Brede v. United States

• Decision Date: 16 September 1968
• Docket Number: No. 21928.,21928.
• Parties: Ernest Douglas BREDE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

396 F.2d 155 (1968)

Ernest Douglas BREDE, Appellant, v. UNITED STATES of America, Appellee.

No. 21928.

United States Court of Appeals Ninth Circuit.

May 27, 1968.

Rehearing Denied September 16, 1968.

Clark A. Barrett (argued), San Francisco, Cal., for appellant.

Paul G. Sloan (argued), Jerrold M. Ladar, Asst. U. S. Attys., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before MERRILL and DUNIWAY, Circuit Judges and TAYLOR, District Judge.^*

Rehearing Denied September 16, 1968. See 400 F.2d 599.

TAYLOR, District Judge:

Appellant has appealed from a judgment of conviction, after a court trial, for a violation of the Universal Military Training and Service Act, 50 U.S.C.A. App. § 462(a).

The charging portion of the indictment alleges as follows:

That appellant, on or about May 3, 1966, "willfully and knowingly did fail and neglect to perform a duty required of him under and in the execution of the Universal Military Training and Service Act, * * * in that he did fail and neglect to comply with an order of his local board to report to said board for instructions to proceed to the Los Angeles County Department of Charities, Los Angeles, California, * * *."

The principal specification of error urged here is that there was no order of the local board directing appellant to perform a duty required of him under section 462(a), supra, and that therefore he did not commit the offense charged in the indictment. We agree.

Appellant registered with his draft board on June 4, 1964, and as a practicing Jehovah's Witness was classified I-O on September 14, 1964. A year later appellant was ordered to report for an armed forces physical examination and was found qualified for induction into the military service. Because appellant was classified I-O, processing toward a civilian work assignment in lieu of induction into the military service was commenced pursuant to Selective Service Regulations, 32 C.F.R. § 1660.20.¹

Appellant is not contending that there was any procedural or substantive error by the local board in his case prior to March 14, 1966. On that date a meeting was held pursuant to section 1660.20 (c), supra. At this meeting no agreement as to a type of work in lieu of induction was reached by the board and appellant. However, the board determined that work as an institutional helper at the Los Angeles County Department of Charities, Los Angeles, California, was appropriate for the appellant and that such work was available.

On March 24, 1966, the clerk of the board, pursuant to section 1660.20(d), supra, made a request of the Director of Selective Service for authority to order the appellant to perform the work which the board had determined was appropriate and available.

Such authority was received by the local board on April 20, 1966. On April 22, 1966, a form "Order to Report for Civilian Work (SSS Form No. 153) was sent to appellant by a person who signed as clerk of the board indicating that appellant was to report on May 3, 1966, to receive instructions from the board to proceed to a place of employment.² The appellant did not appear on May 3, 1966, and for this failure he was prosecuted and convicted.

It clearly appears from the record and we conclude that there was not an order issued or authorized by the board requiring the appellant to report to the local board for instructions to proceed to a place of employment. The local board did not comply with section 1660.20(d), supra, after receiving the authority to order the appellant to report for civilian work. This section requires the local board, after receiving such authorization, to meet and order the appellant to report for such civilian work. The appellant's Selective Service file shows that no meeting was held concerning the appellant subsequent to March 14, 1966. Neither the official clerk nor Barbara Jones, the person who signed the purported order, had or was given the authority by the board to order the appellant to report for civilian work in lieu of induction. It is not provided in the Selective Service Regulations that a clerk can order a I-O registrant to report for civilian work without a meeting and the approval of the board members. In this case the board had not met after March 14, 1966, and had not given the clerk of the board, or anyone else, the authority to...