Ayers v. United States

• Decision Date: 25 February 1957
• Docket Number: No. 14646.,14646.
• Citation: 240 F.2d 802
• Parties: Joe Mike AYERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

240 F.2d 802 (1956)

Joe Mike AYERS, Appellant, v. UNITED STATES of America, Appellee.

No. 14646.

United States Court of Appeals Ninth Circuit.

November 9, 1956.

Writ of Certiorari Denied February 25, 1957.

COPYRIGHT MATERIAL OMITTED

Elliott & Murray, William L. Murray, Santa Ana, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, Richard L. Sullivan, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before POPE, FEE and CHAMBERS, Circuit Judges.

Writ of Certiorari Denied February 25, 1957. See 77 S.Ct. 563.

JAMES ALGER FEE, Circuit Judge.

Ayers was convicted of a failure to report for induction into the military service in accordance with the order of a local board. The criminal case was tried before a judge of the United States District Court, sitting without a jury by consent. The question decided therefore was one of fact. The judge found upon the facts that defendant was guilty. The proceeding was not a review of the record before the Selective Service Board. Such records only enter the case as evidence to show that appropriate notice was given to defendant to report. Defendant had two witnesses, himself and another, who testified in the case. Upon appeal there is no transcript of record, so we do not know what either of the witnesses said in the District Court.

The Selective Service record was stipulated to and admitted in evidence. Upon the basis of this record, defendant Ayers now asks reversal of the conviction. This record showed that Ayers registered under the Selective Service system and came up before Local Board No. 140, San Diego County. On July 11, 1950, he was classified by the Local Board in Class 1-A and notified of that action. Shortly thereafter, he sent a letter to the Board appealing his classification on the ground that he was studying for the ministry. Thereupon, Pasadena College verified the statement that registrant was preparing for the ministry in that institution. As a result, the Board placed Ayers in Class 4-D and notified him.

Long Beach State College notified the Board on February 17, 1953, according to the record, that Ayers was enrolled there as a special student with only twelve units of instruction. By letter dated February 18, the Local Board notified registrant that additional information must be supplied if he were to continue in Class 4-D. In a letter dated the same day, Ayers claimed for the first time to be conscientiously opposed to war. On February 24, the Local Board received a second letter from him expanding his reasons for conscientious objection and for transferring from a theological school to a state college. Ayers filed with the Board the special form for conscientious objector, which was almost entirely filled out in the handwriting of a girl who had assisted him.

After receipt of this special form, the Local Board on March 4, 1953, again classified Ayers in Class 1-A and notified him by mail on March 5, 1953.

Ayers thereupon requested a personal appearance and appealed this classification of 1-A. As a result, on March 19, 1953, he appeared personally before the Board, and, as a result, the Board agreed to classify him in 1-O. He apparently based his plea in part upon his membership in International Christian Revival Association. Ayers sent a letter dated March 19, 1953, to confirm his statement of belief, which contains the statement:

"I will stand and fight for this our America or the world, but I refuse to use the means which the world is using to gain peace."

In a previous letter, he had said:

"I\'m in just a small group of people and we are trusting Christ and His word that He will give us a revival for our day."

In regard to this claim, R. R. Sanders, Captain, U.S.A.F., who was coordinator of District Headquarters No. 6, which was set up under Selective Service Regulations,¹ wrote a letter dated April 23, 1953, giving to the Local Board certain facts which had come to his attention concerning the International Christian Revival Association above mentioned, since the registrant was claiming membership in that association as a basis for his current belief. The pertinent information was that the organization consisted of some twenty members, was incorporated in 1951, and had decided on November 18, 1952, that they were conscientiously opposed to war and on that day passed a resolution to that effect. Advice was given as to the action of another Local Board with reference to a member of the same organization. Complaint is chiefly made of the paragraph in the letter:

"In view of the above, it would appear that a classification of 1-O is not warranted under the provisions of Section 1622.14 of the Selective Service Regulations."

Thereafter, on regular forms, Ayers volunteered for civilian work and filed these with the Board on April 30, 1953.

The minutes of the Board do not set forth anything as to meetings or discussions thereafter, except that they show that on May 7, 1953, the Board again classified registrant in Class 1-A. On the next day, notification of this classification was mailed to Ayers. By a letter dated May 13, 1953, registrant appealed the 1-A classification and requested a personal appearance. He enclosed in the letter the "Articles of Belief" of the International Christian Revival Association, to which he belonged. On May 21, 1953, registrant appeared personally before the Local Board and was given another hearing. The Local Board voted to continue registrant in Class 1-A. A copy of the memorandum summarizing what occurred at this personal appearance is contained in the Selective Service file, and on the same day Ayers was notified that he had been continued in Class 1-A.

On June 18, 1953, the Local Board forwarded the Selective Service file of registrant to the Appeal Board. Thereafter, the United States Attorney moved to secure an advisory recommendation from the Department of Justice. Ayers appeared before the hearing officer, who recommended that his claim for exemption be not sustained. In the report of the Department of Justice, it is stated:

"The Hearing Officer reported that the registrant stated that he was opposed to participation in war in any form. The registrant advised the Hearing Officer, however, that he believed that it was proper for governments to carry on wars and that people should be in the Army. He stated that he believed that it is satisfactory for those who choose to protect themselves through the use of force. He does not believe that he should participate in war." Government\'s Exhibit 1, page 76.

His relation to the association upon which eventually he based refusal of induction is quite confused. The Federal Bureau of Investigation reported he was dropped from the rolls thereof "in approximately August, 1953." At the hearing, it was shown he was a member accepted as of January 31, 1954. On April 15, 1954, the Appeal Board placed registrant in Class 1-A. On April 19, 1954, the Local Board received the Selective Service file from the Appeal Board. Ayers was notified of his classification in Class 1-A by the Board on the same date. On May 4, 1954, defendant was ordered to report for induction May 19. He requested a transfer to Local Board No. 135, which was granted, and Local Board No. 135 ordered defendant to report for induction June 9, 1954, upon which day he reported for induction but refused to submit thereto.

The points raised on appeal are numerous. It is said that the order to report for induction was void because the Local Board (1) applied an erroneous theory of law in classifying defendant, (2) acted arbitrarily, capriciously and without basis in fact in reclassifying him, (3) acted contrary to regulations by reopening and reconsidering the classification of Ayers, (4) denied Ayers access to information which was the basis of the classification, and (5) denied him a hearing.

The first and second points are considered together. The attack upon the classification of the Board is based simply upon the fact that the letter of Sanders appears in the file. From its mere presence, it is argued that the members were overwhelmed and their judgment vitiated and that an erroneous theory of law was injected into the case. But all this is pure speculation. Again, it is argued that the Board acted arbitrarily and capriciously and without basis of fact in making the classification. It is demonstrable that the Board had firm foundation in the personality and actions of Ayers, and the mere presence of the letter of Sanders in the record of the Board is no proof to the contrary.

In truth, the letter of Captain Sanders really pointed out facts which may not have been previously noticed by or known to the Board. The recent date of the resolution against war by the group of which Ayers claimed to be a member may possibly have been one of the elements in classifying Ayers a second time as 1-A. They may have believed the training and beliefs of Ayers were exemplified by this organization, and the most recent change was accomplished after he was threatened with military service. Captain Sanders was a "District Coordinator," duly authorized by law and regulations² to communicate and cooperate with the Local Board. Under the Selective Service System, many of these members of state organizations were properly military officers or had military titles.³ The Local Boards would have difficulty in learning the facts about religious organizations, some of which are national or international in scope and others of which are relatively small and unknown, as was the case here. There has been no claim that the facts stated in the letter were erroneous or misleading. There was no fraud charged, and on the facts there could not have been. The letter was not directed at Ayers personally, but set out facts concerning the organization whose teachings Ayers was claiming gave him immunity. There is no principle which indicates that the Local Board is confined in the determination of fact to...