The opinion of the court was delivered by: TYLER
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant having waived trial by jury, this case was tried to the court on March 22, 23, 27 and 30, 1972. Because of the nature of the issues raised in this selective service case, decision was reserved and post-trial briefs of the parties were thereafter submitted. Upon consideration of the latter and the entire record, there follow the findings of fact and conclusions of law in this case. See Rule 23(c), F.R. Cr. P.
Defendant, a member of the Black Panther Party, was indicted for violating § 462(a) of the Military Selective Service Act of 1967, as amended, and 32 C.F.R. 1632.14. Specifically, defendant was accused of willful failure to report for induction on May 26, 1970 as ordered in writing (SS Form 252) by his board, Local Board 16, Manhattan.
At trial, defendant did not deny receipt or knowledge of the order of induction. From writings of defendant to Local Board 16, there is no doubt whatsoever that he knowingly and purposefully refused to respond to that order and failed to report to the Whitehall Street induction center on May 26, 1970.
Gregg Strayhorn was born on August 16, 1949. On August 18, 1967 he registered with Local Board 16. Several months later on November 18, 1967 defendant was classified 1A. Despite notification of his right to a personal appearance and appeal, the files indicate that defendant exercised neither right nor opportunity. On November 12, 1968, defendant was given his physical examination, as a result of which he was found fully acceptable for service on December 2 of that year.
In 1969 Strayhorn received his first order from Local Board 16 to report for induction into the armed forces on September 26, 1969. This mailed order was returned by the United States Postal Service marked "addressee unknown." Thereafter, in early December, 1969, the Board learned of a new address for defendant. It was not until May 13, 1970, however, that the Board mailed defendant his second order to report for induction on May 26, 1970. It is that order, of course, which is the subject of the indictment in this case.
Because there is no doubt whatever that defendant willfully failed to report on May 26, the trial of this case was devoted in the main to certain affirmative defenses asserted by Strayhorn and pressed for him by his able lawyer. The issues thereby engendered will be discussed hereinafter.
DEFENDANT'S AFFIRMATIVE DEFENSES
A. The defense that defendant is entitled to exemption as a conscientious objector.
For the first time, Strayhorn raises in his post-trial brief the contention that his letter to Local Board 16 dated September 27, 1968 constituted information requiring treatment of defendant as a bona fide claimant for conscientious objector classification. I cannot view or construe the September 27th letter of Gregg Strayhorn in that light. As I read it, the letter represents Strayhorn's efforts to explain his failure to appear for a physical examination:
"I did not show up for my physical because I do not think that I am obligated to do anything for people who oppress, murder and exploit all non-whites on the face of the earth. Furthermore, if the government wants to continue their course of destruction upon all non- pigs they will do it without me." (emphasis as it appears in defendant's letter)
Further, I find that defendant by this letter was expressing his political views, which, though doubtless held with utmost sincerity, were not expressions of convictions of religion or conscience. See Gillette v. United States, 401 U.S. 437, 454-460, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971).
If one were to look to other correspondence or information completed by defendant in various forms, it still does not appear that Strayhorn ever brought sufficiently to the attention of Local Board 16 any claim for or information tending to suggest that he might be entitled to classification as a conscientious objector. It is true that in SS Form 127, which was filled out in part by defendant and submitted to the Board, he indicated in substance that he would not fight for this country (". . . for [pigs] who constantly oppress blacks"). Somewhat similar is another letter received by the Board on January 20, 1970 wherein defendant sets forth similar political views. There can be no doubt that these views of Strayhorn led him to refuse to submit ...