United States v. Burns, No. 251-69.

• Decision Date: 10 August 1970
• Docket Number: No. 251-69.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Shawn BURNS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

431 F.2d 1070 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Shawn BURNS, Defendant-Appellant.

No. 251-69.

United States Court of Appeals, Tenth Circuit.

August 10, 1970.

Richard E. Hartman, Denver, Colo., for appellant.

Leonard Campbell, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and David L. Osborn, Asst. U. S. Atty., on the brief), for appellee.

Before PHILLIPS, BREITENSTEIN and HICKEY, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

Burns was charged by indictment returned June 5, 1968, with failing to comply with the order of his local draft board to report on October 10, 1967, for induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462(a). From a judgment of conviction on a jury verdict of guilty, he has appealed.

Burns registered with his Local Selective Service Board No. 12 in Grand Junction, Colorado, on April 14, 1965. At that time he completed a Classification Questionnaire, SSS Form No. 100, but left blank that portion of the form for claiming exemption as a conscientious objector. He was classified as I-S-H, as a high school student. In November 1965, he had become a college student, and was classified as II-S and given a deferment for one year. On September 21, 1966, he was sent an Information Questionnaire, SSS Form No. 127, which he filled out and returned on September 22, 1966, and in which he stated that he was a full-time student at Mesa Junior College, Grand Junction, Colorado. In October 1966, a Current Information Questionnaire, SSS Form No. 110, was sent to him, which he did not return On November 2, 1966, he was classified as I-A, because his grades did not meet the minimum then required for college deferment.

After being advised of his reclassification as I-A, Burns did not request a personal appearance before the Local Board with respect to such I-A classification, and he did not appeal from such classification. He testified at his trial on November 19, 1968, that he received notice of his classification as I-A; that he read and understood that part of the notice which informed him of his right to appeal, and that he knew he had such right. He further testified that "right after" he received the notice of his I-A classification early in November 1966, he went to the office of the Local Board and had a conversation with Pearle Seals, Executive Secretary of the Local Board;¹ that he asked her the reason for the I-A classification, and that she responded that he "was not in the upper two-thirds of the class" in his "first year in school"; that he then asked her "what recourse you had then if you were a pacifist and didn't believe in killing. What recourse you had"; that she asked him if "he belonged to a religion" and he told her he "had been raised as a Catholic"; that her reply was that "there were Catholic priests in the front lines" and that he "had no excuse"; that he "was just out of luck"; and he further testified that she did not give him any form to fill out.

At the trial, Pearle Seals testified she had no recollection of Burns coming to the Selective Service Board office in November 1966, nor of the conversation with Burns, to which he had testified, but that many registrants came to the office and asked questions and "it could have happened."

On August 24, 1967, in response to an order of the Local Board, Burns appeared for a pre-induction physical examination, was examined, and found acceptable for military service.

On September 27, 1967, he was ordered to report for induction on October 10, 1967. The induction order was mailed to Burns at the last address reported by him, but the file shows it was returned for want of a forwarding address. However, Ray Hickman, a Special Agent of the F.B.I., residing at Grand Junction, testified he contacted Burns on February 20, 1968, at Montrose, Colorado; that he advised Burns fully as to his rights, and that he gave him a written explanation of such rights; that Burns read it and then signed a written waiver of such rights. At the trial, the written statement of Burns and the waiver signed by him were admitted in evidence, after counsel for Burns stated he had no objection thereto. Hickman further testified he advised Burns his inquiries were with respect to Burns's failure to report for induction; that he specifically asked Burns if he received the notice to report for induction, and Burns stated that he had received it. Burns was not under arrest at the time he was interrogated by Hickman.

In his testimony, Burns did not deny he told Hickman he received the notice to report for induction, and he did not contend at the trial that he did not receive such notice.

Burns failed to report for induction on October 10, 1967, or at any time thereafter, and he told Hickman he did not intend to report for induction.

Hickman swore to a complaint before a United States Commissioner on February 21, 1968, charging Burns with failure to comply with his local Selective Service Board's order to report for induction. The complaint was duly filed and a warrant was duly issued and Burns was arrested by Hickman on February 21, 1968.

Hickman further testified that when he talked with Burns in February 1968, Burns stated specifically "that he was not a conscientious objector"; that "he was quite adamant on this point"; that he described himself as a "pacifist anarchist" and said "he did not believe anybody should tell anybody else what to do under any circumstances." In his testimony at the trial, Burns did not deny making such statement to Hickman.

In his direct examination, Burns was asked how he felt "about serving in the army; about serving in something that is near the army; not fighting, but near the army." In reply thereto Burns said, "Well, my respect and my love for life is so great that for no reason can I snub life out in any form, and war is exactly the snuffing out of lives of other men and organizations such as our military organization, the army — their purpose for existing is ultimately to destroy life, and the Selective Service is a branch of the armed services, in that it does filter people into the military organizations, is a servant of killing, and for that reason I would have to object not only to the military but any participation of the Selective Service because by participating in what they do I am guilty of murder." (Italics ours.)

He was then asked, "Is that the extent of your feeling?" He replied, "That's basically the way I feel." When asked, "When did this feeling crystalize?" he stated, "Well, it's hard to say. It's been with me all my life. I didn't realize it. I had suspicions of it around the time I was seventeen, I think, but all my life I felt that it was there, but I intellectually — I didn't realize what it was until perhaps the past two years that I became to realize that — what the feeling meant." "You say the past two years — " "The past two and a half years."

On cross-examination, Burns testified, "I feel that any law which promotes life and love should be obeyed. Any law which negates that should not be obeyed. * * * I think that the law of love is the primary law to follow and when other laws go against that, I have a duty to disobey." When asked if he knew he was violating the law when he refused to report for induction, he stated, "No. I was not bound by that law asking me to negate life."

Pearle Seals testified that in all matters of mailing out notices and questionnaires she acted in accordance with directions given to her by the Local Board, although the file does not show that there was any written resolution which authorized her to send out orders.

We withheld handing down our opinion in this case until the decision of the Supreme Court in Welsh v. United States (decided June 15, 1970), 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308.

In that case Welsh was convicted "of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a)" (62 Stat. 612) and "on June 1, 1966," was "sentenced to imprisonment for three years." Hence, his order to report and refusal to submit to induction occurred prior to the June 30, 1967, amendment of § 6(j), (50 U.S.C. A. App. § 456(j)). The pertinent part of § 6(j) prior to...