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UNITED STATES v. LEDERER

October 29, 1973

UNITED STATES of America
v.
James Robert LEDERER


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 James Lederer is charged in a one count indictment with failure to comply with a valid and lawful order of Local Draft Board No. 144, 3701 North Broad Street, Philadelphia, dated March 23, 1970, directing him to report for and submit to an armed forces physical examination on April 13, 1970, at 401 North Broad Street, Philadelphia, in violation of 50 U.S.C. App. § 462.

 On April 16, 1966, defendant was classified II-S by Local Board No. 144 on the basis of a Classification Questionnaire completed by him. In answer to Series VIII of the Questionnaire, defendant claimed conscientious objector status and requested that the Local Board send him Special Form SSS-150. The form was not forwarded to the defendant until February 4, 1969. It was either never returned to or never received by the Local Board. Over a year later, on March 23, 1970, the defendant was notified to report for an armed forces physical examination. The order specified the date, April 13, 1970, and time, 7:30 A.M., of the examination, but did not designate the place the exam would be given. Defendant did not report for the physical examination. He was indicted on September 3, 1970.

 On December 10, 1970 the Local Board received a letter from the defendant, dated December 7, 1970, stating that he had sent the Board his conscientious objector application in July, 1969 and that the Post Office or the Board had lost it. Early in 1971 the defendant became a fugitive and he was not apprehended until January, 1973.

 This case was tried before us without a jury on June 25, 1973. At trial two questions were presented. The parties have submitted briefs on these issues and have agreed that their resolution will be determinative of the defendant's guilt or innocence. The parties do not disagree with any of the relevant facts.

 The first question presented is whether a Local Board is under an affirmative duty to inquire of the registrant's apparent failure to return or complete a requested Form SSS-150 before the Board can order the registrant to take an armed forces physical examination. The second question is whether an order to report for a physical examination which fails to designate the place of the proposed exam, but is accurate and correct in all other respects, constitutes legally inadequate notice to the registrant, justifying failure to report.

 Defendant has directed us to our decision in United States v. Williams, 317 F. Supp. 1363 (E.D.Pa.1970), in support of his contention that the Local Board had an affirmative duty to determine why there was no response from the registrant after the requested Form SSS-150 was mailed to him. In the Williams case the registrant notified the Board of his desire for conscientious objector status when he completed and returned the Classification Questionnaire and signed Series VIII of that form. Series VIII is entitled "Conscientious Objector" and contains a warning to the registrant: "Do not sign this series unless you claim to be a conscientious objector." It requires the registrant to sign the following statement: "I claim to be a conscientious objector by reason of my religious training and belief and therefore request the local board to furnish me a Special Form for Conscientious Objector (SSS Form No. 150)."

 The special form was sent to Williams at his known address, but the defendant never received it, the Board never made further inquiry to determine why the form was not returned and, consequently, never considered the merits of his C.O. claim before he was reclassified. We held that Williams could not be found guilty of 50 U.S.C. App. § 462 unless there was a valid induction order and a prerequisite to such an order is procedural due process. Because the Board failed to afford the defendant the means of adequately presenting his C.O. claim, Williams was denied due process and the order to report for induction was invalid.

 Our holding in the Williams case that the Board obtain clarification from the registrant when a Form SSS-150 has not been timely returned was grounded on our factual finding (see Finding of Fact No. 6) that the defendant had never received the form in the first place. The defendant in this case has liberally interpreted our holding to require the Board to contact and inquire of all registrants who have not returned requested forms within a timely period whether or not they have received such forms and intend to return them. Williams should not be interpreted as extending to registrants who have been provided with the requested forms. The Williams decision simply does not go that far.

 Williams should be construed only as an affirmation of the Board's duty to supply registrants with the requested form. Failure to do so is a violation of a mandatory requirement imposed by law. See 32 C.F.R. § 1621.11; United States v. William Kroll, 400 F.2d 923, 926 (3rd Cir. 1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 728, 21 L. Ed. 2d 713 (1969). In the instant case the Board complied with its duty to supply the defendant with the requested Form SSS-150, although somewhat belatedly. Defendant's letter to the Board, dated December 7, 1970, indicates that he received it.

 In view of the factual dissimilarity between Williams and the instant case, defendant's reliance on that case is misplaced.

 While the Board has an obligation to supply forms to registrants who request them, the registrant is under a concomitant duty to return them within a timely period if he wishes to pursue his claim. The Form SSS-150 advises the registrant to complete and return it within 30 days. We note that the defendant states he returned the form six months after receiving it.

 The Government contends, however, that defendant has failed to perfect his asserted claim for C.O. status because he did not complete and return the form supplied by the Board. In United States v. Tobias, 447 F.2d 227 (3rd Cir. 1971), the court held that a "naked request" for a Form SSS-150 does not qualify as a "'written statement claiming that one is a conscientious objector.'" Because the registrant did not complete and return the requested form, "'the board was entitled to proceed, as it apparently did, on the reasonable ...


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