Appendix — Livingston v. United States

Supreme Court brief1973

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Opinion of the Court of Appeals en Banc,

Remanding Petitioner’s Case to the District Court

UNITED STATES COURT OF APPEALS

For tHe Tuirp Circuir

No. 71-1022

—<_>—

Unitep Staves oy America

—_V,—

Tuomas Lee Livinasron,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

~—_

Argued October 5, 1971

Before McLavcuiin, Ganey and Apams,

Circuit Judges

Reargued en bane January 12, 1972

Before Srirz, Chief Judge, McLavGuuin, Ganey,*

Van Dusen, Aupisert, ApAMs, Gippons, Rosenn,

Rosen, Hunter, Circuit Judges

Opinion oF THE CouRT

(Filed May 2, 1972)

Serrz, Chief Judge.

Defendant appeals a judgment of sentence imposed for

failure to report for induction into the United States

* Judge Ganey participated in the hearing and consideration of

this appeal but died before final decision,

ae.

Army. 50 App. U. S. C. §462. Several contentions are

raised as grounds for setting aside defendant’s conviction.

However, in view of our disposition of this appeal we need

consider only the issue of whether it was permissible for

the district judge to condition his grant of defendant’s

request for a non-jury trial on defendant’s waiver of find-

ings of fact and conclusions of law.

Prior to trial defendant requested that his case be tried

to the court without a jury. Noting that “by waiving a

jury, [defendant was] asking the judge to find the facts

as well as the law,” the court declined to grant the re-

quest “unless [the defendant] ... agree[d] that the Court

[would] not have to find findings of fact and conclusions

of law.” Defendant acceded to this condition and the case

was heard without a jury. At the close of all the evidence

the court merely entered its order finding defendant

“guilty.” This appeal followed.

We note at the outset that the district court conditioned

its grant of defendant’s request for a non-jury trial on a

waiver by him of both findings of fact and conclusions of

law. The applicable rule, however, requires only that the

court “make a general finding and . . . in addition on re-

quest find the facts specially.” Rule 23(¢), F. R. Crim. P.

Detailed legal conclusions are, of course, appropriate in

non-jury criminal proceedings, particularly when the facts

of a case suggest several legal principles which the trial

judge might have invoked, Cf. Canon 19, The Canons of

Judicial Ethics of the American Bar Association, See also

United States v. Rivera, 444 F.2d 136, 138 & n.J5 (2d Cir.

1971). We do not here decide, however, whether the facts

of this case mandated the court to formulate conclusions

of law. Rather, we conclude only that the district court

erred when it conditioned defendant’s request for a non-

jury trial on a waiver by him of his right to request that

the court find the facts specially.

Findings of fact in non-jury criminal cases primarily

aid the defendant in preserving questions for appeal and

aid the appellate court in delineating the factual bases on

which the trial court’s decision rested. See 8 Moore’s

Federal Practice (Cipes, 2d ed.), Para. 23.05. Indeed, it

has been suggested that findings under Rule 23(c) are a

prerequisite to preserving for appeal issues concerning the

significance or existence of a particular fact. See Wilson

v. United States, 250 F.2d 312, 325 (9th Cir, 1957); Cesario

v. United States, 200 F.2d 232, 233 (1st Cir. 1950). Find-

ings of fact are essential to proper appellate review of a

conviction resulting from a non-jury trial. This was an

important consideration when the present text of Rule

23(¢c) was promulgated, altering pre-existing law and re-

quiring the trial judge to make special findings, if re-

quested. See Barron & Holtzoff, Federal Prac. & Proc.,

§2124 (Rules ed.). Compare United States v. Weber, 437

F.2d 1218, 1221 (7th Cir, 1971) with Lofland v. United

States, 357 F.2d 472, 477 (%th Cir. 1966). Rule 23(e) en-

titled the defendant to request and receive special findings.

Howard v. United States, 423 F.2d 1102, 1104 (9th Cir.

1970).

Of course, defendant here at no time requested special

findings. However, such a request indeed would have been

futile in view of the pre-trial waiver imposed upon de-

fendant by the court. Cf. id, at 1104. The defendant was

therefore under no obligation to request special findings.

The district court cannot, by procuring such a pre-trial

waiver, avoid its responsibility to make findings of fact

when presented with a timely request. As the court said

in Howard, supra: “The defendant's right to such findings

is not trivial, and his exercise of that right is not to be

impaired by the exertion of pressure from the court.”

It remains to be considered what relief to accord the de-

fendant. We have reviewed the record and find that credi-

bility issues are not of such pervasiveness as to require a

new trial. We therefore think that the district judge who

tried this case is in a position fairly to make the findings

required by Rule 23(c) before imposing sentence.

The judgment of sentence based on the guilty verdict is

vacated and the case remanded to the district court for

further proceedings in accordance with this opinion.

Judge McLaughlin concurs in the result.

Avams, Dissenting.

I respectfully dissent from the holding of the majority

opinion because I do not believe that what the district court

did with regard to waiver of the jury trial constitutes plain

error.

At the very beginning of the trial,’ the defendant moved

to waive the jury. The district judge informed the defen-

dant of the advantages of a jury trial and of defendant’s

right to demand a jury. The judge explained that by waiv-

ing a jury trial, the defendant would be relinquishing the

right to a unanimous verdict and would be “asking the

judge to find the facts as well as the law.” The following

colloquy then ensued:

“The Court: * * * Do I understand that is what you

want to do?

The Defendant: That is true, sir.

* This case was tried in June, 1970. Thus, the findings mandated

by the majority’s decision will have to be made by the district court

from a written record almost two years old.

sean ERA Ce ides BOY ARMERS EEL 4 Le

The Court: Very well. The Court doesn’t need to ac-

cept such a responsibility? and the Court will not

unless you also agree that the Court will not have to

find findings of fact and conclusions of law.

[Defendant’s Attorney]: We will agree to that.

The Court: You are satisfied to do that?

[Defendant’s Attorney]: Yes.

The Court: Are you satisfied, Mr. Livingston?

The Defendant: I am.

The Court: That is your own wish?

The Defendant: That is my own wish.”

Rule 23(c) of the Federal Rules of Criminal Procedure

provides: “In a case tried without a jury, the court shall

make a general finding and shall in addition on request

find the facts specially. * * *” (Emphasis added.) <Ac-

cordingly, absent a request, defendant would not have been

entitled to such findings. No such request was ever made,

and in addition, defendant never objected in any way to

the condition imposed by the court.

Defendant seeks to circumvent the fact that he made no

objection by arguing that to have objected would have sub-

jected him to the risk of incurring the anger of the trial

judge. But nothing in the record indicates that the trial

judge was so emotional with regard to the issue of special

findings that he would have reacted in a manner adverse

to defendant if the defendant had specifically requested

that findings he made, or objected to the statement that

the judge was not going to make findings. Rather, the

record clearly demonstrates that defendant made an ad-

vertent decision that it would be to his advantage to pro-

ceed with a trial before the court, even without special

findings of fact. Later, after he was adjudged guilty of the

3 Apparently the district court was relying on Singer v. United

States, 380 U.S. 24 (1965).

ARATE AA BE UAE ER RA TTA dy MC

offense charged, the defendant still appeared satisfied

with his election, for he did not raise the issue of the

conditional waiver of a jury trial in his post-trial motions.

The venerable but universal rule requiring parties to

call objectionable rulings to the attention of the trial judge

before the matters may be raised on appeal is not based

upon an anachronistic reliance on ancient and obsolete

formalisms, Instead, the rule serves a real and vital pur-

pose in that it allows trial judges to avoid or correct poten-

tial errors before they occur or while they can still be

readily remedied. If the defendant objected to the alter-

native posed by the district court’s condition, the district

court might well have allowed the waiver of the jury with-

out the imposition of any conditions. Had the district

court declined to modify its position, then the question

preserved for appeal would be whether the district court

abused its discretion by conditioning a trial before the

court on the waiver of findings. But where an objection is

not made, we may reverse a district court only where plain

error has occurred, See Fed. R. Crim. P. 52(b). As things

stand now, the question before us is whether plain error

is committed when a defendant, upon advice of retained

counsel, waives special findings in order to obtain a non-

jury trial.

In the context of this case, it does not appear that plain

error has been committed. Defendant made an intelligent

and knowing decision to waive a jury trial and to accept

a general verdict from the district court. Obviously de-

fendant and his counsel felt, at the beginning of the trial,

that this course of action was more advantageous than pro-

ceeding before a jury. Even after the guilty verdict was

announced, defendant was not dissatisfied with his election.

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AA! ORR a 2 z

Only on appeal, and as an apparent afterthought, has the

issue been raised. To grant relief in these circumstances

plays “fast and loose” with the appellate process, and sets

a precedent to which I cannot subscribe. Had defendant

been uncounselled or incompetently represented, or had the

colloquy with the district judge revealed that the judge

would be arbitrary, abrupt, peremptory, unyielding, or un-

compromising, it might well be that the judge had com-

mitted plain error, But such facts are not disclosed here, °

and the record does not admit to any such inferences.

It is not without significance that the rule on findings in

criminal proceedings is substantially different from the

rule on finding in civil proceedings. The framers of the

rule pertaining to civil proceedings have made it manda-

tory for trial judges sitting without a jury to make detailed

findings of fact and conclusions of law. See Rule 52, Fed.

R. Civ. P. The draftsmen of the criminal rule, on the other

hand, have not made such a procedure obligatory, but have

provided that in criminal matters findings be made only

upon request.

It is common knowledge among trial judges that the

task of making detailed findings in either civil or criminal

cases is often tedious, and one that frequently consumes

as much time as might otherwise be saved in the course

of dispensing with a jury trial, Requiring such findings

may well have a negative effect on the willingness of trial

judges to conduct non-jury criminal trials.

Our function is to correct error which affects substantial

rights of litigants. It is beyond our province to sit back

like school teachers and grade every ruling of a lower court

—produced often with great dispatch and during the strain

and tension of a trial—as if it were a test paper, Although

we are a superior court in the judicial schema, we do not

LPN Oe

SREP TE OO et Ie Pore

have license to substitute our judgment for that of the

lower courts absent prejudicial error. To reverse a ruling

made in good faith with which counselled parties were

satisfied, in the absence of plain error, displays an insensi-

tivity to the realities of litigation in the judicial system.

As noted above, the direct impact of today’s holding will

be to discourage trial judges from granting non-jury trials

in criminal cases. An equally disturbing, although less

direct, impact might be to encourage lawyers to refrain

from voicing objection to questionable decisions in the

hope of luring district courts into reversible error. Litiga-

tion is an attempt to arrive at truth, not a game of wits in

which the participants are attorneys and judges and the

prize is reversal.

For all these reasons, I respectfully dissent from the

majority’s holding in this case.

— PDD A ELE, DP a ene Fw

Opinion of the District Court Adjudging

Petitioner Guilty

UNITED STATES DISTRICT COURT

For THE Mippte Disrricr or PennsyLvaNia

Criminal No. 14685

—<-

Unitep States or AMERICA

Vv.

Tuomas Lee Livineston

Tuomas Lee Livinaston

The defendant, Thomas Lee Livingston, was indicted by

a grand jury in September 1969 for the willful violation

of 50 App. U.S.C. § 462. The gravamen of the offense is

the failure to report for induction into the armed forces.

The defendant waived trial by jury and this court found

him guilty as charged. The Court of Appeals for the

Third Circuit remanded the case to this court for findings

of fact pursuant to Rule 23(c) of the Federal Rules of

Criminal Procedure.’

I. Fiypincs or Facr?

1. Thomas Lee Livingston was born February 6, 1944

in the City of York, York County, Pennsylvania.

* Rule 23(c) of the Fed. R. Crim. P. provides: “In a case tried

without a jury the court shall make a general finding and shall in

addition on request find the facts specially. If an opinion or memo-

randum of decision is filed, it will be sufficient if the findings of

fact appear therein.”

* Defendant’s proposed findings of fact do not include any refer-

ence to events prior to May 1, 1966.

10a

2. Defendant is a registrant of Local Selective Service

Board No. 173, York, Pennsylvania.

3. Based upon a completed Classification Questionnaire

(SSS Form 100), the defendant was classified 2-S. The

classification occurred March 12, 1964 based upon defen-

dant’s status as a full-time student at Pennsylvania State

University.

4. The 2-S classification is a deferment which at that

time was ordinarily made for full-time college students.

5. At the time of his March 12, 1964 classification de-

fendant gave his address as 809 Center Street, Mt. Wolf,

Pennsylvania.

6. Defendant indicated in his Form 100 response that

in addition to being a student he was a member of Arm

R.0O.T.C. and not a conscientious objector.

7. Defendant received and completed a Request for Cur-

rent Information prior to Pre-Induction Examination or

Induction (Form 55 P-2617). The form was returned some-

time in November 1965.

8. The Form SS P-2617 indicated no change of address

and stated defendant was employed as a lab technici:

(since January 1965).

9. Defendant was classified 1-A on December 7, 1965 and

a Notice of Classification (SS Form 110) was sent to him.

10. Defendant did not appeal the reclassification.

erm dated

—

lla

11. Defendant was ordered to report for a physical ex-

amination prior to induction. On April 6, 1966 he was found

to be physically suitable for service.

12. On April 19, 1966 defendant was ordered to report

for induction on May 10, 1966.

13. On May 2, 1966 Local Board 173 received a request

from the defendant for an occupational deferment as a

member of VISTA.

14. Local Board 173 sent a request to the defendant for

verification of his status as a VISTA volunteer. The re-

quest was addressed to 809 Center Street, Mt. Wolf, Penn-

sylvania.

15. On May 9, 1966 Board 173 received confirmation

from VISTA headquarters regarding defendant.

16. On May 10, 1966 defendant failed to report for in-

duction.

17. On July 1, 1966 Local Board 173 declined to re-

classify the defendant and he was so notified.

18. In September 1966 the defendant sought a Form

SSS-150 for status as a conscientious objector. The request

was not acted upon.

19. On January 17, 1967 defendant was reclassified 2-A

as a result of his VISTA work. The reclassification was a

result of a recommendation by the State Selective Service

Headquarters.

12a

20. On March 4, 1967 defendant notified the local board

that he had changed his address to 3700 W. Grand Avenue,

Chicago, Illinois.

21. Defendant completed VISTA service on June 6,

1967. Local Board 173 learned of the completion when |

defendant returned a Current Information Questionnaire f

(SSS Form 127) on July 31, 1968.

22. On March 19, 1968 defendant was reclassified 1-A. ;

A new classification card (SSS Form 110) was mailed to ;

3700 W. Grand Street, in Chicago, Illinois, and returned

marked “Addressee Unknown.” The notice was mailed to

defendant’s Mt. Wolf address and not returned. No appeal

was taken.

23. On April 23, 1968 defendant was ordered to report

for induction on May 16, 1968.

24. On May 16, 1968 the defendant failed to report for

induction.*

II. Concrvustons or Law

This court found the defendant guilty after his non-

jury trial and finds no reason to alter that finding.

The defendant cites United States v. Turner, 421 F.2d

1251 (3d Cir. 1970) as controlling on the matter of con-

scientious objector (C.O.) status. On first reading, Turner

appears to be a persuasive case directly on point. However,

a close study reveals some crucial differences between that

case and the instant one.

’ Additional conclusions, surrounding the preliminary findings of

fact, are incorporated in the text.

PRS Ta Ay cal Fema e arr

13a

In Turner the defendant promptly registered with his

local board on attaining age 18. In July of 1965 he sought

a C.0. Form (SSS No. 150). It was not until November

of that year that defendant Turner was ordered to report

for a physical. The day before he was due for the exam-

ination he appeared at the local board and explained that

he was a conscientious objector and would not submit to

the examination. He explained that his parents had for-

bidden him to previously pursue the C.O. status, but that

he wished to do so anyway. The board clerk asked for

a written explanation which he prepared, stating himse!"

to be an Islam. Defendant failed to report for the physical

thereby subjecting himself to immediate induction.

Contrasted with Turner, the defendant in the instant

case was a delinquent registrant for failing to report for

induction in May 1966, when he first sought C.O. status.

As a host of cases‘ note, including the court in Turner, a

request for C.O. status after an induction notice does not

give rise to a right to reopen classification. The instant

defendant makes a great deal out of the board’s failure

to act on his request for C.O. status after his failure to

appear for induction. However, the cases cited in Note 4

herein clearly hold that no right exists for such action.

Additionally, the defendant’s request was not acted upon

since a local board loses all jurisdiction when a registrant

becomes delinquent (Transcript, at 109-110) and the State

Selective Service office obtains control. It was that office

in fact which ultimately recommended to the local board

to classify the defendant 2-A as a result of his VISTA

*United States v. Reese, 432 F.2d 57 (2d Cir. 1970) ; United

States v. Smith, 423 F.2d 559 (9th Cir. 1970) ; United States v.

Lowell, 437 F.2d 906 (9th Cir. 1970).

ld4a

work. The defendant gladly accepted the 2-A classification®

and pursued his request for C.O. status no further.

It is more than a mere technicality to determine what

significance to place on defendant’s failure to report in

1966. As noted, supra, his request for C.O, status followed

the 1966 failure to report and preceded the 1968 failure

to report.

Although the 1968 incident is at issue here, it is signifi-

cant to this court that the request for C.O. status preceded

the defendant’s successful reopening of classification. That

reopening resulted in a change from 1-A (imminent draft

material) to 2-A (occupational deferment).

At the expiration of his 2-A status, defendant failed to

inform his local board of his occupation change. It was not

until a year later, upon the board’s inquiry, that the defen-

dant revealed his job change. Based on his non-deferable

employment, defendant’s classification went from 2-A back

to 1-A, a change he made no attempt to appeal.® Based on

5It should be noted that the request for an occupational defer-

ment came on May 2, 1966, almost three weeks after his April 19,

1966 notice for induction. Therefore, defendant was not exercising

a right in seeking reclassification, but enjoying a privilege extended

by the State Selective Service Office. It should be further noted

that 32 C.F.R. § 1625.1(b) requires the registrant to notify the

board of a desire to appeal his classification. Defendant clearly

accepted the 2-A and said nothing about appealing for a C.O. status.

It is true that once a registrant seeks a C.O. form, the board has

the duty to act. It is equally important, however, that a registrant

must seek an appeal from a classification. In the instant case

(even assuming the board to have had control over the delinquent

defendant), the defendant had two classification “requests” before

the board. Once he was assigned one of those classifications, then

a desire to have the other would necessitate an appeal. Instead,

the defendant accepted one and impliedly discarded the other, All

the above assumes the board to have had control of the C.O. matter,

a conclusion this court does not share. Therefore, regardless of the

jurisdiction question, defendant's argument is not viable.

® Defendant’s suggested conclusion of law (No. 35) merely asks

the court to find the failure to appeal “justified in light of all the

evidence,”

—

15a

his new 1-A classification he was then ordered to report.

The transcript makes quite clear that the local board had

jurisdiction over the defendant on two, interrupted occa-

sions. Their jurisdiction was broken by the 1966 failure to

report, followed by a renewal of the jurisdiction when the

State Board recommended the 2-A classification, Between

events, the defendant sought C.O, status from a board which

had lost jurisdiction over him by his willful failure to sub-

mit to induction.

Additionally, it appears quite clear to this court that

the request for an SSS Form 150 was part of the defen-

dant’s first attempt to avoid induction, That attempt was

abandoned when he won a deferment (See n. 4).

The court therefore rejects the defendant’s argument

that due process requirements were violated by the board's

failure to forward the SSS Form 150, requested prior to

receiving and accepting a favorable 2-A classification.

Defendant also argues that he never was notified of |:'

order to report for induction and therefore did not willfully

refuse to submit.

As the defendant’s pre-trial briefs conceded, the question

of whether the defendant received notice of the 1968 in-

duction date is one for the trier of fact. No overriding

legal questions present themselves in such a fashion as

to be controlling.

This court naturally takes judicial notice of Selective

Service regulations, among them the requirement that the

registrant inform the local board of his mailing address.

An examination of the entire transcript reveals a highly

cavalier attitude by the defendant, both as to change of

address notification and changed job status.

Defendant Livingston was notified by mail that he had

been reclassified 2-A. That notice was sent to defendant’s

Mt. Wolf, Pennsylvania address (his parents’ home).

16a

On April 6, 1967, subsequent to reclassification, the local

board received a change of address notice from defendant

(dated March 4). The letter also referred to his VISTA

job and that his occupation remained the same (Transcript,

at 54). This court, as the fact finder, believes it can fairly

and reasonably interpret the March 4 letter as revealing

the defendant’s knowledge of reclassification.

The defendant makes a great deal of the fact that on

May 16, 1966, defendant’s mother informed the board that

her son was unavailable at the Mt. Wolf address. She

apparently informed the board that the defendant could

be reached through VISTA headquarters. This contention

is irrelevant since the defendant himself informed the

board of his Chicago address, then moved away without

notifying the board. To argue that the May 16, 1966 letter

is evidence that the board should have avoided the Mt. Wolf

address is absurd.

On May 17, 1966 the board received a letter from the

defendant regarding VISTA. The letter was addressed

from 809 Center Street, in Mt. Wolf. In any event, by

April 1968 the defendant had been fully two years out

of the employ of VISTA (without informing the board

until one year after leaving VISTA). The board had al-

ready learned that defendant was no longer at the Chicago

address (no new change of address notice was sent by

defendant) (Transcript, at 55). The local board was there-

fore faced with the following facts:

1. A 1-A registrant due for induction.

2. A mailing address which no longer applied to the

registrant (3700 W. Grand Avenue, Chicago, Ill.)

3. A registrant who had failed to supply a new ad-

dress.

s-me Se

17a

4. A home address in Mt. Wolf, Pennsylvania, from

which the defendant had written on numerous oc-

casions,

5. A Mt. Wolf address to which the board had sent

notice of the 2-A classification (and inferentially

been responded to) and to which it had sent a 1-A

classification which was not returned (as it had

been from the Chicago address).

The local board simply sént the induction notice to the

Mt. Wolf address as the only remaining alternative. To

allow the defendant to fail to report an address change,

then rely on the failure as an excuse to avoid induction

would be to reward the doubly delinquent.

It is true that in United States v. Bowen, 414 F.2d 120°

(3d Cir. 1970) the court rules 32 C.F.R. § 1621.11 unconsti-

tutional. That regulation created a conclusive presumption

that anything mailed to a registrant’s last address was

received and understood by him. This court does not rely

on any such conclusion. Instead, as the finder of fact, this

court merely need determine from the facts if the defen-

dant did receive the notice.

This court finds that the defendant did in fact receive

the induction notice and that the court is convinced beyond

a reasonable doubt of such receipt. |

The defendant has also attacked the composition of the |

}

board and the authorization procedure for the signing of

induction notices.

Evidence at trial indicated that at least one board mem-

ber may have lived outside the community where the board

was located. However, all board members were resident:

of the County in which the board was located. As 32 C.F.R.

18a

§ 1604.52(c) notes, only county residence is mandatory.

Such mandatory residence was satisfied in the instant case.

Defendant argues that United States v. Bryan, 2 SSLI:

3308 (W.D. Pa. 1969) is persuasive regarding authority

to sign inductions orders. Bryan is off-point on at least

two crucial issues. The defendant in that case was two

days short of the maximum age for induction. His local

board failed to meet at all, contrary to 32 C.F.R. § 1642.13,

regarding the defendant’s delinquency.

In the instant case the record is replete with evidence

regarding meetings of the board which concerned the de-

fendant and others.

In Bryan the local secretary had issued a delinquency

report without any authority whatsoever. In the instant

case, however, the secretary (or clerk) was authorized to

sign documents. That authorization was granted pursuant

to 32 C.F.R. § 1604.59. The board made such authorization

on October 4, 1948 and again on April 16, 1968. Addi-

tionally, in Bryan the secretary issued the delinquency rul-

ing; whereas, in the instant case, the secretary merely

signed the order for induction. The court therefore rejects

defendant’s arguments regarding the composition of the

board and the authority of the secretary to sign the orders.

For the foregoing reasons, this court finds the defendant,

Thomas Lee Livingston, guilty as charged beyond a reason-

able doubt of violating 50 App. U.S.C. 4 462.

R. Drxon Herman

United States District Judge

Middle District of Pennsylvania

Dated: July 19th, 1972.

19a

Opinion of the District Court Denying Petitioner’s

Post-Trial Motions

UNITED STATES DISTRICT COURT

For THE Mipp_e District or PENNSYLVANIA

Criminal No. 14685

—<——

Unitep States oF AMERICA

—_—V—

Tuomas LEE LivincsTon

MEMORANDUM AND ORDER

Before the court is defendant’s motion to vacate the

order of August 3, 1972 denying defendant’s post trial

motions on the ground that said motions were not timely

filed within 7 days after the verdict or finding of guilty,

as required by Rules 33 and 34 of the Federal Rules of

Criminal Procedure.

Defendant contends that the 7-day period proscribed by

Rules 33 and 34 is enlarged to 10 days by Rule 45(e) of

the Federal Rules of Criminal Procedure.’ This contention

is without merit. Rules 33 and 34 provide that the motions

for new trial and in arrest of judgment be made within

7 days “after verdict or finding of guilty,” not “after the

service of a notice or other paper upon him.” Cf. Crow v.

United States, 203 F.2d 670 (9th Cir. 1953).

1 Rule 45(e) provides: “Whenever a party has the right or is

required to do an act within a prescribed period after the service

of a notice or other paper upon him and the notice or other paper

is ae upon him by mail, 3 days shall be added to the prescribed

period.’

PUREE ME ORNL te we NO er Ee NPI BAB 18 de’

20a

As the verdict of guilty was rendered on July 19, 1972,

it is clear that the 7-day period began the following day

and expired on July 26, 1972, two days before defendant

filed his post trial motions.

Assuming arguendo that defendant’s motion to vacate is

valid, we turn to the merits of his motions for a new trial

and in arrest of judgment. Defendant has based the merits

on one issue, what he terms a gross factual error by the

court. The crucial factual determination is whether the

defendant ever received his 1968 induction notice, This

court found that he had received the notice and thereafter

failed to report for induction. Without belaboring issues

covered in the court’s July 19, 1972 memorandum, it suffices

to say that the draft board did not know defendant’s where-

abouts when it mailed the induction notice. The board

secretary testified that the April 23, 1968 notice was mailed

to a Chicago address, then returned as “Address unknown”.

She testified that it was then mailed to defendant’s original

home address in Mt. Wolf, Pennsylvania.

In his post trial motion defendant points to an apparent

error in his Selective Service record signed by the board

secretary, Mrs. Grove. In the record is a reference to an

April 2, 1968 induction notice being mailed to defendant

in Mt. Wolf, This error, defendant contends, is the source

for the mistaken notion that the April 23rd notice was

ever forwarded to Mt. Wolf.’ At best, defendant has found

an error which goes to credibility. No reference to the

apparent error appears upon re-examination of the record.

However, numerous references do arise in the record re-

garding Mrs. Grove’s testimony that the April 23rd notice

was re-mailed to Mt. Wolf (see, e.g, Transcript, at 55).

* Defendant argues that the April 2 reference was to the mailing

of a draft re-classification, not an induction notice.

sti A Ree Se OT

xa, Th

rae Se We ee oe

ee a ee ee 2 »

21a

As Mrs. Grove noted, “I have personal knowledge of the

entire file’ (Transcript, at 14). The court therefore has

her testimony of personal knowledge combined with state-

ments (uncontroverted at trial) that the induction notice

was sent to Mt. Wolf. From that and other evidence, this

court concluded that the defendant had indeed received the

induction notice.

In any event, defendant is pointing only to an area of

discretion vested in the fact finder. Nothing regarding the

post trial motion in any way alters the court’s conclusions

as set down in its July 19, 1972 memorandum.

Therefore, assuming arguendo the timeliness of the mo-

tions involved, they are denied. For reasons cited herein,

the request to vacate the court’s order is denied.

R. Drxon HERMAN

United States District Judge

Middle District of Pennsylvania

Dated: August 17th, 1972.

22a

Judgment of the Court of Appeals Affirming

Petitioner’s Conviction

UNITED STATES COURT OF APPEALS

For tHe Tuirp Circuit

No. 72-1994

Unitep States or AMERICA

—V,—

Tomas Ler Livingston,

Appellant.

(Middle District of Penna.—Criminal No. 14685)

Submitted Under Third Circuit Rule 12(6) March 20, 1973

Before Seitz, Chief Judge,

Aupisert and Apams, Circuit Judges.

JUDGMENT ORDER

After considering defendant’s contentions that: (1)

there was insufficient evidence to prove that he willfully

failed to report for induction because the Government

failed to prove defendant actually received an induction

notice; (2) the failure to provide a Form 150 for claiming

Conscientious Objector status after a request in writing

violated both Selective Service law and defendant’s right

to Fifth Amendment Due Process; (3) deviation from the

2 alte gs age ga, eh ST EE

a A aL OE Rife” a Sas ot

23a

order of call invalidates his subsequent induction order;

(4) summary disposition of his file along with those of

524 other registrants in four and one-half hours denied

defendant due process; and (5) the district court errone-

ously refused to consider defendant’s posttrial motions,

and finding such contentions without merit, it is

OrpERED anp ApJupGED that the judgment of the district

court is affirmed.

Dated: March 21, 1973

24a

Order of the Court of Appeals Denying Petitioner

a Rehearing en Banc

UNITED STATES COURT OF APPEALS

For tHe Tuirp Circuit

No. 72-1994

Unitrep States oF AMERICA

—_—V—

Tomas Lee Livincston,

Appellant.

Sur Petition ror REHEARING

Present: Serrz, Chief Judge,

Van Dusen, AupiserT, ADAMs, Gippons, Rosenn, Hunter,

and WEIs, Circuit Judges.

The petition for rehearing filed by

Appellant

in the above entitled case having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court in bane, the petition

for rehearing is denied.

By the Court,

Seitz

Chief Judge

Dated: April 16, 1973.

Local Board’s Minutes of Action

Dates

2/13/64

Mar 12 1964

4/29/64

Ocr 20 1964

Oct 20 1964

Nov 10 1965

11/22/65

Dec 7 1965

Dec 23 1965

4/ 8/66

Apr 19 1966

5/10/66

5/17/66

7/ 1/66

7/19/66

8/16/66

9/19/66

Minutes of Actions by Local Board and Appeal Board

and on Appeal to the President

SSS-109 from Penna State Univ.

Classified Class 2-S until Oct 1964

SSS-110 mailed reg.

SSS-109 from Penn State

Classified Class—2S Oct 1965

SSS Form 110 mailed

SSSP-2617 (Rev.) mailed

SSSP-2617 received—single—labor

Classified Class—1-A

SSS Form 110 mailed

SSS Form 223 mailed

DD-62 mailed—found acceptable for induc-

tion

SSS 252 mailed 5/9/66—Letter filed by

Vista

Failed to report for induction

File reviewed by local board—not in favor

of reopening class.

Notified registrant the board is not in

favor of reopening classification.

Letter on file from registrant—copy of let-

ter fwd’d Gen. Gross.

File returned to local board. Reported to

the U.S. Attorney

Letter from registrant on file. Requested

Form 150

Dates

9/20/66

9/28/66

1/11/67

Jan 17 1967

1-17-68

3/14/68

Mar 19 1968

Apr 23 1968

5-16-68

6- 6-68

7-31-68

8- 5-68

8-23-68

3- 7-69

9-11-69

26a

Minutes of Actions by Local Board and Appeal Board

and on Appeal to the President

Conversation sheet on file—FBI Agent,

Mr. Harry. Advised us not to give him

the form.

Complete file forwarded State Headquar-

ters at request of Col. Halfpenny.

File returned—recommend deferment.

Classified Class 2-A until 1/17/68 On y

(for Vista)

SSS-110 mailed

SSS-127 mailed

Classified Class—1A

SSS Form 110 mailed

SSS 252 mailed

FaiLep To Report For INDUCTION.

Reported to US Dist Attorney—SSS Form

301.

Duplicate SSS-127 mailed, also letter re-

turned for signature.

SSS-127 completed and letter signed re-

questing duplicate cards. Employed by

present employer since 6-67 (Self em-

ployed as a Photographer)

Mail returned from 4441 N. Clifton Ave-

nue, Chicago, Ill. (address unknown)

File returned from state headquarters

Complete file and cover sheet mailed to

LTC Silverberg as per telephone conver-

sation

? 27a

Son

ao 9

“all. ok C5) 7

Mag 1, Hee

tecal Zo, wo IVS

nt SU, Sits aa\l PLDG, | a

ba | Ww. Pili lot VAR +4 ‘ a ® May 19 196g ™

. Pay

Yeak, A. : see kan,

, ’ F aegt

Gye dWe wmeads

; Ti jlas ee. Bacsgh Ve my alleshvars

“that yes Have aol o6Gcied edosgh feranation |

| Ce OCeAR wey ny Re@ves{ Loa ad sina sri

PEE Al-[his Vime,

As a Re, te dave eee Vi sia , lash: sey

ye Seah Yod tiluN = 1OCon anolinn »

| Zt. uted Be amy SQgelad, yal yeu a

A letter de wWsta, wWAshinglesd a8, Pe, Awl,

GUE ~ho-w A dedatlyl Acces of ne

«w Con Nan” . ou

ReQuyaa | By Yod fan

defor med4.

Re Sek Coy

Ea ae

Fit 8 etd

male wd

29 Decenbor 1966 pe

ks31s12-29

Honorable Bernard J. Brown

United states At ;

Middle District of Pennsylvania.

( U. 3. Court ficuce

j Gauanben, Penrayivania 18501

° Attention: Julius Altman

Assistant United States Attornoy

f ; . Subject: LIVIRGSTOM, Thoass Los

’ $8 No. 36-173-46-64

; | Dear Sirs

as ‘Thie concerns tho oubject panieceass who was Foported :

to your offic« under date of 15 August 1966,

‘aftor conoidering your lettcr that the registrant bo

reordered for induction, and particularly in view of tho timc

3 which has clapsed, wo feol {t would be better to withdraw the

f caso from pronecution at this tins and to return it to the local

e board with tho roquest that he bo considored for reclavs{f£ica-

tion into Claue Il-A to May 1967, which vould pornit hin to com

plete. bie year in m VISiA under the office ‘of _Beondaic ; Oppoxtuntty.

May va have your com2cnt3 on thio. . }

_ For the State pirector:

' SUCH C. SWODGRASS

Lt. Colonel, CE

Manpovor Division

LOCAL BOARD RO; 273

-Sr6 FRILL BDO.

JAN 11 Wo?

a, | ee «ania er:

YORK, PRG”? :

Wee Wes

DIBTAs an , ae? .

Huited Mates Deparcieacut of Justice .

oi _ » " UNreem Srares Arronmaix - ,

de : Muanz Dierucr or Pause, :

Sernanton, Ponna. 16501

: January 4, 1967

Hugh C. Snodgrass, Lt. Setenst. CE

Manpower Division

Selective Sorvico Syston \-

P.O. Box 1221 aoe é .°

Harrisburg, Pennsylvania 17105 ;

, ¥ Ro: Thomas Lee Livingston

BS Ko. 36-173-44-64

Dear Col. Snodcgracs:

In reply to your letter of December 29, 1966,

‘I quito agree with the action you contenplato taking

with rogard to siove registrant.

The only bit of advico I would like to give you -

at this tiie would ba to make certain at the expiration

of this registrant's yoar in VISTA, thr.t_he then

immedintoly be ordsred in for _Ainguetion, and upon his «

failure to report, prosecution bo insti tuted to eaforce

paid induction. ;

Thanks you for your cooperation in this natter.

7 Very truly yours,

“ae FE BERHARD J. BROWN

A Sats a. United States Attorney

Mi—§

2 Peat > IUS ALSUAN

; era datcat U. 8. Attornoy

DF pe Se

Pie. Shi

, ~

P int

re a

ord

igh 2

Bre ta

—

aes °

pk 6 9) : ’ 3- 4- 67

Local B 4, # 173

3rd Ploor Sherrill Bldg.

9M. "hilsadelpiia st.

York, Tenasylvania

Gentleweca:

Chicago, 11).

Sei, Ser, No.

36-17 5-44-€5

Wis is to iaferm you that 1 havi Poeun teesisfered friw Oreyen,

to Chicayo, Tllinois; as a VISTA Yotuwte-c,

T bis dose rot result in a cheaze of ccerpetion; only ir a

change of location ard /

; i

My addcess will be - 57

a the reepie with whom I «will be working.

Of SM. Geant Ave. Chiceyo, tiiiueic.

Respectfully,

e a go | rs

wh ¢ Yun?

T.L.Livingston >

A ltt

dite Volt, Pas, 1797

DAC

4/2/68 Ronciled to Pecistrant

at 809 Center Streat,

3la

“ : J on ee ate wont 34 °

(* @wesszaoxvazovisee.- Beeps, —

"oe . - - -

@- - _

32a

SELECTIVE SFRVICT SYSTER aaa

ORDER TO RELORT WOR INDUCTION ;

Bed FL. SHERNAL BLOG.

The President of the United utes, 9 W. PAULADELP FIA ST.

j ‘ema YORK, PEUNSYLYANIA 17403

Te “~-

Maes a

Thomas Leo Livircston

709 V.Cranc Avene F mm 3- Amd sh; bieasevbiehviersesannie

fcopo, T1l 625990

a Py 12.

<emnn Oy

GxrEvING:

You are hercby ordored for induction into the Arined Forces of Uhe United Staics, and to report

at HATICIAL GUALD fi SOLGE STEED, YORE, Pa. sec

x : he OCAL BOAMD NO. 173

one

in Hay 2. 1968 at ....62h5 Aattes. - Divdhcht. Hein; Thu

for forwarding to an Armed Forces Induction Station. a

/ EXECUTIVE SCHL Zay “ee Fee

RITORTANL NOTICE

(Reed Vaca Varegreph Careful! x

IF YOU HAVE NAY PLKVIOUS MILITARY SERVICE, OR ARKH NOW A MENDER OF THE N 1ATIONA’

GUARD OL A RESZRVE COMYONENT OF THE ARTIED FORCES, BRING EV: DANCE WiiH YOU. IF You

WER CLASSES, MEING THE". IF MARRIED, BRING FROOF OF LOUR MARRIAGES, IF VOU SIAVE ANT

PHYSICAL OR MENTAL CONDITION WHICH, IN YOUR OPINION, MAY DIZGUALIFY YOU FOR STRVICE UN

THE ARMED FORCES, REING A bg ore A ‘eptentemees DESCRILING THAT CONDITi0OH, IF NOT

ALREADY FURNISHED TO YOUK 1.OCAL BOAR

Valid documents are required to substantiate ais claims in order to receive bacie allovzc.nce Jor gventers. T:

sure to tale the followin: wild you waca ca revorting to the induction station. ‘The dovuments will be retureed to you. 3]

FOR LAWFUL WI? OR LEGIT G/T: CHILD UNDER 2: YEARS OF AGE—oriziral, + pa copy or p:vtostat of a

certified copy of marriace certificnie, chila’s birt eeriificate, or a otic or chee: fscere ef merrigce iseved aver th:

netore and serl of the cusiotion of the church or public records; 3) POM LICALLY ADOPTED CUILI:..-2satihed ““ a

orésr of aczption; (2) FOR ClssLD Ci" DIVORCED SLRViCs UEMCER (Child in pase Do of pet.on ovaer shar cia

ant)— (J) Certifice or photostetic cenice of receipts from cvstedian of chiid esidencing cervicemur.’s comtrihuticns Cor tj

port, and (2) Divo.ce cecrec, court support order or separatiun order; (¢, FOR EPENDES Tf PARENT—afidevirs

establisling that dependency.

Ering your Social Sceurity Account Number Cerd. If you do not have ene, apply at nearsst Sccial Security Adwinis

tration Ofice. Hf you have Efe incuz:.nce, bring 2 record of the insurance conagey’s oe Mress and yore policy newbie.

Bring erough clear clothes for 3 days. Rrit.g ernwryh moncy to Inst 1 mow h for porconal pyrenases.

This Vocal Goad will furnis'. trawenortation, and meals and locy.ine w en necessary, from the pines of rerertire

the inductior station where you vill bo exemined. Hi fourd qualific’, you «iti be inducted into the And Forces. o!

found nat qualii:4, rotura tran:portacicr, and rests cad lodging when necercs ry, will Le fera'shed te the ploee of reporting

You tary b+ fovind not quatifiel for induction. Keep this in mind ir. arcsr ging your <.fairs, to prevent any undue ha..!

ship if you are not inducted. If employed, inforey your employer of this prs. ‘bility. Your emmloser ean then be press

to contiove your employment if you 2:2 rot inducted. ‘So protect your rient > rctute to your jot if you or: rot imac

you must report fer work as seer -# possible after the co:npletion of your inde ctien extrsinatien. Yeu my icopardize 50:

employment rigiis if yer do not re,ort for work at the beginning of your .*xt renularis seleduled working periet ner

“yeu hove returned to your place of er+p'oy:rent.

4 Willful f.ilers to report et te places snd hour of the day nord is. this Order subjects the violator ts fize end bayet

onment. Eulng this Order with yeu when you report.

If you are so far from your o +a lors! board that reporting in complianee with this Order will Le a serious hardshi-

£0 ienrvwdivtcly to any local buasd 5 tal arte written vequest for Gansfer of ysar éativesy for incuction, iaking this 0.2. ~

with yur.

BEM Vorws 272 (Meek. @-52 45) i" cevivrs pelntiogs wey te ese) wuili cabrio dd 8 Grsonwins coranmr eras tne: * *!

33a

LAr ad ; TL, Livin, ston

B09 Centcr Strect

Kt. Wolf, Penne,

Sra a Me rh wee X70

Local Bord Ko. 173 “JUL ‘ §ILG bis,

Citas

Shrill Llude. on, mina 1 I8Gy

’ L WeLriis °

York, Ta. bea AF

Gonteisen,

I have been lifted of my wallct, in which as all my

identification. Vould appreciate it to the upmost

af you all ceule send me duplicete copies of ny

cords.

I'm sending you this letter from enicego, at i am.

working here for six wecks, if you sen? ther: to me

within the next three weeks, vlerse send then to

Tnemas Livinsston

ubhin, Clifton Avec.

Chics ro, Yllinois

eee

If it takes any longer, send then to cy none address

thich is steve. I vould apyrecivte any quick action

tuken on your part as an Sdentificetion is neceed to

wolk the streets in tais city ord 1 was ‘esked vesterdcy

to sno 4.0. to two yoliccuen ond as took son 2 erplsinings

* to then trfore they lett me Fee om plense hurry.

é Nesrectfully THAAS % t vir ea

42 Waving eter .

° a

- 34a

R duly 128.

RS: GR tla. jo-273a2 Sy

DELI int

Tassas Ine Livin_ ston

hh3l “1. Clifton “yes

Chicazy, TL. 6%29

Dear tr. Livinsston:

Ve cro rotors yyy lottur, % sreicita, requuett x; cunlicate

eeres which needs yr stpaainre.s .

Ao yi snvl, you sated ba rersst for ‘Asduction, as o'Jarad

19 i.ev 1955. The locrl board ravorted you 42 wis Yalted Strtcs

Attoracy 5 Jus 1956.

You also entlod t? ca.i2lvta ad ratera 28S Fora 127, Cv sro.at

Tafor <ation ‘vestlowiairs, nulled 17 Jawary 1960. 4. dupiicat:

we wie

of tits fora is attacied for son to coitiw ax! robrna with

your lebtcr one ostisy: » euniicate cares.

) FOR TIR Ine TaD

“WH ; , Be # , ff .°

//) . e ue f° ‘et eae : fi # ”

enc) - 835-127 an2

Re zistrent's letter

35a tis

re CURRENT i AM ery Py | TT | Qerdetasee tbe 0: ereare

LOCA. DOARD HO. 173

SAD FL. SHCRANL ULNS.

YORK, PERNA. 17403

eee: 300

JUL 81 1963 |

Ma pumensemaza «

! 10:

a Vite of link 1Gina

Thomas Loe Jivingston 1-A Bed.

bh31 HW. Clifton éve,

Chicago, 111 60600

SE e AT O::CK

(The aliove items, excepe the date questionnsire reiuried, aresto be filled in Uy the local beard clerk belare questionnaire is maitedt)

The lw rewires you to Git out and return this quentionnair: on or Usfore the dete sown to the righ above in order that your Lcal

board will have current information to enable it to clawify you. Whee a question cr ttacemcat in any series docs not pp'y, enter “DOTS

NOT AIPLY,” ur “NONT.”; otherwise complete all series, You may attach any additional information you Leligve sheutd be Levels

to the atication of the local boord. Afier completing the statements be to dete thy Torn, ayd sign your 1.1, OUT WITH

TYPEWRITER, OR PRINT IN INK yy bai:

f ;

a Executive Secret ‘is Heth laid

SVAV ASS C2 WE RISSTAALT

COMMIOINTIAN AS FESCRISID EM VIZ SELECTIVE SERVICE REGULATIONS

ay 4

Saas LeLiilitS ABER

1. Nanve(s) and address(es) of 5 (s) other than a ber of your household who will always know your ad-

ress... -

| a Pe as 0 x! AAG AN *

2. My current moiling address is S-% Sen's, sh fit Ale’ wrA,

ee rs)

3. My tekphone number (home or business) is R16 - AG 1 f

Seaizs WR MARITAL STATUS AND BIVCMOENTS

. Ge) (Check HAVE NEVER BREN MARRIED D AM A WIDOWER

(6) 3 (Check one} (J PO [) DO NCT live with my wife; if not, her address is

Lees Vern ec ev awl

(ce) We were nvarried 2 ote “8 te o

2. (0) T have the following chitdren under 18 yeors of ane Who live with ime in my home: .

Name SN & Age Name Pra Ase

Name Sets Age _—e phone ne

+ (6) If you have no child other than an unborn child, attach a statewent from a physician showing the besi:

for his diagsosis of pregmancy and the expecizd date of birth.

3. 1 (Cheek one) (1 DO [ DO NOT have dependsrts other than those Listed above.

‘

Stans W—20TARY Rocca

1. If you are new on or have been separated from active military service enter fe) Armed Force

(Previoes po: ton ge may be wre

(6) Service mumber__ 2) __ (4) Date of cvtry

(4 Date of separation "SS re - aed @) Type of separation

* oto

2. If you are now a member of a reserve component (including the Navional Guard) give (a) Name and aetdee -

unit o : oumse cw eames

¢ 5 (6) Service number fd) Date of exticznent. transfcr, of aypoinument...

3 you are mow a member of a Reserve OSicer Training Corps o- any other officer Procmement prog:

Gewctilec fully a oo

SES FCW 127 (Rovined 0-15-68) CONTINU ON REVERS. SOX 5,

SELECTIVE SERVICE iu = sini talent

a a eo ?¢ % -* . te

& NOT DELIVERED IN S DAYS

RETURN TO

32L 3¥C LB 173

gs SHERAILL BLS.

-9 8 PAlLA, ST.

YORL, PA. 17492

” PRS? GLASS MAIL

37a

DEVANQUENT REGISTRANT REPORT

OCAL BOARO NO. 173 on

oe FL. SHERRILL BLOG. rr)

9 W. PHILADELPHIA ST. _

YORK, PENNSYLVANIA 17402

TO: Hon. .....DiBi4eD J» DAY ame tee |

———-—---- Hidde Bistrict. of Pennsyivonin, M.S. Covel tangs Seranton 2, Renee

(Adder)

1, IDYNTIFICATION OF DELINQUENT:

Full name of delinquent:

LIVI! STO Thourrg, “Teo es

a) (Fur) fh Middio) (Alies, if ne

Lest known address: Last known telephone Neo.:

= 3700 ¥. Grond Ave., Chicarzo, TL 60660

| Gomer ond oiveet or RV. BD. rovia) (City. tows, or village) J “itaontgh Gini), dite Coasts

Selective Scrvice No.: Social Bccurity No.: Eelective Servics classification:

L36]-a73tun| ou )} [20s Ta | 50 | Shase Ich

Color of eyes: | Color of hair: | Isight: Weight: _Other obvious physical characteristics:

Dus L. Drow 5' 6 3" ee OF

Date of birth: _ | Place of birth:

Fobruary 6 _..19hh York * Pennsylvania

(ienth) ep) Fea) —iGiiy. essen ate oe country)

Prior military vervice: : S

None. aes

( Armed Foree) (Ber vice mureb-1) . (Date of entes)

~~ "iame of trot err ynization) iD ‘te of tien

follows:

ee en pat castes RTT TT | —— Bg Wa Pa ==

2. Orrenses:

This delinquent (check applicable box) (Gsfailed to report for induction DC reported for induction but failed

or sefused to e:bmit to induction into the Armed Forces pursuant to (chock applicable box):

LR Order to Report for Induction (SSS Form 252).

O Order for Transferred Man to Report for Induction (SSS Fors 253).

The order indicated was mailed on ..23_ Ane 1..19460_ ‘smn tO thir. delingnert at

2 ia (Date of sssiling)

371004, Grard Ave., Seto ze 62500 to report on ...16.Bry.2958

In addition to failing to repert for induction into the Armed Forer:s this delinquent has also failed to per-

form the following dutics at the times indicated:

{ _ Dunes Dates

#58 Porm 301 (Mevieed 10-0-68) ‘ (Ova)

oe ee em ee _—= eee

9%. Evvonrs Mane 70 Vocars Dring sent:

The delinquent egeren been located on rT at ;

The person who will always knw the delinquent’s aderess ts —

‘This pursen -—...... heen contacted

a or with the following result

The dclinquent’s last known place of employment or business is __. aaa

sail ‘ His employer eres been contacted '

on , . with the follu ving result

(Letter, telephone, ta person) (Date)

4. Mail directed to the delinquent ie returned by the post office,

Cle, te new) i

5. Reaarxs: (Include additional efforts to locate delinquent or names of individuals who may know whc.

abouts of the delinquent.) .

. April 2, 1968 = Induction Notice, 3SS Fora 252 was renailed to

original addrozs: 80) Centcr Strevt, lit. Wolf, Pa. 17347

Kail uay IT returned ly the post office,

6, Futunz INFORMATION: :

You will be advised prompt!y by letter of any change in this delinquert’s status and of any additional f:.

which may come to the attention of this board concerning his whereabouts or which may ald you in ap;

hending and prosecuting him, .

po! vo

AM ng @ns CEE teal ead .

Szecui1 ne SPeRat

‘Tals form vhull he used to report to the United States Attorary those delinjuents whe (nil te repart fer inductive of whe fai.

* peluce 10 vuleni: to induction. Other delinquencies, if repuned te the United Sates Anomuy, shall be reported by letter.

This form thal be mute owt ia quadeuplic.te. ‘the wi;inal wad two copies are lonwatdsd to the State Director of Sch ctive £

whee rheiald transit the atiyinal and one cope tothe United States Miorey foe the: judicial distttet in which the loc! bead is be

we te tne gt Deer ee eB thee Coane still bee Filed im thee Coven tees (SSS Pisven 100) oof the delinquent,

re ee

39a

Extracts From Testimony

~—42a-—

Q. Now, in that letter you indicate, “As you know,”

—this is a letter to Mr. Livingston—“you failed to report

for induction, as ordered on May 10, 1966.”

Now, hadn’t the defendant an order to report for in-

duction again after 1966? A. Yes. He was ordered to

report April 23, 1968.

Q. Did he ever get that letter that you know of, the

order to report for induction in April 1968? A. April

1968?

Q. Yes. A. We have a copy in the file.

Q. Where was the original sent to? A. 3700 West Grand

Avenue, Chicago, Illinois.

Q. Now, you had attempted to mail something under the

post date of March 22, 1968, isn’t that correct? <A. Yes.

Q. And that came back as “addressee not here, address

not known,” is that correct? A. That is correct.

By the Court:

Q. Is that the letter sent to Chicago, you say? A. Yes

sir, but that was re-mailed to the registrant at 809 Center

Street, Mount Wolf, Pennsylvania.

By Mr. Axelrod:

‘Q. Have you ever been informed by the registrant-

—43a-—

after March 22, 1968, had you ever been informed by the

registrant to direct his mail to that address? A. Not by

40a

the registrant, but it is our policy to try to locate the

registrant.

Q. Had you ever been notified by the registrant after

March 22, 1968 that that was his new address? A. No.

Q. Can you tell me why, on July 31, 1968, you didn’t tell

the registrant he had been ordered to report for induction

in 1968, referring to the letter you signed July 31, 1968?

A. I don’t understand the question.

Q. Would you put the letter in front of you? A. July c

1968?

Q. July 31, 1968. A. Yes sir.

Q. Now, there you state, “As you know, you failed to

report for induction as ordered on 10 May 1966.”

Why didn’t you tell him he had been ordered to report

in 1968? <A. I can’t answer that.

Q. Didn’t you have a suspicion maybe he didn’t get the

mail since the envelope had come back “address unknown”?

A. I can’t answer that.

Q. After a man fails to report for induction do you

ever send him additional orders to give him another chance

—449——

to submit. A. We give him another chance sometimes, yes.

Q. You received correspondence from him on July 31,

1968; is that correct? A. July 31, 1968.

Q. Does that letter from him indicate he knew he was

supposed to report for induction? Is there anything there

that would let him infer that?

The Court: You say this is a letter from him the

same date her letter went out to him in Chicago?

Mr. Axelrod: This is a letter received at the local

board July 31, 1968.

41a |

By Mr. Azelrod:

Q. Is there anything indicating that he was aware he

was supposed to report in 1968? A. No, he sent the letter

—shall I read it?

The Court: Yes, read it.

The Witness: “Gentlemen:

“T have been lifted of my wallet, in which was all

my identification. Would appreciate it to the utmost

if you all could send me duplicate copies of my cards.

I am sending you this letter from Chicago, as I am

working here for six weeks. If you send them to me

within the next three weeks, please send them to

Thomas Livingston, 4431 North Clifton Avenue,

Chicago, Illinois.”

—45a—

By the Court:

Q. Was it as a result of receiving that letter that you

wrote the letter the same day, July 31, or did your letter

go before? What did you say to him in your letter of

July 31 to him? A. I said: “We are returning your letter

herewith requesting duplicate cards which needs your sig-

nature.” It was not signed and we require signature.

Q. Is that the one where you say: “As you know, you

were ordered to report for induction”? A. “As you know,

you failed to report for induction.”

Q. What else did you say? A. That I wrote?

Q. Yes, that you wrote. A. “As you know, you failed

to report for induction, as ordered 10 May 1966. The local

board reported you to the United States Attorney 6 June

1968. You also failed to complete and return SSS Form

127, Current Information Questionnaire, mailed 17 Jan-

uary 1968. A duplicate of this form is attached for you

42a

to complete and return with your letter requesting dupli-

cate cards.” We enclosed the letter returned with the Form

127.

By Mr. Axelrod:

Q. Was that form sent back to the local board? A. Yes

sir.

——

Q. It was? A. Yes sir.

Q. You testified, I believe, that in 1966, after he refused

induction, he requested a Form 150 but at that point it

was out of the jurisdiction of the board, is that correct?

A. Yes.

Q. Well, why wasn’t the case, he having refused induc-

tion in April of 1968, why wasn’t the case also out of your

jurisdiction at that point after refusal? A. Because upon

advice of the United States Attorney we were asked to

reclassify him or consider him for a 2-A to complete his

VISTA. So that reopened his case, That reopened his case.

Q. But in 1968, July 31, this was how long after he was

supposed to have reported for induction? A. I don’t un-

derstand.

By the Court:

Q. He was ordered to report April 23, 1968, wasn’t he?

A. That is right.

Q. He was to be there May 16, 1968. The question is

that in July 1968 you still had the file? A. Yes.

Q. The other time when he failed to report, the file, you

say, was out of your hands and sent to the U. S. Attorney.

Here in May he failed to report and a month or so went

—47a—

by and you still had the file. That is the question. A. Yes.

43a .

Q. When do you send it when a person fails to report

for induction? Is there any rule as to how long you keep

it before you send it to the U. S. Attorney, or does this

vary with the different cases? A. Well, usually after he

fails to report for induction, then we prepare the file and

send it to State Headquarters.

Q. Here is a case where he failed to report in May, but

you hadn’t sent it yet in July, is that right? A. No. The

case was sent up before that. It was sent up in May.

Q. It was sent up in May? A. Yes.

Q. But you did answer his letter when you got it in

July? A. Yes.

By Mr. Acelrod:

Q. But you didn’t answer his letter in 1966 when he re-

quested a 150, is that correct? A. Because it was under

the jurisdiction of the court. Well, it was out of our hands.

It was out of our hands.

Q. Now, Mrs. Grove, what kinds of considerations go

into the decision as to whether or not you send out an addi-

—48a—

tional order to report for induction after a man has failed

to report? You say you do it sometimes? A. Well, we

make every effort to contact his previous employer or his

parents, and sometimes they give us a lead and we give

them another chance.

Q. In other words, sometimes you do your own investi-

gation? A. No, we—

Q. Do you do your own investigation by contacting his

employer? A. Yes sir.

Q. Here is a man who on July 31 indicated he had lost

his cards and gave you a new address, then completed a

new questionnaire and returned it to the local board with

44a

a new address. Did you make an effort to give him another

order to report for induction? A. I didn’t follow you.

Q. What effort did you make to give him another order

to report for induction, to give him another chance after

he had failed to report? A. Well, it seemed as though he

was getting his mail.

Q. My question is: What efforts did you make to give

him another chance after he failed to report? A. We

mailed his notice on April 2, 1968 and the mail was not

returned by the post office from 809 Center Street, Mount

—49a—

Wolf, We assumed he received his notice.

Q. You made no effort after he contacted you; is that

correct? After he told you he lost his draft cards and gave

you a new address, did you make any effort to give him

another chance? A. No. We assumed he received his

mail. It was not returned.

Q. After he sent in the new current information question-

naire, again giving his address, did you make any effort

to give him another chance by sending him another notice

of induction? A. Well, we did send it out again.

Q. After July 1968? A. Not after July, no.

Q. After he sent in that new current information ques-

tionnaire, you made no effort, is that correct? A. That is

correct.

Q. As a matter of fact, from your letter of July 31, he

had no way of knowing he was supposed to have been in-

ducted in 1968, did he? He was told he had refused in

19667? A. Well, he refused his mail, Someone refused his

mail.

Q. The letter of July 31, 1968, did that indicate to the

reader of that letter that he knew he was supposed to have

45a -

reported in 19681 You can look at the letter and refresh

—d0a—

your memory, if you would like to. A. Which letter?

Q. July 31, 1968, a letter written by you. A. Yes.

Q. Does that tell him anywhere he was supposed to re-

port in 19687 A. No, that letter does not say that.

Q. Actually, that letter would tend to mislead him,

wouldn’t it, saying he failed to report in 1966?

Mr. Walker: We would object to that, Your

Honor. It is a conclusion.

The Court: Overruled.

By Mr. Azelrod:

Q. You can answer that. A. What was the question?

Q. Wouldn’t that letter tend to mislead him into think-

ing he had never been ordered to report for induction in

1968, by pointing out that he had refused in 1966? A. I

don’t know. I really don’t know, I really don’t know.

Mr. Axelrod: Your Honor, if I may go back to

the minutes of that meeting—

The Court: Do you have a copy now?

Mr. Axelrod: Yes. If the Court will indulge me

for a moment so I can look these over—I have never

seen

rf 8 @ @

—54a—

Q. Now, Mrs. Grove, I believe you testified that when

Thomas Lee Livingston first registered his address was

what? A. 809 Center Street, Mount Wolf, York County.

46a

Q. And that was an address that was supplied to the

board by whom? A. By the registrant.

Q. Where normally then would all mail be sent to this

particular registrant? A. 809 Center Street, Mount Wolf.

Q. And whose responsibility is it to inform the board

of any changes in address? A. It is the registrant’s re-

sponsibility. We must have his signature.

—d59a—

Q. I refer you to G-1, a letter dated 13 May 1966 from

the local board to the registrant. Do you have a copy of

that there? A. 13 May?

Q. 1966. From the local board to the registrant. A. Yes.

Q. And where was that sent to? A. 809 Center Street,

Mount Wolf.

Q. Is that the original or a copy of the letter you have?

A. I have the original and the copy.

Q. Why do you have the original? Was it sent back to

the board? A. It was sent back with the notation on the

bottom.

Q. Would you read that notation, please? A. “The

above letter came to our home, and we are at a loss in

knowing what to do about it. It was our understanding

that you were aware Tom was in VISTA as of May Ist.

Please take this up with them.

“Sincerely, Mr. and Mrs. Daniel Livingston.”

Q. Do they give you an address for Mr. Livingston? A.

The address of Vista, Incorporated is below.

Q. Would you read to His Honor the rest of the letter

where it says: “Address of Vista is below.” A. “Mr. T. L.

Livingston, care of Marjorie D. Kelly, Training Director,

—60a—

VISTA.

boy

“

;

47a

Q. Now, did you ever make a notation on the front of

the file of that change of address? A. No, we didn’t.

Q. Are you required to make entries on the front of the

file on a change of address? A. It had never been the

policy, unless the registrant requests it with his signature.

Q. But in 1968, you had at least one letter in the file

indicating that he was not available at 809 Center Street,

is that correct? A. I just read the letter.

Q. Now, you testified that the board took some action

on May 17, 1966, is that correct? A. On May the—what

are you referring to? I don’t understand.

Q. Your testimony. Did you testify you refused to re-

open his classification on May 17, 1966? A. That is correct.

Q. That is correct? <A. Yes.

Q. Now, do you have the minutes of that meeting with

you? A. April 17—May 17?

Sie

Q. 1966. A. Oh, yes.

Q. Would you say it is more than two years? A. Yes.

Q. More than three years? A. At least three years, if

not more.

Q. You made reference before to a regulation saying

that a registrant must sign his name to effect a change of

address, is that correct? Was that your testimony? A.

Well, it is the policy of the local board.

Q. It is a policy of the local board? A. Yes.

Q. In other words, you are not sure there is a regulation

to that effect? A. I wouldn’t definitely say it is a regula-

tion but it is a policy of the board.

Q. I show you a regulation found in what is called “Code

of Regulations.” Let me read you a portion of it. This is

16.13.12(b). It says: The registrar shall advise the reg-

istrant that a correct mailing address is most important

48a

because it is the address to which all notices to the regis-

trant shall be sent, and he must advise his local board each

time there is a change in his mailing address.

Is that the policy or regulation you have reference to?

A. Yes.

—66a—

The Witness: No, I don’t.

Mr. Axelrod: No further questions of this wit-

ness.

The Court: You may step down.

(Witness excused.)

Mr. Axelrod: I call the defendant to the stand.

Tomas Lee Livineston, called as a witness, was duly

sworn and testified as follows:

Direct Examination by Mr. Axelrod:

Q. Mr. Livingston, in 1968, did you ever receive a notice

to report for induction? A. No, I didn’t.

Q. Were you ever made aware you were to report for.

induction by anyone? A. No.

Q. You submitted an address in Chicago to your local

board in 1967, is that correct? A. Yes sir.

Q. Were you living there in late April of 1968? A. Yes

sir.

Q. Were you there at all times? A. Most of the time,

yes. I was living there then.

Q. Did you customarily receive your mail there? A. Yes.

Cross Examination by Mr. Walker:

Q. Mr. Livingston, where did you say you were living

in Chicago in 1968? A. In 1968 I was uptown.

Q. Uptown? A. Uptown.

Q. Do you recall the address? A. On Clifton Avenue.

It was the 4400 block. I don’t know the exact number. _

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.