious objectors. The defendant completed his answers on this form and returned it to the Local Board on or about December 7, 1964. In his answers, the defendant, in addition to setting forth the nature of his conscientious objection to the use of force, recited that he was affiliated with the Franklin Unit of Jehovah's Witnesses in Brooklyn. On January 15, 1965, the Local Board mailed to the defendant New York City Form No. 54, a questionnaire to be answered by registrants claiming to be conscientious objectors and/or ministers of religion. The defendant completed that form and returned it to the Local Board on or about January 26, 1965. In his answers, the defendant discussed the nature and extent of his activities as a minister in the Jehovah's Witnesses. He was classified I-A by that Board on February 18, 1965, and again on March 18, 1965 following a personal appearance before the Board. The defendant notified his Local Board that he wished to appeal the I-A classification. On May 6, 1965, and before the Local Board forwarded the defendant's appeal to the Appeal Board, it directed the defendant to meet with the Government Appeal Agent.

 On May 13, 1965 the defendant conferred with said Agent who prepared a written statement for inclusion in the defendant's Selective Service file that was to be sent to the Appeal Board. The defendant signed this statement but did not receive a copy thereof. The Appeal Agent testified that his normal procedure, upon interviewing a registrant, is to tell him that his (the Agent's) responsibility is to ensure that the file to be sent to the Appeal Board is sufficiently complete and accurate to protect the registrant's rights on appeal; to tell the registrant that, since the file is the only material that will be considered on appeal, the purpose of the interview is to elicit any additional material that ought to go in the file. The registrant is then asked what additional information he would wish placed in the file. After the registrant volunteers this information, the Agent then asks questions "which I think, may, perhaps, change his situation." As the registrant is speaking, the Agent takes typewritten notes. When the Agent is finished typing, he shows the registrant the paper and asks him if there are any additions or corrections he wishes to have made. Finally, the Agent draws a line on the paper on which he asks the registrant to sign "to show that he read it." The statement prepared for the defendant by the Government Appeal Agent, dated May 13, 1965, stated that, after the defendant had filed his Form 54, he had been relieved of his duties at his then present congregation and was now working at the Bergen Congregation in Brooklyn; that defendant's duties in his new congregation were the same as those performed in his former congregation, except that, in his new congregation, he did not have "oversight of the Service Intergroup." Neither the Form 54 nor the Form 150 mentioned this group. The statement concluded that "by virtue of the above and all the information and data heretofore submitted in his file, the Registrant * * * prays for a IV-D classification." As to his interview with the Appeal Agent, the defendant testified that the Agent did not tell him that he had a right to file a statement of his own in connection with the appeal; that there was nothing in the statement with which he disagreed. He testified that, had he had an opportunity to reply to the statement prepared for him by the Appeal Agent, he would have elaborated on the fact that he had been relieved of his duties in one congregation and was working in another congregation; that the Appeal Agent did not tell him that he had the right to place in his file an explanation as to why he was relieved of said duties.

 On May 14, 1965, one day after the Appeal Agent prepared his statement, the defendant's file was sent to the Appeal Board. The Local Board ordered defendant to report for a physical examination which was conducted on June 22, 1965. On June 30, 1965, a Statement of Acceptability (DD Form 62) was mailed to the registrant indicating that he was physically qualified for duty in the armed forces. On October 17, 1966, defendant was classified I-O by a unanimous vote of said Board. That was the last classification given the defendant, and he has stipulated that this I-O classification has a basis in fact.

 Not until January 19, 1967, was SSS Form 152 mailed to the defendant. This Form provides a class I-O registrant with an opportunity to propose three types of civilian work which he offers to perform in lieu of induction. See 32 C.F.R. § 1660.20(a) *fn1" and Local Board Memorandum No. 64, *fn2" directions from the Director of Selective Service (Director) to all local boards. On January 31, 1967, this Form was returned uncompleted by the defendant. On February 16, 1967, pursuant to 32 C.F.R. § 1660.20(b), *fn3" the Local Board by letter offered the defendant three types of civilian work he could perform in lieu of induction. On March 1, 1967, the Local Board received a letter from the defendant which advised the Board that he refused all three types of work. Accordingly, on March 13, 1967, the Local Board held a meeting pursuant to 32 C.F.R. § 1660.20(c) *fn4" at which Captain Thomas Maher, a representative of the New York City Director's office, and the defendant were in attendance. No agreement was reached at this meeting. However, the defendant did indicate a willingness to perform some employment, but he wanted to secure the same himself. The Board encouraged him to do so but, since no agreement could be reached at that time, the Board advised the defendant that it recommended that he perform currently available hospital work at New Jersey State Hospital.

 On March 15, 1967, the defendant's file was forwarded through appropriate channels to the Director for his approval of the work deemed appropriate by the Local Board. See 32 C.F.R. § 1660.20(d). *fn5" By letter dated March 23, 1967, the Director approved the civilian work recommended by the Local Board. On March 28, 1967, the Clerk of the Local Board, at the direction of the Board, notified defendant that the Board had received the authorization of the Director to issue an Order to Report for Civilian Work. The defendant was also advised that

"as you indicated that you would make effort to obtain approved employment on your own, would you kindly advise this Local Board within the next ten days as to ...

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