Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. KOVALCHICK

July 12, 1966

The UNITED STATES of America
v.
Peter Charles KOVALCHICK



The opinion of the court was delivered by: CLARY

 CLARY, Chief Judge.

 Early in 1964 defendant passed his Armed Services physical examination and the Board inquired concerning his choice of civil work program. Defendant continually rejected the opportunities for civilian employment offered by the Board, and again stated that he was a minister and thus not subject to any work in lieu of military service. Finally, an indictment was returned upon his failure to report for work on February 23, 1965. After a trial by a jury, defendant was found guilty of refusing to obey the order of his local Selective Service Board to report at the Norristown State Hospital, in violation of 50 App. U.S.C. §§ 456(j), 462. Defendant then brought this present motion for a new trial or, in the alternative, in arrest of judgment. For the reasons given below, such motion will be denied.

 Defendant argues that the Court erred in refusing to allow his witness, Edward Dunn, to testify concerning defendant's ministerial activities. The scope of review by this Court supervising the actions of the Draft Board is very narrow. The Court must merely determine if there was any basis in fact for the decision of the Board, Witmer v. United States, 348 U.S. 375, 380, 75 S. Ct. 392, 99 L. Ed. 428 (1955), Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953), Estep v. United States, 327 U.S. 114, 122, 66 S. Ct. 423, 90 L. Ed. 567 (1946), and whether the registrant was given a sufficient opportunity to present his arguments at a hearing to meet the requirements of substantive and procedural due process. United States v. Majher, 250 F. Supp. 106, 109 (S.D.W.Va.1966), United States v. Hestad, 248 F. Supp. 650, 656 (W.D.Wis.1965). As the Court stated in Witmer, supra, 348 U.S. at 380-381, 75 S. Ct. at 395:

 
"It is well to remember that it is not for the courts to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations * * * The classification can be overturned only if it has 'no basis in fact.'"

 In light of this narrow scope of review, and in light of the jury's finding that there was a basis in fact for the decision of the Board, defendant could not have been prejudiced by the Court's refusal to allow this enlargement of the record. See also United States v. Sturgis, 342 F.2d 328 (3 Cir. 1965), cert. denied, 382 U.S. 879, 86 S. Ct. 164, 15 L. Ed. 2d 120 (1965).

 Defendant further contends prejudice because of lack of counsel before the Board and by the Board's failure to provide him with advisors. Lack of counsel before the Board is not ground for reversal of a conviction, United States v. Sturgis, supra. The case of United States v. Schwartz, 143 F. Supp. 639 (E.D.N.Y.1956), cited by counsel for the defendant at oral argument with respect to advisors, is inapposite. The ruling in that case was under an earlier regulation which provided that advisors "shall" be appointed for each Board. This regulation was amended as early as February 3, 1955 to change "shall" to "may". 32 C.F.R., § 1601.41. See 1955 United States Code Congressional and Administrative News, page 1055. Furthermore, not only did the defendant fail to carry his burden to prove he was prejudiced by such failure (see United States v. Sturgis, supra), but the testimony disclosed that he had actually been advised in these matters by witness, Edward Dunn, the Congregational Servant. Mr. Dunn was recognized by the Draft Board as an ordained minister and presiding clergyman of Jehovah's Witnesses in that area. Clearly, defendant's contention has no merit.

 Finally, defendant urges that the Court erred in not dismissing for cause a prospective juror (stricken by defendant), who admitted that he was prejudiced against Jehovah's Witnesses. This juror was one of four, from which group two alternates were to be chosen. The case was a short case and the likelihood of need of any alternates was slight. No alternate was needed. The original jury already picked decided the case. The contention is likewise without merit.

19660712

© 1992-2004 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.