of Section 12 of the Act (Title 50 U.S.C.App. § 462).
The cause was tried before the Court without a jury — the jury
having been waived by the defendant prior to the commencement of
The cause was heard on January 27, 1969. At the conclusion of
the government's case, the defendant elected not to present any
evidence, moved for judgment of acquittal and for a directed
finding of not guilty. Following the trial, the parties requested
and were granted leave to file briefs. Briefs have now been
submitted and the cause is presently for consideration.
In support of his motion for judgment of acquittal, defendant
sets forth twelve points, namely:
1. That the order to report for civilian work issued in lieu of
induction and the balance of the Selective Service file
introduced in evidence show that the order was void as not being
authorized or by order of the entire Local Board as required by
Selective Service Regulation.
2. That the defendant was denied procedural and substantive due
process in that he was denied a meaningful physical examination
at the time he was processed for civilian work.
3. That the evidence clearly shows that there was no basis in
fact for the refusal of the Selective Service Board to properly
classify the defendant Jerry Lee Huisinga as IV-D, Minister of
4. That there is no evidence to show that the defendant, at the
time of the issuance of the order to report for civilian work in
lieu of induction, would have at said time been available for
induction had he not been classified other than I-A.
5. That there is no basis in fact for the failure of the
Selective Service Board or the refusal of the Selective Service
Board to reopen the classification of defendant and give full and
fair consideration to his application for a new classification.
6. That the defendant was denied procedural and substantive due
process of law by the arbitrary reclassification from I-S to I-O
on October 27, 1967 in the absence of notice to the Board that
there had been a change in his status as a "full-time student."
7. That the entire Selective Service file on evidence displays
that the registrant was denied procedural and substantive due
process of law throughout the efforts to classify him by the
Selective Service Board by reason of the manifest prejudice of
the Chairman and members of the Board.
8. That the government wholly failed to establish and prove by
competent evidence beyond a reasonable doubt every essential
element of the offense charged in the indictment and has failed
to overcome the presumption of innocence.
9. That the government has failed to establish and prove by
competent evidence by a reasonable doubt the existence of the
10. That the order to report for civilian service in lieu of
induction upon its face is in violation of the Thirteenth
Amendment of the United States Constitution which provides that
"neither slavery nor involuntary servitude, except as a
punishment for a crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."
11. That the Selective Service file and specifically those
parts thereof objected to at the time of trial were erroneously
admitted into evidence.
12. That the Selective Service file, standing by itself, is not
sufficient to establish the guilt of Jerry Lee Huisinga beyond a
At the trial Norma Booty, Executive Secretary of Local Board
No. 181, testified that as such she was custodian of all the
records of the registrants of Local Board No. 181. She identified
the records of the registrant Jerry Lee Huisinga, which were
marked as Government's Exhibits 1 through 40, and testified these
records were kept in the ordinary
course of business. The records were then offered into
evidence — the defendant objecting generally to the entire file and
specifically to: Government Exhibit 33, a memorandum dated May 1,
1968, stating, "The above-named registrant did not report to
Local Board No. 181."; No. 34, a carbon copy of a letter directed
to the Chicago State Hospital; No. 35, a letter of May 2, 1968,
purportedly signed by Raymond Gibbs, the field personnel officer
of the Chicago State Hospital. The records were admitted into
evidence by the Court subject to the objections. The objection to
admission of these documents into evidence will be hereinafter
This witness testified concerning the various government
exhibits. She further testified that it was the administrative
practice of the Board to issue orders in the manner in which they
were issued here, that the Board did not adopt resolutions
concerning the issuance of orders.
Defendant contends that the Selective Service file and
Government Exhibits 33, 34 and 35 are inadmissible. An almost
identical question was presented to the United States Circuit
Court of Appeals for the Seventh Circuit in United States v.
Holmes, 387 F.2d 781. That Court held that comparable exhibits
were admissible in the trial court and did not deny the defendant
of his constitutional right of confrontation, setting forth in
detail the reasons therefor. The facts in Holmes are basically
identical to the facts presented here. Defendant's objection to
the admission into evidence of the Selective Service file and the
specific objections to Government's Exhibits 33, 34 and 35 are
without merit, and the Government's Exhibits Nos. 1 through 40,
inclusive, are admitted.
The evidence shows: A meeting of the Board was held at the
Local Board office on April 1, 1968; the registrant Jerry Lee
Huisinga was present as was also the representative of the
Illinois State Director and the Clerk of the Local Board; and the
registrant (defendant here) was sworn. The purpose of the meeting
was explained and the conscientious objector work program was
outlined; the registrant was given an opportunity to ask
questions which he declined to do, stating that he understood and
that according to his religion he could not compromise by going
along with Selective Service. He was thereafter asked if he would
accept civilian work in lieu of induction, which he declined. On
April 3, 1968, the Clerk on behalf of the Local Board requested
approval of the issuance of an order by the Local Board directing
the registrant to perform hospital work at Chicago State
Hospital, stating the refusal of the registrant to come to any
agreement regarding the type of civilian work he should perform
in lieu of induction and further advising that the work was
available and considered to be appropriate for the registrant to
perform. The Clerk of the Board testified that the order to
report for civilian work was issued; that there was nothing
unusual about the order; that it was the usual manner in which
the Board acted and that it was the ordinary way in which orders
of this type were issued.
In Brede v. United States, 400 F.2d 599 (9th Cir., 1968), the
United States argued that "a determination that certain work is
appropriate constitutes an implied order to report for such work,
subject to authorization of the National Director and notice."
The Court stated:
"The Government's contention may have merit in an
appropriate case. Here, however, the record is silent
as to administrative construction and practice, or as
to any understanding of the board in such respects
from which it might be found that the critical
exercise of administrative judgment had been made."
In Davis v. United States, 402 F.2d 513 (5th Cir., 1968), the
Court under comparable facts as here stated:
"The record satisfies us that the local board fully
complied with Section 1660.20(d), and that the
critical exercise of administrative judgment was made
by the board when it determined, at a meeting at
which appellant was
present, that he was qualified to perform
rehabilitation work * * *, that such work was
available and was offered to him by the board."
Here, as in Davis, the registrant was present at a meeting of the
Board; the program was explained to him, which he stated he
understood but that he was not willing to accept civilian work.
The Court finds that here the exercise of the administrative
judgment was made at the time of the meeting when the registrant
was present and that, although apparently no official resolution
was adopted by the Board, the Board's action constitutes an
implied order to report for such work subject to authorization
and notice. Authorization was subsequently received and notice
sent to the defendant. The Court finds that the Local Board
adequately complied with Section 1660.20(d).