U.S. v. Rosebear
| Decision Date | 19 April 1974 |
| Docket Number | No. 73-1616,73-1616 |
| Parties | UNITED STATES of America, Appellee, v. Robert Gene ROSEBEAR, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Larry Leventhal, Minneapolis, Minn., for appellant.
Joseph T. Walbran, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
VAN OOSTERHOUT, Senior Circuit Judge.
Defendant Robert Gene Rosebear brings this timely appeal from his conviction upon an indictment charging him with willful and knowing failure to submit to induction into the armed services in violation of 50 U.S.C. App. 462. He also appeals from an order reported at 353 F.Supp. 121 (D.minn.1973) denying his pre-trial motion to dismiss, which had been brought on the grounds that the defendant is a member of the Indian race and that this status and certain treaties prevented him from being involuntarily compelled to serve in the armed forces. The defendant waived his right to a jury trial, was tried by the court, the Honorable Judge Neville (now deceased) presiding, and was found guilty as charged. He was sentenced to two years imprisonment with the provision that after serving four months, the balance of the sentence would be suspended and the defendant would be placed on probation for the remainder of the two year period. The order and the judgment of conviction are affirmed.
The material facts concerning the defendant's refusal to submit are not in dispute. Rosebear first registered with his draft board on August 5, 1965. Between that time and May 26, 1969, he intermittently received student deferments. On October 6, 1969, he was classified I-A, and on January 15, 1970, he was ordered to report for induction on February 2, 1970. A student certificate from the University of Minnesota was thereafter forwarded indicating the defendant's attendance at the University. By letter dated January 30, 1970, the defendant was informed that his order to report for induction was cancelled and that he would be classified I-S(c) at the next board meeting. The I-S(c) classification provides a one-time deferment enabling a registrant to postpone induction as a student until the end of the academic year or until he ceases to pursue his studies satisfactorily, whichever occurs earlier. See 32 C.F.R. 1622.15(b) (1971). 1 Rosebear was informed in the letter that he would be retained in that classification until either of the two specified events listed in the regulation occurred and was orally informed that the I-S(c) deferment would end in the summer following the end of the spring quarter classes. The I-S(c) classification was granted on March 5, 1970. The defendant ceased attending school in June of 1970; he did not apprise his draft board of that fact. He was not again reclassified I-A until February 24, 1971. Rosebear neither appealed this classification nor requested a personal appearance before the board. An induction order was issued on March 29, 1971, ordering the defendant to report for induction on April 29, 1971. This order was postponed after the defendant requested a form 150, the Special Form for Conscientious Objector, on April 6, 1971, in a letter presenting a prima facie claim of conscientious objecton. The local board informed Rosebear by letter on May 12, 1971, that it had 'determined that there was no change in circumstances beyond your control, therefore, your classification was not reopened,' citing Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) for authority for refusing to consider his claim. The board also informed Rosebear he could submit his claim to the armed force into which he would be inducted and reissued an order to report for induction on May 27, 1971. The defendant failed to report for or submit to induction as ordered. This prosecution followed.
Rosebear offers several grounds for reversal of his conviction:
I. The defendant's local board failed to follow the proper order of call by scheduling the defendant for induction after the applicable period of vulnerability for involuntary induction had elapsed.
II. Where a local board in refusing to reopen a registrant's classification fails to make it clear that the merits of a post-induction conscientious objector claim were not decided, the registrant's right to a subsequent military hearing would be jeopardized and therefore a conviction cannot stand.
III. The quasi-sovereignty of the Indian nations, the effective lack of full citizenship by Indian people, and Chippewa treaty commitments means the United States cannot compel the involuntary induction of American Indians into the armed services.
The defendant's first contention is that the local board failed to follow the proper order of call established by 32 C.F.R. 1631.7 (1971) and Local Board Memorandum No. 99 (as amended, November 18, 1970), which provided for implementation of the Random Selection Lottery System. These provisions established a system of priority or selection groups for the induction of Selective Service registrants into military service, so that a registrant would have a limited exposure to induction. Under the sequence provided, the First Priority Selection Group consisted of registrants who were classified I-A and who therefore were subject to induction if their lottery number was reached in that year. 32 C.F.R. 1631.7(c)(2) (1971). On January 1, those registrants who were in the First Priority Selection Group on the previous December 31 and whose random sequence number had not been reached during the previous year were placed in the Second Priority Selection Group. 32 C.F.R. 1631.7(d)(2) (1971). If their random sequence number had been reached during the previous year but they had not been issued orders to report for induction during the year, they would be placed in the Extended Priority Selection Group on January 1, which was subject to call before the First Priority Selection Group of the next year. 32 C.F.R. 1631.7(d)(4) (1971). It is undisputed that Rosebear's sequence number had been reached in 1970. Members of the Extended Priority Selection Group were vulnerable to the draft until April 1, at which time those who had not been issued an induction order would be assigned to the Second Priority Selection Group, where they were subject to induction only upon depletion of the available manpower in the other selection groups. 32 C.F.R. 1631.7(d)(5) (1971). 2
Rosebear contends he should have been reclassified from I-S(c) to I-A in June 1970, thereby entering the First Priority Selection Group for 1970 at that time, the Extended Priority Selection Group on January 1, 1971, and the Second Priority Selection Group on April 1, 1971, after which date he would not have been available for induction under the provisions of 32 C.F.R. 1631.7 (1971). He maintains that his local board had a duty to classify him I-A in June 1970, which he argues was the end of the academic year, when his right to a I-S(c) classification expired. Because his board failed in this duty, he should now be constructively held to have been so classified, thus qualifying him for the Second Priority Selection Group after April 1, 1971. His induction after that date was thus invalid.
The trial court determined that the local board's failure to reclassify Rosebear In June 1970 was consistent with the then existing regulations and policy, specifically holding that an undergraduate academic year may be interpreted to mean one calendar year. Thus, Rosebear's academic year was held to run from March 1970, when he received his I-S(c) deferment, to March 1971, one calendar year later. Under this definition, the local board had no duty to reclassify Rosebear I-A in June 1970, and its procedure in reclassifying him I-A in February 1971, thereby placing him in the 1971 First Priority Selection Group, was validated.
We seriously doubt whether the trial court's interpretation of academic year was correct. 3 However, we find it unnecessary to resolve such issue. Even if it were found that Rosebear was entitled to a constructive reclassification to I-A during 1970, thus placing him in the First Priority Selection Group for that year and the Extended Priority Selection Group on January 1, 1971, he received his order to report for induction within the time limits of Local Board Memorandum No. 99 and 32 C.F.R. 1631.7 (1971). Local Board Memorandum No. 99 provided that anyone in the Extended Priority Selection Group who had not been issued an order to report for induction before April 1 would be transferred to a lower priority. However, an exception was provided in cases where a registrant would have been called before April 1 but could not be issued an order; these registrants would remain in the extended group and would be ordered to induction 'as soon as practicable.' Local Board Memorandum No. 99 III(D) (as amended, November 18, 1970).
Rosebear was reclassified I-A on February 24, 1971, and his order to report for induction was issued on March 29, 1971, all before the April 1 deadline. His order to report could not be issued sooner because of the requirement in 32 C.F.R. 1624.3 (1971) that such an order could not be issued during the time given in 1624.1(a), 30 days, to request a personal appearance before the board to appeal a classification. His scheduled reporting date was set for April 29, 1971, after the April 1 deadline, but this was 'as soon as practicable,' being the next scheduled induction date after his order was issued. At least 10 days must ensue between the issuance of the order and the scheduled reporting date. 32 C.F.R. 1632.1 (1971). His scheduled reporting date was further postponed, but by the defendant's own actions in requesting a form 150 and claiming conscientious objector status. 4
Several cases have interpreted Local Board Memorandum No. 99 and the latter identical 32 C.F.R. 1631.6(d)(5) (1972) to allow...
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