Opposition Brief — Ryba v. United States

In the Supreme Gourt of the Wited States 5

OcroBER f ERM, 1971

No. 71-113 +

: ; . 2 ‘i

ROMAN STANISLAW RyBA, PETITIONER

v.

UNirep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO-THE UNITED

STATES COURT. OF APPEALS FOR TIE THIRD CIRCUIT

$ : ° : . : ”

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MEMORANDUM FOR THE UNITED STATES IN OPPOSITION:

After a jury trial in the United. States District

Court for. the District of New Jersey, petitioner was ~

~ convicted of willful refusal to report for induction,, in

violation of 50 U.S.C. App. 462(a). On. February 27, :

1970, he was sentenced ‘to four years’ imprisonment. 3

The court of appeals affirmed (Pet. App. 9-12) and

denied a petition for rehearing (Pet. App. 14).

: The essential facts are not in’ dispute. Petitioner, a

citizen of i. entered the United . States .on'

October 3, 196% anid was admitted as an. immigrant

“with-the. privilege of permanent. residence in the |

United States (Tr. 1).’ On attaining the age of 18 in

1“Tr” refers to the trial transcript, reprinted as: petitioner's ap-

pendix in the court of appeals, a copy of which-we are lodging

Ww with the Clerk of this Court. - é

(1)

2

1965, he registered with the Selective Service System,

~ Local Board Number 18, Newark, New Jersey; he was.

_ classified I-SH as a high school student (Tr. 8). |

Following his graduation from high school, peti-

tioner ‘began working for his father in the construc:

_tion business. On July 27, 1967, he wrote to his local:

hoard and requested a hardship (III-A) deferment,

_ tating that his mother had died in April:.1966, and-

that his father was dependent on him in his business

(Tr. 11). This request was denied and, on Septem-

ber 20, 1967, petitioner was placed in.Class I-A (Tr. -

~ . 10). An appeal was taken to the State Appeal Board,

_ which, after a de novo review of. petitioner’s Selective

Service .file, voted unanimously (4-0), on Decem-

_- ber 12, 1967, to classify * petitioner I-A (Tr. 13).

On January 4, 1968, petitioner reported for a physi- —

. eal ‘examination | as ordered; he: was found acceptable -

for induction, and thereafter received an order to —

report on February , 27, 1968 (Tr. 14). Prior to the

scheduled induction date, however, petitigner sought, —

" and was granted, a six months’ postponement of induc- .

tion to take care of. personal matters relating to the

settlement’ of his: —— S estate in Poland (Tr.

15-17)". .

On Avgust 29, 1968, a notice to report for induction

"on September, 18, 1968, was mailed to petitioner. at his

‘last known address: (Tr. 16). Prior to the reporting

_ date, the local board received a letter from petitioner’s —

. father, dated September .7, 1968, informing the board.

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that petitioner had left the country on J uly 17, 1968,

and suggesting that his departure may have been related

in some way to the matt t of his inheritance, but not in-

dicating where he had’ gone (Tr. 17).* When petitioner

failed to report 0 ordered on September 18, 1968, the

local board, in line with customary practice, reported

him to the United States Attorney asa ee regis-

trant (Tr. 17). 2 cree a

- Thereafter, on. December 12, 1968, Gdtitioner, having |

; returned to the United States and learned that the

-F.B.I. desired to question him concerning his draft -

status (Tr.. 46-47), reported to the F;B.I. office in

Newark and spoke with Special Agent James Yelving-

~ ton. Agent Yelvington testified that, after advising peti-

tioner of his constitutional rights (Tr. 50), he Handed __

petitioner a letter prepared by the clerk of the: local

board ordering him to report immediately for induc- .. '

tion (Tr. 18). Petitioner read the letter and returned

it to the agent, declaring. ‘that he did not intend to.

report (Tr. 52-53). ‘He then left the FB. I. office and ©

‘returned home; later that day, petitioner was arrested.

Sev eral months after the indictment was returned,

petitioner’ s counsel wrote to the local board and for~

the first time requested, in. essence, ‘that the case be

reopened so that petitioner: ‘eould seek an alien (IV-.

‘ C) classification (Tr. 20). The board reviewed the—.

~ request and, on April 9, 1969, found petitioner ineli---

gible for such sdiasbliedticis under 32 C.F.R. 1622.42

2 Petitioner had in fact gone-to Canada with the stated. intention

of becoming a “permanent resident”-there (Tr. 121-123).

~~

» (b) (Tr. 20-21). Petitioner sought to appeal this

_ determination, and, on May 14, 1969, the board‘ again.

- decided not to reopen the case by vote of. 4-0 (Tr, 22).

. The trial and conviction followed: and the court of

appeals affirmed. | :

- Petitioner contends here, as he did balow, that the

refusal of his local board to reopen his classification and

place him in Class IV -C, on receipt of his father’s

letter stating that he had left the country : invalidated

the outstanding induction order. We-do not agree.

‘Congress, under its broad grant of power in the

Constitution (Art. I, See. 8), “[t]o raise and support

Armies,” has provided that ‘every male citizen of the

‘Unitéd States and every male-alien admitted for’ per-

‘manent residence +e shall be hable fer training and~

service in the Armed Forces of the U nited States” (50°

U.S.C: App. 454). See United States v. Rumsa, 212 F.

2d 927, 936 (C.A. 7). As the court below pointed out

(Pet. dee, 11), ™ [t]hegresent record indicates, without

‘ any evidence or basis for implication to the contr ary, |

a that * ** [petitioner] was admitted to this country * * *

as an immigrant pr ivilegéd to remain. anently. "As

_awvresult, petitioner's status as aration didnot. disqualify

hint from induction ; nor yas he, as an. alien, denied

‘’ §'That regulation prov ides: “Ip Class IV-C shall be placed:

any registrant who is an alien and. who has not been admitted

to the United States for. permanent residence but who has

remained in the United States for a. period exceeding ‘one

year and who has, prior to his induction, iade application to

be relieved from liability * * * and service in the Armed Forces of

the United States by filing with the local board an Applica-

tion by Alien for: Relief from Training and Service in the

z Armed Forces (SSS Form 130) * * #,*

-§

=

due process by being ordered to , report for induction.

_Umted States v. Lamothe, 152 F. 2d 340, 342 (C.A. 2).*

It is argued, however, that, wheri the local board

received information that petitioner liad “left the

country,” it had a duty under the regulations to clas-

- sify him IV-C.* But, petitioner never notified his local

board that he had moved to Canada with an intention

to remain there.’ The only information indicating that

he might have “departed from the United States’’ was

the ambiguous letter from his father (Ti. 17), which

‘Moreover, even if petitioner could have established. that he

had “remained in the. United States in a status other than that

of a permanent resident for a period exceeding’ one year * * *”,

he remained under 2 duty to report for induction pursuant to the

‘ outstanding order until he elected to make application to’ be re-

lieved from such liability * * *" (50 U.S.C. App. 454(a)). As we

have already’ shown, ‘petitioner failed to make application until

some months : after the present indictment had been returned (Pet.

App. 11). |

532 CBR. $1622. 42(c) provides : “In Class IV-C ‘shall be

placed any registrant who is an alien and who has departed

from the United States. Such alien shall be placed in Class.

LV-C even though he is a delinquent but this classification shall

in-no way relieve him. from liability for prosecution for viola-

tion, of the Selective Service law. If any registrant so classified

under this paragraph. returns‘to the United States, his classifi-

cation shall be*reopened and he shall be classified. anew.”

“In pertinent ‘part, 32 €.F.R. § 1641.7(2) provides that “[i]t

shall be the duty of every clanihed registrant to keep his local

board * * * informed of his occupational, marital, family, depend-

- ency, und military status * * *, [an@] of his home address * * *.

Every classified registrant shall, within 10 days after it occurs;

report to his local board ‘in. writing every = in such:

status =< and home address. pis

= ny

_ Suggested that petitioner’s absence was perhaps in some .

way connected with the settlement of his mother’s estate

6

in Poland, for which he had earlier received a postpene-

ment of induction. There was thus no apparent reason

‘for the board to assign petitioner a FV-C classification.

‘Moreover, 32 C.F.R. 1622.42(¢) explicitly provides

that a TV-C classification assigned to an alien who

departs from the United States “shall in no way ,

relieve him from liability for prosecution for violation

of the selective service law.’’ Thus, even if it could be

said that the board erred here in failing to place peti-

- tioner in Class TV-C after receiving his father’s let-

ter—a point we dispute—such error would not excuse

petitioner's subsequent failure to report for induction.

Nor would the board’s later refusal to reopen have any

bearing on the validity of the induction order; for,

that refusal oeenrred some time after petitioner had

' committed the acts constituting the offense for which

he is presently charged. See, e.g.,.United States v.

‘Gearey, 368 F. 2d 144, 149: (C.A. 2); Davis v: United.

States, 374 F. 24 1- (C.A. 5); Dugdale v. United.

States, 389 F. 2d 482 (C.A. 9); United States v. Uhl,

436 4°, 2d.773, T74 (C.A. 9), and the cases there cited.

_ It is therefore respectfully ‘submitted that the peti-

‘tion decd a writ of certiorari should be denied.

ErwWIN .N. GRISWOLD,

ue | eet Solicitor General.

Avaust 1971. |

U.S. GOVERNMENT PRINTING OFFICE 1975

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