Appendix — United States v. Jenkins
Supreme Court brief1975
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Supreme Court, U. S.
FI‘'LE D
APPENDIX JUL 16 1974
AK, JR..CLERK
IN THE
Supreme Court of the United States
OcTOBER TERM, 1973
No. 73-1513
UNITED STATES oF AMERICA,
Petitioner,
—_—Vei—
RONALD S. JENKINS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI FILED APRIL 8, 1974
CERTIORARI GRANTED MAY 28, 1974
IN THE
Supreme Court of the United States
OCTOBER TERM, 1973
No, 73-1513
UNITED STATES OF AMERICA,
Petitions r,
—\.-—
RONALD S. JENKINS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
INDEX TO APPENDIX *
Page
Relevant Docket Entries I
Indictment 3
Motion of Respondent Jenkins for a Motion of Acquittal 4
Exerpts of Trial Testimony 5
Order Granting Certiorari 81
* Copies of the decisions of the district court and court of appeals
below were attached to the petition for a writ of certiorari.
1
RELEVANT DOCKET ENTRIES
DATE PROCEEDINGS
12-21-71 Before WEINSTEIN, J.—Indictment filed.
1-13-72 BEFORE NEARER, J.—Case called. Deft and
counsel present. deft. arraigned and enters a plea
of not guilty. 45 days for all motions. Deft
cont’d on O.R.
1-14-72 Magistrate’s file 72 M65 inserted in criminal file.
5-23-72 Govts Notice of Readiness for Trial filed.
6- 2-72 Before TRAVIA, J.—Case called & adjourned to
6-16-72 for trial at 10 AM.
6-16-72 Before TRAVIA J—Case called & adjd to July 17,
1972 for Trial.
7- 8-72 Notice of motion concerning Voir Dire filed.
7- 8-72 Notice of motion for judgment of acquittal filed.
7- 8-72 Notice of motion for requests to charge the jury
filed.
7- 8-72 Trial memorandum of law filed.
7 8-72 Certificate by J.L. Curtis of service of motions to
US Atty Office filed.
7-14-72 Notice of motion filed concerning voir dire in op-
position to defts & govt’s trial memorandum filed.
7-17-72 Before TRAVIA, J.—Case called. Adjourned to
9-5-72 at 10 A.M. for trial.
9- 5-72 Before Travia J—Case called & adjd to 9-25-72 for
Trial.
9-22-72 Notice of motion filed ret 9-25-72 for an order to
substitute prosecutor.
9-25-72 Before Travia J—Case called—marked ready sub-
ject to case on trial 70 CR 576. Motion to sub-
stitute U.S. Attorney—Motion granted.
10- 3-72 Before TRAVIA, J.—Case called. Deft & counsel
James Carroll present.—Trial ordered and be-
DATE
PROCEEDINGS
10- 3-72
10-16-72
10-26-72
10-24-72
11- 8-72
11- 8-72
11- 8-72
11-21-72
12-21-72
4-23-73
4-26-73
gun. Stipulation signed waiving jury trial.—
Deft reserves all rights to make motions at close
of govt’s case—Both sides rest. Decision re
served. Deft to file brief by 10-11-72. Govt brief
by 10-13-72. Trial concluded.
Waiver of Trial by Jury filed.
Deft’s memorandum of law filed.
Findings of Fact and Conclusions of Law filed.
By Travia J—Findings of Fact and Conclusions
of Law filed. 1) The Indictment in this case is
dismissed and the deft is discharged. 2) the con-
clusion of this court is not to be construed as
relieving this deft of his obligation under the
Uniform Military Training & Service Act. Local
Board No. 50 is directed to reopen this case to
consider the defts application for C.O. status in
accordance with the regulations.
Copy of letter dated 11-6-72 from Judge Travia
& copy of memorandum of law filed.
Letter dated 10-31-72 from James S. Carroll for
deletion of footnote 9 filed.
By TRAVIA, J.—Order dated 11-3-72 filed that
footnote 9 be and the same is deleted from the
findings of fact and conclusions of law in this case
dated 10-24-72 (Order on bottom of letter from
James S. Carrol] dated 10- * * *
Government’s notice of appeal from order of 10-
24-72 filed. Duplicate of notice of appeal & dupli-
cate of docket entries to C of A. jn
Stenographer’s transcript of 10/3/72 filed.
Index to Record on Appeal certified and mailed to
the C. of A.
Acknowledgment recd and filed from the C. of A.
for receipt of the Index Record.
3
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Cr. No. 71 CR 1315
(50 USC App., § 462(a))
UNITED STATES OF AMERICA
— against —
RONALD S. JENKINS, DEFENDANT
INDICTMENT
THE GRAND JURY CHARGES:
or about and between the 24th day of February
wt, and the date of filing of this indictment, within
the Eastern District of New York, the defendant RON-
ALD S. JENKINS, a person registered pursuant to the
Universal Military Training and Service Act, as amend-
ed, the Proclamations of the President of the United
States, and the Regulations issued and promulgated pur-
suant to said Act, knowingly failed and neglected to
perform a duty required of him under and in the execu-
tion of said Act and Regulations, by knowingly re-
fusing and failing to submit to induction into the armed
forces of the United States, after notice had been given
to the defendant by Local Board No. 50, exercising ju-
risdiction in that behalf, requiring the defendant to re-
port for induction on the 24th day of February 1971.
(Title 50 U.S.C. App., § 462(a).)
A TRUE BILL.
Foreman.
Rospert A. MORSE
United States Attorney
Eastern District of New York
4
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
No. 71 CR 1315
UNITED STATES OF AMERICA, PLAINTIFF
— against —
RONALD JENKINS, DEFENDANT
MOTION FOR JUDGMENT OF ACQUITTAL
The defendant moves the Court for a Judgment of
Acquittal for each and every one of the following rea-
sons :
1. The denial of the defendant’s claim as a con-
scientious objector was without basis in fact, arbitrary
and contrary to law in that the Local Board did not
provide a hearing to the defendant on his C.O. claim in
violation of Selective Service Regulations.
2. The failure of the local board to postpone the in-
duction order pending the determination of the defend-
ant’s claim as a conscientious objector was arbitrary
and contrary to law and rendered the Order to report
for induction invalid. United States v. Geary, 368 F.2d
144 (2nd Cir. 1966).
3. The defendant did not intentionally fail to submit
to induction, but was in fact acting in accordance with
his conscience and belief in awaiting a determination
by the Local Board as to his C.O. claim.
Respectfully Submitted,
/s/ James §S. Carroll
JAMES S. CARROLL
Attorney for Defendant
5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
71-CR-1315
UNITED STATES OF AMERICA
— against —
RONALD S, JENKINS, DEFENDANT ,
United States Courthouse
Westbury, New York
October 3, 1972
11:00 o’clock A.M.
Before:
THONY J. TRAVIA,
HONORABLE AN ohm.
GERALD I. METZ,
Acting Official Court Reporter
[2] Appearances:
ROBERT A. MORSE, ESQ.,
United States Attorney for the
Eastern District of New York
BY: PAUL WARBURGH, ESQ.,
Assistant U.S. Attorney
JAMES S. CARROLL, ESQ.,
Attorney for the Defendant.
[3] THE COURT: U.S. Against Jenkins. Both sides
9
rath. WARBURGH: ‘The Government is ready.
MR. CARROLL: Defendant is ready.
THE COURT: Both sides ready, all right.
MR. WARBURGH: Your Honor, it’s my unuerstand-
ing that the defendant is going to waive a jury trial
and he has signed a stipulation to that effect.
6
THE COURT: Would you come up Mr. Carvoll and
also Mr. Jenkins?
Mr. Jenkins, how old are you?
an DEFENDANT: 24.
COURT: How far did you go in school?
THE DEFENDANT: Junior year in college.
THE COURT: Which college?
THE WITNESS: A&T State University
ae COURT: Which is it?
DEFENDANT: A&T State University.
_ THE COURT: Have you for any reason at all been
in any hospital in the last couple of years?
_ THE DEFENDANT: I have been in the university
infirmary.
[4] THE COURT: For what purpose?
THE DEFENDANT: For an ankle injury.
THE COURT: Anything else?
THE DEFENDANT: Also for a bronchial condition
that IT was treated for, X-rayed and after about two
three months’ treatment, I was out.
THE COURT: How long ago was that?
THE WITNESS: This was in ’70.
THE COURT: Are you all right now?
an DEFENDANT: Yes.
COURT: Are you still being t it?
THE DEFENDANT: No. denmeien
E COURT: In other words, you are bette
and you are not being treated any a ite
Lhe DEFENDANT: No.
COURT: Mr. Carroll i i
waua Gil oll is your own retained at-
THE DEFENDANT: Yes, he is.
a COURT: You have talked to him about this
Se!
“San Gouaee The—
E COURT: Seeking his advi
aan DEFENDANT: oa. cre renee
HE COURT: Has he explained i
an oe plained to you what this
THE DEFENDANT: Yes, sir.
7
THE COURT: Do you understand what he’s told
you about this case?
THE DEFENDANT: Yes, sir.
THE COURT: Is there anything about this matter
that you don’t understand? I am asking you these ques-
tions preliminarily to asking you why you wish to waive
a jury trial. I want to make sure that you know what
you are doing.
THE DEFENDANT: What was your—
THE COURT: My last question was, is there any-
thing about this case that you don’t understand?
THE DEFENDANT: No.
THE COURT: In other words, you are familiar with
the situation, the reason you are here before this Court
on this indictment?
THE DEFENDANT: Yes, sir.
THE COURT: Now, your lawyer and the [6] Gov-
ernment lawyer advised me that you wish to waive a
jury trial here.
THE DEFENDANT: Yes.
THE COURT: You realize what you are giving up?
THE DEFENDANT: Yes.
THE COURT: You understand that if you wished,
you are entitled to a jury trial, you are entitled to
have this case tried by a jury, you know that?
THE DEFENDANT: Yes.
THE COURT: And the jury might or might not
find you guilty, right?
THE DEFENDANT: Yes.
THE COURT: They could very well find you not
guilty as well as they could find you guilty, right?
THE DEFENDANT: Yes.
THE COURT: If you waive that right, you have that
right lost to you, you know that?
THE DEFENDANT: Yes.
THE COURT: And you would have the right at the
close of the case to argue to the jury through your at-
torney as to why you think you [7] are not guilty,
right?
THE DEFENDANT: Yes.
8
THE COURT: And you have 12 le i j
who would decide your fate, you nana hry —
THE DEFENDANT: Yes, .
OURT: You are willing to give all that
ogee 4 - Court to render a cain with ron
u after hearing all the evid i
THE DEFENDANT: Yes. — a
eine gota wk Now, you have talked about this
saat of a jury trial with Mr. Carroll, your lawyer,
THE DEFENDANT: Yes, I have.
- fsa ny = he convinced you to do this or
; this done by you voluntarily of i
discussing it with Mr. Carroll? ee
aan yak ab Yes, it is.
'RT: Is it your own desire?
THE DEFENDANT: _i.
URT: In other words, Mr. C idn’
Say to you you should do this, did he? =
a Bh No.
E COURT: He advised you regardi
case and told you the pros and cons of wiline po
THE DEFENDANT: It’s my decision. .
THE COURT: And it is your decision.
Ln ee Yes.
URT: There is no lan i i
there, you understand outing? —— So
THE DEFENDANT: Yes, sir.
tenia COURT: Have you talked about this with your
THE DEFENDANT: The waiver?
THE ORPENDIST: Yu
P.. : at you made this deci-
THE DEFENDANT: Yes, sir
THE COURT: N k y in, is i
nos = — your wish é ‘oe peer tebe
THE DEFENDANT: Yes, it is.
THE COURT: Now I have before me a waiver (9)
of a jury trial dated October 3, today’s date, which ap-
parently is signed by you, Mr. Carroll and Mr. War-
burgh. Will you look at those signatures? Is the top
one yours and did you see Mr. Carroll and Mr. War-
burgh sign that one?
THE WITNESS: I saw Mr. Carroll sign it.
THE COURT: Mr. Warburgh signed it after you,
Mr. Carroll?
MR. CARROLL: I don’t really—yes, I think he did.
THE COURT: But that is your signature?
THE DEFENDANT: Yes, it is.
THE COURT: Before I sign it, is there anything
you want to ask me?
THE DEFENDANT: No.
THE COURT: May the record indicate that 1 am
approving the stipulation waiving a jury trial by jury
and that the case be tried to the Court without a jury.
It’s received and marked for identification.
Do you want to make a statement first? Do both of
you want to make an opening statement?
MR. CARROLL: No, your Honor. I waive the right
to make an opening statement.
[10] THE COURT: Mr. Carroll waives an opening
statement.
MR. WARBURGH: Unless you want the Govern-
ment to make an opening statement, I would waive that.
THE COURT: Both sides waive opening statements.
Then call your first witness.
MR. WARBURGH: The Government calls as its first
witness Mrs. Elaine Morris.
MR. CARROLL: Excuse me. Could I just request—
THE COURT: Elaine Morris.
What’s the request, Mr. Carroll?
MR. CARROLL: I had two witnesses here. | just
ested the witnesses excuse themselves.
THE COURT: They were your own witnesses?
MR. CARROLL: Yes.
THE COURT: You know they have a witness room
right on the other side. They know that. Instead of
10
just standing out in the hall, the i i
2 longs. | y can sit down in that
| —— ge oo called as a witness on behalf
e Government, after having been fi
by the Clerk, testified as ae ea iecaieae
THE CLERK: Y i i i
ee as et our address, Miss Morris? Is it
THE WITNESS: It’s Miss.
THE CLERK: And your address?
THE WITNESS: 212 Li
New York. inden Boulevard, Brooklyn,
THE CLERK: Thank you. Be seated
wie oy yong Mr. a if you have any difficulty
’ me know and w i
a activate the mike. ee eee oe
Miss Morris, try to speak up loudly.
“ae enggoong Would it be possible to do that now,
my having to interrupt her testimony?
MR. WARBURGH: Your Honor, by moar te of
counsel I would like to offer into evidence what will be
marked as Government’s exhibit 1, which is the file of
this defendant. Is that correct, Mr. Carroll?
MR. CARROLL: So stipulated.
“Gs ae Ee = Selective Service file.
: Selective ice fi -
ment’s exhibit 1 in evidence. ane en ee
MR. CARROLL: So stipulated by the defense.
(So marked.)
DIRECT EXAMINATION
BY MR. WARBURGH:
Q Miss Morris, would you te
e B...$ y ll the Court what your
A I am executive secretary of Local B
Q Where is that local board located? a
A 271 Cadman Plaza, Brooklyn, New York.
ll
Q That local board is part of the Selective Service
system; is that correct?
A That’s correct.
THE COURT: What’s that local board number?
THE WITNESS: Local Board 50.
Q Miss Morris, how long have you been connected
with Local Board 50”
A Oh about 20 years.
Q Referring to Government’s exhibit 1, which is [13]
before you, can you tell the Court when the defendant,
Ronald Steven Jenkins, registered with the local board?
A His date of registration was September 7, 1966.
Q Referring again to Government's exhibit 1, can
you locate in there a document entitled, “Classification
questionaire, form 100”?
A Yes.
Q Referring to that document, Classification ques-
tionaire form 100, can you tell the Court—
THE COURT: Does Mr. Carroll have a copy of that?
MR. CARROLL: I have.
MR. WARBURGH: I believe the defendant has a
copy of the entire file.
THE COURT: I just want to make sure we were
together on the one he’s talking about.
Q Referring to that form 100 classification question-
aire, can you tell the Court the date that that question-
aire was sent to the defendant?
A It was mailed on September 9, 1966.
Q Can you tell the Court whether that questionaire
was returned by the defendant?
A Yes, it was.
Q What date was that?
[14] A It was received by the local board on Septem-
ber 23, 1966.
Q Referring again to that questionaire, did the ce-
fendant complete the conscientious objector part of that
questionaire?
A No, he did not.
Q Referring to the part of the questionaire involv-
ing physical condition, did the defendant complete any
part of that part?
12
A Yes, he did.
2 — ™ read what he completed?
es. He completed seri ‘ “hi
iam, p ries two. He stated, “hip
Q Was that in response to i
tionaire number — ee
A Yes.
Q What was that question?
A It asks: “If you have any physical or mental con-
— in —_ opinion which would disqualify you for
ae te the condition and attach a physician’s
Q And his response to that was what?
A “Hip operation.”
Q Referring again to Government’s exhibit 1, [15]
specifically to minutes of action, on September 27, 1966,
= the local board send the Defendant a letter, form
Yes.
Can you locate that in the file?
Yes.
What is the date of that letter?
es 27, 1966.
an you tell the Court what that letter says?
Well, the letter requests the registrant to submit
medical evidence to the local board within one week and
to include statements from doctors who have treated
him, reports from hospital, if confined or treated. Those
reports were to give specific information as to the diag-
on - types = treatment and any other infor-
which was considered i
he physi Fesedh necessary to fully explain
eferring to Government’s exhibi
any response to that letter? a
A No, there was—yes, there was.
Q e~ was that response?
etter was received ini i
PR Rehan and a clinic card from regis-
Q Can you indicate to th
sat, de ides can e Court what that letter
[16] A Do you want me to read it in its entirety?
POPO POY
13
Q Why don’t you read it in its entirety.
A It says: “I am writing in reference to the letter
you wrote my son Ronald Jenkins. He sent me the letter
to write you as he is in college in Morristown, Tennessee
and can’t get the medical reports that you need. Right
now I am sending you his medical center ecard. He has
to report to them every year since his operation. I will
have to write to his other doctor and have him send in
a report which takes time. I’m sending you the doctor's
name, which is Dr. H. Simmons, 545 Nostrand Avenue,
Brooklyn, New York. I will also write to medical center.
“I hope you understand why this will take more than
a week as you specified in your letter. Any other in-
formation that you need that will have to be gotten
from Brooklyn or Manhattan, please write to me.
“Thank you for your kindness.
“Yours truly, Mrs. Phyllis Jenkins.”
Was there any other information that was sent
to the local board in response to that form 56 that was
filed, that was sent to the defendant?
A No. At that time no, there wasn't.
Q Now referring to Government exhibit 1, the minutes
of action by local board, can you tell the Court (17)
whether on October 5, 1966—strike that.
On October 19, 1966 did the local board classify the
defendant 2-S?
A Yes, they did.
Q How long was that classification to remain?
A Until October of *67.
Previous to October, 1966 had the defendant been
classified at all?
A No, he was not.
Q Again referring to Government’s exhibit 1, the
minutes of action by the local board, on November 15,
1967 was the defendant again classified 2-S?
A Yes, he was.
Q Was that classification to remain until October of
1968?
A Yes.
14
Q Again referring to Government’s exhibit 1, the
minutes of local action, on January 15, 1969 was the
defendant again classified 2-S?
A Yes.
Q Was that classification to continue until October
1969?
A Yes.
THE COURT: Until October, 1969?
(18) MR. WARBURGH: Yes, your Honor.
Q Again referring to the minutes of action by the
local board, on October 29, 1966 was the defendant again
classified 2-S?
A Yes.
Q Was that classification to remain until October of
1970?
A Yes.
MR. CARROLL: Objection as to leading, your Honor.
THE COURT: It is leading, but it saves a lot of time.
MR. WARBURGH: The file is in evidence.
THE COURT: The whole file is in evidence. The
question is nevertheless leading, but in order to expedite
this I will allow it. I will give you some latitude with
respect to that.
We have no jury here. If you wish, I can ask him
not to lead, but we’re going to get to the same—
MR. CARROLL: We are getting to crucial parts at
this point.
THE COURT: If you think that we are, then make
your objection. .
119} Q Now Miss Morris, referring to the minutes of
the local board action, specifically to November 18, 1970,
can you tell the Court what occurred on that day?
A The registrant was classified 1-A.
MR. WARBURGH: May I have this document marked
as Government exhibit 2?
THE CLERK: Government exhibit 2 for identifica-
tion, one blank notice of classification card.
(So marked.)
15
Miss Morris, are you familiar with the procedure
of = local board after a defendant has been classified
1-A? —_
A Yes, I am.
[20] Q Would you please explain to the Court what
? .
oom classification, form 110, notice of classifica-
. i are referring now to Government’s exhibit 2
for identification; is that correct?
A Yes.
Q Would you explain to the Court what happens?
A Form 110, Notice of Classification, is mailed to
the registrant advising him of the Board's determination.
Q Referring to Government’s exhibit 2 for identifica-
tion, are there certain rights that the defendant is told
that he has?
A Yes.
Q Can you tell the Court what those rights are?
A The registrant is advised that if he is not in agree-
ment with the classification that a arrived at by the
local board, he has rights of appeal.
Q That is explained on form 110; is that correct?
t’s correct.
@ Eee Oe defendant was classified 1-A on Novem-
ber 18, 1970, did the defendant exercise any of these
ights to a ?
THE coUnT: First of all I want to know if such
i as sent and when.
i211 @ ‘fetesine to the minutes of the local board
action, was such a notice sent to the defendant?
A Yes, it was.
Q When was that _
November 24, 1970.
THE COURT: Was that similar to the one that you
were looking at there, Government’s exhibit 2 for identi-
ACHE. WITNESS Yes, it is.
HE : Yes, i
Q After November 22, 1970, did the defendant ex-
reise any of these rights?
' THE COURT: November 24 is the date?
>.
16
THE WITNESS: Yes.
Q Did the defendant exercise any of these rights to
appeal?
A No, he did not.
Q Referring to the minutes of action in Government’s
exhibit 1, on January 12, 1970 can you tell the Court
what the local board did with respect to this defendant
on that day?
A Yes. We mailed him a notice of pre-induction ex-
amination for January 20, 1971.
Q Do you have a copy of that notice in the file?
{22} A Yes, I do.
THE COURT: What’s the date of that notice?
THE WITNESS: January 12, 1971.
THE COURT: To report for a pre-induction when?
THE WITNESS: On January 20, 1971.
Q Referring to that notice to report for a physical
examination, can you read the paragraph in bold type?
A It states: “If you have had nrevious military
service or are now a member of the National Guard or
a reserve component of the Armed Forces, bring evidence
with you. If you wear glasses, bring them. If you
have any physical or mental condition which, in your
opinion, may disqualify you for service in the Armed
Forces, bring a physician’s certificate describing that
condition if not already furnished to your local board.”
Q Now referring to Government’s exhibit 1, on Jan-
uary 20, did the defendant report for this physical ex-
amination?
A Yes, he did.
THE COURT: Does that notice of pre-induction exam
have a form notice?
THE WITNESS: The form number is SSS form 223.
(23) THE COURT: Now, you can refer back to Mr.
Warburgh’s question. You asked her whether he reported
as a result of that physical induction notice.
MR. WARBURGH: I believe the witness’ answer
was “yes,”
Q Did the local board Subsequently receive—
THE COURT: When did he report, will you records
show when he reported for that exam?
17
THE WITNESS: Yes. He reported on January 20,
1 Q Did the local board subsequently receive, after
January 20, 1971, any communication from the physice
examination concerning the defendant’s acceptability?
@ Whe that notification?
What was that noti
A “Received vegistrant’s papers and a statement of
bility, form 62.”
8o Did shat form indicate he was acceptable for in-
duction into Y: | Forces?
Yes, it di ry
ry Referring to the medical papers that were received
along with that notice of acceptability, did the defendant
at the time of the examination indicate that he [24] had
a hip —_
Q Reniviog to the report of the examination, would
you tell the Court what was stamped on the examination
? .
= “Registrant advised to present medical evidence to
rt unverified ailments.”
we nee I am going to direct your attention to Feb
rune COURT: Before you leave that, who signed that
(OOHE. WITNESS: C. O. Dunn, Second Lieutenant,
AGC.
RT: What’s that? a9 é
THE WITNESS: That’s all part of his title AGC.
Q Now, referring to the minutes of action of Gov-
ernment’s exhibit 1, specifically to February 4, on,
can you tell the Court what occurred on that day?
A On February 4, 1971, an induction notice was
mailed to the registrant for February 24, 1971.
Q Now, Miss Morris, you are familiar with the pro-
cedure of the local board in the mailing of these induc-
tion notices; is that correct?
at’s correct. ;
a) Would you tell the Court what the procedure is?
18
A After receiving the order of call
first men available for induction. ieeiasenien
Q Pe a of the day is that done?
e call is pu i i
mA, p in advance to sending out the
Q In other words, it’s some d i i
out the notices for induction? oro
Q That’s right.
On the day that the notices of i i
what time of day are they sent? a
Q a the morning.
at time is mail received by your offi
Q _ —_ part of the —_—, =
_Now re! erring to a letter from the Presbyteri
Hospital daied January 26, 1971, can you tell ~~
when that was received by the local board?
See sae 4, 1971.
RT: Received Febru ?
THE WITNESS: Yes. —
Can you read to the Court what that le
( tter says?
[26] A It’s addressed to the local board and it no
Gentlemen: We have been requested to send you a
oy Accordingly we are enclosing a photostatic copy
of a letter dated July 14, 1965, which summarizes this
= s case. We have not seen this patient since that
m * There were attachments to the letter; is that cor-
Q That’s correct.
And it is your testimony that the i i i
are mailed in the morning? , a
Q That’s correct.
And the mail that the local board i
day is received later on in the —_ = awn
ry That’s correct.
Can you tell the Court whether this |
the hospital was received be “the ind oo
a oe fore or after the induction
A It was received after the induction noti
tice was sent.
Lh COURT: Do you have a time stamp on that?
E WITNESS: We don’t have any time stamps.
19
THE COURT: Do you have any stamp on that?
THE WITNESS: Yes, we have the local board (27)
with the date on it.
THE COURT: What does that stamp indicate?
THE WITNESS: The stamp indicates the number of
the local board, tae date and the address of the local
board. °
THE COURT: February 4th?
THE WITNESS: February 4th, correct.
Q Are you familiar with the procedure of the local
board concerning any communications that are received
by the local board after an induction notice is sent?
A Yes, I am.
Q What is that procedure?
A Anything received by the local board after the
induction notice is sent is referred to our New York
City headquarters and to our local board members for
any consideration, if it is warranted.
Q I refer you to minutes of action of local board,
Government’s exhibit 1, specifically on February 9, 1971.
Can you tell the Court what occurred on that day?
A The registrant appeared at the local board on Feb-
ruary 9 and he filed a memo and a 127. He refused to
complete the 127 and the memo that was filed stated so.
Q What is form 127?
A It’s a current information questionaire. It’s an
[28] up-date.
Now, referring to the minutes of action of Gov-
ernment’s exhibit 1, on February 28, 1971, can you tell
the Court what occurred on that day?
A The registrant appeared at the local board.
MR. CARROLL: Objection. I think you misread that.
MR. WARBURGH: That’s the 28rd, your Honor.
I’m reading from a Xerox copy.
A The registrant appeared at the local board October
23, 1971 and he requested form 159.
Q What is form 150?
A That’s a conscientious objection claim form.
Q Did the defendant on that day give the local board
any documents?
A Yes, he did.
20
Q What was that document?
A That was his request for a conscientious objector
form 150.
Q Can you read to the Court what that says?
A It states: “I am requesting a C.O. 150 form on
the grounds that I am morally opposed to the present war
and on these moral grounds I don’t feel that I could
take part in any effort which would or could in any
way perpetuate this [29] war. “Signed Ronald Jenkins.
Q Referring back to the induction notice that was
mailed on February 4, 1971, what was the date that he
was scheduled to report for induction?
A February 24, 1971.
Q Referring to the minutes of action—
THE COURT: He was to report on what date?
THE WITNESS: February 24, 1971.
Q Referring to minutes of action of Government’s
exhibit 1—
THE COURT: Before you go there, I had down here
on 2/4 the induction order was sent to him to report on
2/12.
THE WITNESS: No, he was supposed to report on
February 24, 1971.
THE COURT: I don’t know where I got 2/12.
THE WITNESS: That’s my address.
THE COURT: I have that too.
Q Referring to the minutes of action of Government’s
exhibit 1, did the local board receive notification as to
whether this defendant reported for induction?
A Yes.
[30] Q Did he report for induction?
A No, he did not.
Q When was the local board notified of that?
A On March 8, 1971.
Q Again referring to the notice to report for induc-
tion, referring to the notice that was sent to report for
induction and referring to the paragraph in bold type
and the several words above that, can you read that to
the Court?
A “Important notice.” Then in parer thesis it states:
“Read each paragraph carefully.”
21
[31] Q Would you read the paragraph? —
A “If you have had previous military service or are
now a member of the National Guard or a reserve com-
ponent of the Armed Forces, bring evidence with you.
If you wear glasses, bring them. If married, bring proof
of your marriage. If you have any physical or mental
condition which, in your opinion may disqualify you for
service in the Armed Forces, bring physician's certificate
describing that condition if not already furnished to your
a oy referring to the minutes of action of Gov-
ernment’s exhibit 1, on March 30, ’71, can you tell the
Court what occurred on that day with respect to this
defendant?
A We received form 150. a
Q Form 150 requests a classification as a conscientious
objector; is that correct?
A That’s correct.
Q Referring to the minutes of action of Government's
exhibit 1, was any action taken with respect to this
request for classification as a conscientious objector?
j s. ;
Q Can you tell the — action if any was
n by the local board?
"- ‘te ceed board mailed the entire file and the
form 150 to our New York City headquarters.
Did you receive any communication from the New
York City headquarters after the file had been mailed?
A Yes.
What was that communication that was received
from New York City headquarters?
A It advised the local board of certain actions per-
taining te their request for information and also it
stated that: “In view of the above, that the registrant
was to be reported to the U.S. Attorney for prosecution
rm 301.”
on THE COURT: What’s the date of that?
THE WITNESS: This is dated August 31, 1971.
THE COURT: Who signed that?
THE WITNESS: This is signed by the chief at-
torney of our New York City headquarters.
22
Q At the time that the defendant originally presented
himself at the local board on February 23, i971, request-
ing a form 150, was the New York City headquarters
contacted on that day?
A Yes, they were.
Q Did the local board receive certain information
[33] from the New York City headquarters?
A Yes.
Q Can you tell the Court what that information was?
A The local board was directed to correspond with
the registrant and to forward him a form 150, con-
scientious objector form, and also advise him of his
order to report for induction, his request for postpone-
ment was denied.
THE COURT: What date was that?
THE WITNESS: This was on February 23, 1971.
Q With respect to the medical information that was
received by the local board on February 4, 1971, what
did you do with it? What did the local board do with it?
THE COURT: Are you referring to the letter she
received from the Presbyterian Hospital?
MR. WARBURGH: Yes, your Honor.
A At the time of submitting the registrant’s papers,
record of induction papers to the station, medica] in-
formation was included.
Q If the defendant had reported for induction, would
this information that you had received be at the place
where he should have reported for induction?
A Yes.
[34] MR. CARROLL: Objection.
THE COURT: In normal course of the work, first
of all, you did what with it when you received the
letter from the Presbyterian Hospital which incorporated
a photocopy of a report dated back in 1965—is that right?
THE WITNESS: Yes.
THE COURT: With a notation saying they had not
seen him since that time?
THE WITNESS: That’s correct.
THE COURT: What did you do with that, just put
it in the file, or did you do something about it?
23
THE WITNESS: No, at the time of submitting the
registrant’s record of induction that was to be determined
by the doctors at the Armed Forces examining station,
the medical information was attached to these records.
THE COURT: So that it was sent to AFES when?
THE WITNESS: It was forwarded on on February
9, 1971.
THE COURT: Then after they report what do they
do, send it back to you?
[35] THE WITNESS: That’s correct.
-THE COURT: And then when you send out the no-
tice of induction, do you incorporate those papers and
send them on to the place where he is to report?
THE WITNESS: Yes, sir.
THE COURT: And it was sent to the place where he
was to report on February 24th?
THE WITNESS: That’s correct. —
Q Do you know what the examining station would
have done with this information that was sent to it?
MR. CARROLL: Objection.
Do you know?
THE COURT: If she would know.
A Yes.
What would they have done?
A The medical doctors would consider the medical
information at the time of examination. ;
THE COURT: In other words, there is a medical
examination again at the time of induction?
THE WITNESS: That’s correct.
THE COURT: The one we were talking about was
a pre-induction one at the time of his classification?
[86] THE WITNESS: That’s correct.
THE COURT: All these papers are sent by you re-
garding a registrant in order to give the induction cen-
ter all the information that’s in your file that might
help then: in making their determination and their
examination?
THE W!IINESS: That’s correct.
MR. WARBURGH: I have no further questions.
MR. CARROLL: I just have a few questions.
24
THE COURT: As far as you know, Miss Morris,
oe oy including that medical report, were in the
ands—at least you mailed them i
af Peuent out prior to the 24th
Li ran" That’s correct.
RT: Do you recall how many d
a Sp your papers show? —
ESS: Yes, my list. j
Penreary th y list. It was mailed on
CROSS EXAMINATION
BY MR. CARROLL:
Q I refer your attention to Government’s exhibit No.
1, hg er of action by the local board, to October
: . Could you please tell
hy you p me what occurred [37] on
A_ I had received a letter of informati ini
"7 — the registrant’s mother. oe
erring to the letter received from the registrant’
mother, could you please read the last cussameahe’ =
ay Same ce Is bt r one she read earlier?
MR. : Yes. just
nar eee j want her to read the
THE COURT: I just want to make i
“, ag are talking about. wimcaeancces
e last paragraph said something, “If you need an
. . , y-
se or Manhattan, let me know” referring
THE WITNESS: “Any other informatio
: n that you
need that would have to be gotten f
— please write to = pica dineccemciaad
“Thank you for your kindness.
Phyllis Jenkins.” > ~~
Q Referring your attention agai
a gain to Gove 1
exhibit 1, minutes of action of the local board, mg
any response by the local board to that letter?
m ry there wasn’t.
Referring your attention to October 23
1967, which is noted on the minutes of action of a
local board, did you receive a form 127 on that date?
25
A Yes, I did.
Q Reading from series 7, part 2, of the form 127,
was there any response noted there by the registrant?
A No.
Q What is the question that is asked at that point
in the form 127?
A It’s pertaining to physical condition.
Q Could you read that please?
A The first question is: “If you were ever rejected
for service in the Armed Forces, state when and where.
“2 If you have any physical or mental condition
which in your opinion will disqualify you from service
in the Armed Forces, state the condition and attach a
physician’s statement if not previously submitted.
MR. CARROLL: That will be sufficient. Thank you.
Q Referring yourself to the minutes of action of the
local board at February 17, 1969, was a form 127 re-
ceived on that date?
A Yes, it was.
[39] Q Again directing yourself to series 7 of that
form, part 2, was there any response by the registrant
to the questionaire?
A Yes.
What was the response?
A “Hip pelvis operation.”
Q Again referring yourself to the minutes of action
of the local board on March 5, 1970, was there any
response at series 7 part 2 by the registrant to the
question asked therein?
MR. WARBURGH: I have a copy of the minutes of
the local board.
MR. CARROLL: I am sorry. I might be wrong.
MR. WARBURGH: You said March 5th.
MR. CARROLL: Excuse me, your Honor. My notes
are incorrect. I will have to go through this again.
Q Referring yourself to Government’s exhibit 1, is
there a form 127 in the file which is marked, “Received
by local board No. 58 March 5, 1970”?
A No, there is not.
26
MR. CARROLL: The problem, your Honor, is the
receipt of the form 127 was not noted in [40] the minutes
of action of the local board. There seems to be a problem
there.
THE COURT: That would be a third 127 form?
MR. CARROLL: That’s a current information ques-
tionaire.
THE COURT: Yes. But there were receipts of those
forms indicated on the record for one received in Feb-
ruary of ’69 and one prior to that.
MR. CARROLL: Yes.
THE COURT: So this would be the third so-called
127 form which was filed?
MR. CARROLL: That’s correct.
Q Do you have that form before you?
A Yes, I do.
Q Now referring yourself to series 7, part 2, was
there any response to that question by the registrant?
A Yes, there is.
Q What is the response?
A “Hip pelvic operation.”
Q Could you please read the statement in the form
127 directly prior to that response? That’s series 7,
part 2.
A You want me to read part 2?
'41] Q Yes.
A It says: “If you have any physical or mental con-
dition which in your opinion will disqualify you for serv-
ice in the Armed Forces, state the condition and attach
physician’s statement if not previously submitted
Q Referring yourself to DD form 47 filed on January
13, 1971, which is in the file marked Government’s
exhibit no. 1—do you have that form before you?
A Yes, I do,
THE COURT: What’s that form number?
MR. CARROLL: That’s a DD form 47.
Q Could you please read item 16A for the benefit of
the Court?
A 16A states: “List all defects and diseases claimed
by the registrant and any defects or diseases which the
*
a
registrant may have and which are Know
} ra
Q W: was tne re ) nse
A “None
THE COURT Is it just ¢ N
THE WITNESS N I
Q I refer you k t 7
THE COUR! Wha the d it DD form 4
42) MR. CARROLL: That ¥ nuary 13, 1971
Q | ref ¥ \ ) ay hd > Tre > ry | 7
njest y re | reTter } y . { } 18
bd id ’ ¥ y 4 ~
A It states: “Clait
f re re ]¢> I Tr
Q Was there ar res
W s Ct! f Sig ]
A WN t was I
THE COURT W
Was igned?
MR. CARROLI }
Q I refer you back n
vou ré d any y r reg
dat ,
A Yes
Q D t :
A Yes, ! 10
Q | 1)
A it idr - ; §
- | y en St 2 } } 94 ”
I W qd } r J
Q W ! . x
that er
A Yes ;
Ww
Q I’m asking you, pursuant to the letter that was
filed on February 18, 1971, which was dated February
17 of 1971, was any action taken?
A No, there was nothing taken at that time.
Q Now on February 23, 1971—
THE COURT: That was a letter, if I follow you,
to the local board by the registrant dated February 17th?
THE WITNESS: That’s right.
THE COURT: It’s his letter dated the 17th?
THE WITNESS: It’s dated February 17. It was
received by the local board February 18, 1971.
THE COURT: That was subsequent to the day he
was to report for induction?
THE WITNESS: That’s correct.
MR. CARROLL: Excuse me, your Honor. [44] That
was subsequent to the date of the—that the induction
order was sent out. The date he was supposed to re-
port for induction was February 24th.
THE COURT: Right. I’m sorry. What I meant was
subsequent to the date of the induction notice, not the
date he was to be inducted.
Q Referring yourself to a report of information form
SSS form No. 119 filed on February 23, 1971, do you
have that form with you?
A Yes, I do.
Q Could you please read that form to yourself, please?
A (Witness complies.)
[45] Q Do you have any personal knowledge of the
—— that occurred in this particular instance?
A Yes.
Q Did you see the registrant yourself on that day?
A Yes, I did.
Q Could you please tell me from your own recollec-
tion what occurred on that date?
A Well, the registrant came into the local board and
he had followed his request and I turned the registrant
over to my assistant to complete action.
Q Is that the only contact that you had with the
registrant on that date?
A No. The clerk submitted the form 119—you know,
submitted the information to me in regards to what the
istrant wanted and I instructed her to contact New
York po uarters, which he did, had her make up the
of information.
Q Could you please read from the report of in-
formation ae
A In its entirety
THE COURT: Is that what you want, the whole
thing?
MR. CARROLL: Yes. It’s very short. — S
[46] A_ It states: “eontacted New York City—
THE COURT: Are we now talking about the same
one you were referring to a moment ago?
THE WITNESS: That’s correct.
THE COURT: What's the date of that?
THE WITNESS: It’s dated February 23, 1971. “Con-
tacted New York City headquarters, spoke to Mrs. Broad-
hurst, Legal Division, informed her that registrant re-
to this local board and» requested a C.0., SSS
form 150; also informed her that registrant is under
an outstanding induction for February 24, 1971. Mrs.
Broadhurst instructed to have registrant write a state-
ment as to the type of beliefs he has and what are
they based on. In this order they could determine if
the registrant wanted a postponement of his induction.
Registrant wrote a statement which I read to Mrs.
Broadhurst. Mrs. Broadhurst conferred with Major Ma-
her, who in turn, denied registrant’s request for post-
ponement of induction. Mrs. Broadhurst instructed to
issue registrant SSS Form 150 and letter directing the
registrant to report for induction on February 24, 1971
as ordered. Mrs. Broadhurst dictated the letter (47)
that is to be issued to registrant.” Signed by clerical
istant to the local board.
“c Is this short note dated February 23, 1971 signed
by the registrant, Ronald Jenkins, which states: “I am
requesting a C.O. 150 form on the grounds that I am
morally opposed to the present war and on these moral
grounds, I don’t feel that I could take part in any effort
which would or could in any way perpetuate this war’?
Is that a statement that the registrant submitted on
that date?
30
A Yes.
Q Mrs. Morris, have you had in your duties with the
local board any prior experience with individuals re-
questing a C.O. form 150 after they had received an in-
duction notice, but before their date of induction?
A Yes.
Q Was it the usual practice for you to have these
individuals write a short statement of their beliefs?
MR. WARBURGH: Your Honor, I’m going to ob-
ject to that question. I don’t think it’s an issue before
the Court at this time.
THE COURT: If she knows, I will let her answer.
There is no jury here.
A Well, after a registrant—
THE COURT: Of course it’s immaterial to [48] the
issues here. It’s not relevant to the issues in this case,
what she has done in others. If you want me to know
about it, I will be glad to know about it. I am just
wondering what the relevancy is to the issue involved.
MR. CARROLL: I think I will be able to tie it up.
THE COURT: I will give you some latitude if you
wish to develop that, if you wish.
What is the usual custom when you receive a notice
requesting a form 150, subsequent to the date that the
notice of induction is issued, and prior to the date of
induction?
THE WITNESS: We contact our New York City
headquarters and they, in turn, issue the instructions
to us.
THE COURT: Is that what you did in this instance
when you read from the form 119?
THE WITNESS: Yes.
Q = you in fact give the registrant the form 150?
A es.
Q Can you tell from the minutes sf action of the
local board when the form 150 was received?
(49; A On March 30, 1971.
Q Did the local board take any action pursuant to
this receipt of form 150?
A No, because the local board didn’t have any ju-
risdiction at the time.
31
THE COURT: That was after March 30th, when you
received the 150. Now prior to that time, on Febru-
ary 23rd, if I understood you correctly, you were talk-
ing to a Mrs. Broadhurst over the telephone at the
New York City office?
THE WITNESS: That’s correct. ;
THE COURT: You read his short statement with
regard to his beliefs?
THE WITNESS: That is correct.
THE COURT: And did I hear you say something
that somebody there denied it?
THE WITNESS: A request for postponement.
Q Referring your attention to SSS form No. 150,
which I think you have before you, can you please read
rds at the ? : “
- ome “Complete and return within 30 days.
Mrs. Morris, after the registrant submitted to you
his statement on February 23 of 1971, prior to the re-
ceipt of the form 150, did you receive any other [50]
correspondence from the registrant? .
A Yes. Prior to February 23rd, you state?
THE COURT: Prior to March 3rd—
Q Prior to your receipt of the form 150 from the
registrant, but after February 23 of 1971, did you re-
ceive any other correspondence from the registrant?
Yes, I received a letter.
ry Could you please read that letter for the benefit of
the Court?
THE WITNESS: Bear with me. They are not in
order after all this time. —
THE COURT: Especially after this questioning.
Just read the first paragraph.
A lit ~~ ue J .-y ~~"
THE COURT: e date first. 7
THE WITNESS: It’s dated March 4, 1971, it’s ad-
dressed to Major Maher and it states:
“The C.O. 150 form which I have requested is on the
grounds that I am morally opposed to all wars and on
these moral grounds I could not take part in any effort
which would or could possibly in any way help perpetu-
ate any war.”
32
MR. CARROLL: All right
me. 5. ght, I have no [51] further
THE COURT: Miss Morris, the minutes of i
. pony 27 indicate that you sent out a form 186
n that date requesting the submissi i i-
dence in one week, prem Bion a
THE WITNESS: That’s correct.
a... ay pb You said that you received no an-
swer from the registrant but yo i
the mother with a clinic card? a a
an WITNESS: Yes.
COURT: What w
from Bee id as the date of that letter
HE WITNESS: We received i Octo
Her letter is dated October 4, 1966. a oe
THE COURT: Dated October 4, ’66?
THE WITNESS: That’s correct.
THE COURT: Now, the clinic card which was at-
tached is that from a hospital, the clinic from some hos-
pital, or is it any particular place?
THE WITNESS: The card stated Vanderbilt Clinic.
THE COURT: What’s the date of that card?
[52] THE WITNESS: The only information that we
recorded from the card is the date of the last appoint-
ment and it was only ene i
fe ston y appointment and that was
son COURT: ’65?
WITNESS: That’s correct.
at tte You were asked by Mr. Carroll if
edn ered her letter and you said that there was no
THE WITNESS: No, there wasn’t
THE COURT: The letter didn’t ask, did it, for any-
aaa _— = ; a just explained the reason for the
at mig necessary in i i
cal reports; isn’t that right? ne oe Oe
THE WITNESS: That’s correct.
aa Pag ay Zl In other ‘words, the mother wasn’t
~ g - e board to write her for any particular
THE WITNESS: No.
THE COURT: She was just saying that was the
reason for her delay and she wanted you to know that
there was anything in Brooklyn or Manhattan, to write
to her?
{53] THE WITNESS: That’s correct.
THE COURT: But that wasn’t for you to go out and
look for something in Brooklyn or Manhattan to write
her about, was it?
THE WITNESS: No, it wasn’t.
THE COURT: That 127 form—I see there were
three. Each one of them says state your condition,
etcetera, medical or otherwise and submit proper forms.
THE WITNESS: That’s correct.
THE COURT: You never received anything except
thereafter the Presbyterian Hospital letter; is that righ)”
THE WITNESS: That’s correct.
THE COURT: And they attached to their letter a
photocopy of a report which is dated back to 1965?
THE WITNESS: That’s right.
THE COURT: What was the date of the letter from
the hospital?
THE WITNESS: The letter is dated January 26,
1971.
THE COURT: Is there anything in that letter other
than just a statement that they [54] are attaching the
hospital record?
THE WITNESS: That is correct. As well as they
stipulated that they have only seen the registrant on
the one occasion.
THE COURT: On one occasion, which was in 65?
THE WITNESS: That’s right.
THE COURT: Look at that report, what was that
one occasion they saw him?
THE WITNESS: They made mention — well, they
made mention of the fact that they were enclosing the
photostatic copy of a letter dated July 14, 1965 which
summarized the patient’s case.
THE COURT: That letter was signed by whom?
THE WITNESS: It was signed by—
THE COURT: Not the one you are looking at; the
one they are enclosing.
34
THE WITNESS: Signed by the Assistant Vice Presi-
dent, Medical Information, Joseph E. Schneider, Medi-
eal Doctor.
THE COURT: Is there anything in that rt which
indicates what the final diagnosis [55] ae a of the
date of that letter?
THE WITNESS: Yes. It states the diagnosis was
mae of the left hip due to acute suppurative arth-
ritis.
THE COURT: What was the date of that?
THE WITNESS: Registrant was admitted — first
seen at their orthopedic hospital and was admitted on
June 29, 1949 and discharged on September 6, 1949.
THE COURT: Was the operation performed within
those days?
io WITNESS: Yes, it was.
COURT: And he was discharged when?
THE WITNESS: September 6, 1949,
THE COURT: From that day on, does that record of
the hospital show they saw him a number of times?
son poh ay Yes, it does.
2 COURT: And they saw him up to when?
THE WITNESS: June 25, 1965. 4 7
_THE COURT: And on June 25, was he discharged or
did he just stop going there?
THE WITNESS: He just stopped going.
THE COURT: Is there anything in there [56] which
would indicate? Is there in there to indicate when he
last was there for examination?
THE WITNESS: A covering letter from the Presby-
terian dated—
THE COURT: Not the letter. On the report
“ WITNESS: No, there isn’t engine here at
[57] THE COURT: The date of discharge i
of on’ mean June of ’49. oe
HE WITNESS: He was admitted to the hospital
on b. _— > a oo discharged on September 6. °49,
y : ereafter I guess h i
into their outpatient clinic? ™ re
35
THE WITNESS: I don’t know. The only thing the
letter states is they were attaching a copy of the X-ray
report taken on June 25, 1969.
THE COURT: May I see that, please?
(Documents handed to Court.)
THE COURT: The letter signed by Dr. Joseph E.
Schneider dated July 14, which was his letter to a Dr.
Maurillo, states: “In answer to your recent inquiry,
the above-named patient has been followed here since
1949. He was first seen at our New York Orthopedic
Hospital and was admitted on June 29, 1949, and dis-
charged on September 6, 1949. While admitted he un-
derwent an incision and drainage of the left hip. The
diagnosis was deformity of the left hip due to acute
suppurative arthritis. He has been [58] followed here
since then and when seen in orthopedic clinic on June
24, 1965, he had become asymptomatic and participated
in activities in soccer and track. Within the past several
months, however, he had developed pain in both knees,
especially with climbing stairs. Range of motion of the
hips revealed flexion on right 135, left 135.”
The rest, I guess, is of no significance to us here.
Now, looking at the Presbyterian Hospital report, De-
partment of Radiology, dated June 25, 1965, X-rays were
taken of both knees and the impression, after examina-
tion, is as follows:
“Essentially normal knees.”
Thank you, Miss Morris. (Handing.)
That letter was written by the hospital officer, Dr.
Romillo. Was that part of the information that was sent
to you by the hospital?
THE WITNESS: Yes.
THE COURT: Is Dr. Romillo attached to the local
board?
THE WITNESS: No, he is not.
THE COURT: I am trying to ascertain [59] why the
letter to him. Did that come to you through the hospital
record?
THE WITNESS: This all came together.
THE COURT: Was that set of papers from the hos-
pital sent to you at your request or did it come to you
at the request of somebody else, that information?
THE WITNESS: It would be at the request of some-
body else.
THE COURT: You just received this?
THE WITNESS: That’s correct.
THE COURT: All right.
MR. WARBURGH: Your Honor, I just have a few
questions on redirect.
REDIRECT EXAMINATION
BY MR. WARBURGH:
Q Miss Morris, after the local board received the letter
from the defendant’s mother in 1966, what classification
was the defendant placed in?
A He was placed in class 2-S.
Q And directing your attention to—
THE COURT: That’s already been elicited. He was
placed in 2-S classification on three separate occasions
subsequent to then, in ’67, [60] ’69 and ’69, and then
on November 18, 1-A.
Q Directing your attention to the material that was
sent to the local board from the AFES station Armed
Forces, is there anything in the reports that were sent
by the AFES station that indicated that the defendant
had noted anything concerning a hip condition?
A Yes.
Q Is there anything in those papers that indicates
whether or not the doctors noted this hip condition?
A Yes.
Q What is that notation if you can read it?
A Well, the first word is “Had.”
Q “Had.” And the second word appears to be un-
decipherable.
A The third word is “surgery.”
Q At the—“of one year.” Is that what it indicates?
A That’s correct.
Q Was there any other notation made concerning
the hip condition?
37
A Yes. -_
t notation
A “Hed” or the word—second word is not readable
or [61] the ¢hird word. Then it says, “Surgery one year
OTHE COURT: It shows an awareness that they had
seen and heard of the operation?
MR. WARBURGH: Yes.
ve no other questions.
THE COURT: Bes that report indicate their find-
ings with respect to the hip condition if they examined
it?
THE WITNESS: Yes.
THE COURT: May I hear what they say?
THE WITNESS: At the time that—this all took
place at the time of his physical examination and the
statements we just read, and they put their stamp on
the forms, stating that the registrant was advised to
present medical evidence to support unverified ailments.
THE COURT: That was the examination—that was
his physical examination and that was on January 20,
1971.
MR. WARBURGH: One more question.
BY MR. WARBURGH:
Q Did the examining station determine whether he
was acceptable to be inducted?
THE COURT: She said that earlier, as a [62] result
of that. a
Q As a result of the examination?
A Yes.
MR. WARBURGH: I have no other questions.
THE COURT: Anything else, Mr. Carroll?
MR. CARROLL: No further questions.
THE COURT: All right, thank you, Miss Morris.
(Witness excused.)
MR. WARBURGH: Your Honor, the Government
would call as its next witness Mr. Thomas Maher.
38
[63] THOMAS MAHER, called as a wi
. witn
of the Government, after having been first duly renner
by the Clerk, testified as follows:
DIRECT EXAMINATION
BY MR. WARBURGH:
Q Mr. Maher, what is
»v your present occupation?
A I am an Assistant Uni ; i
—" District of New York nn re a ee
r. Maher, in January and Februa
; ’ and
of a Prams ~~ —— at that + sa ee
ployed by Selective Service H
a Headquarters in New York City as Chel of oe
egal division in New York City headquarters.
‘ Q In connection with your official duties during that
. wg Bgen did you + occasion to become involved
ase concernin i
ra g Ronald Jenkins?
P MR. CARROLL: Your Honor, may I note an objec-
-~ at this point, particularly I did not know that
“— Maher would be called as a witness. °
“ — COURT: You certainly did. Didn’t I tell you
that that was one of the reasons why [64] I was t-
~~ motien to ask Mr. Maher to be —
MR. CARROLL: Yes. I knew that there was always
the possibili
~ ong ility that Mr. Maher would be called as a
THE COURT: In fact—
MR. CARROLL: :
start of the case. But I excluded my witnesses at the
THE COURT: ivi
A ach in Is that what you are driving at, that
Sue Ga Yes. And I just claim—
aad D RT: In what way do you think that preju-
ne = Miss Morris did nothing more than just
- = dl — — ta on the record, which could
’ e way, without even asking h
a question, because the whole file went j eeas and
into
I could have read that record the same rhage mand "
39
to us, so I don’t know where the prejudice is in his
being here that time.
MR. CARROLL: Yes. I see, your Honor. But I still
just claim as a matter of fundamental fairness that the
Government should also exclude witnesses.
(65] THE COURT: Yes, I agree with you.
First of all when you asked your witnesses to leave,
you might just have well have suggested to Mr. War-
burgh that he do the same, and he didn’t, and I would
have done the same thing for him as I did for you, but
it’s done now, and are you making any point of it now
beyond that?
MR. CARROLL: No. I just wanted my objection
noted for the record.
MR. WARBURGH: May I say, Mr. Maher, sitting
at the counsel table, his presence was in the nature of
a case agent that the United States Attorney has a right
to have in the courtroom at al] times during the trial
of a case.
THE COURT: Well, that’s also discretionary with the
Court. I exclude case agents too, until they testify and
then I let them come back and sit at the counsel table.
But I don’t see where there has been any prejudice here
and no request was made of the Court to exclude him.
Mr. Maher, in connection with this case of Ronald
Jenkins, in February of 1971 was your office contacted
by Local Board No. 50?
(66] A Yes, they were.
Q Can you tell the Court what that contact involved,
in other words, what information they wanted?
A The local boards throughout the City were advised
by New York City headquarters that any time a post-
induction clai 1 for conscientious objection was made,
that our office was to be advised for whatever instruc-
tion might then follow.
Q In connection with the Jenkins’ case, the local board
contacted your office in accordance with those instruc-
tions?
A That is correct.
Q Did the local board advise you that the defendant
was claiming that he was a conscientious objector?
40
A That is correct.
Q This was after he had received his induction notice?
A That is correct.
Q What were your instructions to the local board
concerning this defendant?
A Not to postpone the induction. I derived authority
from the New York City director to exercise his au-
thority with regard to these type case questions.
Q Was this fact communicated to Mr. Carroll, [67
who is the attorney for Mr. Jenkins?
A I recall at some time, either in February or March,
Mr. Carroll had contacted me and I advised him tha
we were not postponing the induction and that the in-
duction order remains outstanding.
MR. WARBURGH: I have no other questions, your
Honor.
THE COURT: Mr. Carroll, you may inquire.
CROSS EXAMINATION
BY MR. CARROLL:
Q Mr. Maher, referring your attention to the report
of information form filed on February 23, 1971, could
you read that form to yourself or if you have already
read it, you don’t have to.
A Yes.
Q Is that a fair and accurate record of what occurred
on that date?
A I believe it is, yes.
Q@ From your own personal recollection, do you reca!
anything else that transpired on that date?
A I recall receiving a telephone cal] from you.
Q Now referring yourself to what occurred when you
spoke to the agents of the local board, do you recall] any-
thing else that occurred with regard to that?
(68| A With regard to—
Q With regard to your conversation with Mrs. Broad-
hurst who was speaking to Mrs. Montana, the clerical
assistant in the local board.
A |
a\
| t]
Q L))
A Y¥eé
Q D
A Ye
QO W
A |
~ ‘ “vy
THI
i}
HI
> aM
I
A All st-1!
QO W! was
A T
Q W
MI WARBL Ri
—
am
42
A Well, considerations were, of course. that if an
nduction order was postponed and somebody else was
going to be called in this fellow’s place, and bearing in
mind the |/0| Second Circuit’s decisions in these cases
post-induction claims, that if the postponement of the
nduction was denied and the registrant had failed to
report for induction, the local board could stil] consider
claim. They weren't precluded from considering the
claim. In some cases, postponements were granted and
in some cases they were not.
he reasons why some were not granted and some were
granted—Il can go into it if you wish.
MR. CARROLL: I am interested in the particular
i] Q Why was Mr. Jenkins’ request for postpone-
A We we had received—as I recall, we had received
the local board on February 23, 1971. on the
eve of the induction, and we had asked the clerk
>} , y ef |) , | ,
r f eg) ral make a Statement
with regard to his
4 ry ’ ’ rr “2 i 7 ’ ’ ;
in i! I tne atement n its face would require
la facie claim for conscientious ob
jection appeared that way, we would grant a postpone-
ment. However, we still bore in mind that even if we
had not granted a postponement, the local board was not
going to be precluded from reviewing the matter.
Was the fact that the local board was not pre-
; + ye) " } »< .
cluded from reviewing the matter brought to the atten-
Mrs. Montana in your conversation with her?
i
A Thereafter, as you know, they were precluded
the Supreme Court and the other decisions
—
MR. CARROLL We can take judicial notice of the
E liert se was rendered on April 21, of 1971 after all
of the transactions
THE COURT Let’s get into that when it comes time
discuss the law in the case because there are several
re very important alter that, tor
‘2| Q Did you receive any other correspondence from
NF Jenkir
. :
Did | receive any otner corre spondence?
with respect to his C.O. claim?
43
A I don’t recall.
Q I’m referring your attention to the letter dated
March 4, 1971.
A Yes.
Q I don’t think I got an answer to that question.
What was the reason that Mr. Jenkins’ postponement
was denied?
A Because out of consideration for those people who
would be called in his place, we didn’t feel a postpone-
ment of his induction was warranted.
Q But you stated that you had postponed other in-
dividuals from induction who had made post-induction
C.O. claims.
A Yes. When they made a statement that on its
face appeared to warrant a postponement.
Q What was it on the face of Mr. Jenkins’ statement
that you felt did not warrant a postponement of his
induction?
A It appeared on its face that he was opposed to a
[73] particular war.
Q Did you receive a letter from Mr. Jenkins which
[ just referred to which is dated March 3, 1971?
A I don’t recall receiving it, but I may have.
Q Well, could you read the first paragraph of that
letter?
THE COURT: Is it in Exhibit 1?
MR. CARROLL: Yes.
A The CO150 form—it’s dated March 3, 1971 and it
reads:
“The €CO150 form which I have requested is on the
grounds that I am morally opposed to al! wars and on
these moral grounds I could not take part in any effort
which would or could possibly in any way help to perpetu-
ate any war. I would also like to inform you that I am
now in the process of competing CO form
I am sorry. This is the second paragraph.
Q Right. I just want you to read the first one.
A All right, I read the first one.
MR. CARROLL: I had no objection to it.
THE COURT: That was dated when?
THE WITNESS: March 3, 1971.
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REDIRECT EXAMINATION
‘Dp 1’ MPnprnponr
iR. WARB RGH
. 1 } }
\ r y y y an ys ’ 1
ial +1 Je Kins nad submitted to indu
‘a ; . ' + -
i . 4iU ne ArT! na t OT
i> t r claim’?
I iaill
7 :
4 y + the A rryrié a } Pc 2 Tr ’
IT] a
: sr }
wou lave considered his claim
45
? ;
to
MR. CARROLL: Excuse me, I will have to object
that
hat
MR. WARBURGH: No further questions.
THE COURT: Is that the normal procedure’
THE WITNESS: Yes, sir.
THE COURT: In other words, every claim is re-
view ed
THE WITNESS: That is correct, your Honor
THE COURT: And the 150 form was reviewed when’
THE WITNESS: In March of 71.
THE COURT: Subsequent to the date that he was
supposed to be inducted?
THE WITNESS: That is correct.
THE COURT: When papers are sent in after |76) a
nerson is inducted. do they go on to where he has been
sent
THE WITNESS: No, your Honor. It would be up
him to make his claim within the Armed Forces. If
I may add, your Honor—and of course you «re free to
‘biect to this—had the local board at that time in Febru-
y, March of ’71 passed on the merits of the claim of
mscientious objection, then, as I recall the Army regu-
ms at the time, they would have to have taken into
ry leration that this claim was already determined |
é e Service, if they had denied the claim
THE COURT: That was the situation here
THE WITNESS: That was the situation in, as !
recall, February of '71, March of °71
THE COURT: All right, you may step down
Witness excused.
THE COURT: Anybody else, Mr. Warburgh?
MR. WARBURGH: No, your Honor. The Govern-
ment ansbe
THE COURT: We will go out to lunch and come back
MR. CARROLL: Fine. I just want to state [76a] at
his time I made a motion for judgment of acquittal
I would like to reserve that until the close of my case
tr
46
THE COURT: First thing after lunch I was going
to ask you if you had any motions. So you can repeat
that, then. Be back at 2:00 o’clock.
(A luncheon recess was taken.)
[77] AFTERNOON SESSION
(2:15 o’clock p.m.)
THE COURT: All right, the case on trial.
MR. CARROLL: Could we have a very brief recess?
THE COURT: Mr. Carroll, we have been in recess
for an hour. You mean to talk to me?
MR. CARROLL: No, sir. I just have to leave the
room for a few minutes.
THE COURT: Oh, I am sorry.
(A recess was taken.)
MR. WARBURGH: Your Honor, I would move to re-
open the Government’s case for the purpose of introduc-
ne into evidence Government’s Exhibit 2 for identifica-
ion.
THE COURT: Is that the blank?
MR. WARBURGH: That’s the blank, yes.
Lo COURT: Do you need it? It’s the classification
card.
MR. WARBURGH: That’s the classification card
which indicated appellant’s rights.
THE COURT: Only for the purpose of indicating it’s
a similar form.
MR. CARROLL: I have no objection.
THE COURT: Government’s Exhibit 2 for [78] iden-
tification received in evidence.
(So marked.)
_ THE COURT: Motion of Mr. Warburgh to re-open
is granted. Government’s Exhibit 2 for identification is
received in evidence, and now do you rest again?
MR. WARBURGH: Yes, the Government rests.
THE COURT: Your turn, Mr. Carroll.
47
Do you want to make any motions now at the close
of the prosecution?
MR. CARROLL: No. I would like to reserve my
right to make motions.
THE COURT: Defendant reserves all rights for all
motions ordinarily made at the close of the prosecution's
case, and you may proceed with your defense.
MR. CARROLL: Initially, the first witness we are
going to call is the defendant, Ronald Jenkins.
Mr. Warburg and myself stipulated to the truthful-
ness of Mr. Jenkins, thereby obviating the need to call
three character witnesses that we had to testify in Mr.
Jenkins’ behalf.
I would like to call at this time Mr. Jenkins.
[79] MR. WARBURGH: So the record will indicate;
the Government will stipulate to the defendant’s good
character.
THE COURT: All right. Did you have particular
witnesses that you were going to bring in?
MR. CARROLL: Yes.
THE COURT: Why don’t you bring in those you had
intended to call, X, Y, Z, as character witnesses and to
obviate the necessity of their personal appearance, the
Government has conceded that, should they be called,
they would testify as to his character, relative character
traits.
MR. CARROLL: We had three character witnesses,
your Honor: Reverend Andre Diaz, who is the Pastor
of the Cuyler Warren Church.
We also had Captain Theodore Williams, who is an
ex-Marine, who is presently working at the Morgan Guar-
anty Trust Bank in New York, and Mr. Edwin Lawrence,
who is a retired fireman, who is also a member of the
New York City Metropolitan Committee on Conscien-
tious Objectors.
These three witnesses would have testified as to Mr.
Jenkins’ truth and veracity in the [80] community.
THE COURT: Is that correct?
MR. WARBURGH: Your Honor, the Government—
THE COURT: They would have testified to that?
48
MR. WARBURGH: I assume they would have testi-
fied to that.
THE COURT: That’s what he says. That, of course,
I understand, is agreed to by you without necessarily
agreeing as to whether or not those are going to be bind-
ing upon any decision in this case.
MR. WARBURGH: That’s right.
THE COURT: In other words, they will be received
like we do in any ordinary trial, as character witnesses,
which witnesses will be accepted—like their testimony
will be accepted like all testimony and considered evi-
dence in the case, right?
MR. WARBURGH: Yes, your Honor.
THE COURT: So long as we understand each other.
Off the record.
(Discussion off the record.)
{81} MR. CARROLL: The defense calls as its first
witness the defendant Ronald Jenkins.
THE COURT: Come forward, Mr. Jenkins.
RONALD JENKINS, called as a witness in his own
behalf, after having been first duly sworn by the Clerk,
testified as follows:
THE CLERK: State your name for the Court Re-
porter and your address.
THE WITNESS: Ronald Jenkins, 107 Van Brunt St.
Brooklyn, New York.
THE COURT: Before he testifies may | talk to you,
Mr. Carroll, and you, Mr. Warburgh?
This doesn’t have to be on the record.
(Discussion off the record.)
(A recess was taken.)
MR. CARROLL: We are going forward.
THE COURT: All right, come forward, both of you.
May the record indicate that the reason for the delay
was my desire to call up the attorney for the defendant
to again discuss this case with his client from the point
of view of possibly trying to dispose of it, which is not
my practice to get involved in any kind of bargaining,
49
but I [82] felt that in view of the law that surrounds
this type of a case, I thought that Mr. Carroll ought to
again talk to his client. He advised me that he had al-
ready previously to then talked to his client and his client
insisted on trying this case, and now I understand that
he still wishes to go forward, right?
MR. CARROLL: Yes, sir.
THE COURT: All right. So let’s go, so long as we
understand.
THE CLERK: Will you take the stand, please?
THE COURT: You may proceed, Mr. Carroll.
DIRECT EXAMINATION
BY MR. CARROLL:
Mr. Jenkins, what is your occupation, for the rec-
I am a postal employee.
Where are you working?
At Peck Slip Station.
Do you have any prior convictions?
No, I don’t.
Now directing your attention to in or about Sep-
tember 1966 did you have the occasion to go to Local
Board No. 50?
[83] Q What did you do at that time?
A _ I registered.
MR. CARROLL: This is a copy of Government’s Ex-
hibit 1, the classification questionnaire.
Q I direct your attention to Series No. 8 which states:
“I claim to be a conscientious objector by reason of my
religious training and belief and, therefore, request the
local board to furnish me a special form for conscien-
tious objector, SSS form No. 150,” and I ask you whether
you signed that form?
A No, I did not.
THE COURT: What you read, was that in Mr.
Jenkins’ handwriting?
MR. CARROLL: Yes.
OProOrorso
50
Q Is this a true and accurate representation of the
classification questionnaire that you filled out in Septem-
ber of 1966?
A Yes, it is.
Q And this is your handwriting?
A Yes.
THE COURT: You said you did not sign it?
THE WITNESS: No, I didn’t.
May I say something?
Q If you want to say something in response to the
[84] question—
THE COURT: I don’t know if it’s in response to the
question, but maybe you can go to him, talk to him. |
don’t mind if you talk to him.
Off the record.
(Discussion off the record.
Q Directing your attention to February of 1971, did
you receive an order to report for induction?
A Yes.
Q Did you do anything in response to that order to
report for induction?
A I requested Form 150.
MR. WARBURGH: I am sorry. I didn’t hear the
answer.
THE COURT: Yes, you have to speak a little louder,
Mr. Jenkins.
Did you receive an order for induction?
THE WITNESS: Yes, I did.
THE COURT: Then your next question was?
MR. CARROLL: Did you do anything in respon
whddbbl ~ | ~t
to that order to report for induction?
THE WITNESS: I requested a Form 150.
Q Before you requested a Form 150, but after you
] a
received the induction order, did you do anvthing e > 1n
So] response to the receipt of that induction order?
A I asked for a postponement of the induction order.
Q Was that on your own volition or had you spoken
to somebody about that? |
A About the postponement?
Q Yes.
51
A Yes, I had.
THE COURT: Yes, you had what?
THE WITNESS: Spoken to someone about postpone-
ment.
Q Did you ever speak to Mr. Jerome Bibuld?
A Yes.
Q You spoke to him about your induction order?
A Yes.
Q Was this pursuant to the induction order that you
spoke to Mr. Bibuld?
A Yes, it was.
THE COURT: Who is this Mr. Bibuld?
Q Could you please identify Mr. Jerome Bibuld?
A He is draft counselor, he works in Bedford-Stuy-
vesant.
THE COURT: Not in your local board?
THE WITNESS: No.
THE COURT: This is a local community office that
helps on draft matters?
[86] THE WITNESS: Yes.
THE COURT: Not an official body?
THE WITNESS: Not of Selective Service.
Q When did you see him?
A In February.
Q This was after you received the induction order?
A Yes, it was.
Q Could you please tell us what transpired when you
saw Mr. Bibuld?
A Well, we did, you know, the usual questions, in-
formation that I related to the induction order and dur-
ing the course of our discussion the matter of conscien-
tious objection, you know, was brought to my attention.
Prior to that time I wasn’t aware of the definition for
conscientious objection nor of my rights under the Selec-
tive Service laws.
Q Prior to speaking to Mr. Bibuld had you identified
yourself as being opposed to war in all forms?
A Not clearly, you know, but we did talk about cer-
tain things, you know, certain things were brought out
and when—after which time when informed about the
52
definition of a conscientious objector, I felt that I fitted
that definition, so I applied.
THE COURT: When was that conversation with [87]
Mr. Bibuld?
THE WITNESS: This was in February, about Febru-
ary—
THE COURT: When did you receive your notice to
report for induction? Also in February, wasn’t it?
THE WITNESS: February 5th, something like that.
THE COURT: Did you go to the Board to inquire
there about your notice of induction?
THE WITNESS: I went to the Board to check my
records.
THE COURT: Did you tell them at that time any-
thing or ask them any questions?
THE WITNESS: About my induction order?
THE COURT: Yes.
THE WITNESS: No, I didn’t.
THE COURT: Did you ask them at that time to post-
pone your induction because you were going to make a
claim for CO?
THE WITNESS: At or about that time I asked for
Form 150.
THE COURT: When did you ask for the Form 150,
before you spoke to Mr. Bibuld or after?
[88] THE WITNESS: After.
THE COURT: Well, I am trying to find out if you
did anything along those lines before you spoke to Mr.
Bibuld.
THE WITNESS: I was unaware of the conscientious
objector classification before that time.
MR. CARROLL: I am going to refer Mr. Jenkins to
certain documents that might help him refresh his rec-
ollection.
BY MR. CARROLL:
Q I refer you to United States Government memo-
randum filed on February 9, 1971, and I ask you wheth-
er this is your handwriting?
A Yes, it is.
neem
Q Could you please tell the Court what the nature
of this memorandum is by reading subject?
A “Review of Complete Selective Service Records.”
Q I refer you to a current information questionnaire
that was filed on February 9—
THE COURT: Before we pass the other one up, I
would like to know more about it. Just a heading Re-
view of Records means nothing to me.
Q Could you please explain to the Court what you
{89} did—
THE COURT: What does it say on there? It’s in
evidence, you say?
MR. CARROLL: No. This is all that it says, “Re
view of Selective Service Records.”
THE COURT: May I see it?
(Decument handed to Court.)
THE COURT: Mr. Jenkins, is this part of Govern-
ment’s Exhibit 1?
MR. CARROLL: Yes, that’s a copy.
THE COURT: ‘This was written by you on Febru-
ary 9?
MR. CARROLL: Yes.
THE COURT: Where, at the Board?
MR. CARROLL: Yes.
THE COURT: Tell me what prompted you at the
Board to write this?
Were you talking to someone at the Board and they
told you to write this out or something?
THE WITNESS: I asked to see my file, to review
it, and in order for me to see it they had to have that
in writing.
THE COURT: Did you tell them why you wanted
to see it?
{90} THE WITNESS: I belive so. I am not certain.
THE COURT: Do you know what you told them?
THE WITNESS: Just that I wanted to review my
tile.
THE COURT: Is that because you had received an
induction notice?
THE WITNESS: No, it wasn’t.
54
THE COURT: You had already received the induc- A Yes,
»
tion notice? 92} Q Did
THE WITNESS: Yes, I had. A Yé
THE COURT: Then tell me why you wanted to see Q On Febru
*
the file. station?
THE WITNESS: I had not received a classification A No
card as to being put in Class 1-A prior to or after mj Q Is there
induction notice. So that was the reason. AFES st
THE COURT: That was the reason for it? A At
THE WITNESS: Yes. 150
BY MR. CARROLL: v
Q Mr. Jenkins, I refer you to a copy of a letter whict 0
is in Government Exhibit 1 which is dated February 17, the SSS }
1971 and I ask you whether this is a true copy of the .
r that you wrote to the local board. : ‘ y;
A Yes, it is. ~ .
91} Q Could you please read this letter to the Court -
A “In relation to an induction order into the Armed
Forces of the United States scheduled for February 24,
1971, I would like to request a CO Form 150.” _
THE COURT: What’s the date of that letter?
MR. CARROLL: This letter is dated February 17 of
1971.
Q Did you receive any reply from the loca] board to 02) TUT
that letter? . -
A No, I didn’t.
Q Did you have any further contacts with the loca!
board after writing that letter February 17, 1971?
A Yes, I did. | Sain WiITN
© Now I show you a report of information form
copy of a report of information form which is part of
Government Exhibit 1 and I ask you to read that to
yourself and tell me whether that’s a true and accurate
a A
representation of what occurred on February 23 of THE WI
1971? TUE CO
1? }
> >|
Do you recall those events? oe
A Some of them. r
Q Would you like to add to those events in any way?
A No.
Q Did you receive a form 150 on that date?
.
Did you tell them that? You just ignored the induc-
tion notice, right?
THE WITNESS: (No response.)
MR. CARROLL: I have to object to the form of
that question. I think that’s a conclusion.
THE COURT: I will ask it in a different form.
THE WITNESS: I didn’t ignore it.
(94) THE COURT: Your lawyer objected to it so
don’t answer it. I want to ask it in a different form.
You received Form 150 and you took at face value
the fact that you had thirty days within which to fill
it out. At the same time you knew that your induction
notice was for a date prior to that thirty-day period,
right?
THE WITNESS: Yes.
THE COURT: Did you say “Yes”?
THE WITNESS: Yes.
Q Now, knowing that, did you go to the Board and
say, “Extend my time to give me a chance to fill out
out this 150 form’?
THE WITNESS: I did that in asking for the post-
ponement.
THE COURT: What did they do?
When did you do that?
THE WITNESS: I asked for the postponement be-
fore the date of induction.
THE COURT: I’m not talking about that. You had
gotten an induction notice and you say after that you
went there and got a 150 form, right?
{95} THE WITNESS: Yes.
THE COURT: In other words, you got the 150 form
to fill out after you had been notified that you were
going to be inducted?
THE WITNESS: Yes.
THE COURT: That’s what I am talking about.
Now, between that time when you got the induction
notice and the time when you were to appear for in-
duction, did you do anything at all, did you get that
150 form in even though you had thirty days?
You didn’t do that, did you?
THE WITNESS: I did get the 150 form in.
“ee #
57
THE COURT: When, after the induction date?
THE WITNESS: Are you saying that I should
have—
THE COURT: I am not saying what you should
have done. I am just trying to find out what you did.
In other words, the induction notice which you re
ceived said that you must appear for induction on what
day?
THE WITNESS: On the 24th.
THE COURT: On February 23rd or 24th, whatever
[96] it was. Let’s say 24th. You received that on when?
THE WITNESS: February 23rd.
THE COURT: You got it the day before?
THE WITNESS: Yes, I did.
THE COURT: In other words, you say you got the
notice to appear for induction on the 23rd to appear
on the 24th, the next day?
THE WITNESS: I got the form on the 23rd.
MR. CARROLL: Referring to the form 150 form.
THE COURT: The 150 form?
THE WITNESS: Right.
THE COURT: When did you receive your notice to
appear for induction on the 24th?
THE WITNESS: The 5th of February.
THE COURT: In other words, from the 5th of Feb-
ruary to the day that you went for the 150 form on
February 23rd you did nothing about that induction
notice?
THE WITNESS: No.
MR. CARROLL: Excuse me. I object to that.
THE COURT: Why?
MR. CARROLL: Because the letter was sent [97]
out—a letter was sent out to the local board on Feb-
ruary 17, 1971.
THE COURT: Requesting a 150 form.
MR. CARROLL: Requesting a 150 form.
THE COURT: All right, that was after he had re-
ceived the notice, right?
MR. CARROLL: That’s correct.
THE COURT: So that on the 23rd you went down
for the form yourself; is that what you did?
58
THE WITNESS: Yes.
THE COURT: But you had asked for it by this let-
ter of February 17?
THE WITNESS: Yes.
THE COURT: When you got the form on the 23rd
then what did you do about asking for a postponement?
THE WITNESS: I believe I contacted Mr. Carroll
and I believe he contacted Major Maher.
BY MR. CARROLL:
Q Directing your attention to a letter which is dated
February 23, 1971, is this a true and accurate copy of
a letter that you submitted to the local board on that
date?
A Yes.
Q This is in your handwriting?
(98) A Yes.
Q Could you please read that letter?
A “I am requesting a CO 150 form on the grounds
that I am morally opposed to the present war and on
these moral grounds I don’t feel that I could take part
in any effort which would or could in any way perpetuate
this war.”
Q Pursuant to whose request, if any, did you write
that document?
A To the request of the Executive Secretary, Miss
Elaine Morris, who I spoke to at that time.
THE COURT: That was on the 23rd.
MR. CARROLL: That was on the 23rd.
Q Is your objection in fact limited to the present
war?
A No.
MR. WARBURGH: I am going to object to that.
THE COURT: Yes. The paper speaks for itself.
Did you tell the Executive Secretary, when you went
down there and signed that requesting the 150 form,
that you had written a letter to her on the 17th and
you had not received anything from her?
THE WITNESS: Yes.
{99} THE COURT: What did she say to that?
es
———
59
THE WITNESS: She said that I have to sit down
and write this out in order to get the form.
THE COURT: All right.
Q This letter has already been sufficiently discussed,
but is this a true and accurate representation of a letter
that you wrote on March 3, 1971?
A Yes, it is.
MR. CARROLL: That letter, your Honor, is the let-
ter the registrant wrote which states that “The CO 150
form which I have requested is on the grounds that I
am morally opposed to all wars and on these moral
grounds I could not take part in any effort which would
or could possibly in any way help to perpetuate any
wars.”
THE COURT: That was written what date?
MR. CARROLL: That was on March 3, 1971.
THE COURT: After the one that you read pre-
viously.
MR. CARROLL: That’s correct. That was after the
date of induction.
Q Referring your attention to the special form for
conscientious objectors, form 150, which is part of the
records, Series 1, could you state whether you signed
Part A [100] or Part B of that series?
A Part B.
Q In signing Part B of that series, what was your
understanding?
A That I would perform civilian service.
Q Did you answer the other questions on the Form
150 in full?
A Yes, I did.
MR. WARBURGH: I am going to object to this line
of questioning. I think the form speaks for itself. It’s
in evidence.
MR. CARROLL: I just wanted to bring this to the
Court’s attention.
THE COURT: That’s all right. I will allow it.
We permitted Miss Morris to read from letters on the
same basis.
Q Now Mr. Jenkins, going back to the classification
questionnaire that you filled out in September of 1966,
60
in answer to Series 11, physical condition, Section 2,
where it’s stated: “If you have any physical or mental
condition which in your opinion will disqualify you for
service in the Armed Forces, state the condition and
attach a physician’s statement,” could you tell the Court
how you answered that particular question?
{101} A “Hip operation.”
Q Also Mr. Jenkins, referring your attention to Form
No. 56 that was mailed from the local board to you, I
will ask you whether you received a copy of that letter.
A Yes.
Q Do you understand what this letter says?
A Yes.
Q Now did you take any action pursuant to this
letter which states, “Dear Sir: Because of certain phy-
sical defects claimed by you it is important that you
submit to this local board any medical evidence you have
concerning these defects which will aid the Armed Forces
Examining Station in determining your physical status’’?
Did you take any action pursuant to that?
A I contacted my mother and asked her to comply
with the letter for me.
Q Referring your attention to a form 127, current
information questionnaire, which was received by the
local board on October 23rd of 1967, in response to
Series A did you respond to that in any way, subsection
2, asking if you have any physical or mental condition
which in your opinion would disqualify you from service
in the Armed Fovrces, state the condition and attach a
physician’s statement if not previously submitted?
{102} A No, I didn’t.
Q Is there any reason why you didnt’ fill out that
particular section?
A I can’t remember exactly what it was.
Q Referring your attention to current iaformation
questionnaire, Form 127, received by the local board on
February 17 of 1969, and referring your attention to
Series 7, subsection 2, which states as the previous
question, did you respond to that in any manner?
A Yes, I did.
Q What did you say?
=n
61
A “Hip pelvis operation.”
Q Again, Mr. Jenkins, referring your attention to
current information questionnaire filled out, returned to
the local board by March 5th of 1970, in response to
the Series 7, Subsection 2, did you state anything?
A “Hip pelvis operation.”
Q Now Mr. Jenkins, did you receive in or around
January of 1971 a Form No. 223 order to report for
Armed Forces physical examination for January 20,
1971?
A Yes.
Q Did you in fact go to the AFES station on Jan-
uary 20, 1971?
A Yes.
[103] Q Was there any examination by the doctors
at the AFES station performed upon you at that time?
A Yes.
Q Now could you please state for the benefit of the
Court the examination that was given to your hip at that
time?
A The examination—
MR. WARBURGH: I object to this as not being
relevant to the issues on trial.
THE COURT: I am going to allow it. There is no
jury here, so let me hear what he’s got to say.
This is now his own description.
MR. CARROLL: Yes.
THE COURT: Of course, it’s coming from one who
doesn’t know medical terms or anything like that.
MR. CARROLL: Yes. But just from his own per-
sonal observations.
THE COURT: The question of relevancy, of course,
is still uppermost in my mind.
But go ahead.
A The examination took about two minutes. The
doctor looked at the scar.
[104] THE COURT: Your clothes were off?
THE WITNESS: Yes.
THE COURT: And he looked at the scar?
62
THE WITNESS: He looked at the scar on my hip,
my left hip, asked me to run down a corridor and back
and that was the extent of the examination.
THE COURT: Did any doctor put his hand on your
hip to feel it?
THE WITNESS: No.
THE COURT: Nobody touched your hip?
THE WITNESS: Just looked at it.
THE COURT: Just looked at it?
THE WITNESS: Yes.
THE COURT: Before asking you to run?
THE WITNESS: Yes.
THE COURT: You don’t know what he was looking
at; you say he looked at your scar?
THE WITNESS: He looked at the scar on my hip.
THE COURT: He looked at your hip, too?
THE WITNESS: Yes.
THE COURT: Had you submitted any records at
that time with regard to your hospitalization?
THE WITNESS: No, I didn’t, aside from the [105]
letter that my mother wrote.
Q During that examination did you inform them at
any time about your hip?
A Yes.
Q In what manner did you inform them about your
hip?
A On a form that I had to fill out before the actual
examination, also during the examination when I got
to see the doctor and at the end of the examination.
MR. CARROLL: I have no further questions.
1106] THE COURT: Mr. Warburgh, your witness.
CROSS-EXAMINATION
BY MR. WARBURGH:
Q Mr. Jenkins, in September of 1966, after you had
registered with the Selective Service System, you were
subsequently classified 2-S?
A Yes.
Q Is that a student deferment?
A Yes.
en Re ee
63
Q Did you receive one of these cards or a card that
looked like that, Government’s Exhibit 2 in evidence?
MR. CARROLL: Will you please identify that card?
MR. WARBURGH: Government’s Exhibit 2 in evi-
dence.
THE COURT: That’s the blank form.
Q Did you receive a card that looked like that with
your classification on it?
A Yes, I did.
Q Did you read the card when you received it?
A I don’t believe I did.
Q You didn’t read the card?
A Except for the classification I had.
Q Well, would you read this portion of the card now?
[107] Read it out loud.
A “The law requires you to have this notice in ad-
dition to your registration certificate in your personal
possession at all at all times and to surrender it upon
entering active duty in the Armed Forces. The law
requires you to notify your local board in writing within
ten days after it occurs of every change in your ad-
dress, physical condition and occupation, including stu-
dent, marital, family dependency and military status and
of any other fact which might change your classifica-
tion.
“Any person who alters, forges, knowingly destroys,
knowingly mutilates or in any manner changes this cer-
tificate or wh ofor the purpose of false identification or
representation has in his possession a certificate of an-
other, or who delivers his certificate to another to be
used for such purpose may be fined not to exceed $10,-
000 or imprisoned for not more than five years, or both.”
Q Now, at the time that you registered with the
Selective Service System in September of 1966, did you
receive a registration card, your draft card, did you
receive it?
A Yes.
Q Do you have it with you now?
A No, I don’t.
Q After you were classified 2-S in 1966 you were
[108] then classified 2-S in 1967; is that right, and
64
you received another card similar to this one with your
classification on it?
A Yes, I did.
Q You received four of those classifications in class
2-S; is that right?
A Yes.
Q On each of those occasions you received a card
like this with your classification on it?
A Yes.
Q Would you tell the Court when you left school?
A In May 1970.
Q Did you graduate from school at that time?
A No, I didn’t.
Q During the time that you were at school you had
told the local board that your address was your local
address at school; is that right?
A Yes.
Q In May of 1970 you left school?
A And I also went back in September.
Q Of 1970?
A Yes. But I was not a student then. I was in the
City of Greensboro at that time.
Q Did you inform the local board that you were [109]
no longer a student?
A I had not made the final decision to leave school
completely.
Q Just answer my question: Did you inform the
local board?
A No, I did not. I was still a student—
Q No. Just answer my question.
Where did you live at Greensboro at that time?
At the time I went back?
Pardon me?
When?
In 1970.
101 South Davis St.
Did you subsequently return to New York?
When?
Some time after that.
Yes.
What date did you return to New York?
OPOPOPOPOY
65
A After the semester was over; it was in May some
time.
Q May of 1970?
A 1970.
Q Did you tell the local board what your address
was in New York at that time?
MR. CARROLL: Objection. I object on the [(110)
grounds that this isn’t an issue in the case.
MR. WARBURGH: Your Honor, there was some is-
sue raised during direct examination as to the fact that
he never received his A-1 classification card.
THE COURT: That’s right. He so testified. I will
ailow it.
A_ I wasn’t aware—
Q No. My question was, did you inform the local
board of your New York address?
A Yes. The local board knew my New York address,
107 Van Brunt St., Brooklyn.
Q Then your testimony is that you went back to
North Carolina in the fall of 1970?
A Yes, I did.
Q And that was not in the capacity of a student; is
that right, you were not a student at that time?
No, I was not enrolled at that time.
After the fall of 1970 did you return to New York?
Yes, I did.
When did you return to New York?
In or around about December 1970.
At that time did you inform the local board of
{111] your new location; yes or no?
A No, I did not.
Q With respect to the events that took place in Febru-
ary of 1971 you received your induction notice on or
about February 5, 1971?
A Yes, I did.
Q And then after that you went to the local board
and aaa that your induction be postponed; is that cor-
rect!
A No.
Q That's not correct?
A_ I wrote a letter to the board asking for a 150 form.
OPO roy
66
Q Prior to writing the letter did you go to the local
board and ask that your induction be postponed?
A Prior to writing the letter or after writing the
letter?
Q Prior to writing the letter.
A No. ;
Q On February 9, 1971, did you go to the local board
on that day?
A Yes, I did.
Q At that time the local board gave you a Form 127,
which is a current classification questionnaire; is that
correct?
A Yes, it is.
[112] Q Did you throw that out?
A No, I didn’t.
Q At that time, did you ask the local board to post-
pone your induction?
A No, I don’t believe so.
Q When was it that you met with this draft coun-
selor?
A Some time after I received the induction order.
Q Did you meet with him before you sent the letter
requesting a Form 150?
A Yes.
Q Before you sent the letter requesting a Form 150
did you have any conversation or meetings with Mr.
Carroll?
A Yes.
Q When was that?
A It was some time before or after I asked for the
150 form.
© Before or after you asked for the 150 form?
A Yes.
Q When you went to the local board on February 23,
1971 did the local board tell you that your induction was
not postponed?
A Yes.
Q Did you thereafter receive a letter telling you
[113] that the induction was not postponed? (handing)
A Yes.
67
Q Who received that letter? Did you receive that
letter on the 23rd of February?
A Yes.
Q Did Mr. Carroll tell you prior to February 24th
that your induction would not be postponed?
MR. CARROLL: Objection. What I told Mr. Jenkins
and what I didn’t tell Mr. Jenkins is within the bounds
of privilege.
THE COURT: Yes, except that Mr. Jenkins has
taken the stand and he’s testified to certain things, hasn’t
he?
MR. CARROLL: I think it’s proper to testify that he
had spoken to me, but as to the nature of what he spoke
to me about or any conversations I think is within the
bounds of privilege.
MR. WARBURGH: I will withdraw the question.
Q On February 23, 1971 you knew that your induc-
tion was not going to be postponed; is that correct?
A On February 23rd I knew, yes.
Q At the time you reported for your induction, {114}
pre-induction physical examination, you told the exam-
ining doctors about this hip condition? Is that correct?
A Yes.
Q Did you also tell them that you had engaged previ-
ously in soccer activities?
A No.
Q_ In track activities?
A No.
Q_ In basketball activities?
A_ I never participated in basketball activities, not on
no team.
Q Pardon me?
A Not on no team.
Q Have you ever played basketball?
A Yes, I have played basketball before in my life.
Q Did you play basketball while you were down at
school in North Carolina?
A_ I was not on the basketball team.
Q I didn’t ask you that. Just answer my questions.
Did you play basketball while at the school there?
A Yes.
68
Q On February 24, 1971 did you report for [115]
induction as directed?
A No.
MR. WARBURGH: No further questions.
REDIRECT EXAMINATION
BY MR. CARROLL:
Q Mr. Jenkins, did you ever go to any doctors with
regard to your hip condition?
A No.
Q Did you ever consult with a Dr. Simons?
A Yes.
Q Did you go to Dr. Simons—
MR. WARBURGH: Could I ask when this took place?
MR. CARROLL: That was the next question.
THE WITNESS: This took place prior to my senior
year in high school.
Q Did Dr. Simons examine you?
A Yes, he did.
Q How long did you see Dr. Simons about your hip
condition?
A The exact amount of time I couldn’t say.
Q Did Mr. Simons give you any advice as to physical
activities?
A He told me—
[116] MR. WARBURGH: Objection.
THE COURT: Sustained.
Do you have any report of his?
MR. CARROLL: No, I don’t.
Because this is when he was in high school.
I think, your Honor, the U.S. Attorney brought out
the fact that Mr. Jenkins had played basketball and I
think this is relevant to that particular question brought
out on cross.
THE COURT: If you want to talk about playing, he
didn’t bring out anything about doctors at that time.
MR. CARROLL: It relates directly to that point.
THE COURT: While he was in high school?
When was he in high school?
69
MR. CARROLL: I think he stated he had seen the
doctor over a period of time.
THE COURT: When was this that you were in high
school?
THE WITNESS: 1963 through ’66.
THE COURT: Your hip operation was back in 1949?
THE WITNESS: Yes.
{117} THE COURT: How old were you when you had
your hip operation?
THE WITNESS: I was less than a year old.
BY MR. CARRCLL:
Q Was there arything that prompted you to go to Dr.
Simons?
MR. WARBURGH: Your Honor, I object to this, too.
THE COURT: I will see where he’s going, subject
to connection, anyway.
Q Was there anything that prompted you to go to Dr.
Simons?
A _ I was having pains in my knees.
THE COURT: In your knees?
THE WITNESS: Yes.
Q Did Dr. Simons give you any advice after examin-
ing you?
A He said that—
MR. WARBURGH: I object to this.
THE COURT: Yes, what Dr. Simons said.
MR. CARROLL: All right, I have no further ques-
tions.
RECROSS-EXAMINATION
BY MR. WARBURGH:
[118] Q With respect to Dr. Simons, did you ever ask
Dr. Simons to send a report to the local board concern-
ing your hip condition?
A_ I asked my mother to take care of that for me.
MR. WARBURGH: No further questions.
THE COURT: I had read earlier a roentgenologist
or an X-ray doctor’s report to the effect that there is
70
nothing wrong with the knees, if you remember, attached
to the medical record.
MR. WARBURGH: It’s in evidence.
THE COURT: All right, you may step down, Mr.
Jenkins.
(Witness excused. )
THE COURT: Call your next witness, Mr. Carroll.
MR. CARROLL: Mr. Bibuld.
[119] JEROME BIBULD, called as a witness on be-
half of the defendant, after having been first duly sworn
by the Clerk, testified as follows:
THE CLERK: State your name for the Court Re-
porter.
THE WITNESS: Jerome Bibuld, 607 East 12th St.,
New York 10009.
MR. WARBURGH: Your Honor, the Government at
this time would ask for an offer of proof as to what
this witness is going to testify to.
THE COURT: Yes, Mr. Carroll, would you please
indicate to the Court.
MR. CARROLL: Yes. Mr. Bibuld will testify to
the fact that he spoke to Mr. Jenkins after Mr. Jenkins
had received his induction order on February 8th, 1971,
and at that time we discussed Mr. Jenkins’ case with
him. The problem in Mr. Jenkins’ case, as Mr. Bibuld
saw it, was the fact that Mr. Jenkins had not received
a 1-A classification card.
After discussing Mr. Jenkins’ case with him for some
time, Mr. Bibuld elicited from the registrant the fact
that he was conscientiously opposed to all wars and it
was only at this time [120] that Mr. Jenkins became
aware of his conscientious opposition to all wars.
MR. WARBURGH: The Government would object to
this testimony based on the fact that the only issue
before the Court is whether there was any error in the
local board’s processing of this defendant since 1966.
THE COURT: Determinations had been made by the
Board and the record which was elicited this morning
71
indicates that there were determinations made by the
Board and there had been no moves afoot by anyone to
overturn those determinations by the Board.
This gentleman was someone in the neighborhood who
gratuitously gives advice to people who go to see him.
It has no effect on the Board. It’s advice that he would
give and I just don’t see the relevancy to the issue
involved in this case.
MR. CARROLL: Yes, I understand.
THE COURT: If you can give me some—
MR. CARROLL: The relevancy here, your Honor, is
the fact that the Board did not consider the registrant’s
CO claim, and I think the reason for that, your Honor,
if I might, is that on [121] February 23rd the reg-
istrant stated, in a document that he signed, that he
had moral opposition to the present war.
Now, I think the sincerity of the registrant’s beliefs
in opposition to all wars was in question because on
March 3, 1971, when the registrant stated that in fact
his opposition was to all wars, the local board took no
action on this and the State Selective Service Director—
New York City Headquarters’ Director, rather, did not
take any action on this.
So what I am trying to show is this is not a fabri-
cation of the record after.
THE COURT: All the facts that you have stated
so far the record indicates so far. So what can Mr.
Bibuld testify to contrary to what you have already
said or even to add to it? Do you want reduadancy at
the very best? In other words, whatever you have said
up to now has been elicited by the letters and other
papers which were part of Government’s Exhibit 1.
MR. CARROLL: Well, I think the sincerity of the
registrant is in issue.
THE COURT: He’s not going to be able to [122]
question those papers. No one questions those papers
and there was a decision by the Board.
Now, he doesn’t like it, you don’t like it, maybe Mr.
Jenkins doesn’t like it. That’s not relevant to the is-
sue before me.
72
MR. CARROLL: But the decision of the Board is
in question, and I think it goes back to the Board’s—
THE COURT: No, that’s exactly what I am driving
at. I don’t think the decision of the Board is in ques-
tion here. If it is, it would be another story. It’s not.
MR. CARROLL: I think that’s in issue in the case.
THE COURT: In what way?
MR. CARROLL: It goes back to my motion for judg-
ment of acquittal, that the Board was acting beyond
the law at the time when they refused to postpone the
registrant’s induction.
THE COURT: You can argue that point now, if
you want to argue that point now. That would be very
apropos now in view of this offer of proof. If you feel
this offer of proof will shed light on your argument
that you make on your [123] motion for acquittal, do so
now. I want to give you every opportunity.
MR. CARROLL: I think the case in the Second
Circuit at that time stated that if an individual re
quested a CO form, that it was a duty and obligation
of the local board to postpone the registrant’s induction
and to schedule a permissive interview to determine the
sincerity of the registrant’s belief and the only thing
that was to be an issue—
THE COURT: You base that argument on Geary?
MR. CARROLL: Geary, Stafford and the other cases
which follow, Pacel v. Laird, for example, at this time
the local board violated what was standard law in the
Second Circuit.
THE COURT: They made a determination?
MR. CARROLL: What I am saying is they made a
determination which was in violation of the existing law.
THE COURT: But there was a determination made.
MR. CARROLL: Yes.
THE COURT: You say, now, that determination
[124] was a violation of the principle laid down in
Geary?
MR. CARROLL: That’s correct.
THE COURT: What’s happened to Geary since?
MR. CARROLL: Well, I think this is one of the
issues in this case.
73
THE COURT: That’s the crux of this point now.
MR. CARROLL: Yes.
THE COURT: Therefore, what can Mr. Bibuld add
to that argument?
MR. CARROLL: Well, Mr. Bibuld—
THE COURT: It now becomes strictly a question
of law as to whether Geary is still in effect. If Geary
is still in effect, you don’t need his testimony.
MR. CARROLL: I am not saying Geary is still in
effect. I am saying it was in effect at the time that
all of the transactions that the registrant had the local
board took place.
THE COURT: Assuming arguendo that that is so,
now tell me—let’s make it a question of law because
that’s all it is right now.
MR. CARROLL: I don’t think you can separate
[125] it from the facts in the case, though.
THE COURT: How is he going to change the facts
in the case with his testimony?
MR. CARROLL: He’s going to amplify on the sin-
cerity of the registrant’s beliefs, which I state was
tested by the local board prior to any type of permissive
hearing by the local board.
THE COURT: How do you argue against that, Mr.
Warburgh?
MR. WARBURGH: After Geary, of course, we have
the famous case of Ellert.
THE COURT: I am not going to that yet.
Mr. Carroll poses an argument now, if you wish to
repeat it.
MR. WARBURGH: If I understand Mr. Carroll cor-
rectly, this witness would testify as to the sincerity of
the defendant’s beliefs, which is not in issue before the
Court here.
THE COURT: Which is not in issue. It would
have been an issue before the local board if the local
board had determined to hear the issue, correct.
MR. WARBURGH: Right, and made a decision based
on the merits.
{126} THE COURT: That’s why I asked Mr. Carroll
initially. They had already made a determination and
74
they decided not to review that determination. Now
anything Mr. Bibuld would add—and I am not ques-
tioning anything he would say—would only support your
argument, if you want to use it that way, that the
Board should have re-opened at that time.
MR. CARROLL: Yes.
THE COURT: He hadn’t discussed anything with
the Board at that time, had he, this gentleman?
MR. CARROLL: Yes, he did, as a matter of fact.
THE COURT: That’s the point.
MR. WARBURGH: In any event, the local board de-
clined to consider the CO claim at that point.
THE COURT: On the ground that they had de-
termined it.
MR. WARBURGH: Well, they had not determined
it. They just declined to consider it based on the di-
rection of the New York City Headquarters.
[127] THE COURT: Because his draft notice had
been issued and he was told to report by a certain day.
MR. WARBURGH: That’s correct.
THE COURT: And that this application for 150
form was received after the notice of classification was
sent out. Is that the basis of your argument?
MR. WARBURGH: This 150 request was made after
the pre-induction order was sent out.
THE COURT: That’s what I said. I said classifica-
tion. I meant pre-induction order.
That’s the whole case here anyway.
MR. CARROLL: I know that.
THE COURT: What do we need this testimony for?
That’s the argument now. Did they have the right to
close off then and not consider it? That to me is a ques-
tion of law here, not further proof.
MR. CARROLL: I object to that. I except to that.
THE COURT: I will deny the offer of proof, if that
offer of proof is directed in that area of adding testi-
mony which would have, say, built [128] up his claim
which had been by the Board denied to be reviewed.
All right, that’s out. Denied.
MR. CARROLL: Are you asking him to step down?
75
THE COURT: If that’s what you want to bring
out through this witness, I am denying your right. In
other words, you made an offer of proof. I am denying
you that offer of proof.
Is there anything else he can talk about?
MR. CARROLL: Well, that’s all.
THE COURT: You may step down.
(Witness excused.)
MR. CARROLL: Mrs, Bates is the mother of the reg-
istrant-defendant in this case and she will testify to the
fact that in response to the, I think it was, telephone call
that the registrant made to her in response to the form
56 requesting additional information, that she wrote the
letter and that she had expected a response from the local
board to the letter that she had written.
[129] MR. WARBURGH: That’s not in issue here,
either.
THE COURT: If that’s what she wants to testify to,
that testimony has come up, if you want to repeat it,
it’s okay with me, repeat it through her. I will ask
her as I asked the lady, Miss Morris—I asked her if
there was anything in that letter which asked for a
reply, and Miss Morris said no. I would have to ask
her the same way.
If you want to put her on, you may.
MR. CARROLL: Yes. That’s all I am going to ask
her.
MR. WARBURGH: Just for a limited purpose.
THE COURT: To the effect that she wrote this
letter in response to a request by, I am sure, Mr.
Jenkins called his mother and told her to write it. I
will let her testify to that. We have had testimony
with regard to it, so there is no reason why he can’t
bring it out in his defense.
MR. WARBURGH: Will she testify to anything else?
MR. CARROLL: No.
[130] THE COURT: We will find out. I don’t think
you need to divulge everything she has to say.
Do you want Mr. Bibuld to remain?
76
MR. CARROLL: No, unless the U.S. Attorney wants
him to remain.
THE COURT: You are excused. You may stay here.
The courtroom is public. I am just excusing you from
further participation.
PHYLLIS BATES, called as a witness on behalf of
the defendant, after having been first duly sworn by
the Clerk, testified as follows:
THE CLERK: Will you state your name and ad-
dress, please.
THE WITNESS: Phyllis Bates, 107 Van Brunt
Street, Brooklyn.
DIRECT EXAMINATION
BY MR. CARROLL:
Q Mrs. Bates, I am going to refer your attention
to a letter written on October 4th of 1966 received by
the local board on October 5, 1966, which is a copy of
one of the exhibits in Government’s Exhibit 1, and I
would ask you to just read this letter, if you don’t re-
member the contents.
[131] Have you read the letter?
A Yes.
Q Was that letter written by you?
A Yes.
Q Was that letter written by you in response to any
communication that you had with your son, Ronald
Jenkins?
A Yes.
Q Could you for the benefit of the Court tell the
reason that you wrote that letter?
A Well, he was away at school and he needed a
medical for Selective Service which he couldn’t get be-
cause he was in Greensboro. So I wrote to Selective
Service and I also sent them his medical card and his
doctor’s name so they could get in touch with the medical
center and his doctor »!so, and I also specified in the
letter that if this wasn’t sufficient, to let me know.
bee 4
77
Q Did you receive any response from the local board?
A No. They only sent the clinic card beck and that
was all.
MR. CARROLL: No further questions.
THE COURT: They sent the clinic card back?
THE WITNESS: Right.
[132] CROSS-EXAMINATION
BY MR. W:.RBURGH:
Q Referring to the letter, the last sentence on the
first page: “I will also write to the medical center,”
is that what it says there?
A Right.
Q And the last part of the letter says, “Any other
information that you need that will have to be gotten
from Brooklyn or Manhattan,” right?
A Right.
MR. WARBURGH: I have no other questions.
MR. CARROLL: I have no further questions.
THE COURT: May I ask Mrs. Bates how old was
Ronald when he injured his hip? Did he injure his hip
or was it some other—
THE WITNESS: The doctor didn’t even know. They
said when he was a baby he must have fell on a sharp
instrument and he had an emergency operation 7:00
o'clock at night. He pretty near—
THE COURT: When was that?
THE WITNESS: 1949.
THE COURT: In other words, the doctor thought he
might have fallen on something sharp?
THE WITNESS: Right.
[133] THE COURT: How long was he in the hospital?
THE WITNESS: Ten weeks.
THE COURT: After that?
THE WITNESS: He had to wear a brace.
THE COURT: Where was that? What hospital?
THE WITNESS: It was a hospital on 59th St.
THE COURT: Is that the Presbyterian Hospital?
is
THE WITNESS: They moved from that hospital to
Medical Center, but he was operated on 59th St. I forget
the name of the hospital. He had to wear a brace.
THE COURT: That was in 1949?
THE WITNESS: Yes.
THE COURT: All right.
MR. CARROLL: No further questions.
MR. WARBURGH: Nothing, your Honor.
THE COURT: You may step down, Mrs. Bates.
Thank you.
(Witne’s excused.)
THE COURT: You may call your next witness, Mr.
Carroll.
MR. CARROLL: That’s all. Defense rests.
THE COURT: Government?
[13 MR. WARBURGH: Your Honor, the Govern-
ment has nothing further, no rebuttal.
THE COURT: Government rests, both sides rest.
All right, up front and center.
Would you, Mr. Carroll, prefer to argue orally now
or would you prefer to submit memoranda with your own
proposed findings based upon the record that has been
had here? I will give you the opportunity, if you wish.
MR. CARROLL: Can I think about that f
of seconds, at least?
i hadn’t considered that.
THE COURT: I will let you argue now and have
both sides argue now on the motions and I think I might
be able to make a decision immediately. But if you
~
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~)
o
jij
~~
i
wish, I will give you an opportunity to submit your
proposed findings based upon the record as you know
it, and give Mr. Warburgh the same opportunity with
your memorandums. I think the issue here is not that
insurmountable. I think there are a number of cases
that seem to pave the way that are almost inescapable.
But you choose your avenue.
'135] MR. CARROLL: How much time would I have
to submit proposed findings of fact?
THE COURT: How much time would you need?
MR. CARROLL: A week.
n
ig
MR. WARBURGH: It doesn’t make any difference.
THE COURT: Any objection to giving him this time?
MR. WARBURGH: I have no objection.
THE COURT: All right. Both sides rest.
The Court will reserve decision. The defendant is
granted one week.
MR. CARROLL: I would just like to make one thing
clear. Will that be one week in which to mail out—
THE COURT: When I say a week, if it comes to
me two days later or a day later, I won’t hold you to
that. Today is October 3. October 10.
Now, the 9th is a holiday. So let’s make it October
llth. In other words, defendant to file with Court by
10/11. Instead of sending it to the Brooklyn Clerk’s
Office where it would be filed ordinarily and then sent
on to me, send it directly to me. You have the address
here, 900 Ellison Avenue. Send it to me directly. That
[136] way we will circumvent the Clerk’s Office ther
and save a little bit of time. So mail it to me by the
10th and I will get it on the 11th.
Mr. Warburgh, I am not going to give you much
time to answer it.
MR. WARBURGH: By Friday of that week.
THE COURT: All right, Government to answer and
you are here now so you can walk next door and file
it with me by 10/13. That’s your proposed findings, and
I would like you to please stick to the record as it is.
You have a photocopy of al] the Government Exhibit
1 papers that were used. So refer specifically to any
paper or date in your memorandum, if you wish, and I
would like you particularly to answer the questions that
I would put to you that are posed by the opinion that
I showed you this morning that was decided by our
Circuit Court very recently, decided December 27, 1972,
slip opinion which I received this morning in the case
of Frank Martire, Jr., against Selective Service Board
15, and the Capobianco case which you know about, the
Johnson case which I assume you know about, and, of
course, I got Nordlof, Geary and Ellert. Those are the
87] cases which I think are the ones which would
raise the issues that I believe are before us here.
80
MR. WARBURGH: Could you give me the date of
that opinion by the Second Circuit Court of Appeals?
THE COURT: Decided December 27, ’72. Their num-
ber is 932—the September term of 1971. Take a peak
at it and get whatever numbers you want. This is what
you may want. Docket No. 35630. If you wish, Mr.
Carroll, before you leave, my clerk will make a photo-
copy of this. It’s only a two-page decision.
MR. WARBURGH: Can the Government keep pos-
session of Government Exhibit 1, which is the Selective
Service file, for the purposes of drafting our proposed
findings of fact?
THE COURT: Sure.
(At 4:45 o’clock p.m. the trial was concluded.)
* * * 7.
[138]
INDEX
Witness Direct Cross Redirect Recross
Elaine Morris 12 36 59
Thomas Maher 63 67 75
Ronald Jenkins 81 106 115 117
Jerome Bibuld 119
Phyllis Bates 130 131
EXHIBITS
Government’s For In
Exhibit No. Description Id. Ev.
1 Selectric Service File 12
2 Card 19 78
81
SUPREME COURT OF THE UNITED STATES
No. 73-1513
UNITED STATES, PETITIONER
v.
RONALD S. JENKINS
ORDER ALLOWING CERTIORARI—Filed May 28, 1974
The petition herein for a writ of certiorari to the
United States Court of Appeals for the Second Circuit
is granted. The case is set for oral argument in tandem
with No. 73-1395.
W ov. ©. eoveemmenr reimrine orrice, 1974 Ssio12 264
IN TH) SUPREMT COURT OF THE UNTTED STATES
OCTOBRE TERR. 1973
RECLIVLD
: » wr:
xo. D3 1C)% we
OFFICE C* THE CLESK
SUPR=f' COURT. US. |
UNITLD STATLS OF AMERICA,
RONALD JENKINS
APPLICATION FOR LEAVE TO PROCEED AS A PAUPER AND TO
DISPENSL WITH TH) NECLSSITY OF FILING PRINTED BRIEFS
IN OVPOSITION TO PETITION
Your Respondent, RONALD JENKINS, by his counsel],
JAMES S. CARROLL, hasg., MmOves Tor leave tu file his opposition
papers to the Government's Petition for Certiorari as a
pauper and to dispense with the necessity of filing printed
briefs in opposition to the Government's Petition for Certiorari
and respectfully shows the Court as follows:
1. That Respondent is without means of any kind
and is desirous of opposing the Government's Potition for Writ
of Certiorari and is unnble to pay the feces and costs;
2. That Respondent was allowed to proceed in forma
pauperis in the Court below and counsel] was assigned to repre-
sent him by the Court below.
WHELREPORL, vour Respondent requests that he be granted
leave to proceed as a pauper.
/ fi
L... Lb
- i We o~ LL gr%
ft
eS ye 2- ~~ 6 Ee ne ee ee oe ~e o ©
/IAMUS S. CARROLL
Attorney tor Respondent
/
f
j
i
j mice BOCA IN. CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973
No. 73 = 15] 3
UNITED STATES OF AMERICA
Vv.
RONALD JENKINS
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
MEMORANDUM IN OPPOSITION TO
‘ THE GRANTING OF THE PETITION FOR
WRIT OF CERTIORARI
Petitioner, United States of America, seeks review of
the dismissal of its appeal pursuant to Title 18 U.S.C.
Section 3731 entered on December 11, 1973, petition for
rehearing denied on February 6, 1974. The Court of Appeals
for the Second Circuit concluded after an extensive and
scholarly opinion that under Title 18 U.S.C, Section 3731 and
under the Double Jeopardy clause of the Fifth Amendment of
the United States Constitution that it was without jurisdic-
tion to entertain the Government's appeal.
The Government takes issue with the Court of Appeals’
statement that were it to hold otherwise and hold that it
had jurisdiction to hear the appeal, it would have to over-
rule a long line of cases including Kepner v. United States,
195 U.S. 100 (1905); United States v. Sisson, 399 U.S. 267
No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973
UNITED STATES OF AMERICA
Vv.
RONALD JENKINS
ON PETITION FOR A WRIT OF CERTIORARI TO
‘THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
MEMORANDUM IN OPPOSITION TO
THE GRANTING OF THE PETITION FOR
WRIT OF CERTIORARI
+
JAMES S, CARROLL, Esq.
Attorney for Respondent
126 West 119th Street
New York, New York 10027
Tel. No. (212) 663-4020
(1970); Fong Foo v. United States, 369 U.S. 141 (1962).
The Government contends that the Court of Appeals’ belief
that it would have to wade throught a Kepner, Fong Foo and
Sisson thicket to find jurisdiction is incorrect and that
in any event the thicket is not so dense. The Government
further states in disagreement with the Court of Appeals
that this Court should accept jurisdiction to clarify certain
problems associated with the interpretation of Section 3731
and the Double Jeopardy clause and it implies that the issues
involved in this criminal case were merely legal and not of a
factual nature and that Double eopardy is not involved since
the Court could simply direct that the District Court enter
a finding of guilty on the merits.
The Government makes much of the fact that Mr. Jenkins'
case could have been determined on the basis of the Selective
Service file without requiring a trial on the merits. Further-
more, the dissenting opinion below also states that of the
nine Findings of Fact of the District Court, none of these
findings were disputed and could have just as easily been
determined by a pre-trial motion to cismiss. Yet, your
respondent contends that contained im the Conclusions of law
of the District Court was the unmistakable implication that
Mr. Jenkins, who took the stand in his own behalf, was sin-
cere in his reliance on prior law of the Second Circuit
when he made his post-induction order claim for conscientious .
objector status. In fact, the Court of Appeals recognized
such good faith reliance as a possible defense. See Govern-_
ment's Petition at page 28a. In any event, it is rather
cavalier of the Government to suggest that the attendant
uncertainty of being required to go through the guantlet
twice can somehow be mitigated by setting up an artificial
distinction between a strictly legal determination (Fong
Foo, supra; United States v. Hill, 473 F2d 759 (9th Cir.
1972))and a factual determination or by giving the Respond-
ent the benefit of a directed conviction.
The law on this issue is clear although the law on other
aspects of the Double Jeopardy clause may be subject to some
dispute (compare United States v. Ponto, 454 F.2d 657 (7th
Cir. 1971); United States v. Findley, 439 F. 2d 970 (lst Cir.
1971) with United States v. Serfass, Third Circuit, No. 73-1736).
It is quite clear that jeopardy attached in Mr. Jenkins’
case when the first witness was sworn and that an appeal
from dismissal is a violation of the Double Jeopardy Clause of
the Constitution,
Respectfully Submitted,
aiiie sal
‘JAMES S$. CARROLL
126 West 119th Street
New York, N. Y. 10026
Se
‘
ROUUUIICr so
brief
SEP 11 1974
MICHAEL RODAK, JR. CLERK
~-
No. 73-1513
ee
Gn the Supreme Court of the United States
Ocroper TERM, 1974
Unrrep States oF AMERICA, PETITIONER
v.
Rona.p 8S, JENKINS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND OIRCUIT
BRIEF FOR THE UNITED STATES
ROBERT H. BORK,
Solicitor General
HENRY E. PETERSEN,
Assistant Attorney General,
ANDREW L. FREY,
LOUIS F. CLAIBORNE,
Assistants to the Solicitor Generat
EDWARD R. KORMAN.,
Attorney,
Department of Justice,
Washington, D.C. 20530.
II
Argument—Continued
Ill. THE DECISIONS, ETC.—Continued
B. Decisions of this Court in anal- page
ogous situations uphold the
appealability of post-jeopardy
ome termnating criminal
ne ee deine Reet
CITATIONS
Cases:
Abbate v. United States, 359 U.S. IS7_-- ~~~ --
Bryan v. United States, 338 U.S. 552. -- ~~~ -
Ehlert v. United States, 402 U.S. 99... .__. 5, 13,14
Fong Foo v. United States, 369 U.S. 141__---- 7
17, 25, 31, 32, 33, 36
Forman v. United States, 361 Us er 38
Green v. United States, 355 U.S. 1S4__. 18, 23, 24, 30
Hoag v. New Jersey, 356 U.S. 464_....------ 30)
Illinois v. Somerville, 410 U.S. 458... - -- 23, 24
Lange, Ex parte, 18 Wall. 163... _.-..------ 23
Kepner v. United States, 195 U.S. 100_. _-- ~~ 7,
17, 18, 19, 23, 25, 29, 30, 31, 36
Musser v. United States, 414 U.S. 31 -_--- 13,14
North Carolina v. Pearce, 395 U.S. 711_-- .-- 23
Palko v. Connecticut, 302 U.S. 328__. _. 25
Stroud v. United States, 251 U.S. 15. ----_--- 23
Trono v. United States, 199 U. BS. SB. ....... 30
United States v. Ball, 163 U.S. 662... _----- 7,
16, 17, 23, 25, 26, 29, 31, 32, 34, 35, 36, 39
United States vy. Bramblett, 348 U.S. 503__.--- 39
United States v. Brewster, 408 Uw. 5O1_ _-- 36
United States v. Costellonos, 478 F. 2d 749___- 24
United States v. Esposito, 492 lk. 2d 6, certio-
rari denied, 414 Us. 1135.0 _ 0 ee 39
Ill
Cases—Continned Page
United States v. Findley, 439 F. 2a 970_____- 35-36
United States v. Green, 350 U.S. 415__.- 8. 39
United States v. Howard, 432 F. 2d 1188____- 24
United States vy. Jorn, 400 U.S. 370__.- 13,
23, 24, 32, 35
United Slates v. Maze, 414 U.S. 395____ a. 38
United States v. McGrath, 412 U.S. 936 ____- 38
United States v. Mercado, 359 I. Supp. 604,
affirmed, 478 I. 2d 110S_______. _.. 614,15, 16
United States v. Russell, 459 VF. 2d 671,
reversed, 411 U.S. 423_._._...........___-- 38
United States v. Sanges, 144 U.S. 310___ 28
United States v. Seeger, 380 U.S. 163-0 - 2 -__- 38
United States v. Sisson, 399 U.S. 267_-.-___- 7,
9, 12, 13, 14, 17, 25, 26, 32, 33, 34, 35, 36, 39, 41
United States v. Smith, 331 U.S. 469
United States v. Tateo, 377 US. 463.--- 24
United States v. Weinstein, 452 F. 2d 710,
certiorari denied sub nom. Grunberger v.
United States, 406 U.S. 917-8 39, 41
United States v. Zissblatt, 174 F. 2d 740, appeal
dismissed 336 U.S. 934... ----- —_ 40
Wade v. Hunter, 336 US. GS4_-_-- 2 Se 24
Will v. United States, 389 Uw. 90-0 33
Constitution, statutes and rule:
United States Constitution:
bifth Amendment --_----........------ passim
Criminal Appeals Act, IS U.S.C. 3731, as
amended by Omnibus Crime Control and
Safe Streets Act of 1970, Title IIT, S4 Stat.
gd ae ee dee 2-3,
6, 9, 33, 34, 35, 36, 37, 41
50 U.S.C. App. 462(a).--.--- 3,13
Rule 23(¢), Fed. R. Crim. P
IV
Miscellaneous: pens
1 Annals of Congress 434.................- 21
4 Blackstone’s Commentaries, (Chase Ed.) __—- 18 .
Double Jeopardy—Mistrial, 6 L.. Ed. 2d 1510 | gn the Supreme Gourt of the Gnited States
ING 4a. sncseuen alah lca deametaeel anne @amtoueean 24
Friedland, Double Jeopardy (1969)... 19, 20, 21, 25 | October TeRM, 1974
2 Hale, Pleas of the Crown (Dougherty ed. ae
Rk cecdnutcatadintecuirdatedmieenate 20 No. 73-1513
IV Hawkins, Pleas of the Crown (1795 ed.) - 19 = '
Kirk, “Jeopardy” During The Period Of The UNITED STATES OF AMERICA, PETITIONER
Year Books, 84 U. Pa. L. Rev. 602 (1934)_ 19, 20 v.
S. Rep No. 91-1296, 91st Cong., Ist Sess____ 35 Roxaw S. JExkixs
Myers and Yarborough, Bix Vexari: New
Trials and Successipe Prosecutions, 74 Harv.
RS CE ea Co 9S: 25 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND © ‘UIT
Miller, .lppeals by the State in Criminal Cases, a a a a ee
36 Yale L. J. 486 (1927)_____- 1 SO RRA 25
Sigler, Double Jeopardy (1969) _____- ———s | BRIEF FOR THE UNITED STATES
21 Viner, A General Abridgment of Law And
Eovitu e Ciedteainindéinnnmien <_ 20
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A.
pp. la-4la) is reported at 490 F. 2d 868. The opinion
of the district court, in the form of ** Findings of Fact
and Conclusions of Law” (Pet. App. B, pp. 42a-52a),
is reported at 349 F. Supp. 1068.
JURISDICTION
The judgment of the court of appeals was entered
on December 11, 1973 (Pet. App. C, pp. 58a—54a). A
timely petition for rehearing was denied on
February 6, 1974 (Pet. App. D, pp. 55a-56a). By
order of February 28, 1974, Mr. Justice Marshall ex-
(1)
4
tended the time for filing a petition for a writ of
certiorari to and including April 7, 1974 (a Sunday).
The petition was filed on April 8, 1974, and was
granted on May 28, 1974, along with the petition
United States v. Wilson, No. 73-1395, and the cases
were set down for argument in tandem. The jurisdic-
tion of this Court is invoked under 28 U.S.C. 125461).
QUESTION PRESENTED
Whether the Double Jeopardy Clause bars the
United States from appealing an order of the district
court dismissing an indictment, after a trial without
a jury, where the district court found that the defend-
ant committed the acts charged in the indictment but
concluded as a matter of law that the defendant had
established an affirmative defense, and where the error
of the district court can be corrected without a retrial.
CONSTITUTIONAL PROVISION AND STATUTE INVOLVED
~The Fifth Amendment to the United States Con-
stitution provides, in pertinent part:
* * * nor shall any person be subject for the
same offence to be twice put in jeopardy of life
or limb * * *,
IS ULS.C. S731, as amended by Tithe TIL of the Omni-
bus Crime Control and Safe Streets Act of L9TO, 4
Stat. 1890, provides, In pertinent part:
In a criminal case an appeal by the United
States shall lie to a court of appeals from a
decision, Judgment, or order of a district court
dismissing an indictment or information as to
any one or more counts, except that no appeal
3
shali lie where the double jeopardy clause of
the United States Constitution — prohibits
further prosecution.
* * = * *
The provisions of this section shall be lib-
erally construed to effeetnate its purposes.
STATEMENT
1. In an indictment returned in the United States
District Court for the Eastern District of New York,
respondent, a registrant under the Universal Military
Training and Service Act. was charged with having
“knowingly failed and neglected to perform a duty
required of him under and in the execution of said
Act and Regulations, by knowingly refusing and fail-
ing to submit to induetion into the armed forces of the
United States, after notice had been given to the
detendant by Local Board No, 50, exercising jurisdic-
tion in that behalf, requiring the defendant to report
for induction on the 24th day of February, 1971,"
in Vielation of 50 U.S.C. App. 462(a) (App. 3).
Although the essential facts of the case were undis-
puted, respondent made no motion to distuiss the
indictment prior to trial. Instead, on July 8, 1972,
indicating his intention to proceed to trial, respondent
filed a number of papers including a motion concern-
ing the voir dive of prospective Jurors, requests to
charge the jury, a trial memorandum of law, and a
motion for a judgment of acquittal (App. 1, 4). Subse-
quently, on October 3, respondent waived a jury trial,
and the case was tried and coneluded before the dis-
trict court on that day. Three weeks later, on Octo-
4
ber 24, the district court filed a document entitled
‘Findings of Fact and Conclusions of Law’’ (Pet.
App. B, pp. 42a-52a). The court found that, as charged
in the indictment, “the Local Board mailed to de-
fendant * * * an Order to Report for Induction on
February 24, 1971,” which was received by him, that
only thereafter did the defendant make a conscien-
tious objector claim, and that “*[t]he defendant did
not report for induction on February 24, 1971” (id.
at 45a—-44a).' The district court then proceeded to
discuss respondent's defense to the indictment, “that
at the time of his alleged commission of the crime,
' The “Findings of Fact™ were as follows:
“1. The defendant, RONALD S. JENKINS, is charged in a
one count indictment with violation of 50 U.S.C. App. § 462(a),
for failure to comply with an induction order to report and
submit to induction into the Armed Forces,
“2. Defendant registered with Local Board No, 50, Brooklyn,
New York, on September 23, 1966,
“3. On October 19, 1966, the defendant was placed in Class
2-S by the Local Board and such classification remained on an
annual basis until November 18, 1970, when he was placed in
Class 1-A by the said Local Board No. 50.
“4. On January 20, 1971, the defendant was given a pre-
induction physical at the Armed Forces Examination and En-
trance Station, and was found to be medically qualified for
induction.
“5. On February 4. 1971, the Local Board mailed to defend-
ant an SSS Form 252, an Order to Report for Induction on
February 24, 1971.
“6. On February 17, 1971, after receiving his induction
notice, the defendant wrote to the Local Board and requested
SSS Form 150 for a conscientious objector classification.
“7. On February 23, 1971, the defendant went in person to
the Local Board and requested Form 150. He was advised to
write a short statement as to his beliefs, which he did, and he
was tokl to report for induction on the next day beeanse his
-
0
viz., his refusal to submit to induction, the law of the
Second Cireuit [since overruled by Ehlert v. United
States, 402 U.S. 99] was such that he was entitled to
a postponement of his induction to enable the Board
to pass on his claim for C.O. status” (Pet. App. B,
p. 4a), a claim which he had concededly asserted for
the first time after receiving his notice to report for
induction (id. at 43a). Finding the law of the Cireuit
at the time to be as stated, the court concluded that
“the defendant JENKINS would be [prejudiced] by
a retroactive application of Ehlert’? (id. at 50a)" Ac-
cordingly, the district court concluded that it **can-
not permit the criminal prosecution of the defendant
under these circumstances without seriously eroding
fundamental and basic equitable principles of law”
(id. at 52a). Under the heading **Conclusions of Law,”
the district court stated that *[t]he indictment in this
case is dismissed and the defendant is discharged”
(thid.).
request for a postponement of his induction had been denied.
“8. The defendant did not report for induction on February
24. 1971.
“9 The defendant’s SSS Form 150 was received by the Local
Board on March 30, 1971."
* The district court made no express finding that Jenkins had
in fact relied on “the applicable law of the Second Cirewit.”
The reason for the absence of such finding is that neither the
respondent nor the draft counselor with whom he consulted, and
who was called to testify as to respondent's sincerity (App. 70),
testified that they had relied on “the applicable law of the Sec-
ond Cirenit.” Respondent's claim boiled down to the argument
that the local board was bound to follow “the applicable law of
the Second Circuit” (even though that “law” was subsequently
held to be erroneous) and that the lawfulness of the local board's
action must be viewed in light of the Second Circuit's understand-
ing of the law at the time.
has 040-74 bs
6
2. Since the order of the district court here con-
flictea with the holding of the district court in United
States Vv. Mercado, 359 F. Supp. 604 (S.D.N.Y.),
which was then pending on appeal from a judgment
of .ouviction, the Solicitor General authorized an ap-
peal to the vourt of appeals pursuant to the Criminal
Appeals Act, 18 U.S.C. 37312 The court of appeals
stated that Congress intended to authorize an appeal
from an order of the district court terminating a ¢rim-
inal prosecution in all cases in which an appeal
would not violate the Double Jeopardy Clause (Pet.
App. A, yp. 5a):
Appellant asserts, and appellee does not dis-
pute, that Congress intended to extend the
Govermment’s right of appeal in criminal cases
as far as it constitutionally could. If the lan-
guage of the statute left any doubts on that score,
they would be set at rest by the report of the
Senate Committee on the Judiciary, 91st Cone..
2d Sess., No. 91-1296, at 4-13. The appeal here
will therefore lie unless the Double Jeopardy
clause prevents iiterference with appellant's
acquittal.
But the majority (over the dissent of Judge Lum-
hard) held that an appeal was barred in this case by
the Double Jeopardy Clause, The court reasoned that,
“for double jeopardy purposes,” the district court
judge had acquitted the respondent (id. at 25a-26a):
His ruling was based on facts developed at
trial, which were not apparent on the face of
~ * Indeed. in Mercado. 478 F. 2d 1108, the Second Circuit seem-
ingly vindicated our position on the merits in the present case
(see (fra. yp. 14-15).
7
the indictment, and which went to the general
issue of the case. The dissent here contends
that the district court’s findings of fact were
largely undisputed and not relevant to the
pivotal legal issue in question. However, the
(cussion section of the distriet court’s opin-
ion makes it clear that it was relying on the
precise circumstances of Jenkins’ case to con-
clude that the Supreme Court’s decision in Eh/-
ert should not be applied retroactively to him.
The district court was not construing the stat-
ute, which had been authoritatively interpreted
in Ehlert, and holding that Jenkins did not
come within it as a matter of law. It was hold-
ing that the statute should not be applied to
hini as a matter of fact.
Although a reversal of the order of the district court
would not have necessitated a retrial, but only a di-
rection to the district court to enter a judgment in
accordance with its findings, the court in effect held
that the appeal itself placed respondent in jeopardy
a second time. In reaching chis conelusion, the ma-
jority relied principally on waat it characterized (Pet.
App. A, p. 16a) as the “dictum” in United States v.
Ball, 163 U.S. 662, 671, that an acquittal can “not be
reviewed, on error or otherwise, without putting [the
defendant] twice in jeopardy, and thereby violating
the Constitution.”” While the court of appeals found
that this dictum had been followed in subsequent
eases (Kepner v. United States, 195 U.S. 100; Fong
Foo v. United States, 369 U.S. 141; and United States
v. Sisson, 399 U.S. 267), it suggested that a “[rJe-
examination of the dictum in Ball * * * may well be
8
desirable, particularly now that the Double Jeopardy
clause has been extended to the states.’’ It concluded,
however, that “‘this is far beyend our power as an
inferior court’ (Pet. App. A, pp. 29a-30a, n. 20).
Judge Lumbard, who dissented from the holding of
the majority, concluded that “the Double Jeopardy
Clause is not an abstract rule, but one that should be
adapted and applied in light of the totality of ¢ireum-
stances of cach particular case” (Pet. App. A, pp. 40a—
dla):
An unalterable rule that the Double Jeopardy
Clause bars all government appeals from ac-
quittals, fails to weigh against the individual’s
very proper interest in not experiencing the
anxiety, expense, and harassment that a second
trial brings, the equally considerable interest
of society in the fair, just, and sensible adminis-
tration of criminal justice. Only last term, the
Supreme Court in Jilinois vy. Somerville, 410
U.S. 458 (1973), rejected the notion that techni-
cal errors resulting in a mistrial should bar re-
prosecution. In such cases, the ‘tends of publie
justice” demand that “the purpose of law, to
protect society from those guilty of crimes
[not] he frustrated by denying courts power
to put the defendant to trial again”. 410 U.S. at
470.
I believe that the “‘ends of publie justice” will
not be served if we permit a defendant who is
clearly guilty to go free because of the
trial judge’s erroneous interpretation of the
controlling law. That Jenkins is guilty would
appear to be indisputable in light of our deci-
sion in United States v. Mercado, 478 F. 2d
4)
1108 (1973), in which we held without res-
ervation that even prior to United States v.
Ehlert, the law of this circuit was that an in-
dividual had to report for induction although
his post-induction notice claim for conscientious
objector status was still pending.
Accordingly, I would vacate the order of the
court below and remand for a proper applica-
tion of the law. [Footnote omitted. ]
ARGUMENT
I. INTRODUCTION AND SUMMARY
This case presents a narrow but important issue
with respect to the government’s right of appeal in
criminal cases. Because of the recent amendment to
the Criminal Appeals Act (18 U.S.C, 3751, as
amended by 84 Stat. 1890), the answer is controlled
directly by the Double Jeopardy Clause of the Fifth
Amendment * and involves none of the familiar de-
bates about the correct definition of a motion in arrest
of judgment or a motion ino bar. See, cy.,
Lnited States v. Sisson, 399 U.S, 267. Partly because
of the prior statutory history, the constitutional ques-
tion tendered here has never been directly resolved by
this Court. Certainly, it is net foreclosed by Sisson, a
" #fle tilde is common ground, Nor is a contrary position
tenable: the Criminal Appeals Act. 1s ULS.C. 5751. now allows the
government to appeal from any “decision, judgment. or order of a
district court dismissing an indictment or information.” whatever
the ground, except only “where the double jeopardy clause of the
United States Constitution prohibits further prosecution.”
Whatever its correct characterization, the district court’s action
in this case, which dismissed the indictment, is within the
Statute. See our brief in Serfass v. United States, No, 73-1424.
at pp. 12-19.
10
decision controlled by statutory restrictions, now re-
ineved, and otherwise distinguishable.
On the other hand, the case invokes no novel doe-
trine. We eschew the temptation of a full reexamina-
tion of the double jeopardy principle, because the
limited compass of the issue presented does not require
it. In the present setting, there is no occasion to define
the boundaries of the principle that a factual determi-
hation on the merits which acquits the defendant—
Whether made by a jury ora judge—insulates him from
further proceedings. The only submission we make here
is that a purely legal error that can be isolated from any
fact finding is correctable by appeal without implicating
the Double Jeopardy Clause—at least if correction does
hot require retrial of any fact already found.’
The question does not, of course, arise in the usual
case that reaches a conclusion. In a trial to a jury,
after the return of a general verdict, the problem pre-
sented here occurs only if the jury convicts and the
judge thereafter enters a contrary judgment. So, also,
in a case tried to the court alone, an unexplicated
acquittal does not raise the issue that concerns us
here, The rule we postulate reaches only those situa-
tions in which the factual determination and the legal
conclusion are clearly separated, and correction of the
error of law leaves the findings of fact undisturbed.
* In stating the question so narrowly, we should not be under-
stood to foreclose a broader argument. Specifically, we do not
concede that the Double Jeopardy Clause bars every govern-
ment appeal which. if successful. would require a retrial. See
footnote 16, infra. But, because whether a new trial must follow
an appeal is always a relevant consideration, we focus on that
circumstance in this case.
11
But, when those conditions are met, we submit the
Double Jeopardy Clause does not bar the govern-
ment’s appeal, regardless of when the error of law
occurred (whether before, during or after trial), and
regardless of the label attached (a dismissal of the
indictment, a directed verdict, a judgment of acquit-
tal, or the sustaining of a motion in arrest). If we
are right, it follows that the district court ruling here
is appealable, notwithstanding that it was based on
facts “developed at trial, which were not apparent on
the face of the indictment, and which went to the
general issue of the case” (see Pet. App. A, p. 26a)—
provided only that the appeal does not disturb any of
the underlying facts found,
Accordingly, before defending our thesis, it is es-
sential to establish that the district court’s action
sought to be appealed was, indeed, a pure deeision of
law, and was one that can be corrected without retrial.
If we seem to belabor the point, it is only because the
majority opinion below appears to cast doubt on both
those premises by characterizing the dismissal as a
“holding that the [Selective Service] statute should
not be applied to [the defendant] as a matter of fact”
(Pet. App. A, p. 26a, emphasis added),” and by suggest-
ing that a new trial might be necessary if the govern-
ment’s appeal succeeded (Pet. App. A, p. 28a).
1. Admittedly, the district judge made a factual
determination. As it happens, the only facts that mat-
* Elsewhere in its opinion, the court of appeals apparently
acknowledges that we challenged only a ruling of law, See Pet.
App. A, pp. 28a-29a, 3a.
12
ter were undisputed and might have been stipulated
before trial or recited in the indictment. In the event,
they were disclosed in the trial. What controls, how-
ever, is that these critical facts were expressly articu-
lated in findings entered by the district court—quite
distinet from the ruling of law—and were not sought
to be challenged on appeal. Of course, these facts were
the predicate for the court’s order. But they remain
wholly separate and can be left undisturbed while the
legal issue is tested. The case is precisely the same as
if the findings of fact had been entered by a special
jury verdict—or by the judge at an earlier date—
and the court subsequently ruled, as a matter of law,
that they foreclosed conviction.
The separateness of the factual findings is entirely
clear in this case, This is not one of those situations
in which the result turned on credibility or demeanor
or assessing a mental attitude (¢.4., “willfullness”” or
“sincerity’’). Compare United States v. Sisson, supra,
399 U.S. at 277-278, 286-287, 288, 289. Here, the facts
relevant to the legal ruling were wholly objective and
impersonal. The character and beliefs of the defend-
ant were irrelevant. Indeed, the result is governed
solely by the timing of undisputed events.
Shortly stated, the facts were these: respondent was
found to have failed to report for induction after
having been classified I-A, after having received his
notice to report, and after having been told that his
indnetion would not be postponed on aceount of a
belated conscientious objector claim: made for the first
time subsequent to receipt of the indnetion notice
13
(Pet. App. B, pp. 43a—44a). The only legal question
posed and resolved by the district judg» (erroneously,
we say) was whether, given the sequence of these ac-
tions, respondent violated 50 U.S.C. App. 462(a). The
district court ruled in the negative. That ruling, we sub-
mit, was plainly one of law, no less than this Court's
contrary holdings in Ehlert, supra, and Musser v.
United States, 414 U.S. 31.
2. Because the decision from which the appeal was
taken is a pure legal ruling, we could perhaps argue,
as Judge Lumbard concluded below (Pet. App. A, pp.
32a-39a), that it is more properly described as a ‘*dis-
missal.” effectively arresting judgment, than an “acquit-
tal.”” We acquiesce in the characterization given by
the majority below only because Sisson teaches us that
a final disposition on the merits that looks beyond the
face of the record and is bottomed on facts ad-
duced at trial, is an “acquittal.” But, of course, so
categorizing the decision does not end the inquiry, any
more than does the trial judge’s choice of rubric. See
United States v. Jorn, 400 U.S. 470, 478, n. 7; United
States v. Sisson, supra, 399 U.S. at 279, n. 7.
At all events, we must not be misunderstood to
accept that this “acquittal” is of a kind with a gen-
eral jury verdict of **not guilty” or the equivalent of
an unexplicated conclusion of a judge sitting alone as
trier of fact.” On the contrary, the ruling appealed
here is of the same character as an order arresting
* This will not ordinarily occur in a non-jury trial, since Rule
23(c) of the Federal Rules of Criminal Procedure requires the
judge “on request [to] find the facts specially.”
558-040—74——-3
14
judgment for failure of the indictment to state an
offense, or a judgment ordered on special jury find-
ings, or, indeed, the decision of an appellate court.
That here the judge both found the facts and drew
the legal conclusion, and incorporated both in the
same document, is irrelevant—so long as we can
clearly distinguish the exercise of each function, leav-
ing the first untouched and challenging the other. As
we have shown, there is in this case no arguable diffi-
culty in severing the legal error.
3. We turn now to the question whether a successful
appeal by the government would require a retrial. We
think not. Indeed, it seems to us plain that the findings
of fact already entered by the district court will com-
pel the entry of a judgment of conviction, without any
further proceedings, if the legal ruling is reversed on
appeal (as we say it must be under Ehlert and Mus-
ser). In our view, the findings already made—resolv-
ing every possible issue on the merits—leave no room
for any other course.
To be sure, the court of appeals, adverting to its
earlier opinion in United States v, Mercado, 478 F. 2d
1108, 1111 (C.A. 2), suggests that respondent might
still have available to him the defense that, in failing
to report for induction, he “in fact reasonably relied
in good faith on the [pre-Ehlert] case law or upon
the knowledge that local boards in [the Second Cir-
cuit] * * * would consider a belated conscientious objec-
tion claim’’ (ibid.). But, even accepting the validity of
15
such a defense in a proper case,* it is foreclosed to re-
spondent. First, just as in Mercado itself (where the
conviction was affirmed), “[t]here has been no show-
ing that he in fact was aware of or relied upon the
case law * * *’ (tbid.). Respondent never suggested
such an excuse, although both he and his “counselor”
testified at the trial (see n. 2, supra, p. 5). Moreover,
whatever respondent knew of Second Circuit law when
he belatedly advanced his conscientious objector claim,
he well knew, before he committed the offense of fail-
ing to report for induction, that the board had re-
fused to delay or excuse his reporting as scheduled.
As the district court expressly found, “he was told to
report for induction on the next day because his re-
quest for a postponement of his induction had been
denied” (Pet. App. B, p. 44a). Nor has respondent ever
disputed this fact. Thus, at the relevant time, he can-
not have been under any misapprehension.
At all events, however, respondent has estopped him-
self by advancing no such claim at trial. This was not
a case prematurely ended before the defendant had
opportunity to make his full defense, He put in all the
* Both in this case and in Wereado, the court of appeals
merely suggests, very tentatively, the possibility of such a
defense. Indeed, in Mercado, the court first rejected the sug-
gestion for that case and cited other decisions to the effect that
the “erroneous belief that an induction order is invalid” nor-
mally constitutes no defense, and only then commented that
“perhaps there is room for flexibility in enforcement of this
rule to avoid injustice in a particular case” (478 F. 2d at 1111).
16
evidence and made all the arguments he deemed ap-
propriate, and, on that basis, the trier of fact—here
the judge—reached factual conclusions. Normally—
absent newly discovered evidence—that would be the
end of the matter. Overlooking an arguable defense
based on facts always available is no ground for a new
trial. It would not be where a decision arresting judg-
ment is overturned on appeal. No more is it here. But
even if respondent were ultimately to obtain a new
trial, that would be at his own instance, on grounds
which he might equally have advanced if convicted—
not a consequence of any ruling in the present appeal.
Thus, under settled principles, the possibility that
respondent could obtain a new trial by virtue of the
Mercado dictum in no way implicates the Double
Jeopardy Clause. See United States v. Smith, 331
U.S. 469, 474; United States vy. Ball, supra, 163 U.S.
at 672.
It follows, we submit, that the government's appeal,
if successful, will require no retrial, nor even any re-
opening of the case to allow additional evidence. If the
district court’s legal conclusion was erroneous, there
is no escaping the entry of a judgment of conviction
on the findings of fact already made.
4. The premises established, we return to our sub-
mission that the Double Jeopardy Clause does not bar
the government’s appeal of a legal ruling that leaves
all factual determinations undisturbed and provokes
no second trial. The balance of our brief is devoted to
showing that the rule we suggest is consistent with the
original understanding of the constitutional provision
and with the decisions of this Court in analogous situ-
17
ations, and that the cases relied upon by the court below
would mandate no different result.
We begin (infra, pp. 18-24) by briefly sketching the
background against which the Double Jeopardy
Clause was adopted, concluding that the English com-
mon law, at its most restrictive, did not bar correction
of legal error when no second trial ensued, The sparse
legislative history of the Fifth Amendment, we
note, is not inconsistent. Nor is there anything to the
contrary in the jurisprudence of this Court, which
repeatedly stresses that the double jeopardy provision
is concerned with a_ second trial or second
punishment for the same offense.
Next (infra, pp. 25-36), we examine in detail those
decisions of this Court that the majority below deemed
dispositive: Ball, Kepner, Fong Foo and Sisson. We
notice many distinctions, but focus on the critical dif-
ference that in each of them the ruling challenged,
unlike here, was at least partly a factual determina-
tion on the merits, and that, in the first three cases,
the government was effectively seeking a retrial.
Finally (infra, pp. 37-41), we analogize our case to
two other situations which, the Court has consistently
held, do not implicate the Double Jeopardy Clause. One
is the recognized appeal by the government from a
decision arresting judgment after conviction, We sug:
gest it can make no difference, in terms of the values
underlying the double jeopardy principle, whether
that post-conviction ruling is based on the allegations
of the indictment or on facts disclosed at trial. ‘The
other comparable situation is appellate review by this
Court of a decision of a court of appeals reversing a
18
conviction on grounds such as the district j
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