Daniels v. United States

• Decision Date: 17 January 1967
• Docket Number: No. 20311.,20311.
• Parties: David Leroy DANIELS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

372 F.2d 407 (1967)

David Leroy DANIELS, Appellant, v. UNITED STATES of America, Appellee.

No. 20311.

United States Court of Appeals Ninth Circuit.

January 17, 1967.

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

Manuel L. Real, United States Atty., John K. Van de Kamp, Asst. United States Atty., Chief, Crim. Div., J. Brin Schulman, Asst. United States Atty., Asst. Chief Crim. Div., Robert M. Talcott, Asst. United States Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

David Leroy Daniels, classified in the Selective Service System as a conscientious objector opposed to combatant or non-combatant service in the Armed Forces, failed to obey an order of his local board to appear before it for assignment to a place of civilian employment in lieu of induction. He was indicted for having knowingly failed to report to the board, in violation of section 12(a) of the Universal Military Training and Service Act (Act), 62 Stat. 622 (1948), 50 U.S.C., Appendix, § 462(a) (1964). After a non-jury trial, Daniels was convicted and sentenced, and takes this appeal.

The material facts are not in dispute. On November 10, 1960, Daniels registered in Fresno County, California, with Local Board 68 of the Selective Service System (Board). In his classification questionnaire, filed on October 9, 1963, Daniels stated that he was ordained to the ministry of Jehovah's Witnesses on July 30, 1958. Since that time, Daniels stated, he has been associated with the Kerman, California congregation of Jehovah's Witnesses. He further stated that it was his goal to become a full-time "pioneer" of Jehovah's Witnesses. A pioneer, Daniels explained, is one who devotes at least one hundred hours a month to preaching house to house and related activities. In an attached letter, Daniels stated that he was then a "vacation pioneer," which required him to spend seventy-five hours a month in preaching and teaching.

On October 21, 1963, Daniels filed a completed conscientious objector form with the Board. On November 19, 1963, the Board classified Daniels as I-O.¹ Daniels wrote to the Board objecting to the I-O classification, and requesting reclassification as a minister of religion or divinity student. Such classification, designated as IV-D, is provided for in 32 CFR § 1622.43. See also, sections 6(g) and 16(g) of the Act, 62 Stat. 611, 624, 50 U.S.C., Appendix, §§ 456(g), 466(g).² Daniels then presented his position in a personal appearance before the Board, as provided for in 32 CFR § 1642.2. The Board, however, declined to reopen the case, and again classified him I-O.

On June 2, 1964, Daniels submitted to a preinduction physical examination and was found fully acceptable for induction into the Armed Forces. He then appealed his classification to the Appeal Board pursuant to 32 CFR § 1626. The Appeal Board rejected Daniels' contention and, on July 23, 1964, classified him I-O. On July 30, 1964, the Board mailed Daniels a report form in which he was asked to list, in order of preference, three types of approved civilian work selected from a list on file at the Board's office. The selections were to indicate types of work which he was qualified to perform, and which he offered to perform in lieu of induction into the Armed Forces.

Daniels returned the form on August 11, 1964, refusing to list any preferences. Instead, he wrote on the form: "I cannot perform any such work due to my standings and beliefs." On September 8, 1964, the Board sent Daniels a letter offering him three types of civilian work in lieu of induction.³ He returned the letter of September 21, 1964, without designating any of these types of work. In lieu thereof, he signed a form statement which was a part of the letter, reading: "I do not wish to perform any of the types of work listed above, the reasons for which are stated on the reverse side of this letter." On the reverse side he stated his conscientious objection to such work.

On November 4, 1964, the Board notified Daniels to attend a meeting with the Board and a representative of the State Director of the Selective Service System, to be held on November 16, 1964. The purpose of this meeting, which was called pursuant to 32 CFR § 1660.20(c), was to attempt to agree upon a type of civilian work which Daniels would perform in lieu of induction. At this meeting Daniels stated that he supposed that he was capable of doing any of the types of work referred to in note 3. He further stated, however, that he would not accept any of these types of work, or any approved job offered by the Board, because to do so would conflict with his belief as a conscientious objector.

On December 11, 1964, the Board ordered Daniels to report to the Board on January 4, 1965 "where you will be given instructions to proceed to the place of employment." The employment designated was the Los Angeles County Department of Charities. The order advised Daniels that he was to remain in such employment for twenty-four consecutive months or until such time as he was released or transferred by proper authority. The order also advised him that failure to report to the Board at the hour and on the day named in the order, or to proceed to the place of employment pursuant to instructions, would constitute a violation of the Act, punishable by fine or imprisonment or both.

Daniels did not report to the Board on January 4, 1965, and did not report to the assigned employer.

At the trial Daniels did not defend on the ground that he had reported to the Board as ordered, or that his failure to report was inadvertent. His only defense was that he was improperly classified I-O, conscientious objector, and that he should have been classified IV-D, as a minister of religion or divinity student.⁴

After Daniels had cross examined two Government witnesses, but before he could produce witnesses of his own in support of his contention that he had been incorrectly classified, the Government objected that such a defense was not available to Daniels because he had not complied with all of the prescribed steps in the selective process. In support of this contention, the Government relied primarily on Bjorson v. United States, 9 Cir., 272 F.2d 244 (1959).

The district court upheld the Government's objection holding, in effect, that by reason of Daniels' failure to comply with all the prescribed steps in the selective process, he could not defend on the ground that his classification order was invalid. The court struck testimony already received on this point, rejected an offer of proof made by Daniels' counsel,⁵ and found Daniels guilty as charged. This appeal followed.

Daniels contends here that Bjorson, apparently relied upon by the trial court, is distinguishable and that, in any event, it was wrongly decided.

The facts in Bjorson are remarkably similar to those of the case now before us. Dean Bjorson was a Jehovah's Witness who had been classified I-O, conscientious objector opposed to either combatant or non-combatant service in the Armed Forces, but who had sought without success a classification as a minister of religion. After following essentially the same procedure as in the Daniels case, Bjorson's local board ordered Bjorson to report to it on October 21, 1957, to be given instructions to proceed to the Los Angeles County Department of Charities. He did not do so and was brought to trial on the identical charges which Daniels faces.

At his trial, Bjorson defended on the ground that the purported waiver of a prior felony conviction (a previous refusal to submit to induction), which was necessary to make him eligible for induction, was ineffectual with respect to an order requiring civilian employment by a conscientious objector. On appeal, the Government contended that Bjorson had failed to take the prescribed steps in the selective process and therefore could not assert this defense. This court agreed, saying (272 F.2d at page 250):

"The appellant has failed to exhaust his administrative remedy. He did not report to his local board, to be given instructions to proceed to the Los Angeles County Department of Charities. He neglected to go to the `brink.\' He did not take `the last step.\'"

We perceive no substantial distinction between Bjorson and the case now before us. Under Bjorson we would have to hold that Daniels had not taken the prescribed intermediate steps in the selective process and therefore could not, in this criminal prosecution, question the validity of his classification as I-O. We therefore turn to a consideration of Daniels' argument that Bjorson was wrongly decided.

The principal case relied upon by this court in Bjorson was Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L. Ed. 305 (1944). On November 12, 1942, Nick Falbo, classified as a conscientious objector opposed to either combatant or non-combatant service in the Armed Forces, was charged with wilful failure to obey the local board's order to report for assignment to work of national importance. As the law then stood, such work was performed at a "civilian public service camp."

At his trial, Falbo admitted that his refusal to obey the order was wilful, but sought to defend on the ground that he should have been classified as a minister. He was convicted and the Third Circuit affirmed (135 F.2d 464). In the Supreme Court, the questions considered were whether the order to report to the local board for assignment of civilian work was the final, or only an intermediate step in the selective process, and whether Congress had authorized judicial review of the propriety of a board's classification in a criminal prosecution for wilful violation of an order directing a registrant to report for the last step in the selective process.

In considering whether the board order to report for assignment of work was a final or an intermediate step in the selective...