United States v. Alioto, 72-1055.

• Decision Date: 24 November 1972
• Docket Number: No. 72-1055.,72-1055.
• Citation: 469 F.2d 722
• Parties: UNITED STATES of America, Appellee, v. William Paul ALIOTO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 722 (1972)

UNITED STATES of America, Appellee, v. William Paul ALIOTO, Defendant, Appellant.

No. 72-1055.

United States Court of Appeals, First Circuit.

Heard September 12, 1972.

Decided November 24, 1972.

Gordon A. Martin, Jr., Boston, Mass., by appointment of the Court, for appellant.

Henry H. Hammond, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY^*, Senior Circuit Judge.

COFFIN, Chief Judge.

Appellant appeals from a conviction under 50 U.S.C. App. § 462 for refusing induction into the Army. Among several grounds for reversal,¹ appellant contends that his induction order was invalid because his local draft board failed to state its reasons for refusing to reopen his classification after he had asserted a post-induction notice claim of conscientious objection. For reasons stated below we find that in view of the particular combination of circumstances in the case before us his point is well taken. Hence we reverse his conviction.

On January 28, 1969, Local Board No. 44, Fort Lauderdale, Florida, mailed appellant a notice to report for induction. Approximately two weeks later he appeared at his draft board and requested an application for conscientious objection status (SSS Form 150). The board issued a Form 150 to him, and several days later he returned the completed form to the draft board; he also submitted letters from two doctors in an attempt to secure a medical deferment. The Form 150 submitted indicated a deep-seated moral and ethical opposition to all wars, thus establishing a prima facie claim to conscientious objector status under Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). Appellant's statement did not, however, state explicitly when his views "crystallized".

Prior to February, 1969, appellant had never presented a conscientious objection claim to his draft board. On September 10, 1968, he completed a "change in status" report but made no mention of the feelings he set forth in his Form 150. The Form 150 did not, of course, pose a question directly addressed to time of crystallization, it being a general purpose conscientious objector form. Appellant's answer to the question inquiring "how, when and from whom" he acquired his belief exhibits an eclectic development over time, drawing on early religious training, the influence of high school teachers, readings in philosophy, and post-school travelling and working experiences where he met "people of all kinds". All were said to have contributed to his present belief. When his resulting beliefs reached the state described in his Form 150 is not discernible but his statements there would not have precluded him from claiming, with consistency, at his subsequent interview that his beliefs matured in their present form and intensity only after receiving the notice to report.

On February 19, a day after receiving appellant's Form 150, the board conducted a courtesy interview with him and his father. The brief minutes reveal that the timing, content, and sincerity of his beliefs were discussed as well as recent medical complaints. Following the interview the board, without indicating its reason, voted 4-0 not to reopen appellant's classification. As to the time when his beliefs crystallized, we have only the notation, "He appellant stated his beliefs appear to date back a while & that some of his beliefs were formed about the time he attended . . . High School." This summary is not inconsistent with the account given in the Form 150. Had the minutes reflected a clear statement that the registrant's belief as now articulated was formed before he received his notice, it might readily be inferred that the board concluded that appellant's case, even if prima facie, could not be reopened because it could not meet the timing requirement, i. e., could not be said to be a recent "change in the registrant's status" as required by 32 C.F.R. § 1625.2, see n. 4, infra. But the minutes also revealed notations that a teacher had influenced appellant most and that "he would fight for what he believes in", which might well indicate board consideration of the substance of his beliefs. Since no reason was given for the decision, one cannot tell whether timing, content, or lack of sincerity was the basis for decision.

Two recent decisions of the Third Circuit, announced after the decision below, have treated similar facts and found them sufficient to justify reversal of convictions under 50 U.S.C. App. § 462. See United States v. Shomock, 462 F.2d 338 (3d Cir. 1972); United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972).² In Shomock and Ziskowski, as in the case here, appellants had received their notices to report for induction, and had shortly thereafter asserted conscientious objector claims to their draft boards. In both cases the draft boards granted courtesy interviews to the registrants. And in both cases the draft boards refused to reopen the registrants' classifications without stating their reasons for their decisions. The court held in both instances that the board's failure to state reasons in these particular circumstances rendered the induction order invalid and dictated acquittal of draft evasion charges. While we reach the same result as did the Shomock and Ziskowski courts, we deem it advisable to elaborate the bases of our own decision.³

32 C.F.R. § 1625.2 (1971) allows a draft board to reopen a registrant's classification after a notice of induction has been sent if the registrant states a prima facie case for his requested classification and if the board finds that the registrant's status has changed since receipt of his induction notice due to circumstances beyond his control.⁴ Prior to Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), there was disagreement over whether a "late crystallizing" conscientious objection could ever be a change "over which the registrant has no control". Thus some draft boards refused to consider the merits of conscientious objector claims asserted between the date notice of induction was sent and the date of scheduled induction on the grounds that § 1625.2 denied them jurisdiction of the claim. Other draft boards, reading § 1625.2 as permitting the consideration of late crystallizing claims, heard such claims on their merits. In Ehlert, the Supreme Court adopted the Selective Service's position that § 1625.2 should be reserved for those post-induction notice claims that asserted some "objective" change in circumstances. Thus the Court relieved the draft system of the processing of late crystallizing claims; presumably draft boards have not considered any such claims since Ehlert.

The Court in Ehlert reasoned that the late crystallizer must have some forum for his conscientious objection claim but that a post-induction, in-service forum was sufficient. It then examined Army regulations to see if the Army would be receptive to such claims. Although it found the regulations ambiguous, it concluded, on the strength of a letter from the General Counsel of the Army, that at the time Ehlert was drafted it was the practice of the Army to hear such claims.

On the face of it, Ehlert would seem to govern appellant's case; indeed, the government has argued that on the Ehlert reasoning, the Army would have been obliged to hear appellant's claim, which was asserted prior to the Ehlert decision itself. We find, however, as did the courts in Shomock and Ziskowski, that the case at bar is distinguishable from Ehlert.⁵

In Ehlert, the draft board stated that it did not reopen because the asserted change in the registrant's conscience was not a change "over which the registrant has no control". Thus Ehlert's board clearly did not reach the merits of his conscientious objection claim but rather disposed of it on the "jurisdictional" grounds of § 1625.2. But in appellant's case, since no reasons were given for not reopening following the interview at the draft board, it is impossible to determine if the draft board's decision was "jurisdictional" or on the merits. Indeed, there are several articulations of the unexpressed premise underlying the board's decision not to reopen: (1) after questioning him at the interview, the board could have found that his conscientious objection did not crystallize after receipt of the induction notice, see Paszel v. Laird, 426 F.2d 1169, 1174-1175 (2d Cir. 1970); (2) it could have found that he was not sincere in his beliefs; (3) it might have found that his claim did not meet the minimum conscientious objector standards either because the board was acting without benefit of the Supreme Court's decision in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); see United States v. Fargnoli, 458 F.2d 1237 (1st Cir. 1972), or because it found that he was not opposed to all wars; (4) or it could have found that he was a genuine late crystallizer but that late crystallization was not a permissible ground for reopening under § 1625.2. See Ziskowski, supra, 465 F.2d at 482.

This ambiguity of the draft board's disposal of appellant's claim takes the case beyond the reach of Ehlert. It remains to be seen, however, if the ambiguity of the board's decision might have deprived appellant of a hearing on his conscientious objector claim. Thus we must now determine how the Army might have reacted to the board's decision had appellant entered the Army and pursued his conscientious objector claim in the service.

Army Regulation 1970 AR 3(b)(2) reads "Requests for discharge after entering military service will not be accepted when . . . based solely on conscientious objection claimed and denied by the Selective Service System prior to induction." If the Army had read the draft board's decision as a denial on the merits, and if in actuality the draft board had decided the case on jurisdictional grounds, appellant would...