The opinion of the court was delivered by: GURFEIN
The defendant was indicted under Title 50 Appendix, U.S.C. § 462(a), and 32 C.F.R. § 1632.14, for refusing to submit to induction into the armed forces of the United States. He moves to dismiss the indictment pursuant to Rule 12(b)(1) of the Federal Rules of Criminal Procedure upon the ground that "there are defenses capable of determination without the trial of the general issue."
The specific ground for the motion is that defendant's Selective Service file demonstrates that he was illegally denied conscientious objector status.
The facts, set out in the following paragraphs, are taken from the Local Board files which were presented in support of the motion to dismiss the indictment.
The defendant was registered with Local Board No. 8 at Yonkers, New York on May 6, 1966. About March 12, 1970, shortly before withdrawing from college on June 4, 1970, the defendant filed with the Local Board a request for classification as a conscientious objector (Class 1-A-O), and thereafter continued to seek such classification. On June 24, 1970 he was classified 1-A. This is the second of six dates on which the defendant was classified 1-A.
On February 22, 1971 the defendant submitted to the Local Board an application for classification as a conscientious objector (Class 1-O) in the form of a long letter which answered the questions on Form 150, the conscientious objector form. He relied on his religious views derived from specific Roman Catholic training. Two days after the defendant's application was submitted, the Local Board once again classified him 1-A, noting their conclusion ". . . that registrant is only trying to avoid draft."
On March 22, 1971 the registrant submitted a letter requesting a personal interview and an appeal of the 1-A classification.
The interview was granted, and the registrant met with the Local Board on April 13, 1971. There were three members present, and the interview (hearing) lasted twenty minutes. The Board continued him in classification 1-A. Following the interview, the Board prepared a summary of his appearance, which is set out in the margin,
and a statement of the reasons for denying a 1-O classification. The Board's conclusion was: "It is the local board's opinion that the registrant is not a genuine conscientious objector . . . The board listened and asked questions of registrant's beliefs and again concluded that registrant is only trying to avoid the draft." The reasons given for this conclusion were as follows:
"Reg. requested C.O. status on March 12, 1970, shortly before withdrawing from college on June 14, 1970, in his junior year.
He bases his claim on religious grounds. He repeatedly states that his reason for living is to love people and to 'work with people so that we may all lead better lives' . . .
However, though he claims to be very deeply religious, he was arrested for Conspiracy, Placing Dangerous materials on a highway, Criminal Mischief, Loitering, Reckless endangerments. These convictions were made in May, 1970, after he had claimed C.O. status.
He also claimed on SF Form 89, dated 5 August 1970, that he had a drug or narcotic habit. Therefore, though he claims to be a peace-loving pacifist, deeply opposed to violence, etc., he has a criminal record for offenses which could have caused death or injury to people and he admits to a drug or narcotic habit, which is dangerous to his own life. It is the opinion of this board that the conduct of this registrant is not in keeping with the deeply religious, moral or ethical code of living that he claims as his basis for a C.O.
It is this board's conclusion that the registrant's convictions are not sincere due to the above reasons and that he claimed C.O. after withdrawing from college (and losing the protection of the student deferment) to avoid the draft."
On October 20, 1970, about six months before the Local Board denied the defendant a 1-O classification and classified him 1-A, the Youth Council Bureau of the Bronx had written to the Board that "The Honorable John Carro dismissed the matter pending against Kevin O'Rourke on September 24th, 1970, part 1E, Bronx Criminal Court."
On May 13, 1971, the defendant appealed his classification. On June 17, 1971, the Appeal Board classified the defendant 1-A by a vote of 3 to 0. It stated no reasons. On October 12, 1971, the defendant was ordered to report for induction on November 16, 1971.
On November 3, 1971, the defendant wrote to the Local Board saying he had read their "summary of my personal appearance of April 13, 1971 and the Local Board has made some errors of fact which I feel I must correct . . ." He pointed out that "[contrary] to what the Local Board recorded, I was not put on probation and I was not convicted of any of the charges against me and in fact all of the charges were dismissed . . . Before the charges were dismissed and before the Trial of the charges (which was never held; they were dismissed without any trial) I was counselled for a period of several months by the Youth Corrections Board of New York ...