Full opinion text
TIMBERS, Chief Judge. Defendant David Henry Mitchell, III, after a three day trial was convicted by a jury of wilful failure to report for induction in the armed forces of the United States, in violation of Section 12(a) of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a). He was sentenced, under 18 U.S.C. § 4208(a) (1), to not less than 18 months and not more than 5 years in prison and was fined ijSS.OOO. His post-conviction motion for a judgment of acquittal or a new trial, supported on one issue by the New Haven Civil Liberties Council, was denied. He has appealed, pursuant to a notice of appeal filed by his court-appointed counsel, and has been enlarged on bail pending appeal. JURISDICTION AND VENUE Jurisdiction is founded on Section 12 (a) of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a). Venue is laid properly in this District; the location of the Local Board having jurisdiction over the place of residence of defendant at the time he originally registered has continuing jurisdiction over him; and the Local Board with which he was registered and to which he failed to report for induction is the situs of the offense here charged, despite the fact he was living outside of the District at the time he failed to report for induction. QUESTION PRESENTED The critical question here presented is whether, in view of the command of Congress in the section of the statute under which this prosecution was brought that trial of such cases shall be given precedence and shall be advanced for immediate hearing, a defendant on the very day his case has been assigned for trial may discharge counsel who has served him to his satisfaction for more than a year and, claiming inability to retain substitute counsel during a five day continuance because of his insistence that the case be defended on the ground of issues rejected by the Court in. denying a motion to dismiss the indictment, may, after waiving right to counsel and electing to defend pro se and rejecting assistance of court appointed counsel, be granted a new trial more than four years after refusing to fill out his classification questionnaire, returning his classification card, “disaffiliating” himself from Selective Service and being declared a delinquent by his Local Board? The Court holds that a new trial will not be granted under such circumstances. Defendant’s post-conviction motion for a judgment of acquittal or a new trial raises issues regarding his claims as to the sufficiency of the evidence, the sufficiency of the indictment and his right to counsel. The Court makes the following findings of fact and conclusions of law upon the issues raised by defendant’s claims — grouped for convenience of reference under the headings: I. Trial Issues And Evidence Adduced, and II. Issues On Motion To Dismiss Indictment And Their Relation To Defendant’s Right To Counsel. FINDINGS OF FACT AND CONCLUSIONS OF LAW I. TRIAL ISSUES AND EVIDENCE ADDUCED (A) Issues At Trial ~ [3] The issues upon which defendant was tried were simple and narrow: Tl) Whether a valid induction order had been issued by defendant’s local board requiring him to report for induction. (2) Whether notice of such induction order had been given to defendant. (3) Whether defendant failed to report for induction pursuant to such order. (4) Whether defendant’s failure to report was a wilful and knowing failure. (B) Evidence At Trial The evidence, largely documentary, was concise: (1) January 30, 1961, defendant, age 18, then residing at White Oak Shade Road, New Canaan, Connecticut, registered with Selective Service Local Board No. 17 in Norwalk, Connecticut, and was assigned Selective Service No. 6-17-43-18. (2) February 10, 1961, a registration certificate was sent to defendant by the Local Board. (3) August 3, 1961, a classification questionnaire was sent to defendant by the Local Board which he did not return. (4) October 10, 1961, the Local Board classified defendant IA as a delinquent who had failed to return his questionnaire. (5) October 11, 1961, a delinquency notice and a IA classification card were sent to defendant by the Local Board. (6) December 3,1961, defendant wrote to the Local Board, acknowledging receipt of the delinquency notice and classification card mailed to him October 11, 1961, stating that “I refuse and enclose” (Emphasis that of defendant) the classification card and enclosing a “Statement of Selective Service Disaffiliation” dated December 3, 1961, signed by defendant. (7) August 11, 1964, the Local Board again classified defendant IA. (8) August 18, 1964, a IA classification card was sent to defendant at 1010 President Street, Brooklyn, N. Y. by the Local Board. This classification card was not returned by defendant, nor did he at any time request a hearing before the Local Board regarding his classification. (9) September 25, 1964, an order to report for physical examination on October 21, 1964 was sent to defendant by the Local Board. (10) October 21, 1964, defendant failed to report for physical examination as ordered. (11) November 10, 1964, the Local Board declared defendant a delinquent because of his failure to report for physical examination and sent him a delinquency notice. (12) December 14, 1964, the Local Board ordered defendant to report for induction on January 11, 196 5 and sent the order to defendant at 150 Crown Street, Brooklyn, N. Y., under cover of a letter dated December 14, 1964; being a delinquent, he was in the category first to be called among those available for induction. (13) January 6, 1965, the Local Board received defendant’s letter of January 4, 1965 acknowledging receipt of the Board’s letter of December 14, 1964 under cover of which the Board had sent defendant the order to report for induction. (14) January 11, 1965, defendant failed to report for induction as ordered. (15) January 19,1965, the Local Board reported defendant as a delinquent to the United States Attorney for the District of Connecticut; the Board reported that defendant, in addition to failing to report for induction as ordered December 14, 1964, had failed to complete and return the classification questionnaire sent to him August 3,1961 and had failed to report for physical examination as ordered September 25, 1964. (16) During the period between December 14, 1964, when he was ordered to report for induction, and the time of trial, September 14, 1965, defendant did nothing to comply or attempt to comply with the order to report for induction. (C) Conclusions As To Trial Tssues And Evidence Adduced (1) The evidence establishing each essential element of the crime charged was clear and convincing. (2) The government sustained its burden of proving beyond a reasonable doubt that defendant wilfully and knowingly failed to report for induction in the armed forces of the United States pursuant to a valid induction order of his Local Board which he received. (3) The jury’s verdict of guilty is amply supported by the evidence. II. ISSUES ON MOTION TO DISMISS INDICTMENT AND THEIR RELATION TO DEFENDANT’S RIGHT TO COUNSEL (A) Defendant’s Declaration Of Purpose To Which He Intended To Subvert His Trial (1) Defendant’s declaration that "I plan to use my trial as a forum in which to try the United States Government before the world * * * and utilize every other means available to stir up a storm” is set forth in a statement sent by defendant to his Local Board on June 9, 1964: “CHALLENGE THE DRAFT! by Dave Mitchell “After nearly three years of numerous forms, threats and FBI visits, I have been ordered to report for induction on June 10, 1964, because of my refusal to cooperate with the draft. The purpose of this article is not to rehash my position on draft refusal— for that has been covered in printed statements and will be expanded in future issues of downdraft. This article will discuss the failure of draft refusers to focus on the issues and some means by which I plan to raise the issues. “The problem with the anti-draft movement isn’t that the government has been too strong, but rather that the movement has been too weak and emasculated by individualistic abstraction. Instead of analyzing the militarism which the draft upholds, the movement tends to withdraw from those issues and talks instead about non-violence and love or retreats into other such philosophical ivory towers. We must get down to the job of fighting the draft and changing the world, not by getting stuck on the you involved in the draft, but by getting involved with fighting the draft as a threat to the world. “In my own case, my draft refusal rests, not on an abstract philosophy, but on the political situation as it exists. I noncooperate with my government, not because I am a pacifist or occupy a position somehow uninvoived with the world, but on the contrary because I am very involved and specifically condemn the United States for crimes against peace and humanity. I refuse to cooperate with any Koreas, Cuban invasions or blockades, Vietnams, or with the nuclear arrogance with which we threaten to blow up the world. “Arrest and trial should not be a time when we — with a limited number of friends — react by meditation and philosophical backslapping. Rather, attacks and threats by the ‘powers-that-be’ should be exploited as opportunities to focus on the issues. Let’s remember why we’re involved in the fight against the draft, not simply to communicate with our souls, but to speak to the world in order to change it. The government helps increase the interest in the issues by prosecuting draft re fusers. Our job is to utilize every threat, FBI visit, court fight, or jailing as a means of following through on our prosecution of militarism and the real criminals. When the government acts and creates publicity on the issue, we must utilize every means to make sure that they end up with burnt fingers and a kick in the behind. (Emphasis added) “Many draft refusers fail to get down to political issues in their cases; many refuse to contest their own ‘legal guilt’ in court. Yet an effective way of challenging our government’s policies and morality is by maintaining a not guilty plea in the courts. The position of individual guilt and individual responsibility, and therefore one’s obligation to dissociate himself from war crimes, is established — not only philosophically by Thoreau, etc. — but historically and legally by Nuremberg International Law which is part of the law of every country. Under International Law the United States is guilty of Crimes Against Peace and is also in violation of the Kellogg-Brand Pact, other international agreements, and Article 2 Section 4 of the United Nations Charter [59 Stat. 1033] which prohibits a policy of force and threats of force. Only if we served as accomplices in these activities would we be guilty morally or legally.1 “1. Fyke Farmer, a noted lawyer, fought and lost [Fyke Farmer v. United States, 252 F.2d 490 (6 Cir. 1958), affirming 149 F.Supp. 327 (M.D.Tenn.1956) ] when he tried to use international law as a basis for tax refusal during the Korean War. His brilliant defense brief is both an education and a solid foundation for efforts such as mine. “If I am brought to trial, I plan to use my trial as a forum in which to try the United States Government before the world. With my lawyer, Conrad Lynn, the noted civil rights lawyer, and with the End The Draft committee, I will fight my case through the courts as far up as necessary and utilize every other means available to stir up a storm. Also I will petition the Secretary General and the General Assembly of the United Nations and individual nations in order to attain a hearing in the General Assembly, as representatives from South West Africa have done in the past. The General Assembly would be asked to consider my case as a question of International Law. (Emphasis added.) w W W W w “We should never allow ourselves to be salted away either in court entanglements or in jail. We should wage the battle on as many fronts as possible in the realization that the draft and militarism cannot be disconnected from the general insanity of our country. Besides the work of lawyers and defense committees, we should be prepared to cause people to focus and refocus even when we end up in jail. “I am preparing to follow through if I end up in jail by issuing a publication every week. Through prearranged means of communication, I would issue a weekly paper which would continue the fight against the draft and also take up the monstrosities of the prison system, the plight of political prisoners and other penal points. The paper already has a name — HARD CELL: for Peace and Freedom — and indicates the volume numbers with Block I, Bar 1. The uniqueness of such a publication (at least in this country), which would also issue a continuous appeal to the United Nations, could attract international sponsorship and stir public interest on a worldwide scale. “There are other means to keep the issues alive, but the main point is that the protest must not end when there is a change in the proceedings. Only our means should change in order to use government actions and proceedings as opportunities to focus against the government. .Our best battle tactics are to remain realistically on the peace issues, and to use every government maneuver as a means of launching an offensive.” (B) Indictment; Appearance Of Counsel; Issues Raised On Motion To Dismiss (2) May 20, 1965, defendant was indicted by a grand jury at New Haven for wilfull failure to report for induction in the armed forces of the United States, in violation of 50 U.S.C. App. § 462; the Court ordered an appearance bond in amount of $1,000 without surety, a bench warrant for defendant’s arrest and that an application be sent to defendant for court-appointed counsel if he were financially unable to obtain counsel. (3) June 14,1965, defendant’s counsel, Conrad J. Lynn, 401 Broadway, New York, N. Y., appeared with defendant for arraignment at the New Haven seat of Court; his counsel applied for and was granted permission “to appear for the defendant in this case for all purposes”; defendant pleaded not guilty and requested trial by jury; he was released in $1,000 bond, by the terms of which he was restricted to the Southern District of New York, the Eastern District of New York and the District of Connecticut (despite the request of defendant’s counsel that the Court “remove all bail limits, that he be permitted to travel freely, without restriction” because “defendant * * * as part of his activity * * * has been invited to speak in various states.” (4) August 2, 1965, defendant filed a motion to dismiss the indictment, ab though permission of the Court had been neither sought nor obtained to file such motion which “shall be made before the plea is entered” unless such permission is obtained. The motion was filed by defendant’s counsel, Lynn, was supported by defendant’s affidavit of July 29,1965, was accompanied by a 37 page printed brief and was noticed for hearing in New Haven on September 27, 1965 (which is not a motion day in New Haven). (5) August 4, 1965, the case was assigned for trial at New Haven on September 8, 1965 and notice of such trial assignment was sent to defendant’s counsel on August 4. In response to attorney Lynn’s letter of August 6 inquiring about the trial status of the case in view of the pending motion to dismiss the indictment, the Clerk of the Court on August 12 wrote a letter to attorney Lynn informing him that the motion to dismiss would be heard on September 7 and “The case is to hold its place on the jury assignment list for the present time pending disposition of the motion in question.” (6) September 7,1965 (Tuesday), pur= suant to the August 12 notice to counsel, a hearing was held on the motion to dismiss the indictment. No limitations as to either time or subject matter were imposed; counsel on both sides were permitted to argue as long as they wished and to argue any issues they wished to raise. Defendant was present throughout the argument; he conferred with his counsel, Lynn, from time to time before the argument, during the argument and just before Lynn concluded the argument; and there appeared to be complete compatibility between defendant and his counsel throughout. (7) The following issues were raised by defendant’s motion to dismiss the indictment as set forth in his printed brief in support of the motion: POINT I — The draft call is constitutionally invalid. POINT II — The individual must dissociate himself from the war crimes of his government. POINT III — The United States is committing crimes against peace. POINT IV — United States authorities and their agents are committing war crimes and crimes against humanity. POINT V — The United States violates treaties regarding war and self-determination. POINT VI — The defendant’s freedom should not be restricted before trial. POINT VII — The venue is improper. POINT VIII — The defendant was entitled to a hearing before the board. POINT IX — The indictment should be dismissed. Upon oral argument of the motion to dismiss the indictment, defendant’s counsel pressed defendant’s claims that with respect to the war in Viet Nam, the Universal Military Training and Service Act was being “unconstitutionally applied” because Congress had not declared war; “[t]he executive in effect has declared war”; and the intervention of the United States in Viet Nam was in contravention of various treaties and international conventions to which the United States was a party. Upon oral argument, defendant did not press his claims reflected in Points VI, VII and VIII set forth above. (C) Denial Of Motion To Dismiss; Continuance Of Trial Because Of Illness Of Defendant’s Counsel; Defendant’s Dismissal Of Counsel (8) At the conclusion of the argument of the motion to dismiss the indictment on September 7, 1965, the Court reserved decision. Later that day the Court denied the motion with a margin endorsement reading: “Motion denied after full argument in open court and after consideration of all briefs on both sides.” Counsel on both sides were promptly notified of the denial of the motion. (9) After the Court announced on September 7,1965 that it would reserve decision on the motion to dismiss the indictment and just before recessing for the day, the following proceedings took place in open Court and in the presence of defendant : “THE COURT: The Court will reserve decision on this motion. MR. LYNN: I received a notice on the assignment of jury selection— we are on for tomorrow. Now I was talking to the United States Attorney, and Mr. Mitchell lives in Brooklyn and I live in Rock-land County, New York. And I wondered, your Honor, if you might not set a certain date that we could come for that jury selection rather than having to come back, and back, every day until it is finally reached. THE COURT: I would suggest you be here tomorrow. And then of course the Court has not yet acted on this motion, and intends to review again the authorities- submitted on both sides before doing so. But without attempting to prejudge that motion, I might say that, if we do go forward with the trial in this case, this Mitchell case, in all likelihood we will get started tomorrow to the extent of selecting a jury in any event. Of course, if I grant your motion, why, it will be unnecessary. But I think, since it is so close to the head of the calendar, having in mind certain other cases that have — well, put it this way. Of the cases that are ready, that will go forward, this case will be very close to the head of the calendar. So I would suggest that both you and your client be here tomorrow, and we will not keep you waiting. MR. LYNN: All right, your Hon- or. MR. OWENS: Thank you, your Honor. THE COURT: Recess till 10 o’clock tomorrow morning.” (10) September 8, 1965 (Wednesday), prior to opening of Court that day, attorney Lynn telephoned the Court, stated he was ill and would not be able to go forward with the trial of the case that week and requested a continuance. The Court granted a continuance at Lynn’s request until the following Monday, September 13, upon the condition that by September 13 either Lynn would be ready to go forward with the trial or he would arrange to have substitute counsel prepared to represent defendant and ready to go forward with the trial. (11) Upon opening of Court and calling the calendar on September 8, 1965, the Court announced that the trial of the Mitchell case had been continued to September 13 at the request of attorney Lynn and because of his illness. Defendant thereupon stood up and stated, “I am in the midst of dismissing counsel.” In response to the Court’s question whether Lynn knew he was being dismissed, defendant replied, “No”. Defendant requested additional time within which to retain new counsel, stating, “I do not agree that the issues of my defense are clearcut and simple. I think they involve many things — >Nuremberg trials, intemational law, conventions on war crimes and torture and genocide, et cetera. And I think it would take a lot of time for a lawyer to acquaint himself with all of these points of my case.” (Emphasis added.) (12) The Court informed defendant that of course he was entitled to counsel of his own choice, but, if he intended to retain substitute counsel, that would have to be done in sufficient time to enable substitute counsel to be ready to proceed with the trial on September 13. In response to the Court’s inquiry whether defendant wished to have the Court appoint counsel to serve without fee, he replied in the negative. After some further colloquy, the Court made the following order in open Court in the presence of defendant: “THE COURT: The Court is going to order as follows: The case, because of Mr. Lynn, who is Mr. Mitchell’s attorney of record at this moment — has been from the inception — because of Mr. Lynn’s communication to the Court advising the Court of his illness and of his inability on that account to proceed with the trial this week, the case will be continued to Monday, September 13 at 10 A.M. The case will go forward at that time. Mr. Lynn will not be released as counsel in the case unless substitute counsel is obtained. You are represented by counsel. You will continue to be represented by counsel unless and until you obtain other counsel — which is your privilege if you wish to do so. The condition, however, that the Court imposes upon substitution of counsel is that he be ready to proceed with the trial of the case on Monday, September 13. Under all of the circumstances, in view of the nature of the case, the issues involved, the law involved and the time that this case has been pending in this court, and the time that your matter has been pending before the draft board, this Court believes that it is not only a fair order which the Court is making but it is the only order that the Court can make in good conscience.” (13) September 9, 1965 (Thursday), the Court entered a written order continuing the trial to September 13, “at which time defendant and his present or substituted counsel are ordered to be present and ready to proceed with the trial of the case.” Attached to this order was a copy of the Court’s letter of September 9, 1965 to attorney Lynn summarizing the events of September 8. (D) Assignment Of Court-Appointed Counsel; Defendant’s Waiver Of Counsel And Election To Proceed Pro Se (14) September 10,1965 (Friday), the Court, having heard nothing further from defendant or his counsel, Lynn, and being advised that no appearance had been filed by substitute counsel, requested the Clerk of the Court to notify attorney Anthony G. Apicella, a member of the bar of this Court with ample experience in criminal cases, of the possibility that the Court might request him to serve as court-appointed counsel for defendant in the event defendant did not have counsel of his own ready to go forward with the trial on September 13. The Clerk did so notify attorney Apicella on September 10. (15) Attorney Apicella’s qualifications to try a criminal case in the federal court were well known to the Court. He had served for nearly two years in the United States Attorney’s office and had handled numerous criminal cases, including ones far more complicated than the instant case. He had been certified by the New Haven County Bar Association for appointment under the Criminal Justice Act and had been designated by the judges of the Connecticut District Court and of the Court of Appeals for the Second Circuit on the respective panels of those courts under the Act. His reputation as an experienced trial lawyer was that of a thorough scholar, painstaking in preparation, articulate in presentation and zealous in the protection of the rights of his client, regardless of which side of a criminal case he was on. (16) Upon being notified on September 10 of the possibility that he might be appointed by the Court to represent defendant at the trial beginning September 13, attorney Apicella immediately obtained all relevant and available documents in the case, including the indictment, defendant’s motion to dismiss the indictment, briefs of both sides on the motion to dismiss and the file. He devoted the balance of Friday, including Friday evening (September 10), the weekend (September 11 and 12) and a portion of Monday (September 13) to a study of the file, the statutes and the applicable law. He thereafter stated in open Court, in the presence of defendant, that “I felt then, and I feel now, that I didn’t need sixty days or thirty days or even one week. I was prepared to try the case on Monday.” (17) September 13, 1965 (Monday), upon opening of Court and calling the Mitchell case which was next on the calendar for trial, attorney Lynn stated that “defendant wishes to have other counsel” because of “incompatibility on the way this matter should be presented”; that “I cannot continue where he is unable to pay me a fee — although he did indicate to the Court that he might be able to pay someone else”; that “he feels that, if he does not have another lawyer, he would feel better if he were permitted to proceed by himself”; that “[t]his is a very intelligent young man and he knows precisely what he wants to do”; “[a]nd that being the case I would respectfully ask the Court to relieve me as counsel in the matter and let this young man proceed as attorney for himself if he has no other lawyer.” Attorney Lynn also stated that defendant “tells me this morning that he consulted with another lawyer named Mr. Gruber, and Mr. Gruber was to telephone the Court that he had been consulted on the case.” (18) Attorney Samuel Gruber of Stamford, Connecticut, did telephone the Court prior to the opening of Court on Monday, September 13, and stated that defendant had telephoned him at his home late the previous evening (Sunday, September 12); that defendant inquired whether attorney Gruber would be available to represent him as counsel; that he (attorney Gruber) did not know enough about the case to determine whether he would represent defendant or not; and that due to prior commitments attorney Gruber would not be in New Haven that morning. The Court, in response to attorney Gruber’s inquiry, informed him of the status of the case, namely, that it had been ordered to proceed to trial that day; that the Court did intend to proceed with the trial of the case, either with counsel of defendant’s selection or with court-appointed counsel; that defendant’s present counsel was attorney Lynn and the Court intended to appoint attorney Apicella, if it appeared advisable to do so, to serve either in association with defendant’s retained counsel or as his sole counsel if defendant did not have his own counsel; that'the jury would be impaneled that day, after which a recess would be granted for the balance of the day to enable defendant to confer with his counsel, including attorney Gruber if defendant wished to confer with him; and that the Court would welcome attorney Gruber as counsel for defendant if he decided to enter the case. Attorney Gruber replied that, if retained, he would be pleased to work in association with either attorney Lynn or attorney Apicella or both; that he would leave it, if he appeared at the trial, the Court would know he had been retained, and if he did not appear, the Court would know he had not been retained. Attorney Gruber did not appear. The Court recessed early on September 13 specifically “to give this extra opportunity to the defendant to confer with his present court-appointed counsel and to follow up his attempt last night to retain Mr. Gruber if he wishes to do so.” Defendant on the following day said that, after the conclusion of the September 13 session of Court, he talked to attorney Gruber but did not request Gruber to appear and represent him in the case. (19) The Court, for the time being, declined to permit attorney Lynn to withdraw as counsel, in view of the long established practice in this Court of requiring the appearance of substitute counsel before permitting the disappearance of present counsel — as explained in the Court’s letter of September 9 to attorney Lynn. The Court accordingly directed attorney Lynn “to remain in attendance until such time as substitute counsel is obtained, if such counsel is obtained by Mr. Mitchell. As a practical matter, that means today to remain through the impaneling of the jury and to render such assistance as you can to Mr. Mitchell in that process.” (20) The Court thereupon appointed attorney Apicella to represent defendant, in the case; declared a recess to enable Apicella to confer with Lynn and defendant preparatory to impaneling the jury; and provided a conference room for that purpose. (21) Defendant requested a further continuance “to consult with lawyers — with Mr. Gruber or any other lawyer I might wish to consult with, in order to have time to secure counsel which I feel I can work with, who I think can represent me properly and represent the position as I have been trying to defend myself with in this court.” (Emphasis added.) (22) The Court explained to defendant that he had been given every opportunity over a period of months to determine who his counsel should be; that counsel of his choice, attorney Lynn, had been granted permission to represent defendant in this Court and had done so from the inception of the case; that defendant had been present with attorney Lynn throughout the lengthy argument on defendant’s motion to dismiss the indictment on September 7, during which defendant had indicated satisfaction with his counsel; that the first indication defendant gave of dissatisfaction with his counsel was on the morning of September 8, immediately after the Court denied defendant’s motion to dismiss and the very day defendant's trial had been ordered for more than a month to begin, when defendant announced that he intended to dismiss his counsel; that important rights of the government as well as important rights of defendant must be fully protected and both sides were entitled to a prompt trial; that the Court intended to proceed to the extent of impaneling a jury “just as soon as you have had an opportunity, if you wish to avail yourself of it — you may confer further with Mr. Lynn and Mr. Apicella, court-appointed counsel”; and that “[w]hen the jury is impaneled we will recess the case until 10 o’clock tomorrow morning at which time the taking of evidence will begin. You will be given further opportunity in the meanwhile to confer with your counsel and to determine whether you wish any additional counsel in the case.” (23) Defendant rejected both court-appointed counsel, Apicella, and his own counsel, Lynn; he stated, “rather than accept court-appointed counsel or Mr. Lynn’s counsel * * * I am left with no alternative but that I would prefer to defend myself. I would not accept any counsel, but proceed myself until I could find someone”; and further, “I would prefer to proceed right now alone. I would not accept court-appointed counsel or Mr. Lynn’s counsel.” (24) Pursuant to the suggestion of defendant’s own counsel, Lynn, that defendant be “permitted to proceed by himself” and defendant’s own preference “to proceed right now alone,” the Court asked defendant, “Do I understand correctly that you wish to waive your right to counsel, Mr. Mitchell?”, to which defendant replied, “Yes.” Accordingly, the Court accepted defendant’s waiver of counsel but nevertheless ordered attorneys Lynn and Apicella to remain available to defendant: “The record will show that the waiver of counsel by Mr. Mitchell, which he has insisted upon, is accepted by the Court in the belief that he knows what he is doing, that he is competent to waive counsel and the waiver is intelligently and competently made. “Despite the waiver of counsel, the Court does order both Mr. Lynn and Mr. Apicella to remain and to be available for such assistance as they can render Mr. Mitchell.” (25) After a recess of an hour and twenty minutes to enable defendant to confer with his counsel, attorney Apicella reported to the Court that he had conferred with defendant and that “The de • fendant has advised me that he prefers to speak on his own behalf and that he does not want me to speak for him. And of course I advised him that I would concur with that and I would be available for whatever consultation he wanted or whatever information he wanted of me.” (E) Conduct Of Trial (26) Thereafter the trial proceeded with defendant acting pro se, but with counsel at all times present, sitting with him and ready to render effective assistance to the extent defendant wished to avail himself of such assistance. Defendant for the most part during the trial maintained the position that he was neither objecting nor agreeing to the evidence and the proceedings — taking what he referred to as an “inactive role”. At one point he indicated he wanted to revoke his waiver of right to counsel, stating' that “[m]y waiver of rights was only a reaction in terms of Mr. Lynn or a court-appointed lawyer.” The Court ruled as follows : “THE COURT: I simply will observe — simply note for the record that the record of proceedings this morning in this court, if I recall correctly, noted unequivocally Mr. Mitchell’s waiver of his right to counsel. ****** “Despite what I understood to be an intelligent and competent waiver of right to counsel, despite Mr. Mitchell’s being advised by the Court that he had the right of counsel if he wished to invoke it, that right was waived. And despite the waiver, the Court, as the record will show, did order that Mr. Mitchell’s then attorney of record, Mr. Conrad Lynn, remain in the case at counsel table, available to assist Mr. Mitchell in the impaneling of the jury. “The Court further appointed Mr. Anthony Apicella, a member of the bar of this court, to assist Mr. Mitchell at every stage of the proceedings to the extent that Mr. Mitchell wished to avail himself of such assistance as was made available. “Now in view of those proceedings, of course any attempt at this time to revoke a waiver which was entered and accepted by the Court as a judicial act, is totally ineffective so far as the Court is concerned.” Actually, defendant participated actively to the extent he considered it to his advantage to do so, including (i) making statements himself in the presence of prospective jurors during the Court’s conduct of the voir dire examination of veniremen ; arguing his “motion for dismissal and acquittal” at the close of the government’s case, after the Court declined to permit defendant “to make this motion before the jury” as he requested ; and, after stating that he did not “intend to follow the usual Rules of Frederal Criminal Procedure”, he did request and obtain from the government, after the jury had been impaneled and before any witnesses had testified, all Jencks Act material in the case, such material being marked for identification at the request of attorney Apicella. (27) Throughout the trial scrupulous care was exercised to advise defendant of his rights and to protect his rights at every stage of the proceedings, including the following: (a) The voir dire examination of prospective jurors was more penetrating and comprehensive than the Court normally would have conducted; defendant was informed of his privilege of examining the prospective jurors’ questionnaires, of requesting additional questions to be asked of the prospective jurors, and of his right to challenges for cause and peremptory challenges. (b) Pursuant to attorney Apicella’s request as soon as he was appointed counsel for defendant, the government agreed to furnish a bill of particulars with respect to the indictment, although defendant’s time for moving for a bill of particulars had long since expired. (c) In addition to the complete file of attorney Lynn which was turned over to defendant, the complete file of the case in the Clerk’s office and defendant’s complete draft board file (the only exhibit in the case, Govt. Ex. 2) were made available to defendant and his counsel prior to trial. (d) All Jencks Act material, as noted above, was turned over to defendant and his counsel before any witnesses testified. (e) Recesses were declared at frequent intervals and at appropriate stages of the proceedings to enable defendant to confer with his counsel and with any other counsel whom he might wish to bring into the case. (f) Opportunity was afforded defendant to interpose objections to any evidence to which he wished to object; his court-appointed counsel was directed by the Court to stand or raise his hand whenever he thought an objection should be made, at which times defendant was giver1, an opportunity to confer with counsel to determine whether he wished to interpose an objection; witnesses were directed not to answer until the Court could rule on any objection defendant or his counsel wished to make; and defendant’s court-appointed counsel throughout the trial did in fact repeatedly follow this procedure. (g) Even after defendant’s draft board file (Govt, Ex, 2} was received in evidence without objection from defendant, the Court informed defendant and his counsel that “[i]f at any time, despite the absence of any objection to this exhibit, there is any desire on the part of the defendant, through his counsel or otherwise, to interpose an objection to any portion of the exhibit, the Court will entertain such objection — at any time during the trial until the evidentiary record is closed.” (h) Before FBI agent Ibbott was permitted to testify to any admissions made by defendant at the time of his arrest on June 1, 1965, an overnight recess was taken to afford defendant and his counsel an opportunity to decide whether they wished to object to such testimony ; but no objection was interposed. (i) Defendant was advised of his right to cross examine the witnesses called by the government; recesses were taken to enable defendant and his counsel to prepare to cross examine; but in each instance cross examination was refused. (j) Defendant was advised repeatedly of his right to call witnesses, to introduce exhibits and to have them subpoenaed; but he declined to present any evidence, with the exception of his 37 page printed brief which was marked for identification. (k) Defendant was advised of his right to make appropriate motions at the close of the government’s case and at the close of all the evidence; and he availed himself of that right. (l) Defendant was advised of his right to present argument to the jury at the close of the evidence ; he declined and refused to permit his counsel to do so, stating “In fine, I have nothing to say to the jury.” At the conclusion of the government’s argument to the jury, the Court again offered defendant the opportunity, either through counsel or himself, to argue to the jury; again defendant declined, but only after repeating — in the presence of the jury — his oft-rejected claim that his defense was based on “the issues of Viet Nam, Dominican Republic and American crimes around the world, and the issues of the Nuremberg trials, in the principle that the individual has an individual responsibility to disassociate, regardless of the laws of his nation, from any crimes that his Government commits.” (m) Defendant was advised of his right to submit requests to charge to the Court (which defendant asked the Court to explain) and of his right to take exceptions to the charge after it had been given; defendant declined to exercise either right and refused to permit his counsel to do so. (n) During the trial, the Court, in addition to advising defendant of his rights and affording him full opportunity to exercise them, on its own motion acted whenever possible to assure maximum fair treatment of defendant, including (i) striking and instructing the jury to disregard evidence of a personal history form presumably sent to defendant with his induction order on December 14, 1964 (since the witness could not “swear that one of those was included on that date with that order”) ; suggesting to government counsel that certain questions be reframed, even absent objection by defendant; examining the witness Moriarty, clerk of the Local Board, at the conclusion of the government’s direct examination, to be sure of the completeness of defendant’s draft board file received in evidence (Govt. Ex. 2); excusing a juror, absent any motion to do so, who had engaged in a brief conversation with the witness Moriarty during a recess; and, in its charge, urging the jury, in view of the circumstances under which the case was tried, to be scrupulously fair with defendant, including searching defendant’s draft board file for evidence which might reflect favorably upon defendant’s position. (28) September 15, 1965 (Wednesday), the third day of trial, the case was submitted to the jury in the early afternoon. After an hour of deliberation, the jury returned a verdict of guilty which was confirmed by a poll of the jury conducted on the Court’s own motion. Following discharge of the jury, the government moved for immediate imposition of sentence. The Court, unable to obtain any assurance from defendant that he would cooperate with the probation officer if a pre-sentence investigation and report were ordered and in view of defendant’s position of “no objection or agreement” to immediate imposition of sentence, did impose sentence forthwith, after affording defendant an opportunity to confer with counsel and to be heard, through counsel and directly, on the matter of sentence, which he refused. After imposing sentence, the Court directed defendant’s court-appointed counsel to file a notice of appeal the following day; ordered that a $5,000 surety bond be furnished as bail pending appeal (after defendant argued there was no necessity for bail); advised defendant of his right to file post-conviction motions; and offered him the assistance of counsel in preparing and presenting such motions, which offer was refused. (F) Defendant’s Post-Conviction Motion; Appearance And Argument By Counsel For New Haven Civil Liberties Council (29) September 20, 1965, defendant, appearing pro se, filed a motion for judgment of acquittal, or arrest of judgment, or a new trial, claiming (i) the Court should have granted his motion for acquittal at the conclusion of the evidence, (ii) the indictment did not charge an offense, (iii) defendant was denied the right to counsel in violation of the Fifth and Sixth Amendments of the United States Constitution and (iv) defendant was denied due process in violation of the Fifth Amendment. Defendant did not request a hearing on this motion. The Court denied the motion September 21. (30) September 22, 1965, the New Haven Civil Liberties Council filed a motion for permission as amicus curiae to file a brief and present oral argument on the issue (denial of right to counsel) raised by the third paragraph of defendant’s post-conviction motion filed September 20, which motion had been denied September 21. The Court, construing the NHCLC’s motion as one requesting reconsideration of the Court's determination of the issue raised by the third paragraph of defendant’s September 20 motion in addition to the permission requested by the NHCLC, entered an order September 22 granting the motion and setting oral argument September 27, following exchange and filing of briefs. (31) September 27, 1965, the Court heard full argument by counsel for the NHCLC (William K. Muir, Jr., Esq.) and counsel for the government on the NHCLC’s motion, at the conclusion of which the Court denied the motion for a new trial on the ground stated in the third paragraph of defendant’s post-conviction motion of September 20 (denial of right to counsel) and announced the Court would adhere to its original September 21 determination of that issue. A formal order was entered accordingly September 28. (32) During the argument on September 27 of the NHCLC’s motion, its counsel, attorney Muir, made the suggestion that the Court grant a new trial on the conditions that defendant be ready to proceed with retained counsel within a week or two and that he agree to have the case tried upon the four issues stated by the Court as the only ones involved, excluding the issues rejected by the Court in denying his motion to dismiss the indictment : “MR. MUIR: ****** “We are also convinced that there is one difficult problem, and that is that there are indications that Mr. Mitchell, even were he granted a new trial, might continue to obstruct the Court by continuing to come in and delay the Court — might continue to come in and say, T have not got counsel and I need a delay.’ “And may I suggest, respectfully, that this problem can be dealt with if the Court will not grant our motion now but, in the event that Mr. Mitchell is ready to come forward within a week, a week from today, with adequate counsel, is willing to go forward and be served by this counsel, that this motion be granted; that it be denied if Mr. Mitchell cannot come up with adequate counsel, that the motion be denied if he continues to obfuscate the issues or continues to delay the case or continues to exercise those traits of behavior which will cause justice not to be administered properly but to use justice or misuse the procedures and place of justice in this city, for his own purposes and for irrelevantly legal purposes. ****** “I also feel strongly that a motion such as the one that I originally suggested, in which the Court would say that this motion would be dismissed unless the defendant Mitchell appears with counsel of his own choice and represents to the Court that he is going to cooperate with his counsel and is going to accept the requirements that the law sets upon these episodes in order to get to the heart of the issue — unless he does this, the motion is dismissed.” In response to the Court’s inquiry whether defendant was aware of this proposal, attorney Muir replied : “MR. MUIR: Mr. Mitchell and I talked on the telephone last night, at which time I asked him, ‘Mr. Mitchell, have you got counsel in the event that this Court, of its own responsibility, decides to give you a new hearing?’ “Mr. Mitchell told me that he had counsel — that he had contacted counsel, that he had an acquiescence from counsel but he had no formal commitment by counsel as of last night at 10 o’clock; but that he would go ahead and that the formal commitment should be obtained today. “I have not told him — I suggest this formal motion to you. I have told him, though, that he could not possibly expect more than two weeks, and I have only told him two weeks, two weeks in which to get counsel and to try this case; and that no court should be expected in a case of this sort to grant a continuance of longer than two weeks time. “That is the gist of the communication between myself and Mr. Mitchell.” The following colloquy thereupon took place between the Court and attorney Muir; “THE COURT: What I would be most interested to know, if you can shed any light on it, is whether— just assuming for argument’s purposes, for purposes of argument— that the Court were disposed to grant a new trial — given two weeks in which to retain counsel of his own choice; he would be prepared at the end of two weeks to go forward. “What I am getting at is this. Are you in a position to apprise the Court as to whether Mr. Mitchell would intend in that situation to continue to press upon this Court, as part of his defense, the claims that have already been rejected by the Court on hjs motion to dismiss the indictment, including the claims that the United States is engaged in war crimes in Viet Nam and San-to Domingo; and the Nuremberg trial — the Nuremberg doctrine in some way has relevance here; or has he seen the light and does he recognize that the issue, only issue in this case as far as the trial court is concerned, having ruled upon the motion to dismiss the indictment, is whether the defendant wilfully failed to report for induction pursuant to a valid order of the local draft board No. 17 in Norwalk? “MR. MUIR: I would be prepared to undertake the responsibility to tell him how the issue of Nuremberg trials and Viet Nam is being treated by this Court, that the issue has been decided by the Court on the law side, that if the Court turns out to be wrong on appeal to the Second Circuit Court of Appeals he will then have a chance to introduce such material but the Judge has stuck his neck out, so to speak, by denying him an opportunity at the outset to adduce this material. If the Judge proves to be wrong, the Second Circuit Court of Appeals will so inform him; and that the issues now, because the Judge has taken responsibility to narrow the issues to these four factual questions of whether there was a letter which was sent to Mr. Mitchell, whether it had been effectively delivered, whether he failed to show up to the South Norwalk Selective Service board or some adequate substitute, and whether it was wilfulness on his part in refusing to show up— these are the issues on which he must accept trial. Otherwise, he will be in danger of being held in contempt if he obfuscates the issues in any other way, other than the ground rules laid down by the Court in denying the motion to dismiss in the original hearing on September the 7th. “THE COURT: Well, the short of it is, without belaboring this, Mr. Muir, as I understand it you say that you would undertake to so advise Mr. Mitchell, but you are not in a position to tell the Court what Mr. Mitchell’s position on this is, in other words, whether he would accept your advice. “MR. MUIR: I am a telephone call away from being able to have an answer of the state of mind of Mr. Mitchell at the present time on this question that you raise. And it seems to me a worthwhile question to get an answer, if it only involves a telephone call to Mr. Mitchell in Brooklyn. “THE COURT: Before I respond to that, I think it is only fair to note, as the record bears out, that at least one of Mr. Mitchell’s counsel, that is, Mr. Apicella, squarely advised him almost on all fours in that regard during the trial. And I-think Mr. Apicella once — at least twice, as I recall — said that he had reminded Mr. Mitchell that he might very well be waiving his right to trial, any further trial if he continued to press those claims which had been rejected. “The short of it is that I am satisfied that during the proceedings leading up to Mr. Mitchell’s conviction he was apprised by at least Mr. Apicella, and undoubtedly other counsel whom he consulted, that those claims had no place in this case in view of the Court’s ruling on the motion to dismiss the indictment. “I would be interested, at least to the extent of having the record as complete as possible on this point —to afford you the opportunity which you have said you would like to have, if Mr. Mitchell is no further than a phone call away — to ascertain the answer to that question that I put. "T am wondering if there would be any objection on the part of Government counsel if we recessed at this point until 2 o’clock. “I will give Mr. Muir an opportunity to obtain that information if he can, and then I will hear the Government in opposition to the motion at 2 o’clock.” After the noon recess, Mr. Muir reported back to the Court that he had talked to defendant who “then had to talk with counsel”; that Mr. Muir had “presented to Mr. Mitchell the sum and substance of the representation which [the Court] wished to seek from him, namely two: that he would have counsel and would be ready to proceed with trial within a week or two, and secondly that he would not raise issues that had been closed by the decision of the Court on the motion to dismiss, in particular the issues of Nuremberg and the issues of the criminality of the United States Government’s activities in the Dominican Republic, Viet Nam and in Cuba”; that at that point defendant said, “I am in a dilemma. I have not been able to reach counsel and I do not want to be able to foreclose myself on ground — when I do not know enough about the law to make a reasonable decision”; that defendant’s “own inclination was that he was, ‘bargaining on the issues’ ”; and that “there is no commitment on the part of Mr. Farmer nor on the part of Mr. Boudin to undertake Mr. Mitchell’s cause”. (33) One month later, October 25, 1965, Fyke Farmer, Esq. of Nashville, Tennessee, filed his appearance in the District Court as counsel for defendant on appeal. (G) Conclusions As To Issues On Motion To Dismiss Indictment And Their Relation To Defendant’s Right To Counsel (1) The legal issues raised by defendant’s motion to dismiss the indictment were without merit; after a full hearing and consideration of briefs on both sides, the motion was properly denied. (2) Such legal issues, having been fully briefed and argued before trial and having been decided by the District Court adversely to defendant (subject to his rights on appeal), were not properly before the Court and jury on the trial of the case on its merits. (3) Defendant was not denied his right to counsel. (a) He was represented by counsel, or had available the effective assistance of counsel — either retained counsel, court-appointed counsel, or both — at every stage of the proceedings. (b) He led the Court to believe, by his words and conduct, that he wanted to waive his right to counsel and to defend himself pro se. (c) He nevertheless was provided with competent court-appointed counsel who was available to defendant throughout the trial and who in fact advised defendant throughout the trial. (d) He had a reasonable opportunity, under the circumstances of this case, to retain substitute counsel even after dismissal of his retained counsel on the day the case had been assigned for trial. (4) Defendant had a fair trial, scrupulous care having been exercised to advise him of his rights and to protect his rights at every stage of the proceedings. OPINION I. ISSUES RAISED ON MOTION TO DISMISS INDICTMENT (A) Constitutionality Of Draft Law As Applied Defendant claimed that with respect to the war in Viet Nam the Universal Military Training and Service Act is being unconstitutionally applied because Congress has not declared war; that the executive in effect has declared war; and that the intervention of the United States in Viet Nam is in contravention of various treaties and international conventions to which the United States is a party. These contentions are wholly without merit and have been repeatedly and consistently rejected by the courts of the United States. ”[7] Congress has the power to conscript for service in the land, naval and air forces of the United States in time of war and in time of peace. U.S. Const. art. I, § 8, cls. 12, 13, 18; Selective Draft Law Cases, Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918); Cox v. Wood, 247 U.S. 3, 38 S.Ct. 421, 62 L.Ed. 947 (1918); Hamilton v. Regents of University of Cal., 293 U.S. 245, 262, 55 S.Ct. 197, 79 L.Ed. 343 (1934); United States v. Herling, 120 F.2d 236 (2 Cir. 1941), affirming United States v. Rappeport, 36 F.Supp. 915 (S.D.N.Y.1941); United States v. Bolton, 192 F.2d 805 (2 Cir. 1951); United States v. Lambert, 123 F.2d 395 (3 Cir. 1941); Warren v. United States, 177 F.2d 596, 598-599 (10 Cir. 1949); United States v. Henderson, 180 F.2d 711, 713 (7 Cir. 1950), cert. denied, Henderson v. United States, Wildeman v. United States, Shufflebarger v. United States, and Frantz; v. United States, 339 U.S. 963, 70 S.Ct. 997, 998, 94 L.Ed. 1372 (1950); Richter v. United States, 181 F.2d 591, 592-593 (9 Cir. 1950), cert. denied, 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647 (1950); Stone v. Christensen, 36 F.Supp. 739 (D.Ore. 1940); United States v. Cornell, 36 F. Supp. 81 (D.Ida.1940); cf. United States ex rel. Bergdoll v. Drum, 107 F.2d 897, 901, 129 A.L.R. 1165 (2 Cir. 1939). Defendant’s contention that the Act is being unconstitutionally applied because conscripted men are being used to fight a war in Viet Nam undeclared by Congress and in effect declared by the executive, does not appear to have been passed upon by any court in the context of the Viet Nam war. In the context of the Korean war, however, a similar contention was squarely rejected by the Court of Appeals for this Circuit in United States v. Bolton, supra, 192 F.2d at 806; cf. United States v. Herling, supra. This Court, in denying defendant’s motion to dismiss the indictment, rejected defendant’s contention with respect to the Viet Nam war, upon the authority of Bolton and Herling, and that ruling is here specifically confirmed. Section 6 of the United Nations Participation Act of 1945, 22 U.S.C. § 287d, authorizes the President, pursuant to a Congressionally approved agreement with the United Nations, to send men abroad to fight without a specific mandate from Congress. While Congress has not formally declared war with respect to the military action in Viet Nam, nor did it in Korea, it has given its wholehearted approval to the action of the President by appropriations and other implementing legislation. The President, as Commander-in-Chief, has always exercised the power to begin hostilities; viewed realistically, most of our wars have been in full course before Congress has gotten around to a formal declaration. Prize Cases, The Brig Amy Warwick, 67 U.S. (2 Black) 635, 665-671, 17 L.Ed. 459 (1862). Unquestionably the President can start the gun at home or abroad to meet force with force; he is not only authorized but bound to do so. Id. at 668. And under our established concept of international dependence and foreign commitments, this power must extend to repelling attacks upon our allies which threaten our own security. To read into the provision of the Constitution empowering Congress to raise and support armies, U.S.Const. art. I, § 8, cl. 12, a limitation forbidding conscription in time of peace, or in time of cold war or at any time short of a formal declaration of war, would render Congress helpless to prepare in advance against the danger of war. See Hamilton v. Regents of University of Cal., supra, 293 U.S. at 262-263, 55 S.Ct. at 204; United States v. Herling, supra. This firmly established principle of constitutional law has been well summarized by Judge Phillips (construing the Selective Service Act of 1948) in Warren v. United States, supra, 177 F.2d at 599: “Congress has power to raise armies by conscription in time of peace as well as in time of war. The power to do so is essential to the national security. We must accept as true the recitals of Congress in the Act. Moreover, we can take judicial notice that when the Act was passed, the balance between peace and war was so delicate