Chaney v. United States

• Decision Date: 21 March 1969
• Docket Number: No. 25641.,25641.
• Citation: 406 F.2d 809
• Parties: Franklin Henry CHANEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 809 (1969)

Franklin Henry CHANEY, Appellant, v. UNITED STATES of America, Appellee.

No. 25641.

United States Court of Appeals Fifth Circuit.

January 27, 1969.

Rehearing Denied March 21, 1969.

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

Edward F. Boardman, U. S. Atty., Gary B. Tullis, Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before GEWIN and BELL, Circuit Judges, and BOOTLE, District Judge.

BOOTLE, District Judge:

After a jury trial, appellant, Franklin Henry Chaney, was convicted of violating 50 U.S.C. App. section 462 in that he wilfully failed to comply with an order of his local board to submit to induction.

Appellant filed his original Selective Service Form 100 on June 5, 1959, indicating therein that he was then working 40 hours per week as a cabinet maker and claiming that he was a minister of the Jehovah's Witnesses denomination and was formally ordained on August 20, 1955 (the date of his baptism). On July 18, 1959, he filed a Form 150 (Special Form For Conscientious Objector) in which he claimed exemption from both combatant and noncombatant training and service in the armed forces. Attached to this form were several sheets containing an explanation of his views.

Having been classified 1-A by his local board and failing to convince the board at a personal appearance that he should be given a different classification, Chaney appealed his classification to the Appeal Board for the Southern District of Georgia. The case was referred to the Justice Department for its recommendation. A special hearing officer of the Justice Department held a hearing after which he recommended to the Department that Chaney's 1-A classification be continued. However, in spite of the hearing officer's recommendation, the Conscientious Objector Section of the Department of Justice, which had the benefit of an F.B.I. report on appellant, recommended that he be placed in class 1-A-O (conscientious objector available for noncombatant military training and service only). The reason for the refusal to recommend a 1-O classification was that it seemed to the Conscientious Objector Section of the Department of Justice that Chaney's primary objection to military service was that it would interfere with his ministry, and that according to Leifer v. United States, 260 F.2d 648 (6th Cir. 1958) and Tomlinson v. United States, 216 F.2d 12 (9th Cir. 1954), this reason is not a ground of objection to noncombatant service. Accordingly, the Appeal Board classified him 1-A-O by a vote of 4 to 0, and on August 29, 1960, a Form 110 notifying Chaney of such classification was mailed to him.

The local board sent appellant current questionnaire forms (Form 127) on February 19, 1963, May 22, 1964, May 7, 1965, August 9, 1965, and February 18, 1966, and each was returned reporting no change in status except from single to married.

By written appointment dated March 31, 1966, in New York, appellant was appointed to serve as a Vacation Pioneer Minister between the dates of April 1 and July 31, 1966. Also, by written appointment dated April 15, 1966, in New York, Chaney was appointed to serve as a Book Study Conductor in his local congregation. He testified that he received notice of the latter appointment about April 20, 1966.

On April 22, 1966, appellant's local board mailed him an Order to Report for Induction (Form 252) scheduling him for induction on May 5, 1966. By letter of April 26, 1966, appellant submitted proof of his two appointments, outlined his duties and requested a stay of the induction order and a reconsideration of his classification. He asserted therein that in his capacity as a Vacation Pioneer Minister he was serving at least 25 hours per week in house-to-house ministry and was attending five 1-hour Bible instructional meetings at his church, and that in his capacity as a Book Study Conductor, he presided over Bible study sessions and oversaw the house-to-house ministry of those assigned to his Bible study group. Adding up the time spent, Chaney noted that he was spending "well over 40 hours per week" in ministerial activities. Appellant also mailed letters to both the State and the National Directors of the Selective Service System advising them of his alleged change of status and requesting an order staying his induction and directing the local board to reopen and consider his classification anew pursuant to 32 C.F.R. section 1625.3. The petitions to the State and National Directors were both denied. Appellant was never expressly notified by the local board as to what ruling it had made on his request for a reopening as is required by 32 C.F.R. section 1625.4, and he complied with the April 29th instructions of his local board regarding transportation to the induction center where he refused to take the symbolic step forward.

Prior to the trial, appellant caused a subpoena duces tecum to be issued and served upon John J. Hennessy, the special hearing officer who conducted the hearing for the Department of Justice during Chaney's 1960 administrative appeal, requiring Hennessy to be at the trial (so that appellant could inquire into his bias or hostility and into his conduct of the hearing) and to bring with him all records, notes and reports relating to the hearing. On the authority of Gonzales v. United States, 364 U.S. 59, 80 S. Ct. 1554, 4 L.Ed.2d 1569 (1960), the trial court granted the government's motion to quash the subpoena. At the trial the government called as witnesses the clerk of Local Board No. 35, the commanding officer of the Armed Forces Examination and Entrance Station at Jacksonville, Florida, and a former member of the armed forces who was stationed at the Jacksonville induction center at the time of appellant's processing. The government also introduced into evidence appellant's Selective Service file. Appellant testified as his only witness.

The appellant's motions for acquittal were denied. After an adverse jury verdict, appellant received a 5-year sentence and brings this appeal complaining that: (1) the failure of the local board to consider the petition for reopening of classification in April of 1966 was error; (2) quashing the subpoena duces tecum requiring the Justice Department special hearing officer to appear at the trial was error; (3) appellant's 1-A-O classification was without basis in fact, and (4) appellant's classification and conviction resulted from a violation of due process.

Failure to Consider Request for Reopening

Since the local board had mailed to appellant an Order to Report for Induction prior to his requesting a reopening of his classification, the following regulation applies:

"§ 1625.2 When registrant\'s classification may be reopened and considered anew

"The local board may reopen and consider anew the classification of a registrant(s) upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant\'s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant\'s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) * * * unless the local board first specifically finds there has been a change in the registrant\'s status resulting from circumstances over which the registrant had no control. (emphasis added).

In an attempt to bring his case under the rule of Olvera v. United States, 223 F.2d 880 (5th Cir. 1955), appellant complains that the local board never considered his request to reopen his classification because the board members were under the mistaken impression that they had no authority to do so after the registrant had been mailed an Order to Report for Induction. In support of his contention, appellant relies upon the following testimony of the clerk of the local board:

"Q. And wasn\'t that letter a petition by him for reopening of his classification?

A. After his orders for induction were mailed.

Q. Yes, Ma\'am. And isn\'t there a procedure for reopening an individual\'s induction after his order has been entered.

A. We can\'t do it. We have no method whatsoever but we can order without our State Director giving us permission to reopen a case once that order for induction is mailed.

* * * * * *

Q. Your board then, as a matter of fact, does not reopen an individual\'s classification after his notice for induction has been mailed to him.

A. That\'s correct." (Record at 165-66).

"Q. Will you state when a classification is reopened.

A. A classification is reopened when sufficient evidence is received that is justifiable and if it\'s in the correct length of time that he has for his appeal.

Q. Must a classification be reopened after an order for an induction is mailed to the registrant?

A. A classification cannot be reopened by a local board after his order for induction is mailed." (Record at 177).

32 C.F.R. section 1625.2 provides that even after an Order to Report for Induction has been mailed, the board may reopen the registrant's classification if it "first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." This regulation imposes a duty on the local board to consider¹ a post-induction-order request for a reopening. See Olvera, supra.

Appellant is faced with the task of overcoming the presumption of regularity that attaches to administrative proceedings by showing that the local board did not in fact comply with the regulation by considering his request for a reopening. We hold that the testimony of the clerk of the registrant's local board is not sufficient to rebut this presumption of...