Boyd v. United States

• Decision Date: 03 August 1959
• Docket Number: No. 16214.,16214.
• Citation: Boyd v. United States, 269 F.2d 607 (9th Cir. 1959)
• Parties: Richard William BOYD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

269 F.2d 607 (1959)

Richard William BOYD, Appellant, v.UNITED STATES of America, Appellee.

No. 16214.

United States Court of Appeals Ninth Circuit.

August 3, 1959.

Hayden C. Covington, Brooklyn, N. Y., Thomas H. Ludlow, Jr., Los Angeles, Cal., Birnbaum & Hemmerling, Clifford A. Hemmerling, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert D. Hornbaker, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal from a judgment of conviction for knowingly failing and refusing to be inducted into the armed forces in violation of 50 U.S.C.A.Appendix, § 462.The conviction resulted in a one year sentence in prison.The district court had jurisdiction by virtue of 18 U.S.C. § 3231.Timely notice of appeal having been filed, this Court has jurisdiction on appeal.28 U.S.C. § 1291, andRules 37and39 of Fed.R.Crim.P.,18 U.S.C.

Appellant registered with his local Selective Service Board(hereinafter called the Board) early in 1953.He later returned his Classification Questionnaire to the Board, indicating that he was not a minister and did not claim to be a conscientious objector.In June 1953he notified the Board of change of address.He was classified I-A in August 1953.In April 1957, appellant was ordered to report for a preinduction physical examination by letter sent to his new and last reported address.When this was returned as "unknown at address," the Board made several attempts to locate him at his original, his new, and his brother's address, all of which attempts were unsuccessful.¹Finally, on September 5, 1957, appellant was notified by letter sent to his last known address that he was "delinquent" for failing to keep the Board advised of his correct address and for failing to report for a preinduction physical as ordered.This letter, too, was returned undelivered.On September 24, 1957, the local Board ordered defendant-appellant to report for induction on October 25, 1957.The order was sent to his last known address, and was returned undelivered on October 1, 1957.The appellant was then reported to the U. S. Attorney as delinquent for failure to report for induction.

On December 10, 1957, appellant came to the Board's office and provided his address, at the same time filling out a dependency questionnaire provided him.At this time, for the first time,appellant requested that the Board provide him with the special form for conscientious objectors, stating that the reason he had not previously requested it was because "I was not as strong in my faith until recently" and, "I didn't know too much about it, that is, about sending in for forms."The special form (SSS Form 150) was furnished appellant, in accordance with the provisions of 32 Code of Federal Regulations § 1621.11.²The special form was filed with the Board on December 16, 1957, and indicated that appellant was conscientiously opposed to participation in both combatant and noncombatant military service, and was a member of a religious organization, to-wit: "Jehovah's Witnesses — The Watchtower Bible and Tract Society, 117 Adams Street, New York, N. Y."

In January 1958, the U. S. Attorney advised the Board that it could again act in the case because the delinquent registrant had been turned up, and the U. S. Attorney declined prosecution because: "Subject in favor of immediate induction as delinquent."Apparently this meant that the appellant represented to the U. S. Attorney that he was willing to be inducted immediately rather than be prosecuted, and, inferentially, that he did not have any conscientious objections to military service.On January 17, 1958, appellant was asked by the Board to advise them whether he was considered a "Pioneer" by the Watchtower Bible and Tract Society, to which he replied on January 20, 1958, that he was not yet so considered, but was classified by the group as a "Congregational Publisher" working toward the "Pioneer" classification.He was notified by the Board on February 12, 1958 that based on his statements and the various forms filed by him the "facts presented do not warrant the reopening or reclassification of your case at this time."On that same date, he was ordered to report for induction on February 28, 1958.Appellant reported on February 28, 1958, but on March 3, 1958, refused to be inducted.The local Board then sent appellant's file to the state director, who advised that appellant be reported to the U. S. Attorney for prosecution.This was done in April 1958.

Appellant was tried and convicted by the court sitting without a jury under an indictment charging his refusal to be inducted.The only evidence received at the trial, at which appellant pleaded not guilty, was the Selective Service file.

But one question is raised on this appeal.Was appellant denied due process when the Selective Service Board, after receiving his form claiming to be a conscientious objector, considered the facts of this case, but did not reopen nor reclassify the appellant's case before so considering the facts?

We hold there was no denial of due process.Appellant received every protection to which he was entitled, and a careful consideration of all the facts of his case, both as they existed before and after his change of position.

Appellant urges that the issuance of the special form (SSS 150) for conscientious objectorsafter the order to report for induction was a reopening of his classification which required the Board to cancel the outstanding order to report for induction.

Appellant in support of his position first relies on 32 C.F.R. § 1625.14.This section does so provide, but the requirement is subject to an important restriction — the cancellation of the previous classification is required only "when the local board has reopened the classification of a registrant."

Furthermore, 32 C.F.R. § 1625.2³ contains a proviso that neither (a) the written request of the applicant, or someone on his behalf, nor (b) the motion of the board itself, based upon new facts coming to its attention, shall be sufficient to reopen and to consider anew the reclassification "after the local board has mailed to such registrant an Order to Report for Induction (SSS FormNo. 252), unless the local board first specifically finds there has been a change in the registrant's status resulting from circum- stances over which the registrant had no control."Emphasis added.

No such change in status so resulting was specifically found by the board here, and hence the Board could not lawfully reopen the classification.

Insofar as due process is concerned, we are thus concerned only with determining whether the Board acted arbitrarily or reasonably in impliedly holding, under the proviso of 32 C.F.R. § 1625.2 hereinabove quoted, that there was no "change in the registrant's status resulting from circumstances over which the registrant had no control."The court below inferentially held the Board acted reasonably and not arbitrarily, and we agree, although the sufficiency of the evidence before the Board is not a matter for judicial review.United States ex rel. Kotzen v. Local Exemption Board No. 157, D.C.S.D.N.Y.1918, 252 F. 245, 248.

There is not raised herein the proposition that conscientious objections resulting from the promptings of a registrant's conscience would be a change of status over which the registrant has no control.But we would think that such an interpretation would, as other courts have said, be "a strained interpretation of the regulation."⁴Such interpretation would make redundant and useless any finding by the Board subsequent to the filing of the conscientious objector's claim.

The Code of Federal Regulations,32 C.F.R. § 1621.11, requires the Board "to furnish to any person, upon request a copy of such special form for conscientious objector(SSS FormNo. 150)."If, after obtaining such a form, an objector could force (by the mere filing of it, and no matter what facts were contained within it, and no matter how strongly his conscience demanded it) a cancellation of his order for induction, and a compulsory reopening, any "objector" could forever prevent the existence of a valid and effective order for induction, no matter how sincere or insincere, compulsive or non-compulsive, his conscience might be.

Appellant urges, in his supplemental brief filed after the oral argument, that this is not necessarily so because according to his view, the Board is not required to issue the SSS 150 Conscientious Objector form once the Order for Induction (SSS 252) has been sent.He contends that since it is in the discretion of the Board to do so after the induction order has been issued, that this issuance "effectively reopened appellant's classification."Supp. Br. 5We cannot agree.

First, there is nothing in 32 C.F.R. § 1621.11 indicating that there is any time limitation on when the Board "shall" issue the SSS Form 150 upon the request of the registrant.Nor is there anything in the context of the regulations which would indicate that there is any limitation.We think that to rule that this time limit inferentially existed in this section of the regulations would clearly deny the registrant due process of law by denying him the right even to ask the Board to reopen his case, once the induction order had been issued.On the other hand, under our interpretation, the registrant at least has an opportunity to present any new facts to the Board by submitting the SSS 150 form.It is thereafter up to the Board to decide whether they warrant reopening and reclassification of the registrant.See32 C.F.R. § 1625.2.

The second difficulty with appellant's view is that it would require us to completely ignore the above quoted portion of § 1625.2 which says that the Board may not reopen the classification unless it makes certain specific findings of a change of status from...