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January 15, 1969

William MENDOZA, 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 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.

 Defendant claims that

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

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

 Defendant was duly registered with Selective Service Local Board No. 8, New York, N.Y. He was classified I-A by that Board on April 4, 1962, and again on July 11, 1962 following a personal appearance before the Local Board. He appealed this classification and on October 16, 1963 was classified I-A by the Appeal Board. Subsequently, the Local Board ordered defendant to report for a physical examination, which was conducted on April 17, 1964. On April 24, 1964 a Statement of Acceptability (DD Form 62) was mailed to the registrant indicating that he was physically qualified for duty in the armed forces. He was ordered to report for induction on April 8, 1965. On that date he did so report and passed a physical examination at the induction station. Defendant refused to submit to induction on April 8, 1965.

 Following this refusal and on May 14, 1965 the Local Board mailed to the defendant New York City Form No. 54, a questionnaire to be answered by a registrant claiming to be a conscientious objector and/or minister of religion. The defendant typed his answers and returned the said form to his Local Board on or about May 25, 1965. He stated his gainful employment as operator of a circular knitting machine, 35 hours per week, at a weekly compensation of $100; his membership in the East Harlem Unit of the Congregation of Jehovah's Witnesses; that he was appointed a "Publisher" on November 22, 1957 devoting 25-30 hours per month to "field ministry"; that he was not a "Pioneer" *fn1" (later and on March 31, 1966 the defendant filed a second Form 54 advising the Local Board that he had been appointed a "Vacation Pioneer" for the period September 1 to November 30, 1965); that, during the preceding month, he devoted 15-18 hours to distributing literature. He attached a typewritten sheet listing his Bible studies and stating his opposition to all war, with citations to Books of the Bible. Thereafter, on July 14, 1965, the Local Board reopened his classification and reclassified him I-O. On July 28, 1965, the defendant notified the Local Board that he wished to appeal the I-O classification to the Appeal Board. On August 14, 1965, after the defendant had appeared in person before the Local Board in response to his request of August 2, 1965 for reconsideration of his classification by the Local Board, his I-O classification was continued on the ground that the defendant had failed to furnish any new evidence to warrant a change of his I-O classification. On August 16, 1965 and before the Local Board forwarded the defendant's appeal to the Appeal Board, it referred the defendant to the Government Appeal Agent. On that day the said Agent prepared a written statement for inclusion in the defendant's Selective Service file that was to be sent to the Appeal Board but did not give a copy thereof to the defendant.

 The Appeal Agent testified that, while he did not specifically remember this meeting with the defendant, his general practice, when a registrant is referred to him for consultation about his appeal, is first to familiarize himself with the registrant's file and then have the registrant brought in. The Agent then tells the registrant that he will take his statement in the form of "an appeal" to be presented to the Appeal Board. He then asks the registrant to state his reasons for his objection to his present classification. At the conclusion of the interview, the Agent asks the registrant if there is anything he wishes to add. The registrant is advised that he has a right to submit additional information within thirty days and is then excused. After the registrant leaves, the Appeal Agent prepares a handwritten statement from the notes he has taken during the interview. Later, this statement is typed by a local board employee and placed in the registrant's Selective Service file and the entire file is forwarded to the Appeal Board. Both the handwritten and typewritten statements with reference to this defendant's appeal are in the defendant's Selective Service file.

 The statement of the Government Appeal Agent recited that the defendant was single; 22 years of age; lived at home with his parents; was employed as a knitter, working a thirty-five hour week with occasional overtime; was now a Jehovah's Witness, having been ordained in 1957; was a "Publisher" in the East Harlem Congregation, located at 175 West 120th Street, and was devoting all of his time, except that spent working as a knitter, in the ministry of the Jehovah's Witnesses. It recited three reasons upon which defendant based his claim for a ministerial exemption (Class IV-D):

 (1) that the full-time civilian work he might be called upon to perform in lieu of induction might hinder him from performing his ministerial duties;

 (2) that he had a pending application for Pioneer status in his Congregation which, if granted, would require him to devote 100 hours per month to field service and

 (3) that he considered his ministerial responsibilities paramount in his life and could not ...

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