Citation Codes

Equivalent Citations

citation codes

Docket Number

Cr. 31020-31022.

Attorney(S)

Edmund Port, U.S. Atty., Syracuse, N.Y. (Robert J. Leamy, Oneonta, N.Y., of counsel), for the United States. Hayden C. Covington, Brooklyn, N.Y., for defendants.

Judges

Stephen W. Brennan

See more information ...

Smart Summary

Summary of Opinion: United States v. Graham (Cr. 31020–31022)

Factual and Procedural Background

The three defendants, brothers who identify as Jehovah's Witnesses and registered with Local Selective Service Board No. 22 at Catskill, New York, were each indicted for refusing induction into the armed services in violation of the Selective Service Act. Each pleaded not guilty, waived a jury trial, and consented to a joint bench trial with the evidence to apply to each case. The government introduced each defendant's Selective Service file and stipulated each refused to take the step required for induction at the induction center.

Each defendant had been classified 1-A as of February 14, 1951. At their written request, all three appeared personally before the local board on February 28, 1951, to review files, submit evidence, and discuss their classifications. The board entered notations reflecting that there was "no change in classification" on that date, and a memorandum signed by the acting chairman stated the registrant "presented no new evidence at this hearing and was advised by the board that his classification would remain Class 1-A in accordance with the unanimous vote of all board members present."

The defendants later pursued appeals through Selective Service channels. On November 5, 1951, two defendants (Howard and Glenn Graham) were classified 1-O by an appeal board; Douglas Graham remained 1-A. Subsequent appeals resulted in reclassification back to 1-A for Howard and Glenn (March 3, 1952, and February 25, 1952, respectively). At trial the defendants advanced two contentions: (1) the local board did not reclassify the registrants at or after February 28, 1951, as required by the Selective Service Regulations; and (2) there was no factual basis in each Selective Service file to warrant a 1-A classification. The parties agreed to brief only the first contention initially.

Legal Issues Presented

Whether the local Selective Service Board "again classify[d] the registrant in the same manner as if he had never before been classified" on or after the personal appearance of each registrant on February 28, 1951, as required by Regulations 1624.1(a) and 1624.2(c)-(d).
Whether there is a factual basis in each defendant's Selective Service file to warrant his 1-A classification (this issue was reserved for later consideration if the court ruled against the defendants on the first issue).

Arguments of the Parties

Defendants' Arguments

The local board did not actually reclassify the registrants at or after February 28, 1951, in the manner required by the Selective Service Regulations.
There was no factual basis in the Selective Service files to support a 1-A classification (this contention was not briefed at trial because the parties agreed to decide the first contention first).
It was also argued that continuation of the existing classification at the hearing did not violate the registrants' fundamental rights because each registrant had the right to appeal and had been given an opportunity to present additional evidence; thus, defendants were not prejudiced by the board's conduct.

Government's Position

The government established a prima facie case via the Selective Service files and relied on the notations and memorandum in the files indicating "no change in classification" on February 28, 1951.
The government called the acting chairman of the board in rebuttal, who testified that the classification was "continued" and that absence of new evidence meant the classification could not be reconsidered.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Laier, D.C., 52 F. Supp. 392	Denial of a personal hearing provided by the Regulations is a denial of due process; subsequent appeals do not cure such an error; presentation of additional evidence is only one of the rights afforded at the personal hearing.	The court relied on Laier to support the proposition that failing to afford the full procedural hearing required by the regulations constitutes denial of due process and cannot be remedied merely by later appeals.
United States v. Romano, D.C., 103 F. Supp. 597	An error in denying the personal hearing is not cured by subsequent appeals; a full and fair disposition at every level of the Selective Service system is the measure of registrant rights.	The court cited Romano to emphasize that registrants are entitled to the full procedural protections at the local-board hearing level and that later appeals do not cure denial of those rights.
United States v. Stiles, 3 Cir., 169 F.2d 455	The absence of additional evidence does not relieve the Board from the requirement to reclassify the registrant anew after a personal appearance.	The court invoked Stiles to support its conclusion that even where no new evidence is presented, the board is obligated to "again classify" the registrant as if he had never been classified.
Martin v. United States, 4 Cir., 190 F.2d 775	Recognizes that unsubstantial deviations from procedural methods do not necessarily void an order of induction; used as a contrasting authority.	The court distinguished Martin on the facts because here the chairman's testimony indicated the board told registrants it could not reconsider classifications absent new evidence; the court also acknowledged Martin for the proposition that unsubstantial procedural deviations do not automatically void induction orders.
Ex parte Fabiani, D.C., 105 F. Supp. 139	Notes increasing willingness of courts to scrutinize local board actions; supports strict construction of regulations in favor of registrants.	The court cited Fabiani (along with Strebel) to show a trend of closer judicial scrutiny and that regulations should be strictly construed for the benefit of registrants.
United States v. Strebel, D.C., 103 F. Supp. 628	Indicates that Selective Service regulations must be strictly construed in favor of the registrant.	Strebel was cited to support the court's approach that the regulations are to be strictly construed in favor of registrants when assessing whether procedural rights were accorded.
United States v. Fry, D.C., 103 F. Supp. 905	Example of a case where unsubstantial procedural deviations did not void an order of induction.	Fry was cited as an example of decisions upholding induction orders where deviations were unsubstantial; the court used Fry to delineate between unsubstantial procedural deviations and the substantial right to a new classification after a personal hearing.

Court's Reasoning and Analysis

The court analyzed the matter against the Selective Service Regulations in effect at the time, specifically Regulation 1624.1(a) (affording registrants the opportunity to appear personally before the local board) and Regulation 1624.2, subdivisions (b), (c) and (d). Regulation 1624.2(b) permits a registrant to discuss his classification, present further information, and direct attention to matters in his file. Subdivisions (c) and (d) require the local board to "again classify the registrant in the same manner as if he had never before been classified" and to mail notice of such classification.

The court reviewed the evidentiary record: each defendant appeared on February 28, 1951; no new evidence was offered; file notations and a memorandum stated "no change in classification"; and the acting chairman testified that the classification was "continued" and that without new evidence the board could not reconsider classification. From this evidence the court concluded that the board did not perform the affirmative act of reclassifying the registrants anew as required by the regulations.

The court considered and rejected the government's practical-avoidance arguments. First, it noted defendants' rights were governed by the regulations as they existed at the time, not by later amendments. Second, the court addressed the argument that continuation of classification and the availability of appeals preserved the registrants' rights; relying on precedent (Laier, Romano, Stiles), the court held that denial of the personal hearing or a hearing that was, in effect, one without hope of relief, amounts to denial of due process and is not cured merely by subsequent appeals. The court distinguished Martin v. United States because Martin involved only unsubstantial deviations and the present record included testimony that the board stated it could not reconsider without new evidence.

Although the court noted the board also failed to mail the notice of classification as required by Regulation 1624.2(d), it acknowledged the opinion in Martin that omission of the mailed notice does not automatically destroy the order of induction when actual notice was given; here the court found actual notice had been given. Nevertheless, the court concluded that the more fundamental failure was the absence of a reclassification at the personal hearing level, a substantial right that the board was required to provide.

Holding and Implications

HOLDING: The court found that in each case the local board did not "again classify the registrant" on or after February 28, 1951, as required by the Selective Service Regulations, and accordingly concluded that each defendant was entitled to and was hereby granted a judgment of acquittal.

Implications: The direct effect is that the three defendants were acquitted. The opinion applies established precedent emphasizing that registrants are entitled to the full procedural protections of a personal hearing at the local-board level and that failure to provide the required reclassification at that level can require acquittal. The opinion does not state that it establishes a new rule of law beyond its application to these facts.

Show full summary ...

UNITED STATES v. GRAHAM (three cases).

BRENNAN, District Judge.

The above named defendants are brothers residing near Cairo, New York. They profess to be members of the sect known as "Jehovah's Witnesses". Each defendant is charged in a single count in an indictment with failing to submit to induction into the armed services of the United States, in violation of the Selective Service Act 50 U.S.C.A.Appendix, § 451 et seq. In the case of each defendant the immediate act of violation, as charged in the indictment, consists of his refusal to step forward as required in the proceeding constituting induction.

Each defendant, after the entry of a plea of not guilty to the indictment, appeared by an attorney, waived a jury trial, and consented that the three cases be tried together before the court; the evidence received to be applicable in each individual case.

The government made a prima facie case by the introduction of the Selective Service file of each defendant, and it was stipulated that each defendant refused at the induction center to take the necessary step to accomplish his induction.

Each defendant was called as a witness in his own behalf, and the essential part of his testimony evolves around his personal appearance before the Selective Service Board on February 28, 1951. The acting chairman of the Board was called by the government in rebuttal, and the material portions of his testimony also concerns the occurrences at the hearing on February 28, 1951, and the action of the Board subsequent thereto.

The defendants each make two contentions: (1), that the local board did not in fact reclassify the registrants at or after their appearance before the Board on February 28, 1951, as required by the Selective Service Regulations; (2), that there is no factual basis in the Selective Service files of each defendant which would warrant his I-A classification. At the conclusion of the trial it was agreed that counsel would brief only the first contention, inasmuch as a decision adverse to the government would require a verdict of not guilty. If the decision were otherwise, then counsel would be afforded the opportunity to argue or brief the second contention.

Defendants' first contention will now be considered and decided. A brief statement of the essential findings will be made below which will apply in each case, unless otherwise indicated.

The defendants were properly registered with Local Selective Service Board No. 22 at Catskill, New York. They were classified by the Board and, after some changes in their individual classifications, were each classified on February 14, 1951, as 1-A. Upon the written request of each defendant, they were afforded the opportunity to appear personally before the Board on February 28, 1951, to submit additional evidence, review their files, discuss their classifications, and call the attention of the Board to any matters which may have been overlooked. Each defendant did so appear at the same time and in the presence of a couple of friends and co-religionists. The occurrences and discussion at the hearing may be considered as in dispute and will be referred to below. It is sufficient to say that each defendant was informed at such hearing that his classification would or did remain as 1-A. With the cooperation of the Board, the defendants appealed from their 1-A classification. Since in each case the appeal involved a conscientious objection claim, the usual procedure of referring same to a hearing officer was followed, and on November 5, 1951, the defendants Howard Graham and Glenn Graham were classified 1-O by the appeal board, and the defendant Douglas Graham was classified 1-A. Defendants Howard Graham and Glenn Graham thereupon appealed to the National Selective Service Appeal Board, and on March 3, 1952, Howard Graham was classified as 1-A, and on February 25, 1952, Glenn was similarly classified.

Before attempting to determine whether or not the defendants were accorded the full measure of their rights at the hearing held on February 28, 1951, reference will be made to the applicable regulations as they existed at the time in question. Regulation 1624.1(a) affords an opportunity for the registrant after his classification to appear in person before the local Board. There was no question but that each defendant availed himself of the opportunity, and that same was afforded. Regulation 1624.2, subdivision (b), provides that the registrant may discuss his classification, may present further information, and may direct attention to information in his file which he believes the local Board has overlooked. Subdivisions (c) and (d) define the duties of the Board after the registrant has appeared before it, and by their terms require that the local Board "— shall again classify the registrant in the same manner as if he had never before been classified", and shall thereafter mail to the registrant a notice of such classification.

The factual question here is whether or not the local Board performed its duties as indicated in the above regulations as they then existed. It is fair to say that no new evidence or information was offered or given by any of the three defendants. They were ready to argue that they were improperly classified by reason of their religious belief, and were ready to submit additional writings pertaining to the doctrines of their sect. They each testified that the spokesman for the Board advised them that the hands of the Board were tied, and in substance, that each classification would remain unchanged unless new evidence were submitted. An examination of the file in each case indicates a notation dated "2/28/51" on the back of each questionnaire to the effect that there was no change in classification. On the inside of the outside cover of each file there is the notation "2/28/51 appd. before bd. No change in classification. CGC HCW AB SLT" (the initials of the members of the Board). The initials "SLT" do not appear on the last mentioned notation in the file of Howard Graham.

A memo dated February 28, 1951, signed by the acting chairman of the Board, is found in each file and is quoted in part below:

"Registrant presented no new evidence at this hearing and was advised by the board that his classification would remain Class 1-A in accordance with the unanimous vote of all board members present."

There is no other record of any vote or any other action constituting a classification anew, as required by the Regulations.

The oral testimony of the acting chairman of the Board, called as a witness by the government, disposes of any uncertainty arising from the notations above referred to. Upon cross-examination as to the action of the Board on the occasion of the appearance of defendants on February 28, 1951, he testified in part as follows:

"Q. Then what happened? A. The classification was continued.

"Q. But you did not classify them on the 28th at the hearing? A. It was continued.

* * * * * *

"Q. After you heard them you told them that unless they presented new evidence you could not reopen or reconsider their case upon personal appearance; is that right? A. No. I said if they could not produce any new evidence before the board we could not reconsider the classification.

"Q. That is what you told them? A. That is correct."

From all of the evidence it seems inescapable that the Board did not "— again classify the registrant in the same manner as if he had never before been classified."

It is urged that by amendment to the Regulation the procedure adopted by the Board would now be recognized as entirely adequate. Defendants' rights, however, were fixed by the Regulation as it then existed.

An appealing argument is made that the continuation of each defendant in the classification given them prior to February 28, 1951, did not affect his fundamental rights, and did not violate the spirit of the Selective Service Regulations. It is urged that this is especially true, since each registrant was afforded the right to appeal and had full opportunity to present additional evidence, and that there is no showing that defendants have been either collectively or separately prejudiced.

Judicial precedent, however, seems to indicate otherwise. As early as 1943, in the case of United States v. Laier, D.C., 52 F. Supp. 392, it was held that the denial of a personal hearing provided for by the Regulations was a denial of due process, and, since the presentation of additional evidence is but one of the rights afforded on such hearing, the argument was rejected that subsequent appeals cure such an error. See United States v. Romano, D.C., 103 F. Supp. 597. A personal appearance before the Board and a hearing wherein the position is taken by the Board that the classification could not be reconsidered is, in effect, no hearing at all. It is at least a hearing without hope of relief. The absence of additional evidence or new information did not relieve the Board from the requirement that each registrant be classified anew. United States v. Stiles, 3 Cir., 169 F.2d 455.

The Court has not overlooked the case of Martin v. United States, 4 Cir., 190 F.2d 775, but it is factually distinguishable, since here we have the testimony of the chairman to the effect that in the absence of additional evidence, the Board could not reconsider the classification of defendants. We also have here the undenied testimony of the three defendants that they were told by the Board that its hands were tied.

In the recent case of Ex parte Fabiani, D.C., 105 F. Supp. 139, there is discussed the increasing willingness of courts to scrutinize the action of local boards, and the cases cited above, together with United States v. Strebel, D.C., 103 F. Supp. 628, are indicative of the fact that the regulations must be strictly construed in favor of the registrant.

It is conceded that the board did not mail to any of the defendants the notice of classification, as provided in Regulation 1624.2(d). This omission in itself, however, does not destroy the validity of the order of induction. Martin v. United States, supra; it being conceded that each defendant had actual notice on February 28, 1951, that his classification was unchanged.

A full and fair disposition of the defendants' contention at every level of the Selective Service system is the measure of their rights. United States v. Romano, supra. Unsubstantial deviations from procedural methods, as found in Martin v. United States, supra, and United States v. Fry, D.C., 103 F. Supp. 905, do not void the order of induction. The right of each registrant to a new classification after a personal hearing is, however, a substantial right which the board is bound to afford him at that particular level of the Selective Service system.

It is found that in the case of each defendant-registrant he was not classified on or after February 28, 1951, as required by the regulations above referred to, and it is concluded that each defendant is entitled to and is hereby granted a judgment of acquittal.

UNITED STATES v. GRAHAM, (N.D.N.Y. 1952)