The opinion of the court was delivered by: ZAVATT
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 for civilian work at Kings Park 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 Kings Park State Hospital, and the court finds beyond a reasonable doubt that he did knowingly fail and neglect to so report. However, defendant raises several questions of law in support of his position that his failure to report was not in violation of the aforesaid statutes.
(1) 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;
(2) 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);
(3) he was denied due process because the Local Board failed to give him timely notice of the meeting with a representative of the New York City Director's office pursuant to 32 C.F.R. § 1660.20(c);
(4) the Local Board was without authority to issue an order because no determination was made that civilian work was available, as required by Local Board Memorandum No. 64;
(5) 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. Smith, 295 F. Supp. 691. A comprehensive opinion in Mendoza is being filed simultaneously herewith.
Defendant was duly registered with Selective Service Local Board No. 20, Bronx, N.Y. On January 26, 1965, the Local Board mailed to the defendant New York City Form No. 54, a questionnaire to be answered by a registrant who claims to be a conscientious objector and/or minister of religion. The defendant completed his answers thereto and returned the said Form to his Local Board on or about February 5, 1965. The Form 54 recited that he was affiliated with the Melrose Unit of Jehovah's Witnesses; that he was a "Publisher," an assistant "Account Servant" and an assistant "Book Study" conductor;
that he was a "Vacation Pioneer" for two weeks in August of 1964; that he distributed material published by the Watchtower Society;
that he engages in field ministry work and Bible studies; that for the past five months he had spent thirteen hours per month in field ministry work; that his ministerial duties over the past month included, inter alia, preparation for a public Bible sermon of one hour in length. The Form 54 also discussed his gainful employment as clerical employee, his study of the Bible and his conscientious objection to the use of force. Nonetheless he was classified I-A on February 18, 1965 and again on March 18, 1965 following a personal appearance before the Board. On March 22, 1965 the defendant notified the Local Board that he wished to appeal the I-A classification.
Before the Local Board forwarded the defendant's appeal to the Appeal Board, it directed the defendant to meet with the Government Appeal Agent. He did meet with the said Agent on April 15, 1965. On April 30, 1965, the Government Appeal Agent filed a four page statement regarding defendant's appeal without giving defendant a copy thereof. The defendant's file was then immediately sent to the Appeal Board.
The Associate Government Appeal Agent involved in this case testified that he took the appeal in behalf of the defendant and identified the four page statement as the "appeal." While unable to remember the specifics of his meeting with the defendant, he testified that, as a matter of general practice, when a registrant comes to see him concerning an appeal, he tells the registrant that such registrant may prepare the appeal or that he (the Agent) will do it for him, and that the appeal will be incorporated into the file which will be sent to the Appeal Board. He also tells the registrant that he may write his own statement "on top of mine" and that he can bring in new information to the Board after the interview. He asks the registrant questions and takes either handwritten or typewritten notes. As he is taking these notes, the registrant is sitting in a chair alongside of him. The registrant is made aware that he has a right to inspect his file and make copies of any document therein.
The statement of the Appeal Agent recited that the defendant was appealing his I-A classification on the grounds that he is a minister in the Jehovah's Witnesses and is a conscientious objector. It also recited the defendant's family and employment background; that he was baptized in water and ordained as a minister at the Melrose Unit of Kingdom Hall in the Bronx; that the highest officer of that Congregation is Servant Brother Oliver Aaron; that said Congregation consists of 130 active ministers, seven regular pioneers, account servants and publisher servants; that the defendant was an assistant account servant and an assistant Bible study conductor; that since January of 1965 he "placed" about 200 publications of various types and maintained records of his purchases on a card form furnished by " Watchtower'; that he devotes 15-20 hours per week to Bible studies and preaching; that his name has not yet appeared on any program of his congregation although he has given some lectures to groups of his congregation; that he expected to have his name mentioned on a program in connection with a one hour lecture in the future; that he has devoted 80 hours to a lecture entitled "Why Jehovah's are different"; that during 1962 and 1964 he was a Vacation pioneer for a one month and two week periods during which he devoted 100 and 75 hours, respectively; that he is a member of the Watchtower Bible and Tract Society of Pennsylvania. The statement then related defendant's religious beliefs relative to his claim as a Conscientious Objector; referred to two letters in his file -- one from a Charles Sealy, Account Servant of the Melrose Unit of the Jehovah's Witnesses, and one from Ann Goodson, an old family friend; recited that, while in school, the defendant would neither salute the flag nor pledge allegiance and that he would not now participate in either combatant or non-combatant service.
The statement prepared by the Appeal Agent does not contradict anything contained in the defendant's Form 54. It supplements the information contained in the Form 54 about the defendant's ministerial activities in the following respects: (1) the greater detail in which the statement discussed his activities as a lecturer; (2) the mention of his one month tenure as a "Vacation Pioneer" in 1962; (3) the amount of "Watchtower" publications he had recently distributed and (4) the amount of time he had devoted to his Bible studies. The defendant testified that the Appeal Agent did not tell him that he could file a written reply to said statement; that he did tell the defendant that the statement would be sent to the Appeal Board; that the defendant had told the Agent everything that was contained in the statement, but that he did not know the final form in which ...