of April 28, 1954 and asked the Board to forward the defendant's file to State Headquarters.
The next step was a letter of January 28, 1955 to the National Headquarters in Washington, D.C. from the State Headquarters noting that 'The fact that the registrant's claim for a ministerial status had been denied on a basis which is not in accordance with the law and regulations was brought to the attention of the local board. The local board discussed this case at its meeting of November 17, 1954, at which time no action was taken to reopen and consider the registrant's classification anew, since it was the opinion of the board that the registrant does not qualify for a IV-D classification under section 1622.43 of the regulations. It is requested that the necessary approval under section 1660.20(d) of the regulations be granted to order the registrant to report for civilian work if such action is deemed appropriate by your headquarters.' (Emphasis supplied.) See Reap v. Shambora, 5 Cir., 1957, 241 F.2d 803, 807.
It is quite obvious that if there was, and the Court does not believe there was, any mistaken belief as to the proper standard to be used in evaluating the objective facts before the Board, such mistaken belief had been corrected at this stage of the proceedings. See Bradshaw v. United States, 10 Cir., 1957, 242 F.2d 180; Reed v. United States, 9 Cir., 1953, 205 F.2d 216, certiorari denied, 346 U.S. 908, 74 S. Ct. 238, 98 L. Ed. 406; United States v. Pitt, 3 Cir., 1944, 144 F.2d 169. It is apparent from a study of the objective facts of the case that the Local Board had a proper basis in fact for the classification and that it was not arbitrary or capricious, nor had it been arrived at on the basis of suspicion and/or prejudice. Compare Witmer v. United States, 1955, 348 U.S. 375, 381, 75 S. Ct. 392, 99 L. Ed. 428, and United States v. Pitt, 3 Cir., 1944, 144 F.2d 169, 171, 173, with cases where there was no basis in fact for the refusal to grant the ministerial exemption such as Dickinson v. United States, 1953, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132, and United States v. Kose, D.C., 106 F.Supp. 433.
On March 17, 1955, on the basis of the objective facts determined both by the Local Board and the State Headquarters, the National Headquarters approved the order of the Local Board requiring the defendant to perform hospital work. It is entirely clear from the record that from this point on the Local Board proceeded properly to order the defendant to report for hospital work and that he knowingly refused to obey the order of the Local Board. It is quite illuminating, at least to the Court in this instance, that before anything in the nature of instituting criminal proceedings was done, that on the 18th day of May, 1955, State Headquarters, in returning the file to National Headquarters, referred to a statement dated May 12, 1955 of the Local Board that on the 18th day of November, 1954, when the last refusal of the Local Board to reopen defendant's classification was had, it was thoroughly understood by members of the Board that certain members of Jehovah's Witnesses do meet the requirements of the regulations in regard to Class IV-D classification and that recognizing such the Board did not feel that this particular registrant was entitled to that classification. Compare United States v. Pitt, 3 Cir., 1944, 144 F.2d 169, 173, with United States v. Hurt, 3 Cir., 244 F.2d 46, and with United States v. Kose, D.C., 106 F.Supp. 433.
Counsel for the defendant argues that such action was in preparation for this criminal prosecution. I do not so regard it. A review of the Local Board's file finds ample support in fact for the classification as made. The question whether there was a basis in fact in the file was submitted to the jury and the determination went against the defendant; the jury's finding that defendant knowingly refused to obey a proper order of the Local Board contrary to statute and regulations is amply supported by the evidence. Cox v. United States, 1947, 332 U.S. 442, 452, 453, 68 S. Ct. 115, 92 L. Ed. 59.
The only further point which needs passing comment is the claim that defendant was not furnished with a summary of the F.B.I. investigation. Although defendant was in written communication with the General Counsel for Jehovah's Witnesses, one Covington, it does not appear that he ever asked for any such summary. Further, the record clearly indicates that there was nothing in the F.B.I. file which was in the slightest degree derogatory to the defendant. On the contrary, the letter of the Attorney General to the Appeal Board in which the recommendation of classification to I-O was made states unequivocally that there was nothing in the F.B.I. file in the slightest degree derogatory to this defendant. In fact, such was brought out and argued to the jury by counsel for the defendant. At the time that defendant looked through his entire file he had an opportunity to see everything that the Local Board had in its file and there clearly has been shown no prejudice to the defendant in this case in that regard. Under the circumstances, I do not feel that the defendant has been denied due process of law. United States v. Nugent decided together with United States v. Packer, 1953, 346 U.S. 1, at pages 5 and 6 and note 10, 73 S. Ct. 991, at pages 994 and 995, 97 L. Ed. 1417; Bradshaw v. United States, 10 Cir., 1957, 242 F.2d 180, 188, 189.
Defendant's counsel, after the rendition of the verdict of guilty, made an oral motion for a new trial but filed no written motion with reasons in support thereof. Based on the above facts and for the reasons set forth above, the Court enters the following
And Now, to wit, this 12th day of June, 1957, defendant's motions for a new trial and for judgment of acquittal be and they are hereby Denied.
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