221 F.2d 356 | 2d Cir. | 1955
Lead Opinion
Defendant is a native of Germany who has lived in the United States since he was three years old but who has never acquired American citizenship. In June, 1942, he duly registered under the Selective Service Act
1. Defendant contends that he was entitled to be classified in Class IV-C Non-declarant alien; that, under the Second Hague Convention of 1907, to which the United States is a signatory, he could not be compelled to take part in operations of war against Germany, and that therefore the Board had no pow
2. Defendant alleges that he was advised by the Assistant United States Attorney in charge of his case, his “superior,”
3. The defendant also contends that he was denied a right owing to him, in that no presentence investigation and report, for the benefit of the sentencing judge, was ever made, as required by F.R.Crim.Proc. rule 32(c), 18 U.S.C.A. But that Rule permits a judge to dispense with the investigation and report if, in his discretion, he determines the investigation and report to be unnecessary; and, by proceeding to impose sentence without the report, the judge, in effect, exercised his discretionary power to dispense. with it. United States v. Karavias, 7 Cir., 170 F.2d 968, 971-972.
Affirmed.
. Now 50 U.S.C.A.Appendix, § 451 et seq.
. Presumably the United States Attorney.
Concurrence Opinion
(concurring).
Defendant, having served his sentence, makes this application to clear his record and remove an impediment to the granting of his request to be permitted to take the New York Dental licensing examination. At the time he filed his questionnaire with his Local Draft Board on November 27, 1942, he was a student at Columbia University and, after his release in 1945, he took a pre-dental course and graduated in June 1953, with honors, from Pennsylvania University Dental School. Immediately thereafter he registered under the 1953 Doctors and Dentists Draft Law, was classified 1-A and accepted for service.
There is no reason to doubt his statement that as a German national he did not wish to join the armed forces in conflict with Germans. Neither his feelings in the matter, nor his erroneous belief that, if he submitted to the physical examination, he would waive any rights he might have to object to such service as an enemy alien, involved moral turpitude so far as I can see. But we cannot trespass upon the field allotted to those who exercise the power of clemency. Technically, there is no flaw in the proceedings leading to this judgment of conviction. Accordingly, I concur.