*1 America, UNITED STATES of Appellee, WILLIAMS,
Allen Bernard Defendant-Appellant. 294, Docket
No. 73-1745. Appeals, States Court Second Circuit. Oct, 5,
Argued Oct.
Decided City Young, York New A. Michael Kasanof, Legal Society,
(The
Aid
Robert
de-
brief), City, on the
York
New
fendant-appellant.
(Paul
Atty.
Bush,
U. S.
N.
Asst.
John
Y.,
Curran,
Peter
Atty.,
S.
S. D. N.
U.
J.
Atty.,
on
Truebner,
U.
Asst.
S.
L.
appellee.
brief),
*2
by postpon-
responded
HAYS,
board
and
The local
FEINBERG
Before
May
ing
June 7.
Judges.
from
induction
TIMBERS, Circuit
let-
his first
after
May
one week
On
Judge:
FEINBERG, Circuit
again requested
ter,
a two-
Williams
This
appeals
postponement
induction.
from
Allen Bernard Williams
week
given
his
were that
States Dis-
time
reasons
in the United
a conviction
that he was
District of
and
wallet had been stolen
trict Court for
Southern
again
one-day non-jury
The board
York,
a
about to be married.
New
Wyatt, J.,
Williams, postponing in-
re-
B.
for
accommodated
trial before Inzer
fusing
report
into the
On June
for induction
duction to
1971.
June
time,
462(a).
App.
more.
wrote once
armed forces.1
U.S.C.
Williams
This
argues
support
oth-
that his induction order
he
that he
ten
stated
had to
Williams
people,3
de-
induction would
the local board
and that his
was invalid because
er
hardship”
reopen
Wil-
when
to them.
clined to
his classification
cause “extreme
deferment,
requested
pointed
events” which
he
a
liams
to “recent
improperly
induc-
he
received
the court
considered
occurred after
had
his
registration
sister,
yet
for the draft and
who was not
of his late
tion
His
order:
feet,”
a
have al-
from
the district court should
“on
had been released
her
Center,
to see the
lowed his counsel
report. Finding
Narcotics Addict Rehabilitation
in
no reversible error
had
“a
and
father
suffered
series
his
respects,
going
hospital
any of
to a
we affirm.
and
blackouts”
was
asking
by
ended
for
letter
tests.
registered
Williams
for
draft not
my hardship
prove
“to
chance
for a
shortly
birthday,
18th
when he
after his
claim.”
years
to,
supposed
but over four
lat-
January
er,
1971;
time,
by
responded immediately
in
he
about
The board
questionnaire
postponing
filled out the usual
and
until
induction
Williams’s
married, although separat-
July
asking
complete
claimed to be
him
and
provide
dependency questionnaire
ed from his wife and two children.
In
and
March,
1-A,
documents,
he was classified
nei-
mar-
but
various other
riage
personal appearance
requested
ther
and state-
and birth certificates
appealed.
passing
army
allegedly
nor
physical,
After
an
he was
from the adults
ments
later,
supporting.
received a
Williams
A short
report
May 26,
postponed
induction
until
for
on
1971.
induction date
board
notice;
May
thereafter,
On
Williams wrote
local
his
further
postponement
courtesy
report
board for a
of induction
for
asked Williams
yet
get
because he had not
had time to
him that neither
and reminded
interview
family adequately
questionnaire
his
dependency
first
situated “the
nor
my
yet
month of
absence.”
On
Williams stated
had
been received.
documents
July
agree
inducted,”2
appeared
in-
“I
be
for
but
Williams
repeated
he
what
had said
terview and
pointed
complete
he
out that
still had to
letter,
support-
his
furnished
but.
personal
putting
matters
such as
ing
refused to
evidence.
away my
I
values.
have diamond
open
and ordered
very costly
classification
Wil-
jewelry
very
his
that is
my receipts.
report
can
show forth
induction Novem-
liams
date,
ber. On
scheduled
Williams
However, he felt that
weeks will
“two
appear.4
sufficient amount of
time.”
Appellant
year
brother,
wife,
1.
two children
was sentenced to six months
old
his
prison
step-children.
probation
years.
his
for two
two
own
actually
apparently
appeared
4.
at
the induction
2. The letter
said “indicted.”
as-
He
proc-
slip.
year later,
typographical
but
left before
sume this
station one
completed.
essing could be
father,
mother,
his
21-
These
his
his
were
year
sister,
daughter,
her infant
his 20-
old
argues
postponement
Appellant
local
of induction referred
first
“very
costly”
jewel-
refusing
very
his
diamond
had
fact
no basis
ry and
to the loss of his wal-
classification after
his second
supportive
let —neither
of fi-
his
dated June
received
letter
regulation,
hardship;
applicable
nancial
his
second
The then
*3
get
ap-
reproduced
married,
(1972),
in
he was
about
1625.2
stated
C.F.R.
margin.5
it,
contradicting
reopening
parently
is for-
the information
the
Under
already
(Nowhere
he
order
that
was
an induction
married.
bidden
after
registrant
appellant suggest
had, in the
the
that he
a
unless
board
mailed
“resulting
interim,
divorce.)
change in
obtained a
The board
first
finds a
status
might
reg-
well
concluded from
over which the
have
these
from circumstances
fail-
no control.”
If that condi-
and from Williams’s
istrant has
circumstances
years
register
in
re-
ure
for over four
met,
tion is
the board is
effect
after
quired
reopen
request
birthday
18th
it
if the
“is ac-
his
was faced with
pattern
through
by
companied
delay
of
information
a
successive
written
previously
applications
postponement.
presenting
consid-
facts” not
Under
conditions,
justify
request
“which,
true,
a
the
if
would
ered
board’s
change
support
in
classification
sudden claim
...
Williams
his
” 6
hardship
extreme
infor-
The
decided that
of
with written
.
board
marriage
mation,
g.,
not
submitted
it did
or birth certifi-
the evidence
e.
dependency questionnaire
“justify”
cates,
reopening.
a
conclude that
and
We
it,
allegedly dependent
the
from
on the
of
record before
statements
the
the
basis
adults,
right
reasonable,
and
had
feel that
was
board
a
Williams
enough
properly
do so could
have been
never
furnished
information
failure to
classification,
regarded
words,
reexamining
his
as
In other
we
warrant
crucial.
proper.
hold
of
and
will not
that a bare
ex-
therefore its action was
hardship
dependents
treme
to named
considering
request,
In
the
the
regarded
always
must
be
as conclusive
certainly
take into account a
could
request
on a
made after
Although
number
facts:
Williams
an induction notice
been mailed.7
has
he
a
said
had
wife and two children
simply too
The chances of
are
abuse
registered,
when he
he
no hard-
claimed
great. When,
here,
the board has
ship
request
deferment
then.
first
His
(1973).
change
seems
§ 1625.2
former
may reopen
5. The
local board
consider
merely
prior
ratify judicial gloss on the
registrant
(a)
anew the
of a
classification
language
(“may reopen”)
it
registrant,
under which
upon
request
the
the written
was held that
must
when
request
accompanied
.
.
if
.
registrant’s
allegations
the
refuted
are not
by
presenting
facts
written
information
Mulloy
other
in
file.
evidence
his
registrant
the
not
considered when
States,
410, 415-416, 90
United
398 U.S.
S.
which,
true,
justify
classified,
if
would
1766,
(1970) ; Paszel v.
classification;
Ct.
Laird,
ther
“written
information
facts,”
and when these are
fur-
Finally,
argues,
appellant
may
reopen.8
properly
nished,
decline to
trial
into
court should not have allowed
regis
testimony
his late
about
Appellant
hold,
to the
next contends
tration for
draft.
denying
contrary,
proper;
district
court erred in
admission was
—as
policy
indeed,
erro
matter of
exclusion
counsel’s
would have been
—trial
out,
pointed
report.
previously
neous.
we
see the
At
As
“rightly
justifiably
time
could
refusal,
court said
consider
lapse
permit
four-year
or
more
on the
wrongly,
don’t
that.
than
*4
request
question
.” The
claims that
of whether
Government
good
hardship
this remark has been
wrenched out of
deferment was a
sentencing proceed-
right or,
context. The
faith
of
on the other
entire
ing shows,
argues,
dilatory
only
purely
hand,
an exercise of
tactic.
the court’s
evi
undoubted discretion not
was entitled to consider
this
court
dence,
registrant’s
pre-sentence
report.
disclose the whole
which was in the
file.
Thus,
points
the Government
out
that
Judgment affirmed.
judge
the
read almost verbatim into the
portions
report
all
record
those
the
TIMBERS,
Judge (concurring
Circuit
which, according
might
him,
conceiva-
part
part):
dissenting
(These
bly affect
the sentence.
related
prior
record.)
to Williams’s
criminal
judgment
I
in the
Court
concur
the
agree
appellant
We
with
that an abso-
appellant’s
which affirms
conviction
disposition
lute
to withhold
report
refusal
into
for induction
material would be barred under United
armed forces of the United States.
(2d
Brown,
States v.
470 F.2d
287
major-
I
in much of
concur
so
also
1972),
judge’s language
Cir.
where the
ity opinion
necessary
is
as
that
reach
certainly stronger
(“it
result.
policy
pre-sen-
Court
disclose
reports
tence
...
it has never
respect
aspect
With
to one
of the ma-
my
done in
regard
been
all
in the
jority opinion
court-
as unnec-
which I
essary
recall.”).
room that
and therefore
I can
reach
result
But whether
dictum,
respectfully
I
dissent.
judge
truly
or not the
here took a
inflex-
against disclosure,
ible stand
there was
Specifically,
majority
states
no reversible error.
have examined
hardship
“a bare
claim of extreme
report,
judge
and the
disclose
always
dependents
named
not]
[need
portions
substantially
those
that were
regarded
on a
conclusive
harmful
Thereafter,
both
an
Williams.
made
induction no-
appellant
counsel
(emphasis
addressed
tice has
mailed.”
been
court,
original). Although
and neither contradicted the facts
majority
disa-
which had
vows,
any
been
footnote,
Under
revealed.
intention to reach
By requesting
prima
such data
here
conclud
istrant
has made
claim.
out
facie
ing,
absence,
preliminary inquiry underlying
in its
“no evidence
war
this find
any change
present
ing
[appellant’s]
equivalent
reopening.
rants
is not
classification,”
Cohen,
(2d
the board
de
did not
facto re
States
1973)
v.
gations required —before classification. Jones, 433 F.2d v. United States cert, (2 denied, 1293-94 n. Cir. (1971); Laird, Paszel U.S. (2 1970). Cir. 426 F.2d 1173-74
Although have held several circuits an undocumented opposed of conscientious to one
—as objection sufficient —is Morris, 448 g., opening, e. Grosfield (4 1011-13 Cir. contrary appear would result 1625.2 command of 32 C.F.R. regulation precludes re- (1972). That specifi- opening local “unless the change in cally has been there finds ” . . . . status requirement added). (emphasis This pre-in- applicable to a juxtaposed to that request for reclassifica- notice duction only pres- requires The latter
tion. which, true, if would entation of facts allega- bare If warrant reclassification. sufficient to were be viewed
tions require post-induction in some situations, the effect would
notice (1) unable would be
twofold: findings it nec- specific because make
essarily essential information would lack determination; this threshold procedures the same
(2) would be post pre induction both contrary requests for reclassification regulation. plain command that issue
I therefore would leave where in a case
determination squarely presented the record
necessary not that result. This is to the
case.