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UNITED STATES v. WAGNER

August 14, 1967

UNITED STATES of America, Plaintiff,
v.
Ronald L. WAGNER, Defendant



The opinion of the court was delivered by: BOLDT

 BOLDT, District Judge.

 1. Indictment.

 The court finds the indictment charging defendant with violating 50 App. U.S.C. § 462(a), by refusing to be inducted into the Armed Forces after being properly selected for military service, is sufficient although the word "knowingly" is not expressly contained in the indictment. The offense is charged in the language of the statute and citation of the pertinent statute is provided pursuant to Rule 7(c), Federal Rules of Criminal Procedure. The statute itself does not mention a "knowing" refusal to be inducted in its language and formal words are unnecessary to an indictment where the allegations fairly import guilty knowledge and intent on the part of defendant. See: Madsen v. United States, 165 F.2d 507 (10th Cir. 1947). The word "refuse" contains within it an implication of guilty knowledge on the part of the actor. Compare: Grant v. United States, 291 F.2d 746 (9th Cir. 1961). Finally, the indictment charges defendant indicated his refusal of induction in writing, thus dispelling all doubt but that knowledge and intent is attributed to defendant by the charge.

 2. Duty to Report for Induction.

 Defendant requested and was granted permission by his Local Board to delay reporting for induction by one day and to drive directly to the induction center. Defendant's duty to report is derived from the Order to Report for Induction issued March 31, 1966 and directions issued October 3, 1966. Defendant's conduct in requesting and receiving permission to delay reporting for induction by one day did not vitiate the legal effect of the induction order, pursuant to which defendant's duty to report was a continuing one from day to day. See: 32 C.F.R. 1632.14.

 3. Effect of Postponement.

 No statutory authority imposes a time limitation on the validity of an Order to Report for Induction. The power of the Local Board to grant a formal postponement of induction is limited to a maximum period of 120 days under 32 C.F.R. 1632.2(a), which section in no way limits the operative effect of the Induction Order itself. See: 32 C.F.R. 1632.2, subsection (d).

 4. Classification of Defendant.

 a. Error in law. Defendant claimed exemption as a conscientious objector on the basis of religious convictions gained through radio broadcasts and pamphlets promulgated by the Radio Church of God. In these circumstances, the request of the Local Board for more information concerning the teachings of the Radio Church in no way implies a requirement by the Board that defendant be a member of the Church. Similarly, an inquiry by the Board concerning the position of this particular church in relation to the requirements of the selective service regulations was valid and correct procedure; the tenets of the church, concerning warfare, when relied upon by a registrant, is clearly relevant if not crucial to his eligibility for a conscientious objector classification. See: 32 C.F.R. 1622.11(a) and (b), 1622.14(a) and (b).

 b. Arbitrary refusal to reclassify defendant. The court finds the Local Board has fully and fairly considered all evidence presented to it by defendant in support of his claim for re-classification in Class I-O. Much of the material supplied by defendant was presented after the issuance of an induction order on March 31, 1966 and pertained to circumstances under defendant's control, thereby invoking the prohibition of 32 C.F.R. 1632.2 that the classification shall not be reopened in such a situation. "New Facts" listed by defendant in his trial brief, other than those within the prohibition of section 1632.2, are recited opinions of friends and associates of defendant concerning the sincerity of defendant's beliefs and merely cumulative evidence; nothing in the material before the Local Board explains or defines the substance and duration of defendant's religious training in so far as religious opposition to military service is concerned. All material relied upon by defendant was considered by the Local Board, either at defendant's personal appearance before the Board or in the two courtesy interviews granted defendant. The refusal of the Local Board to reclassify defendant, in view of the inadequate cumulative nature of the material presented to it by defendant, the unanimous classification of defendant in Class I-A by the appellate boards, and the evidence before the Local Board, was in no way arbitrary or capricious agency action.

 c. Basis in fact for defendant's classification. On a careful review of the entire record, considered as a whole, the court is satisfied a factual basis supported classification of defendant in Class I-A-O and Class I-A. If the record shows evidence supporting the Board's decision, the court may not substitute its judgment for that of the Board as to proper classification of a registrant. The sole issue for the court is whether or not the record contains direct or circumstantial evidence upon which the classification could reasonably have been based. If so, the determination of the Board is final, even though it may be erroneous. See: Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946).

 A partial list of facts which could have been relied upon by the selective service boards in arriving at defendant's classification might include: (a) the absence of credible evidence concerning the training received by defendant in so far as opposition to war is concerned; (b) the ambiguity as to the time when defendant embraced religious views incompatible with military obligations and the apparent synchronization of such views with defendant's eligibility for military service; (c) defendant's unemployment, record of juvenile delinquency, and dilettante knowledge of Scriptures. In this connection the court states it was not favorably impressed by defendant's demeanor and testimony with respect to either the defendant's integrity or sincerity. These and other facts, inferable from the record, considered as a ...


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