Petition for Writ of Certiorari — Gateway Center Corp. v. Merriam

eCrArig Paton RN

SUPREME COURT, U, 6.

eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NO.73- TU 3

JOHN OLIVER CHALKER, JR..,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jack P. Attias, Of Counsel

BRETAN, MARKS, ATTIAS & RASKIN

7200 Bird Rd., P. O. Box 7602

Miami, Florida 33155

(305) 264-7200

PEE EDI AE RAAT LOSE

—~ SEAT aD.

TABLE OF CONTENTS

Page

TABLE OF CASES ---------------------- i

STATEMENT OF THE ISSUES ------------- iii

RELIEF REQUESTED -------------------- 1

JURISDICTION ------------------------ 2

QUESTIONS PRESENTED ----------------- 2

HISTORY OF CASE AND TIME WHEN QUES-

TIONS PRESENTED ----------------- ---- 3

COMPELLING REASONS RELIED UiON FOR

ALLOWANCE OF WRIT ------------------- 3

CONCLUSION -=------------------------ 2

CERTIFICATE OF SERVICE -------------- 6

APPENDIX ------------- ponccannannawen 7

AS IS eS FTA eR

3

TABLE OF CASES - Page l

Page

Cale v. Volatile, 465 Fed. 2d 1110

(3 Cir. 1972) ------------------------ 4

Clay v. United States, 403 U.S. 698

(June 28, 1971) ---------------------- 3

Ehlert v. United States, 402 U.S. 99 - 4,5

Mulloy v. United States, 398 U.S. 410 S

Musser v. United States, 42 LW 3082

(9 C.A. 1972) ------------------------ 5

United States v. Alioto, 469 Fed.2d

721 (1 Cir. 1972) -------------------- 5

United States v. Auger, 5 SSLR 3193

(N.D. Cal. 1972) 2 2 OE OOPDOIOOBOOSO® wae eer 4

United States ex rel Bent v. Laird,

453 Fed. 2d 625 (3 Cir. 1972) -------- 4

United States v. Chalker, 337 F. Supp

920 (M.D. Fla. 1972) -----------------

United States v. Kovarovic, 6 SSLR

3039 (E.D. N.Y. Dec., 1972) ---------- 5

United States v. Shomack, 462 Fed.2d

330 (3 Cir. 1972) -------------------- 5

United States v. Siskowski, 465 Fed.

2a 330 (3 Cir. 1972) ----------------- 5

United States v. Stetter, 445 Fed. 2d

472 (5 Cir. 1971) -------------------- 2,3

ii

TABLE OF CASES - Page 2

United States v. Strandquist, 5 SSLR

3721 (D. Minn. 1972) -----------------

United States v. Usdin, 6 SSLR 3039

(B.D. N.Y. Dec., 1972) -q-eannanecacoa

.

iii

STATEMENT OF THE ISSUES

A.

WHETHER OR NOT THE DOCTRINE AS AN-

NOUNCED IN THE UNITED STATES v.

STETTER, 445 Fed. 2d 472 (5 Cir.

1971), REQUIRING A LOCAL BOARD TO

STATE THE REASONS FOR THE DENIAL

OF A PRIMA FACIE C.0O. CLAIM SHOULD

BE APPLIED TO THE DENIAL OF APPEL-

LANT'S CLAIM FOR OCCUPATIONAL CLASSI-

FICATION (2-A or 2-C) DATED 12-27-67

AND HARDSHIP CLASSIFICATION (3-A)

DATED 4-26-68.

B.

WHETHER OR NOT APPELLANT'S LOCAL

BOARD ACTED WITHOUT THEIR JURISDIC-

TION UPON HIS REQUEST FOR CONSCIEN-

TIOUS OBJECTOR CLASSIFICATION RE-

QUIRING CANCELLATION OF THE SUBJECT

INDUCTION ORDER AND REVERSAL OF THE

LOWER COURT'S CONVICTION.

1

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

MISC. NO.

JOHN OLIVER CHALKER, JR.,

Petitioner,

-v-

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RELIEF REQUESTED

Petitioner, JOHN OLIVER CHALKER, JR.,

requests that a Writ of Certiorari issue to

review the Judgment of the United States Court

Of Appeals for the Fifth Circuit (No. 73-2137)

affirming Petitioner's criminal conviction

for failure to report for and submit to induc-

tion into the Armed Forces of the United States

(50 U.S.C. Sec. 462(a)).

2

JURISDICTION

This Honorable Court has jurisdiction

pursuant to 28 U.S.C. 1254(1). Additionally,

the order of the United States Court of Ap-

peals for the Fifth Circuit affirming the

decision of the United States District Court

for the Middle District of Florida causes a

split among the Circuit Courts upon two essen-

tial issues, which are designated "A" and "B"

below.

QUESTIONS PRESENTED

Appellant-Defendant, JOHN OLIVER CHALKER,

JR., will argue to this Honorable Court the

following issues:

A. WHETHER OR NOT THE DOCTRINE AS

ANNOUNCED IN THE UNITED STATES v.

STETTER, 445 Fed. 2d 472 (5 Cir.

1971) , REQUIRING A LOCAL BOARD

TO STATE THE REASONS FOR THE

DENIAL OF A PRIMA FACIE C. 0.

CLAIM SHOULD BE APPLIED TO THE

DENIAL OF APPELLANT'S CLAIM FOR

OCCUPATIONAL CLASSIFICATION

(2-A or 2-C) DATED 12-27-67

AND HARDSHIP CLASSIFICATION

(3-A) DATED 4-26-68.

B. WHETHER OR NOT APPELLANT'S

LOCAL BOARD ACTED WITHOUT THEIR

JURISDICTION UPON HIS REQUEST

FOR CONSCIENTIOUS OBJECTOR

CLASSIFICATION REQUIRING CAN-

CELLATION OF THE SUBJECT INDUC-

TION ORDER AND REVERSAL OF THE

LOWER COURT'S CONVICTION.

3

HISTORY OF CASE AND TIME WHEN

QUESTIONS PRESENTED

Following a plea of not guilty, JOHN

OLIVER CHALKER, JR., Appellant-Defendant,

was tried and convicted upon a One Count

Indictment for failure to report for and sub-

mit to induction into the United States Armed

Forces (50 U.S. Code Sec. 462(a)). The United

States Court of Appeals for the Fifth Cir-

cuit Case NO. 73-2137, on October 23, 1973,

affirmed PER CURIAM, the decision of the lower

Court without further opinion upon authority

of local rule 21. [U.S. v. Chalker, 337 F.

Supp 920 (M.D. Fla, 1972)]. The issues as

above stated were initially raised before the

Honorable Judge Ben Krentzman, United States

District Court for the Middle District of

Florida, and again urged in oral argument as

well as in Appellant's brief before the Fifth

Circuit Court of Appeals.

COMPELLING REASONS RELIED UPON

FOR ALLOWANCE OF WRIT

A. The lower Court's holding, which

permits a Selective Service local board to

deny a requested classification without a

statement of the reasons upon which the denial

is based, is a deprivation of administrative

procedural due process within contemplation

of the Fifth Amendment of the United States

Constitution. Said procedure prevents mean-

ingful administrative review and requires the

judiciary, should judicial review be sought,

to guess the basis in fact for the adverse

decision and that the Selective Service local

board relied upon that basis in fact (See

Clay v. U.S., 403 U.S. 698 (June 28, 1971)).

The United States Court of Appeals for the

Fifth Circuit in U.S. v. Stetter, supra,

considered precisely this issue, holding

[tt Ae Bp TRAST PRS ELIOT LES ted + cn er eee ee ere er '

}

i

4

that a Selective Service local board is re-

quired to state the reasons for the denial of

a prima facie claim for Conscientious Objector

Classification. The Fifth Circuit Court of

Appeals in the case at bar, refused to extend

this doctrine to prima facie request for oc-

cupational and hardship classifications. The

Third Circuit Court of Appeals in Cale v.

volatile, 465 Fed. 2d 1110 (3 Cir. 1972);

U.S. ex rel Bent v. Laird, 453 Fed. 2d 625

(3 Cir. 1971) considered the application of

said rule to occupational and hardship classi-

fications, concluding that administrative pro-

cedural due process and the facilitation of

judicial review mandatorily require a local

board state the reasons for a decision ad-

verse to a registrant's claim for occupation-

al and hardship classifications. (See also

U.S. v. Strandquist, 5 SSLR 3721 (D. Minn.

1972); U.S. v. Auger, 5 SSLR 3193 (N.D. Cal.

1972)).

B. Appellant-Defendant's claim for Con-

scientious Objector classification was first

submitted after the issuance of an induction

order. The lower Court construed this Honor-

able Court's decision of Ehlert v. U.S., 402

U.S. 99 to exclude said claim from considera-

tion by Appellant-Defendant's Selective Ser-

vice local board. The critical facts how-

ever, demonstrate that Appellant-—Defendant's

Selective Service local board accepted juris-

diction of said claim, considered said claim

upon the merits, denied said claim upon the

merits, refused to cancel Appellant-Defend-

ant's outstanding induction order (the one

upon which he was convicted) and afford him

the only limited administrative procedures

available to a Selective Service registrant

upon the determination of the merits of any

claimed classification. The lower Court con-

cluded that even in this light Ehlert, supra,

precluded local board consideration and would

not prejudice Appellant-Defendant upon his

claim for Conscientious Objector status with-

in the military.

This issue was presented and rejected by

both the First and Third Circuits as well as

the United States District Courts for the

Districts of New york. U.S. v. Alioto, 469

Fed. 2d 721, (1 Cir. 1972); U.S. v. Shomack,

462 Fed. 2d 330 (3 Cir. 1972); U.S. v. as

kowski, 465 Fed. 2d 48 (3 Cir. 1972);

v. KOvarovic, 6 SSLR 3159 (S.D. N.Y. 13 sy,

U.S. Ve Usdin, 6 SSLR 3039 (E.D. N.Y. Dec.,

1972).

The case of Musser v. U.S. (9 C.A., 1972)

at 42 LW 3082 has been docketed for review to

this Honorable Court, which case considers

the application of Ehlert, supra, to post in-

duction order C.O. claims where the Selective

Service local board acted in an ambiguous

nature or considered said claim upon the

merits without affording the limited admini-

strative procedural due process available as

addressed in Mulloy v. U.S. 398 U.S. 410.

CONCLUSION

For the reasons set forth hereinabove,

Appellant-Defendant urges that this Court

accept jurisdiction of this quse and grant

this Petition for Writ of Certiorari to re-

view the judgment of the United States Court

Of Appeals for the Fifth Circuit in United

Re OT I OEE OT TOTO, ee to te - ee ake ee ey 4 rn [

States of America, Plaintiff-Appellee, v.

John Oliver Chalker, Jr., Defendant-Appellant,

NO. 73-2137.

Respectfully submitted,

BRETAN, MARKS, ATTIAS & RASKIN

7200 Bird Rd., P.O.Box 7602

Miami, Florida 33155

(305) 264-7200

BY

JACK P. ATTIAS, Of Counsel

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of

the foregoing were furnished by air mail,

postage prepaid, to the Solicitor General,

Justice Department, Washington, D.C., 20530,

this day of November, 1973, pursuant

to Rule 33, Paragraph 3, of the Rules of the

United States Supreme Court.

JACK P. ATTIAS

(ARRIE Saaetre Oise ek Pe canes x 3 Woe STS eae EE

APPENDIX

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-2137

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN OLIVER CHALKER, JR,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Florida

(October 23, 1973)

Before BROWN, Chief Judge, RONEY and GEE,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.!

‘See N.L.R.B. v. Amalgamated Clothing Workers of America, §

Cir. 1970, 430 F.2d 966.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc. N. O., La

Phin EATS ORT PRETEEN ee “ rae PR RE LD RE SEBO ELLE Oe EE SS ok

8

i IN. THE UNITED STATES DISTRICT COURT FOR THE MIDOLE DISTRICT

i OF FLORIDA TAMPA DIVISION

UNITED STATES OF AMERICA, * :

' Plaintiff, *

vs. * Mo. 71-152 Cr. T.

| JOHN OLIVER CHALKER, JR., *

Defendant *

MEMORANDUM OPINION and ORDER

This is a Selective Service case. The defendant, John

Oliver Chalker, is charged in a one count indictment with fail-

ure to report to his local board for induction in violation of

Title 50, Appendix, U.S.C. § 462 (a). Before the Court is the

defendant's “motion raising defenses" filed pursuant to Rule 12

(b) of the Federal Rules of Criminal Procedure. The Court has

considered the motion and the memoranda submitted relative thereto.

The facts as evidenced by the defendant's Selective Service

file are uncontested. The defendant registered with his local

draft board in Lakeland, Plorida, in 1962. For some sien these

after he held a series of I-A and II-S (student deferment) classi-

fications. While at school at Chipola Junior College the defendant

‘also worked as a part time spray pilot for S & S Air Service located

in Marianna, Florida. In the summer of 1966, the defendant began

full time work as a spray pilot and shortly thereafter he received

a II-A (occupational deferment) from his local board at the request

of S & S Air Service. For some time the defendant's occupation

alternated from spray pilot to student and he received deferments.

in both capacities. In January of 1968 the defendant was class-

“ified I-A. The S & S Air Service again requested that the defendant

receive an occupational deferment. The local board denied this’

request and the defendant requested a personal appearance before

» RG tee 5

Loo

9

the local board. This request was granted. The defendant's

classification was re-opened, but on March ll, 1968, the de-

fendant was again classified I-A.

On March 28, 1968, the defendant requested a hardship

deferment on the grounds that his father was in poor health and

needed his care and support. The defendant's classification was

re-opened and the defendant was reclassified I-A. On April 15,

the S & S Air Service again requested that the defendant be

deferred. The defendant's file was again reopened and the de-

fendant was again classified I-A. The defendant then appealed

and the local board's decision was affirmed unanimously.

On October 1, 1968, the defendant requested a hardship

deferment on the grounds that “I have married a widow with two

children and all three are completely dependent upon me.” At

the request of the local board, the defendant sent the board add-

itional information which indicated that the wife had independent

tax free income of $525 per month.

At this point the National Selective Service Headquarters

entered the picture, apparently as a result of an inquiry by

United States Congressman Robert Sikes of Florida. After securing

some of the information in the defendant's file (but not the

information relating to the wife's independent income) the National

Headquarters notified the State Director that the defendant might

be entitled to a III-A (hardship) deferment. On December 2, 1968,

the defendant's request for III-A classification was reviewed and

the local board found that the information received did not warrant

a re-opening of the defendant's classification. The registrant's

file was forwarded to State Headquarters at the latter's request.

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ee ae . a - Ao So ASN eS ——

10

WHETHER THE LOCAL AND STATE APPSAL BOARDS LOST

JURISDICTION OF THE DEFEMDANT BY FAILING TO STATS

THE REASONS FOR DENYING DEFENDANT'S REQUESTS FOR

II-A, II-C AND III-A CLASSIFICATIONS

The defendant sets forth the broad proposition that

draft boards are required to state specific reasens for the denial

of a requested classification. A myriad of cases are cited in

support of this proposition. It is apparent from a review of those

cases that the defendant has construed a rule applying enly to qn-

scientious objector cases to be a rule of general applicatica.

Correctly stated, the rule is that whenever a registrant

has asserted a prima facie cass of conscientious objection, the

board must state the grounds upon which the rejection of the claim

is based and the reasons in support thereof. The rule was first

enunciated in its present form in Ynited states v, Broyles, 423 F.2d

1299 (4 Cir.1970) and it has been adopted by the Pifth Cirewit in

United States v. Stetter, 445 P.2d 472 (5 Cir.1971). There are,

of course, many reasons for the rule. The scope ef judicial review

in Selective Service cases is limited to the determination ef whether

or not there was a “basis in fact" for the beard's classification

of a registrant. 50 U.S.C. App. § 460(b)(3). Because of the inherently

subjective nature of conscientious objection, it is virtually impossible

in most of those cases to determine whether there was a basis in fact

for the board's determination unless the board precisely states its

reasons for the denial of the classification.

On the other hand, a determination of whether a registrant

is entitled to an occupational or hardship deferment is generally

objective in nature. In most cases, courts can readily ascertain

the reason for the denial of such a claim (if such reason exists)

by an inquiry into the file of the registrant. In such a case, the

Broyles rule does not apply and the draft board ig set requized to

-3-

11

state the precise reasons for its rejection of a registrant's

clain. °

That is not to say that a draft board can reject a prima

facie entitlement to reclassification without reason. There must

be ascertainable reasons for the board's rejection ofa prima

facie claim in order for there to be a “basis in fact" for its

determination. Dickinson v. United States., 346 U.S. 389 (1953).

However, the defendant does not assert that there were no reasons’

for the denial of the claims, but only that those reasons were not

stated by the board. The’mere fact that the local and appeal

boards did not give precise reasons for the deniai of the + efendant's

requests for occupational and hardship deferments does not, of itself,

divest them of jurisdiction,

THE DEFENDANT'S HARDSHIP CLAIM

A. WHETHER THE LOCAL BOARD LOST JURISDICTION OF

THE DEFENDANT BY ITS REFUSAL TO REOPEN THE DEFENDANT'S

CLASSIFICATION. ,

A registrant's classification is to be reopened when the

request for reopening is accompanied by facts which, if true, would

justify a change in the registrant's classification. 32 C.F.R.

§ 1625.2. Thus, the board makes the decision of whether or not

to reopen. If they reopen, then the board must decide whether the

defendant should be reclassified. .

Where a registrant presents a prima facie case for reopen-

ing of his classification which is based upon factual allegations

which are not conclusively refuted by other information in the

registrant's file, the refusal of the draft board to reopen the

classification constitutes an abuse of the discretion vested in

the board. Mulloy v. United States, 398 U.S.410 (1970). Of course,

the failure of a draft board to wmply with the regulations by which

it is governed, will result in its loss of jurisdiction over the

registrant and render its orders to that registrant void. Estep v.

ote

a ET ey AT BT RON Oe : |

12

United States, 327 J.S. 114 (1946).

The defendant contends that the local board improperly

refused to reopen defendant's classificatien when he requested

a hardship deferment after his marriage. The threshold question

is whether the defendant presented the beard with a prima facie

case for reopening his classification. The éefendaat contends

that his allegation that he had “married a widow with two children

and all three are completely dependent on (him),” stated a prima

facie case for reopening. The defendant's allegation did net state

@ prima facie claim. It did not assert facts, but merely asserted

@ conclusion unsupported by facts. Based upon the mere allegation,

the board could have made neither a positive or negative decision

as to whether to reopen the defendant's classification. Therefore,

the board properly requested that the defendant supply it with some

facts in support of his claim so that it could make a decision under

32 C.P.R. § 1625.2. When the facts were supplied they revealed that

the defendant's wife and children had considerable independent tax

free income even if the defendant's wife did not engage in gainful

enptemann. There is no evidence in the file which indicates that

the wife could not work. The defendant's claim was based solely upon

financial hardship. The facts before the board indicated that the

defendant and his wife were actually doing quite well financially

and would continue to do so even it he were drafted. Clearly, the

defendant's request for reclassification was not accompanied by

facts which, if true, would have justified a change in his classificatien.

32 C.FP.R. § 1625.2, Mulloy, supra. Accordingly, the board's refusal

to reopen the defendant's classification was entirely preper.

B. WHETHER THERE WAS A DE-FACTO REOPENING OF

THE DEFENDANT'S CLASSIFICATION UPCM MIS RBQUEST

POR HARDSHIP DEFERMENT.

The defendant contends that the local beard did, in fact,

13

re-open his classification for a consideration on the merits

upon his request for a hardship deferment mentioned above.

When a draft board makes an evaluative determination of the

registrant's claim on the merits without formally re-opening

the registrant's classification, the draft board improperly

deprives the registrant of his right to appeal the decision

under 32 C.F.R. 1625.13. Mulloy, Supra. However, it is obvious

from the language of the regulations themselves that some facts

must be considered before a board can determine whether it will

re-open the classification. 32 C.F.R. 1625.2. Therefore, the

rule in Mulloy only applies where the registrant has made &

“prima facie case for reclassification." Mulloy, 396 U.S. at

416. Here, as previously held, the facts presented to the board

did not constitute a prima facie case for reclassification. More-

over, the board's consideration of those facts did not constitute

a “de facto" re-opening of the defendant's classification, but

constituted the mere initial determination of whether a prima

facie case for re-opening had been stated. That determination

was both proper and mandatory under 32 C.F.R. 1625.2.

C. WHETHER THE LOCAL BOARD IMPROPERLY FAILED TO

ADVISE THE DEFENDANT OF THE APPELLATE PROCEDURE

AUTHORIZED UNDER 32 C.F.R. § 1627.1 WHEN THE APPEAL

BOARD AFFIRMED THE LOCAL BOARD'S DECISION WITHOUT A

DISSENTING VOTE. ;

The defendant was classified I-A on May 6, 1968 by his

local board. He appealed to the Appeal Board which unanimously

affirmed the local board's decision on August 28, 1968. The

defendant concedes that he had no personal right to appeal the

unanimous decision on August 26 under 32 C.P.R. § 1627.3.

However, the defendant contends that it was error for the board

not to inform him of the possibility of appeal under 32 C.F.R.

Ln A I I Ee eg tae ey

Buen

14

1627.1. That section provides:

“(a) When either the State Directer of

Selective Service or the Directer of

Selective Service deems it to be in the

national interest or necessary te eveid

an injustice, he may appeal te the

President from any determination of an

appeal board. He may take such an appeal

at any time.*

It is thus apparent that the right to appeal under § 1627.1

belongs to the Director and not to the registrant. It is enly

necessary that a registrant be informed of his own rights, net

those of others.

After the preceding series of requests fer defermeats

was denied, John Oliver Chalker's odyssey threugh the Selective

Service System continued with a notice to report for inductien

on January 27, 1969. Whereupon, the defendant reqvested and was

granted a transfer of induction from his lecal board in Lakeland

to Marianna, Florida, where the defendant was then residing.

Consequently, the date for reporting fer inductiea was pes tponed

by the transfer to February 25, 1969. On February 20, the lecal

board was informed by the State Headquarters that the defendant's

wife had written a letter to the President of the United States,

The Gsfentent’s indestion ete ves again postponed. The letter set

= many facts which had previously been before the board and also

stated that Mrs. Chalker’s previous husband had been killed in a

plane crash while in the military. On March 11, 1969, the board

found that this information did not warrant a reopening of the

defendant's classification. These findinge were fecwarded to the

State Headquarters and the defendant was ordered te repert for

induction on March 18, 1969.

The defendant failed to report on March 18. Oa April 17,

the defendant was reported as a delinquent and the file was there

after turned over to the United States Attorney's effice. On

September 24, 1969, the United States Attecney declined proseeutien

~ Ps

15

for further administrative handling.

The defendant was ordered to report to his local board ~

for induction on November 10, 1969. On November 7, the local

board received a letter from the defendant stating that he would

not report and requesting a conscientious objector classification.

On November 10, 969, the defendant was sent a Selective Service

System form 150 entitled “Special Form for Conscientious Objector,”

which the defendant completed and returned. On March 30, 1970, the

local board informed defendant that the information received did

not warrant a reopening of his classification because the board

felt the defendant was not sincere in his claim, The defendant's

file was forwarded to the State Headquarters at their request. In

its letter accompanying defendant's file to State Headquarters, the

local board stated: “The board feels that the registrant has

effectively evaded the draft by his concerted efforts to avoid

induction during his draft age years." Shortly thereafter, the

case was again referred to the United States Attorney's office and

this prosecution was instituted.

THE CONSCIENTIOUS OBJECTOR CLAIM

The defendant contends that the local board committed

nunesess errors in its handling of the defendant's conscientious

objector claim which consequently deprived the board of jurisdiction

and rendered its order to report for induction void.

The defendant sets forth three contentions the merit of which

all depend upon whether the defendang'n reques* for reclassification

stated a prima facie case. These contentions are: 1) That the local

board improperly refused to reopen the defendant's classification;

2) That the local board in fact did reopen the defendant's classi-

fication in a de facto manner, — improperly denying defendant

his right to appeal; and 3) That the local board failed to give any

valid reasons for its refusal to reopen the defendant's classifica-

tion.

Ditaies

ae ee ov

16

The defendant did not request reclassification as a

conscientious ebjector until after he had received his aotiee

to report for induction. 32 C.F.R. 1625.2 (b) peovides in part:

". . . the classification of a registrant

shall not be reopened after the local board

has mailed to such registrant an Order te ~

Report for Induction. . .unless the lecal

board first specifically finds that there

has been a change in the registrant's status

resulting from circumstances ever which the

registrant had no ceatrol.”

The scope of what constitutes a prime facie case for

reclassification after the registrant has received his ecder to

report for induction is limited. ‘In order fee there te be 8 prima

facie case at such a late date, the status of the registrant mest

have been changed by circumstances beyond his coatrel.

It is clear from facts suamitted by the defendant himself

that whatever conscientious abjections he may have possessed

crystallized some time prior to the issuance ef his draft notices.

The defendant's statements indicate that his conscientious ebjections

had crystallized while he was in college as a result ef his aasocia-

tion with several of his professors. The defendaat had aot been

in college for almost two years when he received his asoties to

report. In such a case the registrant's status was net changed by

“circumstances beyond his control.” Ubi ta 449

P.2d 122 (5 Cir.1971). Accordingly, the defendant established no

prima facie entitlement te conscientious objector status. Censequently,

the defendant's argument asserting procedural errercs in the handling

of his request for reclassification is totally witheut merit under

the doctrines enunciated in Mulloy, supra and Stetter, supga.*

* It should be noted that the local board did, nevertheless, give

a “reason” for the denial of the defendant's claim, i.e., in-

sincerity. That reason would be sufficient under the

and Stetter rules in light of the abundance ef evidenee in the

defendant's file which tends to support that finding.

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17

Moreover, the decision of the Supreme Court in

Ehlert v. United States, 402 U.S. 99 (1971), indicates that

the local board need not have considered the defendant's re-

quest for a conscientious objector classification even if his

beliefs had crystallized after his induction order was issued.

See also, United States v. Adams, supra. |

The order issued by the local board on October 31,

1969, directing the defendant to report for induction on November

10, (1969, was valid.

ACCORDINGLY, it is

ORDERED and ADJUDGED:

i. The foregoing shall constitute findings of fact

and conclusions of law.

2. ‘The defendant's “motion raising defenses” filled

pursuant to Rule 12 (b) of the Federal Rules of Criminal Procedure,

is hereby DENIED.

3. The Clerk of the court is directed to set tmis case

for trial.

2M

DONE and ORDERED this _“/ day of Jenuery,] 1972.

BEN KRENTZMAN

Aer CT JUDGE

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ea eee ee ea

i8

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT

OF PLORIDA TAMPA DIVISION

UNITED STATES OF AMERICA, °

Plaintiff, bd

vs. e wo. 71-152 ce. ?.

ORDER

This came before the Court upon defendant's motion for

&@ rehearing of the defendant's motion raising defenses. The

Court denied the defeidant's motion raising defenses by its

order of February 4, 1972. The crux of the defendant's motion

for rehearing involves the issue of whether the “reasons for

decision" rule of the case of United States v. Broyles, 423 F.

24 1299 (4 Cir. 1970), which has been adopted ia this circuit

in United States v, Stetter, 445 ¥.24 472 (5 Cir. 1971) is one

of general or limited application.

It is the defendant's contention that the Beoyjes rule

is one of general application. That may well be true under the

new Selective Service Regulations §§ 1623.4(c), 1624.6 and

1626.24(i). ilowever, under the regulations in effect at the

time the defendant was classified, a statement of reasons for

the denial of a requested classification was required only where

the registrant had assegsted a prima facie case of conscientious

objection, |

Defendant cites in support of his position the case of

United States v. Reesg, 331 F. Supp.1068 (N.D.Ga.1971), which

interpreted Gigy v, United States, 403 U.S.696 (1971) te require

that a local board must give a statement of reasons in denying

@ conscientious objector classification even where the registrant

had not set out a prima facie claim, Whether that is a correct

Gi > er ermrenrreme -

iS

statement of the law in light of Clay is irrelevant here.

Both Clay and Reese were limited to cases of conscientious

objection. those cases do not gupport the defendant's position

that a statement of reasons was required when his draft board

denied his requests for II-A, II-C and III-A classificatigns.

As to the defendant's conscientious objector claims, even if

it is assumed that the holding in Reese is correct and that

the reasons given the defendant for the denjal of his conscien-

tious objector claim were inadequate, Ehlert v. United States,

402 U.S.99 (1971) would still control the case at bar. That

case indicates that the local board need not have considered

the defendant's request for a conscientious objector classi-

fication even if his beliefs had crystallized after his

induction order was issued. Accordingly, it is

ORDERED:

Defendantjs motion for rehearing and oral argument is

hereby DENIED.

DONE and ORDERED at Tampa, Plorida, this JO _ day of

March, 1972.

LEN KRESITZMAN

BEN KRENTZMAN

UNITED STATES DISTRICT JUDGE

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THE UNITED STATES DISTRICT COURT POR THE MIDDLE DISTRICT

OF FPLORIDA TAMPA DIVISION

UNITED STATES OF AMERICA, e

Plaintiff, e

vs. * No. 71-152 Cr. T. K

JOHN OLIVER CHALKER, JR., e

Defendant *

e

QRDER

Once again this Court is requested to reconsider its

previous order denying the defendant's motion raising defenses.

It should be noted that upon each occasion that such request

has been made, the Court has, in fact, reviewed the file in

this case, reviewed its prior orders and opinions and reviewed

the memoranda and cases cited by the parties herein. Therefore,

each time the defendant hasmoved for “re-hearing", that motion

has, as a practical matter, been granted. But on each occasion

the Court has determined, upon a full review of this case as

mentioned above, that the Court's order of February 4, 1972,

should not be changed.

pon this occasion, the defendant cites the cases of

Cale v. Volitile, 5 S.S.L.R. 3717 (3rd Cir.1972) and United States

v, Strandguist, 5 S.6.L.R. 3721 (D.Minn.1972) in support of his

continuing argment that the “reasons for decision" rule of

United States v. Broyles, 423 F.2d 1299 (4 Cir.1970) which has

been adopted in this circuit in United States v. Stetter, 445 P.2d

472 (5 Cir.1971) is a rule of general application.

The defendant contends that a statement of reasons should

have been given for the denial of his requests for a classifica-

tion of II-A or II-C dated December 27, 1967, and request for

III-A classification dated March 28, 1968. The defendant has

rene

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cited several cases which have applied the “reasons for

decision" rule on a general basis. As mentioned in the

Court's Pebruary 4, 1972 opinion, this Circuit has not extended

the rule beyond those cases where a registrant asserts a prima

facie case of conscientious objection. Stetter, supra. On the

other hand, this Circuit has not precluded such an extension.

This Court in its Pebruary 4 opinion indicated why the

“reasons for decision rule" should not be one of general

application. After considering the cases cited by the defendant,

the Court is not persuaded that it should change its opinion.

Accordingly, defendant's motion raising defenses is again

denied.

DONE and ORDERED at Tampa, Florida, this — day of

December, 1972.

Slee OX ocr bermaue

BEN KRENTZMAN

UNITED STATES DISTRICT JUDGE