# Appendix — Livingston v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1129%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 1111

## Text

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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.

2a

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

4a

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

5a

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.)
(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

IUS ALSUAN
; era datcat U. 8. Attornoy

DF pe Se
Pie. Shi
, ~
P int
re a
ord
igh 2
Bre ta
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me
ea

aes °

pk 6 9) : ’ 3- 4- 67

Local B 4, # 173
3rd Ploor Sherrill Bldg.
9M. "hilsadelpiia st.

York, Tenasylvania

Gentleweca:
?

i)

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.
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: * *!
a

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.
© W. PHN ADELPHIA ST. .
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
HG) F (Check one) Fe ant MARRIED © AM Divorcen
(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.

‘
t
:
:
!
t
'
‘

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—
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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. _

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1129%3A2. Public record. Not legal advice.