United States v. Taylor, 29198.

• Decision Date: 10 August 1971
• Docket Number: No. 29198.,29198.
• Citation: 448 F.2d 349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jape Holley TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

448 F.2d 349 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jape Holley TAYLOR, Defendant-Appellant.

No. 29198.

United States Court of Appeals, Fifth Circuit.

June 2, 1971.

Rehearing Denied and Rehearing Denied August 10, 1971.

Samuel S. Jacobson, Jacksonville, Fla., for defendant-appellant.

William Stafford, U. S. Atty., Pensacola, Fla., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., C. W. Eggart, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before GEWIN, COLEMAN and AINSWORTH, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied August 10, 1971.

GEWIN, Circuit Judge:

Appellant Taylor was convicted for refusing to submit to induction into the armed services in violation of 50 U.S.C. App. § 462(a). On appeal he contends that his local Selective Service Board gave him misinformation which caused him to refrain from making an application for conscientious objector status prior to the date on which he was to report for induction. We affirm his conviction.

The background facts are these: Following graduation from high school, Taylor on December 4, 1967, was given a 2-S student deferment for one year while he attended California Institute of Technology.¹ This classification was changed to 1-A (Available for Service) on November 14, 1968, when Taylor became ineligible for student deferment by accepting full time employment. Upon termination of his student deferment Taylor went to his draft board on December 16, 1968 where he requested and received Selective Service Form 150 (Application Form for Conscientious Objector Classification). The form, which quoted statutory language, stated that his conscientious objector request must be founded on a "religious belief." Because appellant had no conventional religion, he asked the board secretary, Mrs. Duncan, whether the requirement would be interpreted literally. Mrs. Duncan replied that such a question must be answered by the Board. Mrs. Duncan also advised Taylor that he had 30 days in which to return this form executed in full. Taylor took the form home with him but asserts that he subsequently decided that he could not conscientiously sign it because he did not have a religious belief in the traditional sense.

On April 24, 1969, the Board ordered Taylor to report for induction on May 16, 1969. Taylor did not report as ordered; instead he mailed a letter to the Board from Boston, Massachusetts (his local board was in Gainesville, Florida) stating that he would refuse induction for conscientious reasons.² Prior to that time Taylor made no formal effort to assert a conscientious objector claim. The Conscientious Objector Form which he procured from the Board was never filled in and returned.³

Appellant's major contention is that he was misled by SSS Form 150 into thinking that it would be not only fruitless but also unconscionable for him to seek conscientious objector status; as a result he claims that he was deprived of due process of law since he was denied a full opportunity to pursue an available classification. It is true that SSS Form 150 does not mention or suggest the very broad construction of the requirements for conscientious objector religious requirements as interpreted by the Supreme Court in Welsh v. United States,⁴ and United States v. Seeger.⁵ In this regard it could be argued that the old Form 150 possibly did leave some questions unanswered.⁶ Nevertheless, the evidence in this case is undisputed that appellant acting unilaterally decided on uncounselled, subjective information that he could not qualify.⁷ Although cases exist where misleading government activity or information constitutes a good defense to a criminal charge,⁸ more is required than a bald assertion that the defendant was as a subjective matter misled, and that his subsequent action resulted from his mistaken belief. As the court stated in United States v. Lansing:⁹

When a defendant claims, as does appellant here, that his criminal conduct was the result of reliance on misleading information furnished by the government, society\'s interests in the uniform enforcement of law requires at the very least that he be able to show that his reliance on the misleading information was reasonable — in the sense that a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.¹⁰

Under the facts and in the circumstances of this case, we are convinced that Taylor acted unreasonably. Taylor testified that he interpreted the language of the form to mean that some formal or conventional religious basis was required for a conscientious objector classification, yet he made no real effort to ascertain the actual requirements for the classification despite the ready availability of information and advice at the local board. Following the example of the First Circuit Court of Appeals in United States v. Powers,¹¹ we take judicial notice of the fact that a registrant's Notice of Classification, which is required to be in his personal possession at all times, plainly advises registrants in capital letters — "For Information and Advice, Go To Any Local Board." Other provisions advise registrants of the availability of Government Appeal,¹² of board members ready "to advise and assist registrants in the preparation of questionnaires and other selective service forms,"¹³ and of the "positive information policy" of the Selective Service Board.¹⁴ Moreover, Taylor was specifically advised by Mrs. Duncan at his Board that to obtain the status of conscientious objector he would have to submit a written request within 30 days. When he failed to submit SSS Form 150 within the specified time limit, Mrs. Duncan wrote him on February 17, 1969, to do so at once or else he would waive any claim to the status of conscientious objector.¹⁵ This backdrop of information was certainly sufficient to put a person sincerely desirous of complying with the law on notice that he could have inquired of the board and learned the true status of his claim.¹⁶ Having failed to ask for a reclassification or to press in any way before induction that he should be reclassified, or to provide the local board with any information which could warrant reconsideration of his classification, Taylor cannot now charge the board with unconscionable dereliction in violation of due process of the law. Selective Service Boards cannot be charged with neglect of duty arising out of the secretive, unilateral, uncounselled, subjective and uncommunicated decisions of a registrant based upon his individual ideas and concepts of broad philosophical, moral or religious questions.¹⁷

Appellant's second contention is that the Board committed error by refusing to reconsider his classification in light of his post-induction letter.¹⁸ While courts have exercised discretion in rare and unusual cases in determining whether to consider conscientious objector claims filed after an order to report for induction but before refusal to report,¹⁹ the courts are virtually unanimous in refusing to require boards to recognize post induction claims.²⁰ As the court said in Palmer v. United States:²¹

Classification functions of the local board cease with induction, and a registrant cannot, by refusing to submit to induction, impose upon the board any new duties respecting reclassification or reopening * * * To permit such imposition would be highly disruptive of the Selective Service process.²²

The reason for the strict adherence to this rule against consideration of post induction claims was discussed with approval by the Supreme Court in Ehlert v. United States:²³

A regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would, we think, be perfectly valid, provided that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim. The Military Selective Service Act of 1967 confers on the President authority "to prescribe the necessary rules and regulations to carry out the provisions of this title * * *" 50 U.S.C. App. § 460(b) (1). To read out of the authority delegated by this section the power to make reasonable timeliness rules would render it impossible to require the submission, before mailing of an induction notice, of a claim matured before that time. The System needs and has the power to make reasonable timeliness rules for the presentation of claims to exemption from service.

A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. Selective Service boards must already handle prenotice claims, and the military has procedures for processing conscientious objector claims that mature in the service. Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems.²⁴

There was no due process violation in the draft board's refusal to reconsider Taylor's application. The Selective Service Board has no obligation to act upon requests which are made by registrants after the date for his induction has passed.²⁵ Accordingly, the judgment of conviction is affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THOR...