Reply Brief — McGee v. United States

In THE

Supreme Court of the United SpdtPP 0 x s<2,

Octoser Term, 1970

No. 362

>

Vincent Francis McGez, Jr.,

Petitioner,

—V.—

Unritep States oF AMEBICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONER

Auan H. Levine

c/o New York Civil Liberties Union

84 Fifth Avenue

New York, New York

Attorney for Petitioner

Marvin M. KarpatxKIn

Metvin L. Wutr

Of Counsel

er ey ae

a OE RE nt nse tte ai,

i AA EI

INDEX

PAGE

I. A Decision in Petitioner’s Favor Would Not En-

courage Registrants to Avoid the Administrative

System 1

II. Petitioner’s Failure to Report for a Physical Ex-

amination Was Not Unlawful 6

ConcLUSION 10

ADDENDUM 11

TABLE OF AUTHORITIES

Cases:

Dickinson v. United States, 346 U.S. 389 (1953) ........ 3, 4,5

Estep v. United States, 327 U.S. 114 (1946) -...00...... 8

Keefer v. United States, 313 F.2d 773 (9th Cir. 1963) 2

McKart v. United States, 395 U.S. 185 (1969) ................ 6,9

Mulloy v. United States, 398 U.S. 410 (1970) ................ 3

Salamy v. United States, 379 F.2d 838 (10th Cir. 1967) 2

Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir.

1970) 5

United States v. Brandt, No. 25,486 (9th Cir., Dee. 4,

1970) *

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

8

United States v. Brown, 423 F.2d 751 (3rd Cir. 1970) .... 2

5

United States v. Deere, 428 F.2d 1119 (2d Cir. 1970) .... 5

United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970)

United States v. Wallace, 310 F. Supp. 961 (E.D. Cal.

1970)

United States v. Walsh, 279 F. Supp. 115 (D. Mass.

1968)

United States v. Warner, 284 F. Supp. 366 (D. Ariz.

1968)

United States v. Wider, 119 F. Supp. 676 (E.D.N.Y.

1954) .......

United States ex rel. Brown v. Resor, 429 F.2d 96 (10th

Cir. 1970)

Witmer v. United States, 348 U.S. 375 (1955) -200...

Regulations:

AR 601-270, para. 32a

Selective Service Regulations

32 C.F.R. 1621.14 ......

1621.15

1624.1(a)

1625.1(c)

1628.10

1642.4(a)

Other Authorities:

Blackman, Face to Face With Your Draft Board 11-12

(1969)

CCCO, Handbook for Conscientious Objectors 20

(1970)

Local Board Memorandum No. 14, para. 3(c) ................

SSLR Practice Manual 71079 (1968)

co co PH Oe

In THE

Supreme Court of the United States

Ocroser Term, 1970

No. 362

-—<

Vincent Francis McGez, Jr.,

Petitioner,

—V.—

Unrrep States or AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

pe -

REPLY BRIEF FOR PETITIONER

A Decision in Petitioner’s Favor Would Not Encourage

Registrants to Avoid the Administrative System.

Petitioner argued in his Brief (pp. 36-38) that the ex-

haustion requirement was not justified by any reasonable

apprehension that if the requirement were to be relaxed in

this case, other registrants would be encouraged to avoid

administrative remedies available to them. The govern-

ment responds by suggesting that a decision for petitioner

would in fact seriously interfere with the operations of

gute econ enemas wane

2

the Selective Service System by encouraging registrants,

with the “expert” assistance of draft counselors, to submit

a “carefully drawn” SSS Form 150, forego a personal ap-

pearance and appeals and “... take a chance on asserting

the defense of misclassification in criminal prosecutions,

with resulting delay.” (Brief for the United States, p. 30,)

That position wholly misconceives petitioner’s argument as

well as the operation of local beards in conscientious ob.

jector cases.

The government’s position assumes the ease of drawing

a Form 150 which will establish a prima facie case, an as.

sumption belied by the number of cases in which registrants

have been unable to establish a prima facie case. See, eg,

United States v. Brown, 423 F.2d 751 (3rd Cir. 1970):

Keefer v. United States, 313 F.2d 773 (9th Cir. 1963);

United States v. Wallace, 310 F. Supp. 961 (E.D. Cal. 1970);

United States v. Warner, 284 F. Supp. 366 (D. Ariz. 1968);

United States v. Wider, 119 F. Supp. 676 (E.D.N.Y. 1954),

“A prima facie case of the registrant’s sincerity is not made

merely by a statement of his beliefs without more... .”

Salamy v. United States, 379 F.2d 838, 842 (10th Cir. 1967).

The government is led to this error by ignoring the fact

that local boards have before them not only “well-drawn’

forms, but an applicant’s entire file, which may well reflect

activities or beliefs during his life which are inconsistent

with entitlement to conscientious objector status. As this

Court has noted a registrant may fail to make out a prima

facie case where

“. .. the claim is plainly incredible, or where, even

if true, it would not warrant reclassification, or where

the claim has already been passed on, or where the

_

3

claim itself is conclusively refuted by other informa-

tion in the applicant’s file. Moreover, a registrant who

makes false statements to his draft board is subject to

severe criminal penalties. 50 U.S.C., App. §462(a).”

Mulloy v. United States, 398 U.S. 410, 418, n. 7 (1970).

But assuming the registrant avoids these obstacles and

in fact presents a prima facie case, where then is he? He

may of course get the exemption, a result the likelihood of

which would be neither increased nor decreased by a deci-

sion for petitioner. If he is classified I-A, however, accord-

ing to the government there would be nothing which a re-

viewing court could later find as a basis in fact for denying

the exemption. But how, then, could the board have classi-

fied him I-A? If, as the government apparently suggests,

it is because the applicant has not demonstrated his sin-

cerity by a personal appearance, we point out that the

registrant up to this stage has no right to appear before

the board and it is the regulations themselves which give

the right to appear only after the classification and not

before. 32 C.F.R. 1624.1(a). In any case, if the board feels

that the “well-drawn” Form 150 demonstrates that the

registrant is insincere in his claim so as to justify a I-A

classification, it should—and must—be able to point to

some “affirmative evidence,” Dickinson v. United States,

346 U.S. 389, 396 (1953), supporting its position. The board

can then record those facts in the registrant’s file for a

reviewing court to see. But the local board is not permitted

to reject a claim simply on the basis of some vague doubts

about the registrant’s sincerity. As this Court noted in

reversing the conviction in Dickinson, supra:

“The court below in affirming the conviction apparently

thought the local board was free to disbelieve Dickin-

4

son’s testimonial and documentary evidence even jp

the absence of any impeaching or contradictory eyj.

dence. . . . Dickinson’s claims were not disputed by any

evidence presented to the selective service authori.

ties, nor was any cited by the Court of Appeals. The

task of the courts in cases such as this is to search

the record for some affirmative evidence to support

the local board’s overt or implicit finding that a regis.

trant has not painted a complete or accurate picture of

his activities.” Id. at 396.

On the other hand, the local board is not powerless when

it has vague doubts but no “affirmative evidence” to which

it could point. The Selective Service regulations give the

board wide powers to obtain that evidence, 32 C.F.R.

1621.14, 1621.15 and 1625.1(c), powers to which this Court

referred in Dickinson. Id. at 396-97. The court below recog.

nized that the board possessed the power to compel peti-

tioner to appear if it doubted his sincerity (A. 71). In

fact, New York City boards, such as petitioner’s, have

available a form (Addendum to this Reply Brief, p. 11)

for just those instances where a board needs the regis.

trant’s appearance in order to properly classify him.

If the board requires the registrant’s appearance before

it, and he refuses for reasons not consistent with con-

scientious objection, the board might well take that to evi-

dence a lack of sincerity and conclude that he has not

satisfied the burden of proving his entitlement to the ex-

emption. “In conscientious objector cases, therefore, any

fact which casts doubt on the veracity of the registrant is

relevant. It is ‘affirmative evidence .. . that a registrant

has not painted a complete or accurate picture... .’

-_

Dickinson v. United States, supra, 346 U.S. at 396.” Wit-

mer v. United States, 348 U.S. 375, 381 (1955).

Nothing in our Brief suggests that relaxing the exhaus-

tion doctrine would relieve the registrant of this burden.

Dickinson v. United States, supra. To the contrary, we

concede that he must present his claim to the local board

(Brief for Petitioner, p. 33, n. 9). If that claim is inade-

quate to justify conscientious objector status, the board

should state its reasons and a reviewing court will have

a basis in fact to support the board’s action.’

The government’s confusion here is a result of its con-

tinued insistence that petitioner made out only a prima facie

case (Brief for the United States, pp. 5, n. 3, 26, 27, 29, 30,

31). In reality, all three judges in the court below agreed

that the local board had no basis in fact for denying peti-

tioner’s conscientious claim (A. 71-72, 79). And the ma-

jority did not merely confine its review to his Form 150

as the government implies (Brief, p. 26, n. 16), but con-

sidered as well, “his prior [and] his subsequent actions”

(A. 71) along with the rest of his file, which is all that

petitioner’s board customarily had before it in conscientious

objector cases. Ibid. In short, we do not argue that a

registrant need not supply all that information which the

board requires in order to grant him his classification,

nor do we dispute that the burden of proving that he

deserves the classification is on him. If, however, a regis-

1The requirement that boards state reasons for their actions is

now law in many circuits. See, ¢.g., United States v. Deere, 428

F.2d 1119 (2d Cir. 1970) ; Scott v. Commanding Officer, 431 F.2d

1132 (3rd Cir. 1970); United States v. Broyles, 423 F.2d 1299

(4th Cir. 1970) ; United States ex rel. Brown v. Resor, 429 F.2d 96

ag Ba 1970) ; United States v. Lemmens, 430 F.2d 619 (7th

ir. 1970).

—--— 4

ay

6

trant, such as petitioner, meets that burden, he need not

appeal from the board’s denial of his classification in order

to challenge that action in defense to a criminal proceed.

ing.

Having clarified our position, we return to the tactic of

delay raised by the government and discussed in the open.

ing paragraph of this Brief. Since we have suggested no

less of a burden upon the registrant in proving his case,

whether or not he exhausts his remedies, the “expert”

draft counselor will offer the same advice as he now does

regarding personal appearances. That advice is invari.

ably to appear since that still remains the best opportunity

to convince the board of the sincerity of one’s claim. CCCO,

Handbook for Conscientious Objectors 20 (1970); Black.

man, Face to Face With Your Draft Board 11-12 (1969);

SSLR Practice Manual 71079 at 1064 (1968).

Il.

Petitioner’s Failure to Report for a Physical Exami-

nation Was Not Unlawful.

Petitioner in his Brief (pp. 52-54) argued that his failure

to report as ordered for a pre-induction physical exami-

nation would have been excused had he been properly clas-

sified. The government takes issue with this argument by

relying on the dictum in McKart v. United States, 395 US.

185, 203 (1969), that “[a]n invalid classification . . . would

not be a defense today to a prosecution for failing to report

for a pre-induction examination.” The inapplicability of

this language to the instant case was demonstrated by

Judge Feinberg in his dissent below.

Sa A Oe a aE

7

«., McKart did not deal with the wrongful denial of

a 1-0 classification, and thus did not consider the

option to waive a physical examination which is

afforded to registrants holding such a classification.

McGee should not be penalized because of the board’s

error, or deprived of the benefit of selective service

procedures designed for conscientious objectors.

Therefore, McGee’s conviction on Count 2 should also

be set aside” (A. 87-88).

Judge Feinberg’s reasoning was anticipated by the court

in United States v. Walsh, 279 F. Supp. 115 (D. Mass.

1968), where the defendant was prosecuted for failure to

submit to induction and for failure to report for a pre-

induction physical examination. In granting the defen-

dant’s motion for acquittal on the physical examination

count, the court stated:

“Had the board classified him 1-0, defendant’s de-

linquency status would have been rendered moot, since

1-0 registrants who fail to report for physical exami-

nations when ordered are not classified as delinquents

_... Because this possibility was denied defendant by

reason of the board’s arbitrary action, his motion for

judgment of acquittal is granted as to Count I as well.”

279 F. Supp. at 121.

This position has been adopted by the Ninth Circuit in

United States v. Brandt, No. 25,486 (9th Cir., Dee. 4,

1970). There the court reversed the defendant’s conviction

for failure to report for a physical examination on the

ground that the underlying I-A classification, as petitioner

argues here, was invalid. The government’s attempt to

distinguish Brandt (Brief for the United States, p. 49,

n. 27) as a case involving a question of law, while main.

taining that the issue here is one of fact, is without merit,

Petitioner’s local board, in denying his conscientious ob.

jector application without a basis in fact (A. 71-72, 79),

acted outside of its jurisdiction just as did the local board

in Brandt. Estep v. United States, 327 U.S. 114, 122 (1946).

The government argues that “.. . allowing registrants

to ignore such orders [for example, to report for a physical

examination] would plainly disrupt the reasonably efficient

functioning of the system, in which there is a strong public

interest.” (Brief for the United States, p. 40.)

However, the Selective Service regulations make provi-

sion for the smooth functioning of the system when a

registrant fails to report for a pre-induction physical exam.

ination. Such a registrant may be declared a delinquent,

32 C.F.R. 1642.4(a), and “... may be ordered to report

for induction without being given an armed forces physical

examination.” 32 C.F.R. 1628.10.

The petitioner here admittedly failed to report as ordered

for his pre-induction physical examination. His local board

then proceeded to classify him I-A delinquent (A. 58, 64).

But the government’s argument that refusal to report for

a pre-induction physical “. . . would plainly disrupt the

efficient functioning of the system . . .” ignores the fact

that petitioner, in accordance with Selective Service pro-

cedure, was ordered to report for induction without having

first undergone a pre-induction physical examination.

Moreover, the petitioner’s failure to report for the pre-

induction physical examination did not prejudice the Selec-

tive Service System since he took and passed a complete

physical examination the day he refused induction. That

Ni ie

wa

Selective Service was not prejudiced by petitioner’s failure

is demonstrated by its decision not to prosecute petitioner

immediately after he failed to report for the physical

examination.’

Instead, petitioner’s local board proceeded in accordance

with Local Board Memorandum No. 14, para. 3(c), by de-

claring him delinquent. Apparently, Selective Service be-

lieved this procedure to thoroughly vindicate its interests

here since the Director of New York Selective Service

recommended prosecution only for refusal of induction

and nonpossession of a draft card (Govt. Ex. 39, A. 58-

§9).*

The position of Selective Service is understandable in

view of the fact that, pursuant to AR 601-270, para. 32a,

petitioner received a complete physical examination when

he appeared at the induction station on the day scheduled

for induction. As a result, the induction station personnel

had all the information they needed to determine his accept-

ability—and all the information which they would have

obtained had petitioner taken the pre-induction physical

(Govt. Ex. 37).

If, under these circumstances, Selective Service, charged

with administering the Act, believes that a registrant has

substantially performed the duties required of him, we

submit that petitioner has committed no crime.

2 It is noteworthy that the defendant in McKart also was ordered

to report for a pre-induction physical, but failed — do so, and was

declared a delinquent. 395 U.S. at 188. McKart then failed to

report for and submit to induction and was subsequently prosecuted

for this alleged violation of the Act, but he was not prosecuted for

his failure to report for the pre-induction physical examination.

’This recommendation was made in accordance with the policy

of the Selective Service System. See Brief for Petitioner, p. 49,

n. 17.

10

CONCLUSION

For the reasons stated herein and in the Brief for

Petitioner, the Court should reverse the judgment beloy

and enter a judgment of acquittal on all four counts of

the indictment.

Respectfully submitted,

Avan H. Levine

c/o New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

Attorney for Petitioner

Marvin M. KarpaTKIN

Metvin L. Woutr

Of Counsel

—— ne

lA AO

11

ADDENDUM

Date:

SS No.

Dear Mr.

An appointment has been scheduled for you to appear

at this Local Board office on 19 at

P.M. for the reason checked below:

( Your request for a personal appearance. If you have

any new evidence pertinent to your case, please put

it in writing and send it to the Local Board prior to

‘the date of your appearance or bring it with you.

‘This will give the board time to consider this new

evidence so that they may discuss it with you at the

time of your appearance and that the evidence may

be included in your file.

O You are to appear for a permissive interview. Any

evidence you wish the Local Board to consider is to

be submitted in writing prior to or on the date of

your interview, and will be included in your file.

0 You are to see the Government Appeal Agent as you

requested, so that he may assist you in your appeal

or advise you concerning present Selective Service

Laws, Regulations and directives. Any evidence sub-

mitted should be in writing.

The Local Board may impose a limitation on the time

you may have for your appearance. You should plan your

presentation beforehand, making it as brief and concise

as possible. The Local Board may permit any other person

to appear before it with you, or on your behalf; however,

they may not permit you to be represented by an attorney

or legal counsel.

SSS-NYC

Form No. 44

Revised Aug 4, ’70)