United States of America, Appellee, v. Arnold G. Sandbank, Appellant, 403 F.2d 38 (2d Cir. 1969)

Although this case was affirmed in open court, we believe it desirable to state briefly our reasons for that action.

Arnold G. Sandbank appeals from a judgment of conviction after trial before Judge Wyatt, sitting without a jury, for failure to report for induction into the military on July 26, 1967, and for failure to submit to induction on January 3, 1968. He was sentenced to three years on each count, the sentences to run concurrently.

Sandbank contends that he was deprived of his liberty without due process of law because he was not able to contest the denial of his request for a 1-0 deferment as a conscientious objector after his induction notice was issued. A registrant may have his application for conscientious objector status considered by the Local Draft Board even after the induction notice is issued provided he raises his claim promptly after it matures. United States v. Gearey, 368 F.2d 144, 150 (2d Cir. 1966). The Draft Board must reopen the case only if the registrant has made out a prima facie case, based on objective facts, that he is entitled to be reclassified. United States v. Gearey, 379 F.2d 915, 922 n. 11 (2d Cir. 1967). See United States v. Nugent, 346 U.S. 1, 73 S. Ct. 991, 97 L. Ed. 1417 (1953). The Selective Service regulations require that before the Local Draft Board may reopen the case it must find that there has been a change in status resulting from circumstances over which the registrant has no control, subsequent to issuance of his induction notice. 32 C.F.R. § 1625.2.

Sandbank claims that § 1625.2 does not apply in his case since the induction notice in question was cancelled by officials at the induction center. We believe, however, that there is sufficient evidence to conclude that the order was merely postponed rather than cancelled. Nor has Sandbank shown that his claim to conscientious objector status matured after the induction notice was issued. United States v. Gearey, 368 F.2d 144, 150 (2d Cir. 1966). He bases his claim on his parochial school training, and states that he has held his beliefs since the age of seven. Further, although Sandbank has had numerous appeals on various grounds since reaching his eighteenth birthday, when his claim to conscientious objector status could have been fairly heard, he never mentioned these beliefs or his alleged pacifist training until after receipt of the induction order which was approximately three years later. In sum, Sandbank has failed to make a prima facie case demonstrating that he is entitled to reclassification.

Sandbank also asserts that the court below should have directed a judgment of acquittal by reason of the government's failure to show as part of its case in chief that he was called up for military duty in the proper order. He contends, relying on United States v. Lybrand, 279 F. Supp. 74 (E.D.N.Y. 1967), that such affirmative proof is an essential element of the government's case. We believe there was adequate evidence to support Judge Wyatt's finding that Sandbank was called in proper order. Moreover, we do not agree with the District Court's conclusion in Lybrand.^*  We are of the view that the better rule is to require the registrant to show that the call up was invalid as part of his defense with the right to the government to rebut such evidence. Lowe v. United States, 389 F.2d 51 (5th Cir. 1968); Greer v. United States, 378 F.2d 931 (5th Cir. 1967).

Affirmed.