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United States v. Teresi

decided: March 2, 1973.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANK PETER TERESI, DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, Stevens, Circuit Judge, and Eschbach, District Judge.*fn1

Author: Eschbach

ESCHBACH, District Judge.

Defendant was convicted after a bench trial of a charge of wilfully refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. Appendix § 462. His appeal raises four questions: (1) whether the local board should have reopened his classification to consider his claim for a hardship deferment, (2) whether the board's actions constituted a de facto reopening of his classification, thus cancelling his prior order to report for induction, (3) whether the induction order was invalidated by successive postponements granted by the board, contrary to applicable regulations, and (4) whether the use by the appeal board of a resume of defendant's Selective Service file deprived him of due process and rendered invalid his I-A classification and the induction order based thereon. We have concluded that the conviction must be affirmed.

On May 3, 1966, defendant registered with his local board. His responses to questions contained in a Classification Questionnaire indicated that he did not claim to be a conscientious objector, that he suffered from no disqualifying physical condition, and that he had no family or other problems. He later informed the board that he had enrolled in college and was granted a II-S student deferment. On January 16, 1969, shortly after defendant's withdrawal from college he was reclassified I-A. Defendant appealed this classification on the basis of his claims that he suffered from a disqualifying medical condition, despite the fact that he had not yet received an Army physical examination. The appeal board classified defendant I-A on June 16, 1969. On August 18, 1969, defendant was given the customary physical examination, including a consultation with a specialist regarding his claims of disqualification. All medical papers were then reviewed by the Surgeon General, and, on October 15, 1969, the local board notified defendant that he remained physically qualified for induction.

On November 18, 1969, defendant was ordered to report for induction on December 1, 1969. On the date for induction, defendant's wife telephoned the local board to explain that defendant's car had broken down in Michigan. On December 11, 1969, the board notified defendant that his induction would be postponed until the first induction call after January 1, 1970. On January 5, 1970, the board sent to defendant a second notice, rescheduling his induction for January 19, 1970 pursuant to the earlier postponement notice. Defendant again failed to report on January 19, 1970, this time without explanation. During February and March, 1970, the board was unable to locate defendant.

On April 13, 1970, defendant wrote to his board, acknowledging his failure to report for the second induction. He explained that he and his wife had fought in late December and then separated. On January 2, 1970, defendant had left and traveled in the West.

On April 21, 1970, the local board mailed a notice to defendant, rescheduling a third date of May 11, 1970 for his induction. Three days later, the board received for the first time defendant's request for a hardship deferment (III-A) and immediately mailed a Dependency Questionnaire to be filled out and returned by defendant. Defendant informed the board that he was not living with his wife and that her address was unknown; his eight-month-old daughter was living with him in his home. He stated that his wife had been taking drugs and was not capable of taking care of their daughter. Prior to the separation in December and defendant's subsequent disappearance, he and his wife and daughter had been living with defendant's parents. After defendant's disappearance, his wife and daughter moved to the home of her parents. Defendant stated that while he was away, his wife left her parents' home from time to time, including a period of six days while she was away with another man. During these times, she left her daughter with neighbors.

When defendant returned from his travels, a former employer rehired him as a die-cutter. While defendant worked ten hours a day, a good friend served as babysitter. Defendant, on the form provided by the board, listed a group of unidentified bills totaling $1,302 and monthly expenses of $326. He stated his earnings were $160 per week. He claimed that his wife was unfit to take custody of their child, that her parents and his father worked, and that his mother could not care for the child because she had been having epileptic fits. A note from defendant's mother-in-law attached to the questionnaire stated that her daughter was emotionally unable to care for the child.

Following receipt of the foregoing information, the board asked defendant to appear for an interview on June 11, 1970. On the basis of that interview and a review of defendant's file, the board decided not to cancel defendant's induction notice. On June 12, 1970, the board, in a letter to defendant, informed him of its decision. On June 19, 1970, the local board issued an order rescheduling a fourth induction date for July 22, 1970.

On July 17, 1970, defendant wrote to the board requesting SSS Form No. 150 for conscientious objectors. He stated that he did not previously know that he could apply for several deferments. On the same date, defendant's induction was postponed until further notice and he was mailed the appropriate form to be filled out and returned. Defendant returned the completed form on August 17, 1970.

On August 27, the board reviewed defendant's file and, on August 31, wrote to defendant that all evidence had been considered and his classification had not been reopened. A fifth notice was mailed to defendant on September 4, 1970, rescheduling his induction for September 17, 1970. Defendant reported on that date but refused to submit to induction.

I.

Defendant first contends that his classification should have been reopened upon the presentation of what he claims was a prima facie claim for a hardship deferment. Selective Service regulations provide that where an induction order has already been issued, reopening may occur under the following conditions: (1) Facts are presented which were not considered when the registrant was classified; (2) such facts, if true, would justify a change in the registrant's classification; and (3) the local board specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control. 32 C.F.R. § 1625.2 (1972). The requirement that a local board must have a "basis in fact" for an original classification, Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953), "is equally applicable to the action of the board in determining whether or not changed conditions justify a reopening of the registrant's classification and consideration of his claim to a different classification." United States v. Ransom, 223 F.2d 15, 17 (7th Cir. 1955); see also Woo v. United States, 350 F.2d 992, 996-997 (9th Cir. 1965); Radel v. Volatile, 312 F. Supp. 1300, 1303 (E.D.Pa.1969). Thus, if the board had a basis in fact for concluding that any one or more of the above-stated conditions for reopening was not satisfied, then its refusal to reopen defendant's classification may not be overturned. We think that such a basis in fact did exist at least with respect to the conclusion that there had been no change in defendant's status resulting from circumstances beyond his control. Defendant's conduct in voluntarily absenting himself for a period of some three months was a factor which clearly negatived any claim that he had no control over changes which may have occurred in the interim. It was primarily during defendant's prolonged and unexplained absence that the circumstances relating to his wife's alleged lack of fitness to care for their daughter arose. An examination of defendant's file reveals that whatever conditions of hardship may have developed subsequent to defendant's original I-A classification were caused in large part by his own conduct.

In addition to the absence of circumstances over which defendant had no control, the board's refusal to reopen was also justified by defendant's failure to present a prima facie case for reclassification. In his request for a hardship deferment defendant claimed that his wife had been leaving their child with neighbors and that he was requesting the deferment "out of necessity to support and care for my child". However, although he stated that the child was living with him in his home, he was working ten hours a day as a die-cutter while he left his daughter to be taken care of by a friend. While he claimed that his wife was unfit to care for the child, he took no steps to obtain custody and did not seek a legal separation from his wife. Moreover, defendant's claim that he was the only person who was financially or otherwise able to support and care for his child is rebutted by the fact of his disappearance from early January, 1970, until the middle of April, 1970, during which time he was completely out of contact with his family and provided no support or care for his daughter. Under these circumstances the board had ample basis in fact for a finding that defendant had failed to present a prima facie case for a hardship deferment. Even if, standing alone, some of defendant's claims had been sufficient to make out a prima facie case, the board properly considered defendant's entire file, including reliable information contained therein which ...


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