Brief for the Respondents in Opposition — In re Catanzaro

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INDEX

Opinion below. ___- ae Mag mitt Nesinlahal a woeaiale epee ae ntact

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CITATIONS

Cases:

Albert ex rel. Ravin v. Gouguen, No. 3927, D. Mass__._-_.

Enge, Ex parte, No. 2726-B. H., S. D. Calif_.___.______.

Falbo v. United States, No. 73, this We case hk, a

Goodwin v. Rowe, 49 a SS ie hale htc. Sane? a ee

cites. Cemed, We TB Tek kan oe ce Paes

Heflin v. Sanford, No. 1884, N. RR tans ote

Innes v. Crystal; 319 U. S. 755______.._.. RAD cece as ee.

aemanen «Mey, Bit UB Ba. Seo

Jones v. Perkins, 245 U. S. 390_._._.....__.. Cel en oh areca

Lindquist, Ex parte, No. 969, D. Minn_- ail Sirah

Rodman v. Pothier, 264 U. Re see ae

Stewart, Ex parte, 47 F. ees, 410... as ane

United States ex rel. Arpaia v. Alerander, No. 1105, D.

A oe ne es aise Mclet SR ik don tacas wis eee

United States ea rel. Faiho v. Ke nasil, Jan. 24, 1944, i x

W.Va : e sien tases we pon kage

United States v. Guibein, 49 F. Suan. 510. 5 are eee

United States ex rel. Lohr org v. Nicholson, Jan. 8, 1944,

BE. D. Va... Sia abe se sagas sts la Soa thsi eng e ad

Statutes involved:

The Selective Training and Service Act of 1940. as amended

(Aets of Sept. 16. 1940, e. 720, 54 Stat. 885: Aug. 18,

ID41, ¢. 362, 55 Stat. 626; Dee. 20. 1941, ¢. 602, 55 Stat.

S44; Nov. 13, 1942, e. 638, 56 Stat. 1018; 50 U. S. Cra

App. 310 et seq.):

wee. 10 (a)_.._.... mii oynps See, | uae ee ete

See. 11 ; ek craic iol nyse aad mace

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R.S. 752, as amended, 28 U.S. C. 452__. 2. Ay

R. 8. 753, as amended, 28 U. S. C. 453_.. 288. Beads

R. S. 755, as amended, 28 U. 8S. C. 455_....._-. 2.2 8.

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| Inthe Supreme Gourt of the Bnited States

OcToBeR TERM, 1943

In THE Marrer or Sam Catanzaro, JR,

PETITIONER

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE THIRD

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The majority and dissenting opinions in the cir-

cuit court of appeals (R. 10-17) are reported at

138 F. (2d) 100.

neues i WARE IE OLB MOA REEL TE RANGE

PRO MART AESH HATE ERT NE SOS aegis IAI ENCE ORR EON TR SB ME OS BEER ICAL 77 .

JURISDICTION

The judgment of the cireuit court of appeals was

entered September 23, 1943 (R.18). By an order

of Mr. Justice Roberts dated January 1), 1944

(R. 21), the time for filing a petition for certio-

rari was extended to and including February 19,

‘Although the transcript of record does not reflect it, we

are advised by the Clerk of this Court that an earlier order

extending the time for certiorari was entered within three

months after the entry of judgment in the court below.

(1)

OO a e<S7w a

2

1944. The petition fora writ of certiorari was

filed February 17, 1944. The jurisdiction of this

Court is invoked under Section 240 (a) of the

Judicial Code, as amended by the Act of February

13, 1925.

QUESTION PRESENTED

Whether, while in custody pending trial on an

indictment charging him with failing to comply

With an order of his draft board to report for

induction into the armed forees, petitioner may

by resort to habeas corpus secure a review of

his Selective Service classification.

STATUTES INVOLVED

The Selective Training and Service Act of 1940,

as amended (Acts of September 16, 1940, e. 720,

54 Stat. 885; Aug. 18, 1941, ¢. 362, 55 Stat. 626;

Dee. 20, 1941, ¢. 602, 55 Stat. 844; Nov. 13, 1942,

¢. 638, 56 Stat. 1018), in pertinent part provides:

Section 10. (a) The President is author-

ized—

* * * ~~ *

(2) to create and establish a Selective

Service System, and shall provide for the

classification of registrants and of persons

who volunteer for induction under this Act

on the basis of availability for training and

service, and shall establish within the Se-

lective Service System civilian loeal boards

and such other civilian agencies, including

appeal boards and agencies of appeal, as

may be necessary to carry out the pro-

3 a

visions of this Act. * * * Such local

boards, under rules and regulations pre- ;

scribed by the President, shall have power 3

within their respective jurisdictions to hear

and determine, subject to the right of ap-

peal to the appeal boards herein authorized,

all questions or claims with respect to

inclusion for, or exemption or deferment

from, training and service under this Act

of all individuals within the jurisdiction of

such local boards. The decisions of such

local boards shall be final except where an

appeal is authorized in accordance with :

such rules and regulations as the Presi- ‘

dent may prescribe. * * * (50 U.S.

C. App. 310 (a) (2).)

* * *

TSS

Section 11. Any person * * * who ¢

in any manner shall knowingly fail or

neglect to perform any duty required of

him under oy in the execution of this Act,

or rules or regulations made pursuant to

this Act *°“* * shall, upon conviction

in the distriet court of the United States

having jurisdiction thereof, be punished by

imprisonment for not more than five years

or a fine of not more than $10,000, or by

both such fine and imprisonment, * * *

(50 U.S. C. App. 311.)

R. 8. 752, as amended, 28 U. S. C. 452, provides: —* .

* * *

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the several judges * * * of

the district courts, within their respective

jurisdictions, shall have power to grant

writs of habeas corpus for the purpose of

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4

an inquiry into the cause of restraint of

ery. * 7,

R. 8S. 753, 28 U. S. C. 453, provides in pertinent

part:

The writ of habeas corpus shall in no

case extend to a prisoner in jail, unless

where he is in custody under or by color

of the authority of the United States, or is

committed for trial before some court

thereof; or is in custody for an act done

or omitted in pursuance of a law of the

United States, or of an order, process, or

decree of a court or judge thereof * * *.

R. S. 755, 28 U.S. C. 455, provides:

The court, or justice, or judge to whom

such application is made shall forthwith

award a writ of habeas corpus, unless it

appears from the petition itself that the

party is not entitled thereto * * *.

STATEMENT

On October 27, 1942, petitioner was charged in

a one-count indictment (R. 1-2) filed in the United

States District Court for the District of New

Jersey with having failed to comply with an order

of his local board to report for induction for

training and service in the military forces of

the United States. Petitioner was taken into

custody to stand trial on the indictment, and on

November 30, 1942, he filed a petition for a writ

of habeas corpus (R. 2-7), in which he prayed

that the court also issue a writ of certiorari

es a : seas

‘

5

directed to the local board requiring it to present

to the court its files and the evidence relating to

petitioner, to erable the court to determine the

legality of petitioner’s detention. The allegations

of the petition were directed to showing that

petitioner was a regular and duly ordained min-

ister of religion and that his local board and

the appeal board had acted arbitrarily and c¢a-

priciously in classifying him I-A (available for

military service).

The trial court, apparently after a hearing

(see R. 7), entered an order denying the petition

* The allegations of the petition (R. 2-7) may be sum-

marized as follows:

At the time that he registered and filed his questionnaire

with his local board, pursuant to the Selective Training and

Service Act of 1940 (50 U. S.C. App. 301, et seq.), petitioner

“claimed to be a regular and duly ordained minister of re-

ligion and requested that he be exempted from training and

service by virtue of Section 5 (d) of the said Act.” On Oc-

tober 21, 1941, petitioner was classified in Class I-H, a classi-

fication then accorded registrants over 28 years of age. In

February 1942, he was reclassified into Class 1V-E (conscien-

tious objector), from which action he appealed. The appeal

board reclassified petitioner into Class I-A (available for

military service). Petitioner’s efforts to induce the State

Selective Service office to “appeal his classification of 1-A, in

order that he might be classified in Class IV-D as a regular

and ordained minister” were unsuccessful. After petitioner

had been ordered to report for induction he sought in the

United States District Court for the District of New Jersey

to enjoin the enforcement of the induction order, but the court.

refused to issue a temporary restraining order and thereafter

ordered the complaint dismissed. At the time of the petition

he was in custody of the United States Marshal for the Dis-

trict of New Jersey “by reason of a certain information or

PONS ESOT TN ANT BRE ISBN TN RTE RN 5 URN rene ea OR ENCE

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on the ground that the ‘‘defendant was held in

custody on a charge of violation of the Selective

Training and Service Act of 1940 in that he had

failed to report for induction according to the

order”? of his loeal board, and that he ‘still neglects

and refuses to comply with said order of induction”’

(R. 7-8). Upon appeal, the cireuit court of ap-

peals, en bance, affirmed the judgment of the dis-

trict court, two judges dissenting (R. 10-17).

ARGUMENT

Petitioner does not deny that he knowingly

failed to comply with an order of his local board

directing him to report for induction (see Pet. 5).

Instead, he contends, in effect, that the Selective

Service boards acted arbitrarily and capriciously

in classifying him; that the local board’s order

was therefore void and, thus, furnished no basis

complaint” charging petitioner with having failed to report

for induction, as directed by his local draft board.

Petitioner further alleged that he “is a regular and duly

ordained minister” of the Watchtower Bible and Tract So-

ciety of Brooklyn, New York; that he submitted to his board

“full and conclusive” proof that he had been a minister since

1937 and he attempted to prove that fact to the appeal board,

but he was not given a hearing on the appeal; that the local

board failed to consider petitioner’s proof, contrary to the

Selective Service Regulations, and in classifying petitioner

as they did the local and appeal boards acted arbitrarily and

capriciously; that as a result of the improper administrative

action “petitioner has been wrongfully charged with violat-

ing the provisions” of the Selective Training and Service

Act and is now deprived of his liberty; and that petitioner

is being deprived of his liberty in violation of the 5th Amend-

ment and of the free exercise of religion guaranteed by the

First Amendment.

for the indictment; and that, the indietment being

based on a void order, the process under which

he was detained was likewise void (Pet. 3, 6-7,

13, 20-37).

Petitioner is attempting to reargue through

the habeas corpus procedure issues which were

presented and decided in Falbo vy. United States,

No. 73, this Term, decided January 3, 1944. Under

that decision the matter asserted in the petition for

a writ of habeas corpus does not constitute a de-

fense to the indictment; therefore a conviction

under it will be lawful and proper. In con-

sequence there is no basis for habeas corpus.’

* Petitioner cites (Pet. 21-22, 24-25, 29-30) Ker Parte

Stewart, 40 F. Supp. 410 (S. D. Calif.), and Goodwin vy.

Rowe, 49 F. Supp. 703 (N. D. W. Va.). for the proposition

that habeas corpus will lie prior to trial to test the propriety

of the defendant’s Selective Service classification, In re-

spect of the latter case see United States v. Goodwin, 49 ¥F.

Supp. 510,512 (N. D. W. Va.). in which the same judge, on

the trial of the criminal charge, referred to the earlier habeas

corpus proceeding in these terms: “Although I was very

much in doubt as to defendant's right to raise the issue by

writ of habeas corpus prior to his actual inductior into ‘work

of national importance’, I issued the writ and permitted a

hearing thereon”. After hearing in the Stewart ease the

defendant was not discharged from custody because he had

failed to sustain his burden of proof. See 47 F, Supp. 415,

However, the holding of the Stewart case that habeas corpus

will lie to permit review of the classification whenever there

is detention is in conflict with the decisions of other lower

federal courts. Cases refusing the writ prior to trial, as

shown by the Department’s files, are Lv Parte Enge, No.

2726-B. H., S. D. Calif.; Exe Parte Lindquist, No. 969, D.

Minn.; Albert ex rel. Ravin v. Gougquen, No. 3927, D. Mass.,

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Furthermore, if the facts on which petitioner

relies did show that he could not lawfully be con-

victed, the writ of habeas corpus was properly

denied as a premature means of raising objections

which orderly procedure requires should be raised

at the trial. Jones v. Perkins, 245 U. 8S. 390;

Goto v. Lane, 265 U. S. 393, 401; Rodman v.

Pothier, 264 U. 8. 399, 402-403; Johnson v. Hoy,

227 U.S. 245. Petitioner attempts to avoid this

rule by observing that under the Falbo decision it

could do him no good to raise his present objee-

tions at the trial. This, however, does not better

petitioner’s case since it emphasizes that the mat-

ter petitioner relies on fails to show either that his

restraint in custody to answer the indictment is in-

valid or that a conviction would be unlawful.’

all unreported. Cases refusing the writ after conviction are

United States ex rel. Falbo vy. Kennedy, January 24, 1944,

S. D. W. Va.: effin v. Sanford, No. 1884, N. D. Ga.: United

Ntates ex rel. Arpaia Vv. Alewander, No. 1105, D. Conn.;

United States ce rel Lohrberg vy. Nicholson, January 8,

1944, E. D. Va., all unreported.

* Following the denial by the district court of petitioner’s

petition for a writ of habeas corpus, petitioner was tried and

convicted of the offense charged in the indictment. He is

now in custody pursuant to the judgment of conviction and

a commitment based thereon, certified copies of which have

been lodged with the Clerk. Thus petitioner is no longer

in the custody of the respondent named in the petition for

writ of habeas corpus (R. 6) and no longer is held to answer

the process he attacks as unlawful. Apparently the cause

is now moot. Cf. Zanes v. Crystal, 319 U.S. 755.

ie,

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CONCLUSION

We respectfully submit that the petition for

a writ of certiorari should be denied.

CHarLes Fany,

Solicitor General.

Tom C. Cuark, *

Assistant Attorney General.

Rosert S. Erpadt,

VALENTINE Brookes,

Special Assistants to the Attorney General.

IrvING 8S. SHaprro,

Attorney.

Marcy 1944.

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©. ©. GOVERNMENT PRINTING OFFICE: 1944

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