Clark v. United States, 14634.

• Decision Date: 22 October 1956
• Docket Number: No. 14634.,14634.
• Citation: 236 F.2d 13
• Parties: Arthur Parisette CLARK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F.2d 13 (1956)

Arthur Parisette CLARK, Appellant, v. UNITED STATES of America, Appellee.

No. 14634.

United States Court of Appeals Ninth Circuit.

June 20, 1956.

Rehearing Denied July 23, 1956.

Certiorari Denied October 22, 1956.

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J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, Cecil Hicks, Jr., Los Angeles, Cal., for appellee.

Before STEPHENS, FEE, and CHAMBERS, Circuit Judges.

Certiorari Denied October 22, 1956. See 77 S.Ct. 101.

STEPHENS, Circuit Judge.

Appellant Arthur Parisette Clark, a Service selectee, was charged with and was found guilty of and was sentenced for wilfully refusing to be inducted into the Armed Forces of the United States, in violation of the Universal Military Training and Service Act, Title 50 U.S. C.A.Appendix, §§ 451¹ et seq., 462(a).² He appealed.

We review the long chronology of events that led up to appellant's conviction.

The Facts

Appellant registered with the Selective Service System on October 6, 1948, and at that time filled in Series XIV, page 7, of the Classification Questionnaire which indicated he was a conscientious objector. The Special Form, SSS 150, for Conscientious Objector was not filed. Whether he obtained one, we do not know. On October 12, 1948, the appellant-selectee was classified I-A by the Local Board and no appeal was taken.

On June 8, 1950, appellant was handed a Form 150 by the Local Board, but it was not returned. On October 3, 1950, he was found physically acceptable for service. October 4, 1950, the Board received from Chapman College a letter stating that appellant was "regularly in attendance upon classes." On October 28, 1950, he was ordered to report for induction on November 8, 1950. He did not report for induction. However, on November 14, 1950, the Board postponed induction until June, 1951, because of his student status.

On June 27, 1951, appellant received from his board another SSS Form 150, which he returned completed the next day. The questionnaire contained the question:

"Do you believe in a Supreme Being?"

with the word "Yes" with a place for checking, and the word "No" and a place for checking. Appellant checked the word "No" and added,

"I do not know whether or not a Supreme Being exists."

It therefore appears that appellant's claimed religion is not based upon the existence of a Supreme Being.³

On August 7, 1951, appellant appeared for interview before the Local Board regarding his conscientious objector claim and the Board continued him in Class I-A, and the day after sent him notice thereof. By letter received August 20, 1951 (dated August 18) appellant notified the Board that he wished to appeal his classification. Also, on August 20, 1951, the Board received from his school a College Student Certificate (SSS Form 109) showing that he was not in college attendance after June 9, 1951, and that he was in the lowest one-fourth of his class. On September 12, 1951, appellant visited the Board and examined his file and copied portions thereof at which time he mentioned that he had an attorney. On October 9, 1951, he was again classified I-A (apparently the Board did this because of the receipt of Form 109, although it did not have to) and appellant was so notified on SSS Form 110. Appellant inspected his file on October 12, and a week later informed the Board he was appealing his classification. Since he had been classified I-A on August 7, and had appealed his status, his file had been forwarded to the Appeal Board on October 16, and in turn forwarded to the Department of Justice for investigation and hearing. The Hearing Officer and the Department of Justice recommended that he be classified I-A. On June 23, 1952, appellant was classified I-A by the Appeal Board.

On July 23, 1952, he was ordered to report for induction on August 7, 1952, as a postponed registrant. A letter was received August 1, 1952, by the Board from appellant's attorney, Mr. Tietz, requesting postponement of induction. One week later, the appellant refused induction. He was reported as a delinquent and his file was forwarded to the United States Attorney. It turned out a procedural error caused the Board to take his name off the delinquent list and to reorder him for induction on September 15, 1952. Again, appellant inspected his file on the 4th day of September, 1952, and on September 15 he refused to be inducted.

Appellant was thereafter indicted for his refusal to be inducted, but the government dismissed its case when the court ordered F.B.I. reports admitted into evidence so that an in camera inspection could be made.⁴ The Local Board, on May 26, 1953, received authority to reopen appellant's file and after the reopening, on June 16, 1953, appellant was again classified I-A. Thereafter, appellant was accorded a personal appearance, and we set out a summary of occurrences in the margin.⁵ Appellant

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offered no additional evidence on his conscientious objector claim and was advised that he would be continued in Class I-A and was notified officially thereof on July 8, 1953. On July 20, 1953, a letter was received from appellant appealing that classification.⁶ Appellant's file was then forwarded to the Appeal Board and it was referred to the United States Attorney's office for investigation, hearing, and recommendation by the Department of Justice. The United States Attorney sent the file back to the Appeal Board with the following notation:

"It appears from the registrant\'s file that he does not believe in a Supreme Being. In order for a registrant to qualify for a conscientious objector exemption, he must be opposed to war in any form by reason of his religious training and belief. Religious training and belief is defined by the statute as a belief in a Supreme Being involving duties superior to those arising from any human relation. Thus, the registrant does not have a claim within the meaning of the statute granting the exemption. By reason of the foregoing, the Department of Justice has no jurisdiction to conduct the inquiry and hearing in this case."

On December 15, 1953, the Appeal Board classified appellant I-A. Appellant was mailed SSS Form 252, Order to Report for Induction, ordering him to report for induction on January 8, 1954. On the date specified appellant reported to the induction station but refused to be inducted, and there signed a written, dated, and witnessed statement to that effect. Prosecution followed.

The Appeal

First, appellant argues that he was denied due process of law because the Board failed to post the names and addresses of Advisors to Registrants as required by the regulation § 1604.41 of Title 32 C.F.R. (1951 Ed.). Mere failure to appoint advisors or the failure to post the names and addresses of advisors is not per se a violation of due process; and that lack of due process exists as to such failure only when substantial prejudice is shown. Uffelman v. United States, 9 Cir., 1956, 230 F.2d 297, and Kaline v. United States, 9 Cir., 235 F.2d 54. Appellant at the trial testified that he contacted the local board and asked the name of an appeal officer from whom he could get advice. He was given the name of an appeal officer and he contacted him. Further, appellant on many occasions inspected his file and copied portions thereof. He told the board that he had an attorney and his attorney contacted the Board. A Selective Service official testified at the trial that although no one was labeled with the title "Advisor to Registrants", there were others in the Board's office who performed the same function. No prejudice is shown.

Next, appellant argues that there was failure of proof that he appellant had refused to submit to induction, after being warned of the penalty. This issue was not raised at the trial, and is not included in appellant's Points on Appeal, as required by the rules of this court.⁷ However, the record shows the following writing:

"January 8, 1954 "I refuse to be inducted into the Armed Forces of the United States." /s/ "Arthur P. Clark "Witnessed by /s/ "Earl S. Beydler, Capt. Inf /s/ "George J. Newton Jr. M/Sgt., U.S.Army."

Appellant argues that Chernekoff v. United States, 9 Cir., 1955, 219 F.2d 721, is exactly the same case as the instant one. The two cases differ. The point as to failure of proof of refusal to be inducted, was raised in Chernekoff. The Chernekoff statement was not dated. There is not a scintilla of evidence in the record in our instant case that appellant was denied an opportunity to take the "step forward". In Chernekoff, this was not true. As we recently said in Kaline v. United States, 9 Cir., 235 F.2d 54, in a like situation:

"* * * The presumption is that the legal steps were taken and if appellant wanted to overcome this presumption, he should have made the point at the trial."

Appellant further argues that he was entitled to an investigation and hearing by the Department of Justice on his second and last appeal and the failure to grant him such a hearing and investigation rendered his order to report for induction void. We find this argument unsound for several reasons. We reiterate that appellant had a full and complete investigation and hearing by the Department of Justice on his first conscientious objector claim made in 1951.⁸ The Appeal Board had on June 23, 1952, decided against his claim and classified him I-A. On June 7, 1953, the appellant was given a personal appearance after he had been again classified I-A by the Local Board. At this personal appearance appellant offered no additional evidence on his previous claim to conscientious objector status. Rather, at this appearance he reiterated without change his previously expressed views and he maintained a lack of belief in a Supreme Being. The appeal was untimely (see footnote 6, supra).

Appellant here argues that the lapse of time since his first appeal as to his denial of...