Kaline v. United States

• Decision Date: 11 June 1956
• Docket Number: No. 14635.,14635.
• Citation: Kaline v. United States, 235 F.2d 54 (9th Cir. 1956)
• Parties: Nick John KALINE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

235 F.2d 54 (1956)

Nick John KALINE, Appellant, v.UNITED STATES of America, Appellee.

No. 14635.

United States Court of Appeals Ninth Circuit.

June 11, 1956.

COPYRIGHT MATERIAL OMITTED

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

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

Before STEPHENS, FEE and CHAMBERS, Circuit Judges.

STEPHENS, Circuit Judge.

Appellant, Nick John Kaline, was charged with and convicted of refusal 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, § 462(a).¹Appellant had registered with the Local Board on September 8, 1948, giving his age as 22.At that time he checked on his registration card in reply to the question "Were you ever rejected for service in the Armed Forces?" the answer "Yes" and wrote in "1945".He also indicated on the card that he was a student at Pacific Bible College.

On December 13, 1948, appellant returned his Classification Questionnaire which showed he was a student at Pacific Bible College preparing for the ministry under direction of Pilgrim Holiness Church.He did not fill in the portion of the questionnaire which treated the subject of conscientious objection.Had he done so in such a manner as to request a Special Form for the use of conscientious objectors, doubtless the form would have been furnished to him.Appellant further checked the printed answer, "No" in answering a question as to whether he had any physical or mental condition, which in his opinion would disqualify him from service in the Armed Forces.He apparently had checked "Yes" and then scratched it out and then checked "No".

On January 4, 1948, a letter had been received by the Local Board, from the Records Section of the Selective Service System, showing that the reason for the 1945 rejection was "valvular heart disease".On January 4, 1949, the Local Board asked appellant to send to them a letter from Pacific Bible College pertaining to his student status.A letter from the college confirming his student status was received by the Local Board on February 7, 1949.No physical examination was made of appellant at this time.

On February 17, 1949appellant was classified IV-F and was notified of that classification.No appeal from that classification was taken.On August 15, 1951, the Local Board was notified that appellant was no longer enrolled at Pacific Bible College.He had apparently ceased attendance there in January, 1951, but had not notified the Local Board of that fact.At this date he was 24 years of age.

Appellant, on December 18, 1951, was classified I-A by the Local Board, and on December 27, 1951, was mailed an "Order to Report for Armed Forces Physical Examination".Two days later, the Board received a letter from appellant asserting that in 1944he had made out papers as a conscientious objector and presently requested appropriate forms to claim that status.The forms were sent to appellant and returned by him, and on March 1, 1952, the Local Board classified him I-O.²

In August of 1952he had a second physical and was found physically fit.He was then mailed an "Application of Volunteer for Civilian Work" and an enclosing letter from the Local Board.No reply to this letter or form was received from appellant and on November 20, 1952, he was reclassified I-A.Appellant complained of this classification and, after a personal appearance before the Local Board, was classified I-A-O.³At this hearing appellant disclosed that he was employed at a machine shop doing defense work for the Armed Forces.

Appellant appealed from this I-A-O classification to the Appeal Board, and his file was forwarded to that Board on January 21, 1953.On September 18, 1953, the Appeal Board asked for and received, on September 23, appellant's latest address.This information was transmitted by the Appeal Board to the Department of Justice where the case had been referred for investigation and hearing.⁴A letter was mailed to appellant on January 21, 1954, stating that a hearing before a Hearing Officer of the Department of Justice had been set for February 4, 1954.Appellant failed to appear at the hearing and the next day the Hearing Officer returned appellant's file to the Department of Justice with notice of appellant's failure to appear.The Department of Justice on February 10, 1954, asked the Local Board for the latest address of appellant.The Local Board on February 12, 1954, replied that appellant's latest address was the one earlier supplied to the Department of Justice.

On February 16, 1954, appellant notified the Local Board of a change of address, and the Local Board transmitted this change of address to the Appeal Board on February 17, 1954.Appellant, on March 1, 1954, wrote the Hearing Officer, who had sent him the previous notice of hearing, and requested a new hearing date.The Hearing Officer wrote appellant that he would get in touch with the Attorney General and see what was the procedure that he should take in his case.The Hearing Officer wrote the Department of Justice that same day, stating what the problem was and asked advice as to what the rules were in such a situation.The Department of Justice replied on March 12, 1954, to the Hearing Officer, stating that after appellant's file had been received from the Hearing Officer, and after appellant's non-appearance at the previously scheduled hearings, the Department had contacted the Local Board in an effort to determine the registrant's latest address and had been told that his address was the same as previously given to them.The Department of Justice asserted that, due to appellant's failure to keep his Local Board advised of his latest address, there was no obligation upon the Department to grant him another hearing, and, in fact, his case had already been processed in their office and the Department's recommendation to the Appeal Board was forthcoming.

The Department of Justice, on March 15, 1954, wrote the Hearing Officer informing him that appellant's file was being sent to the Appeal Board with the recommendation that the claim be sustained as to combatant military service only.The Hearing Officer wrote appellant on March 16, 1954, advising him that his file had already been processed and it was not possible to arrange for another hearing.

On April 15, 1954, appellant was classified I-A-O by the Appeal Board, and on May 12, 1954, it mailed an "Order to Report for Induction", ordering him to report on May 26, 1954.Appellant reported on the date specified to the induction station but refused to be inducted into the Armed Forces, and signed a written statement to that effect which was witnessed.Appellant was prosecuted, convicted, and sentenced to the custody of the Attorney General for imprisonment for a period of four years.

At the trial, and here, appellant argues that he was denied due process in that the Local Board failed to have available Advisors to Registrants, and to have conspicuously posted the names and addresses of such advisors to registrants, as required by the regulations,⁵ and to the appellant's prejudice.Appellee admits that there was no one with the technical name "Advisor to Registrants" appointed, and that no names of such advisors were posted in the Local Board Office.⁶In Uffelman v. United States, 9 Cir., 1956, 230 F.2d 297, this court held, and we think correctly, that the mere failure to appoint such advisors or the failure to post the names and addresses of such advisors is not per se a violation of due process.That lack of due process, on this account, exists only when prejudice is shown.⁷Appellant argues here that he was prejudiced because if there had been an advisor's name and address posted, he could have gone to him and been informed that he could inspect his file and there would have discovered that the Appeal Board was trying to get him a new date and, with the advice of the Advisor, could have pushed the matter to success.

We do not agree with this speculative and theoretical showing of prejudice, and for several reasons.If appellant had done what the regulations required and kept his local board informed of his current address, he would have known of the hearing before the Hearing Officer.Additionally, if appellant had not delayed in requesting a new hearing until March 1, 1954, almost a month after the previously scheduled hearing, he may have secured the second hearing.Appellant, at the trial, admitted that it was his "negligence" and his "fault" that he did not get the notice of the hearing before the Hearing Officer.Appellant also testified that he never at any time made a request of the Local Board for assistance or advice, but rather he consulted his minister.It cannot be assumed that, had he inquired of the Local Board, he would have been refused inspection of his file.Appellant further did not show that he ever checked the bulletin board for such list of advisors or ever made a visit to the Local Board office during this period.We find no merit in the contention that he was prejudiced.

Appellant here for the first time attempts to show that there was no proof that he had been warned of the penalty for refusal to submit to induction and thereafter given the opportunity to "step forward".This issue was not raised in the trial court and likewise was not included in appellant's Points on Appeal, as required by the rules of this court.⁸If appellant wished to raise this point, he should have done so in the trial court.However, we have made an exhaustive search of the record and find that there is not one scintilla of evidence which would point to the failure of the government to allow appellant to take the one "step forward".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...