United States of America, Appellee, v. John Kenneth Back, Jr., Defendant-appellant, 409 F.2d 1318 (2d Cir. 1969)Annotate this Case
Decided April 28, 1969
John Somers, New York City (Blumenthal, Somers & Goldstick, New York City, on the brief), for defendant-appellant.
John R. Robinson, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, Paul K. Rooney, Asst. U. S. Atty., on the brief), for appellee.
Before WATERMAN, SMITH and FEINBERG, Circuit Judges.
John Kenneth Back, Jr. appeals from a judgment of conviction for failing to report for induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a), entered in the United States District Court for the Southern District of New York after a trial before Thomas F. Murphy, J., sitting without a jury. Appellant claims that the evidence at trial was legally insufficient to prove that he knowingly and wilfully failed to report for induction, that there was no basis in fact for his 1-A classification, that he was not accorded procedural due process, and that the trial court erroneously denied him the right to prove sincerity and religious training and belief.
The question of appellant's intent is an issue of fact which was resolved by the trier of fact, Judge Murphy. There was sufficient evidence to support the judge's finding. The 1-A classification was supportable by the recommendation of the United States Department of Justice, which emphasized, inter alia, appellant's "half formed" ideas, in suggesting that his claim for conscientious objector treatment be denied, see United States v. Purvis, 403 F.2d 555, 559 (2d Cir. 1968); United States v. Gearey, 368 F.2d 144, 148 (2d Cir. 1966), by the belatedness of appellant's claim, see United States v. Gearey, 379 F.2d 915, 920-921 (2d Cir.), cert. denied, 389 U.S. 959, 88 S. Ct. 335, 19 L. Ed. 2d 368 (1967), and by appellant's unconvincing personal appearance before the local board. Without deciding whether any of these factors standing alone would provide the necessary basis in fact for appellant's classification, we conclude that their combined effect was sufficient.
There were no procedural deficiencies sufficient to amount to lack of due process, although objections such as those made here to the manner in which local boards keep a record of hearings before them will acquire greater significance in the future, now that factual inquiries into the beliefs and sincerity of alleged conscientious objectors will be made primarily at the local board level rather than by the Department of Justice. See, e. g., Reisner, The Conscientious Objector Exemption: Administrative Procedures and Judicial Review, 35 U. Chi. L. Rev. 686, 714-19 (1968); cf. United States v. Purvis, supra, 403 F.2d at 557, 562 n. 20. Finally, Judge Murphy committed no error in excluding at the criminal trial evidence of appellant's sincerity since the question before him was whether appellant's classification by his draft board had a factual basis on the record before it. The Government strenuously argues that, in any event, defendant's failure to exhaust his administrative remedies should bar the defenses raised below and in this court. While the argument is not without merit on this record, it is unnecessary to deal with it.