Storey v. United States

• Decision Date: 26 January 1967
• Docket Number: No. 20932.,20932.
• Citation: Storey v. United States, 370 F.2d 255 (9th Cir. 1967)
• Parties: Kenneth Gerald STOREY, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 255 (1966)

Kenneth Gerald STOREY, Jr., Appellant, v.UNITED STATES of America, Appellee.

No. 20932.

United States Court of Appeals Ninth Circuit.

December 5, 1966.

Rehearing Denied January 26, 1967.

Ralph K. Helge, Pasadena, Cal., for appellant.

Eugene G. Cushing, U. S. Atty., Michael J. Swofford, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before POPE, MERRILL and ELY, Circuit Judges.

POPE, Circuit Judge.

The above named appellant was convicted in the court below of having refused to submit to induction into the armed forces of the United States, an offense defined in Title 50 U.S.C. App. § 462.He was sentenced to imprisonment for a term of years from which judgment he appeals.

The appellant registered with his local board of the Selective Service System on February 4, 1958.At that time he was employed by the Boeing Airplane Company at Seattle in making drawings for ground support equipment for minuteman missiles.Occasionally thereafter he kept the local board informed of his continued employment by that company in the performance of similar duties having to do with the missile program.He continued that employment until November, 1963, when he transferred to work on unarmed transport planes.¹He finally quit Boeing about March 31, 1964.

On July 7, 1958, following the filing of his selective service questionnaire, he was classified by the board in Class 1-A, (available for military service).At that time no claim relating to conscientious objection to military service had been made.

A little more than three years later appellant was ordered to report for an armed forces physical examination and he was advised that he had been found acceptable for induction in the armed forces.On March 25, 1963, he advised his local board that he had become a conscientious objector and requested that his classification be changed to 1-O (conscientious objector available for civilian work) and that the special forms for conscientious objectors be sent to him.These forms he returned on April 4, 1963, fully executed by him.The board on April 15, 1963, again classified him 1-A.On April 18, 1963, he wrote to the board as follows: "Dear Sirs: I cannot accept the 1-A classification you have given me.It is against my religious beliefs to come under military authority in either a combatant or noncombatant capacity.I therefore request a personal appearance hearing so that I might state my reasons for a 1-O draft classification.If after my personal appearance hearing you still have not reclassified me as requested, please consider this a notice of appeal."He was granted the personal appearance requested and appeared before the board on May 20, 1963.The board determined that he should be retained in Class1-A.

It will be noted from the letter last quoted that he had given a notice of appeal and his file and records before the local board were transmitted to the appeal board.The appeal board on July 22, 1963, notified the United States Attorney that it had the file and requested the advisory recommendation from the Department of Justice.

On May 28, 1963, appellant wrote a letter addressed to the local board which began as follows: "In regards to the appeal board for a change in my draft status from 1-A to 1-O"; this was followed by a statement that he was baptized May 26, 1963, in the Radio Church of God and that it was a part of the constitution of that church that its members are forbidden, and conscientiously refuse, to bear arms or come under the military authority.This communication was transferred to the appeal board with the rest of the local board files.

On December 4, 1963, the registrant appeared before a special hearing officer of the Department of Justice.After this hearing had been concluded, the officer found that the registrant was sincere in his opposition to combatant military training or service but not in his claimed opposition to other forms of noncombatant service.Thereafter, on March 31, 1964, the registrant quit his job at the Boeing Company.On April 20, 1964, the appeal board classified the registrant in Class 1-A-O (conscientious objector available for non-combatant military service only).Thereafter he was ordered to report for induction; he refused and his prosecution followed.

Appellant contends on this appeal that he was denied certain rights which he had under selective service regulations and that there was no basis in fact for his 1-A-O classification.

The first contention made has to do with a letter which the appellant wrote to the local board on April 3, 1963, in which he referred to his position as an employee working on electrical test equipment used in connection with a minuteman missile.He said: "If you believe this to be defense work, then I will transfer to the Dyna Sour Program (which is for peaceful use) or quit immediately and take my chances of finding another job.Please let me know if my job is considered defense work and what I should do."The board did not respond to that letter.Appellant claims that the failure of the board to answer this inquiry had the effect of making his ultimate classification illegal.

We think it is obvious that appellant had full knowledge of the work which he was doing.Moreover, just a few days prior to the above request he had written a letter to the board, which it received March 25, 1963, in which he stated specifically, as we note hereafter, that his job was "connected with warfare."Whether he should continue in that work would involve an exercise of his own conscience upon which he was not entitled to advice from the local board.

Another contention made is that appellant was denied due process in that he was never furnished a copy of a certain letter mailed to the appeal board and concerning which he had no information.The contention is that the letter contained ostensibly derogatory and adverse evidence of which he should have been informed.The letter was written by a minister of appellant's church.The substance of the letter is set forth in the margin.²We are unable to perceive the basis for this contention.The letter in our view was in no manner derogatory or adverse to the appellant and was obviously written for the purpose of aiding him in his demand for a 1-O classification.The last sentence of the letter is entirely consistent with the contention which the appellant has made throughout, namely, that his continued work at Boeing on the missile project was based on a mistake or misunderstanding.³

Furthermore this was fully explained to the appeal board by a letter from the appellant's attorney dated March 30, 1964, and received by the board two days later.Mr. Helge, the attorney, elaborated upon and explained the misunderstanding between the registrant and his minister concerning his minuteman employment, the topic of the controversy.The board also had additional letters written by the appellant and presented to the board which explained that his Boeing employment had been terminated and which reviewed his entire religious history.It is not apparent to us that appellant was denied any right through the failure to furnish him a copy of the minister's letter.

The argument on this point lacks basis for another reason.There is nothing to show that the appeal board ever considered the letter from the minister here in question.The presumption is, of course, that the appeal board acted regularly and in accordance with the regulations.If, as appellant suggests, this letter was something volunteered by the minister (in hostility to the appellant) then under 32 C.F.R. § 1626.24 the appeal board was prohibited from considering it.That section lists specifically the only information which the appeal board is permitted to consider and that list does not include letters from outside persons addressed to the board.⁴

The only basis on which the appeal board could have considered it would be by the board's finding that the letter was a part of the appellant's reply to the recommendation of the Department of Justice.Such a reply is listed in the section mentioned as an item which the appeal board can consider.⁵

Under date of March 30, 1964, appellant's attorney wrote the appeal board, commenting upon the same subject, and referring to the same Department of Justice report, saying: "Upon investigation of this fact it was determined that the permission that was granted to the registrant to do this work was actually based upon a misunderstanding, between the minister and the registrant, as to the type of work that was being done."The minister's letter previously referred to is dated April 2, 1964, and was received by the appeal board on April 3.If it could be assumed that the appeal board paid any attention to the minister's letter it would seem that the board could well believe that the minister's letter was written in aid of appellant's letter of March 31 and of the attorney's letter of March 30 and at the appellant's instance.It is true that the appellant testified at the trial that he never knew about the minister's letter but the trial court was not obliged to believe that, and what is more important, the appeal board was not obliged to draw any such inference from the circumstances here mentioned.

It is next contended that the local board acted arbitrarily and violated appellant's rights under the applicable regulations when it refused to reopen the appellant's classification and grant him a further hearing after receipt of his letter of April 18, 1963, quoted above.The regulation here applicable is 32 C.F.R. § 1625.2 which provides in part as follows: "The local board may reopen and consider anew the classification of a registrant (a) 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. * * *"

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