# Petition for Writ of Certiorari — Gateway Center Corp. v. Merriam > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0744%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 911 ## Text 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. -2- 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. -9- 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 -10- 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 ro om ) = 20 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 21 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0744%3A1. Public record. Not legal advice.