Keene v. United States, 6018.

• Decision Date: 08 April 1959
• Docket Number: No. 6018.,6018.
• Citation: 266 F.2d 378
• Parties: Richard Glenn KEENE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

266 F.2d 378 (1959)

Richard Glenn KEENE, Appellant, v. UNITED STATES of America, Appellee.

No. 6018.

United States Court of Appeals Tenth Circuit.

April 8, 1959.

William F. Reynard, Denver, Colo. (Albert L. Vogl, and Frank C. Lowe, Denver, Colo., were with him on brief), for appellant.

Lt. Colonel Robert T. Hays, Washington, D. C. (Donald E. Kelley, James C. Perrill, Denver, Colo., and Daniel O. Omer, Washington, D. C., were with him on brief), for appellee.

Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.

MURRAH, Circuit Judge.

This is an appeal from a judgment and sentence on a conviction for refusal to submit to induction into the armed forces in violation of Section 462(a), Title 50 U.S.C.A.Appendix. Foremost, the judgment and sentence are said to be void because the government failed to prove the essential jurisdictional fact that appellant was legally classified I-A as a prerequisite to induction into the armed forces. The precise point is the failure to prove the indispensable factum of a quorum of appellant's draft board when his I-A classification was determined.

There is some authority for saying that the point is not open in this collateral proceedings, but should be raised administratively See Jessen v. United States, 10 Cir., 242 F.2d 213; Mason v. United States, 9 Cir., 218 F.2d 375; Evans v. United States, 9 Cir., 252 F.2d 509; Prohoroff v. United States, 9 Cir., 259 F.2d 694. We prefer, however, to treat the matter as going directly to the competency of the board to classify the appellant as an essential ingredient of the offense charged as in Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826. And see also Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; United States ex rel. McCarthy v. Cook, 3 Cir., 225 F.2d 71. And, while it is, to be sure, incumbent upon the government to prove a valid classification as an essential element of the offense, the draft board did admittedly have jurisdiction of the registrant, with full authority to classify him in I-A, i. e., available for military service. Indeed, under the applicable regulations it had no authority to do otherwise in the absence of a showing that he was entitled to some other classification. See § 1622.10, C.F.R., Title 32; § 1623.2, C.F.R. Title 32. Having jurisdiction of the person with full power to classify him as it did, we will indulge in the regularity of the board proceedings, i. e., "that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown." Lewis v. United States, 279 U.S. 63, 49 S.Ct. 257, 260, 73 L.Ed. 615. See also United States v. Chemical Foundation, 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131; Cooper v. United States, 8 Cir., 233 F.2d 821; Facchine v. Hunter, 10 Cir., 190 F.2d 200.

At all times, applicable law provided that "Each local board shall consist of three or more members * * * or separate panels thereof each consisting of three or more members * * *." § 460(b)(3). See also § 1604.52 C.F.R. Title 32. And, a majority of the members of the local board or a panel thereof "who are present at any meeting of the panel at which a quorum is present shall decide any question or classification properly before the panel." § 1604.52a(d), C.F.R. Title 32.

As a part of its proof, the government introduced the appellant's selective service file showing that on April 16, 1952, the appellant was classified I-A by a board vote of 2 to 0 and was so notified; that about four years later, and on November 16, 1956, the board refused to reopen the classification by a vote of 4 to 0; and that about two months later, the board again refused to reopen the classification by a vote of 3 to 0.

The appellant challenges the requisite validity of the classification as resting a presumption of validity upon the presumption of regularity, and asserts that guilt cannot be thus established. But in any event, the 2 to 0 board vote is said to vitiate any presumption of regularity and validity. And moreover, the appellant says that such presumption certainly does not overcome the presumption of innocence.

The first flaw in appellant's reasoning lies in the failure to appreciate the significant difference between a mere inference of fact which does not necessarily prove anything, and a legal presumption which imparts prima facie validity to the proceedings of the draft board. See Wigmore on Evidence, 3rd Ed., Vol. IX, §§ 2490, 2491. Rule 704 A.L.I. Model Code of Evidence 1942. The presumption which attends these proceedings is founded in the policy of the law, and is derived from the faith and credit we owe to official acts of duly constituted authority. As such, it is legally sufficient to sustain the burden of regularity and validity until dissipated by some probative evidence to the contrary. It is no double presumption to declare as a matter of law that official acts of a lawfully established draft board with jurisdiction of the person are prima facie valid. Such presumptions are distinguishable from the evidential value of ultimate inferences based upon a "rational connection" between what is proved and what is inferred. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; "The Validity of Statutory Presumptions of Crime under the Federal Constitution", 22 Texas Law Rev. Dec.1943, p. 75-87.

Nor can we agree that the recorded 2 to 0 vote of the board is any probative evidence contrary to the presumption. This is so even when considered in connection with subsequent 4 to 0 and 3 to 0 votes, indicating that four years after the first vote, the board consisted of more than three members. There is nothing legally or factually inconsistent in the 2 to 0 vote and a duly constituted board consisting of three members or a panel thereof consisting of the same number, a quorum of which is competent to decide any classification properly before it. Nor are the subsequent votes inconsistent with the presumption of legality of the first board action. It is sufficient, we think, that a quorum of a statutory board was present and voted. The legal consequence is that in the absence of some proof to the contrary, we will presume that the local draft board or panel thereof consisted of three members.

Neither do we think the traditional presumption of innocence overcomes the presumption of regularity and validity. Both are founded in the policy of the law as procedural safeguards. British America Assur. Co. of Town of Toronto, Canada v. Bowen, 10 Cir., 134 F.2d 256; United States v. Buckner, 2 Cir., 118 F.2d 468; Reynolds v. United States, 9 Cir., 238 F.2d 460; Wigmore, supra, § 2511. They stand in lieu of fact until overcome by fact; they do not conflict, rather they operate successively to shift the duty of producing evidence at the ultimate risk of nonpersuasion. See Wigmore, supra, § 2493. One operates as an invulnerable cloak of innocence until removed by proof beyond a reasonable doubt; the other operates as a rule of law to sustain the burden of proof and support a finding of guilt. See United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906. Both thus perform their respective functions in the judicial process of determining guilt or innocence.

Though the appellant raised the question of the competency of the board, it offered no proof whatsoever that it was illegally or improperly constituted when it classified him. In this posture of the case, we will indulge in the legality of the board's action. In that respect, this case is clearly distinguishable from Christoffel v. United States, supra, where evidence was adduced tending to show the lack of a quorum of the tribunal which voted the criminal charge.

The appellant next contends that the board arbitrarily and erroneously refused to reopen his I-A classification and afford him a special hearing on his conscientious objection as provided by Section 456(j), Title 50 U.S.C.A.Appendix, which expressly provides that "Nothing contained in this title * * * shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation of war in any form. * * * Any person claiming exemption from combatant training and service because of such conscientious objections * * * shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing. * * *"

The trial court apparently took the view that the exemption privilege granted by Section 456(j) was subject to and conditioned upon the procedural requirements of Section 1625.2, C.F.R., Title 32, which pertinently provides that "The local board may reopen and consider anew the classification of a registrant (1) upon the written request of the registrant * * * provided * * * 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." The court reasoned that since the appellant made no written request to his local board to reopen and reconsider his I-A classification until after induction notice had been mailed to him; and since the board had refused, upon consideration, to find that there had been a change in his status from circumstances over which he had no control, his refusal to submit to induction in accordance with the induction notice was in violation of Section 462(a), Title 50 U.S.C.A.Appendix.

Appellant does...