The opinion of the court was delivered by: CLARY
Defendant Larry Deane Stepler was charged in the above Indictment with knowingly failing and neglecting to perform a duty imposed upon him by the provisions of the rules and regulations of the Selective Service Act of 1948, as amended by the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., in that he failed and neglected to obey an Order of Local Board Number 72, Chambersburg, Pennsylvania, to report to the Norristown State Hospital, Norristown, Pennsylvania, to perform civilian work contributing to the maintenance of the national health, safety or interest, in lieu of induction; in violation of Title 50 U.S.C.A.Appendix, §§ 456(j) and 462.
The case was tried before the Court to a jury and on April 4, 1957 the jury returned a verdict of guilty. Defendant's counsel filed a motion for judgment of acquittal only, briefs were submitted and oral argument had thereon, and the motion is now before the Court for decision.
The entire Draft Board file was presented in evidence in this case and the following facts appear therein. In his classification questionnaire of December 7, 1950, the defendant indicated he was working as a bricklayer for $ 1.75 per hour and was working at that trade an average of 40 hours per week. In its letter of May 31, 1951 to the defendant the Local Board applied the proper statutory standard for determining a ministerial classification, noting that it must be 'as a vocation'. The Board's further letter of August 13, 1951 to the State Headquarters Selective Service System again applied the correct standard. In defendant's letter of September 12, 1952 to the Board he stated that he was employed as a full time minister, whereas, the Local Board in its letter of November 19, 1952 to the State Appeal Board noted that he was working on a construction project. In the Department of Justice report of April 16, 1953 to the State Appeal Board it was again noted that the defendant was employed 40 hours per week in secular employment and 25 hours per week as a minister and recommended a I-O classification, which recommendation was followed by the Appeal Board. Defendant again wrote on May 14, 1953 to the Local Board notifying them of his ordination and appointment as a 'Pioneer Minister' on March 15, 1952. On the 15th day of May, 1953, defendant was permitted by the Local Board to personally take and review his entire file. The Government Appeal Agent in his letter of May 20, 1953 to the Local Board again applied the correct ministerial standard, and he also noted that the 40 hours per week secular work agreed with the Local Board's I-O classification, and declined to appeal to the Director of Selective Service.
In a letter of April 28, 1954 from the State Headquarters of the Selective Service System to the Local Board in respect of defendant's case the following was noted: 'And it is requested that his classification be reopened and considered anew under section 1625.3(a) in view of the apparent change in his status which resulted when he received his Pioneer appointment. * * * Should it be your determination that the registrant does not qualify for the classification claimed, it is suggested that a statement be put in the file to evidence the reason or reasons for your determination. The preceding remark is not made to influence your board, but merely as a precaution that the record may be complete. If the registrant's classification should remain Class I-O if it is considered by the local board after a personal appearance, and after consideration by the appeal board, it will not be necessary to again process the case under section 1660.20 of the regulations. Please notify this headquarters of your board's determination.'(Emphasis supplied.)
In 32 C.F.R. section 1625.3 the circumstances under which a registrant's classification shall be reopened and considered anew reads as follows:
'The local board shall reopen and consider anew the classification of a registrant upon the written request of the State Director of Selective Service * * *.'
A fair and unbiased reading of the letter of April 28, 1954 will disclose the following language: 'if it is considered by the local board after a personal appearance.' It is completely self-evident that if the letter should be considered a request, as such, under the wording of section 1625.3, the Board would be compelled to reopen the case. The entire letter when viewed as a whole demonstrates that the letter was not considered by the writer as a 'request to reopen' within the mandatory provisions of the statute but was rather in the nature of a suggestion, calling attention to the Local Board of a situation in which they might or might not decide properly to open the case.
Counsel for defendant places great reliance upon the case of United States v. Packer, 2 Cir., 1952, 200 F.2d 540, and argued strenuously that the decision in that case was conclusive on the Court in this case. He failed, however, to disclose to the Court that that case was reversed sub nominee. United States v. Nugent, 1953, 346 U.S. 1, 73 S. Ct. 991, 97 L. Ed. 1417.
Two additional facts should be noted at this point. First, the letter in the Packer case was worded entirely different from the one present in this case and, secondly, the subsequent action of the Local Board in this case completely disposes of any apparent unfairness or lack of consideration.
On May 24, 1954 Stepler personally appeared before the Local Board and admitted that he earned his living as a stone mason, making $ 100 for a full week, the number of hours worked in a given week depending upon the weather, and that he earned from secular employment $ 2,000 in the prior twelve months. At the trial he stated his yearly earnings were $ 3,000 or more.
'1. A member of Jehovah's Witnesses does not qualify for a 4-D classification for the reason that he does not have the training and qualifications of an ordained minister.'
'7. At no place in the registrant's file, nor during his last personal appearance, is there anything that would convince us that this registrant is entitled to the classification of a minister of religion, or of a divinity student (this statement ...