United States v. Chaudron, 19759.

• Decision Date: 22 May 1970
• Docket Number: No. 19759.,19759.
• Citation: 425 F.2d 605
• Parties: UNITED STATES of America, Appellee, v. Charles Douglas CHAUDRON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

425 F.2d 605 (1970)

UNITED STATES of America, Appellee, v. Charles Douglas CHAUDRON, Appellant.

No. 19759.

United States Court of Appeals, Eighth Circuit.

April 27, 1970.

Rehearing Denied May 22, 1970.

Francis L. Ruppert, Clayton, Mo., and Steven J. Hyman, New York City, on brief for appellant.

Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel D. Bartlett, Jr., U. S. Atty., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and GIBSON, Circuit Judges.

MATTHES, Circuit Judge.

Charles Douglas Chaudron was classified I-O, conscientious objector, by the Selective Service Appeal Board of the State of Missouri on October 28, 1966. On February 21, 1968, Local Board No. 220 in St. Louis County mailed appellant an order to report for civilian work in lieu of induction into military service. He is before us now on appeal from a conviction and sentence of five years imprisonment for violation of 50 U.S.C. App. § 456(j) by his willful and knowing failure to report in compliance with the Board's order. We affirm.

Five separate contentions are urged upon us, the sum total of which is that the February 21 order to report for alternative civilian employment is the product of an administrative process which did not comport with specific regulations in several particulars, each of which allegedly violated appellant's right to procedural due process and thereby rendered his order to report invalid. The nature of these challenges necessitates a summarization of the events leading up to the February 21 order, as reflected in appellant's Selective Service file which is a part of the record on appeal.

By letter of December 17, 1966, appellant informed Local Board No. 220 that he was then employed as a social caseworker for the New York City Department of Welfare. He requested that he be assigned to the same employment in fulfillment of his statutory obligation to perform civilian work contributing to the maintenance of the national health, safety, or interest, 50 U.S.C.App. § 456(j). Shortly thereafter, he was ordered to report for an Armed Forces Physical Examination on January 6, 1967. He failed to report, and the Clerk of the Board advised him by letter of February 28, 1967, that he was eligible for assignment to appropriate civilian work. Enclosed in this letter was SSS Form 152, upon which a conscientious objector must indicate three approved types of work which he offers to perform. Appellant timely filed Form 152, but failed to indicate three types of work he was willing to perform, electing instead to designate only his present position.

On June 1, after reviewing appellant's file at the request of the Clerk, Lt. Col. Wilson, Deputy Director at Missouri Selective Service Headquarters, suggested that appellant's work offer could not be accepted, since "it is not the practice of local boards to order registrants to report for civilian work in lieu of induction into the same work assignments which they may have previously held * * *." Hence, he advised that the Board offer appellant three types of work pursuant to the regulatory procedure of 32 C.F.R. § 1660.20(b), and he set forth three work suggestions and approved agencies, including hospital work at the University of Kansas Medical Center, Kansas City, Kansas. By letter of July 12, the Clerk forwarded the same information to appellant. Within the requisite 10-day period, appellant declined to perform any of the three types of civilian work offered him.

In December, appellant wrote to the Board and inquired of his work assignment. The Clerk responded on December 22: "Assignment to your present position as Caseworker in the Department of Welfare, City of New York, as civilian work in lieu of induction, is deemed to be not acceptable." She further advised him that a meeting with a representative of the State Director, the Board, and himself was in order under the procedure of § 1660.20(c). Such a meeting was held January 4, 1968, with all necessary parties present. The Clerk made a record of the meeting, which in summary recites: (1) Prior to the meeting, the Board members reviewed the entire contents of registrant's file; (2) Registrant was informed that approved employment was available to him at the University of Kansas Medical Center, Kansas City, Kansas; (3) Registrant would not offer to perform hospital work at the University of Kansas Medical Center in lieu of induction, and would not sign a statement that he would not offer to perform or agree to accept a civilian work assignment, because he had offered to perform civilian work as a caseworker in the Department of Welfare, City of New York.

On January 17, 1968, after receipt of proper authorization from National Selective Service Headquarters, the Clerk issued an order directing appellant to perform two years civilian work in lieu of induction at the University of Kansas Medical Center, Kansas City, Kansas, beginning on March 18.

On March 5, appellant wrote to the Board and set forth, at great length, his reasons for not accepting the work assignment at the University of Kansas Medical Center. Additionally, he requested the Board to reconsider its choice of work assignment. Appellant did not report for alternative civilian employment as ordered. The indictment, trial to jury, conviction, and appeal have ensued in due course.

I.

At the outset appellant contends that Local Board No. 220 abdicated its responsibility to act upon and either accept or reject his specified work choice and in turn to select three types of civilian work for submission to the registrant. He alleges that the Clerk, on the advice and recommendation of Lt. Col. Wilson, made these choices.

We begin with the observation that the authority to make certain judgmental decisions respecting the assignment of conscientious objectors to alternative civilian work in lieu of induction has been reposed by Selective Service law in the local boards. 50 U.S.C.App. § 456(j). 32 C.F.R. § 1660.20.

The record in this case fails to establish that Local Board No. 220, at any formal meeting prior to January 4, 1968, acted upon appellant's request that he be assigned to the position of caseworker which he was then occupying, or that it designated the three types of civilian work which were transmitted to appellant by the Clerk in her letter of July 12. Contrary to appellant's assertion, however, it does not follow that this hiatus in the proof is fatal to his conviction.

A plethora of regulations have been promulgated in the field of Selective Service law, delineating procedures whereby registrants are to be classified, processed, and inducted — or ordered to report for civilian work in lieu of induction. Members of draft boards and their clerks are not experts in Selective Service law. Thus, errors in processing a registrant for induction or alternative civilian work are not infrequent. As the Ninth Circuit observed in Oshatz v. United States, 404 F.2d 9, 12 (9th Cir. 1968): "Even the most casual glance at the case law will reveal a staggering array of deviations from the regulations which have been advanced as defenses to prosecutions for refusal to submit to induction." Consequently, courts have divided the waters of procedural irregularity: Those causing substantial prejudice to flow to the registrant are deemed to mandate sustainment of his defense. See, e. g., Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); United States v. Rundle, 413 F.2d 329 (8th Cir. 1969); Oshatz v. United States, supra; Briggs v. United States, 397 F.2d 370 (9th Cir. 1968). Those less murky and not rising to the level of substantial prejudice are allowed to trickle off harmlessly. See, e. g., Welsh v. United States, 404 F.2d 1078 (9th Cir.), cert. granted, 396 U.S. 816, 90 S.Ct. 53, 24 L.Ed.2d 67 (1969); Edwards v. United States, 395 F.2d 453 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968); Wills v. United States, 384 F.2d 943 (9th Cir. 1967), cert. denied, 392 U.S. 908, 88 S. Ct. 2052, 20 L.Ed.2d 1366 (1968); United States v. Sturgis, 342 F.2d 328 (3d Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120 (1965). It is the accepted view that the registrant asserting prejudice has the burden of proving it. Fore v. United States, 395 F.2d 548, 554 (10th Cir. 1968); United States v. Spiro, 384 F.2d 159, 161 (3d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1028, 19 L.Ed.2d 1151 (1968); Rowton v. United States, 229 F.2d 421 (6th Cir.), cert. denied, 351 U.S. 930, 76 S.Ct. 788, 100 L.Ed. 1460 (1956). We believe in this case that appellant has failed to carry that burden and that no prejudice has attached by any irregularity of procedure outlined in 32 C.F.R. §§ 1660.20(a) and (b).

We look to the date appellant received his order to report for civilian work at the University of Kansas Medical Center in order to determine whether prejudice existed. For if appellant was not prejudiced at that critical time, we would engage in an academic exercise to speculate whether or not he was prejudiced at any moment in time prior thereto. We find that, even before this crucial date, the Board had formally met and made all the critical decisions necessary to the validity of an order to report for civilian work. The Clerk's contemporaneous account of the details of the January 4, 1968, meeting clearly reveals that appellant restated again his firm desire to be assigned to civilian work as a caseworker in the Department of Welfare, City of New York. Section 1660.20(c) of the pertinent regulation indicates that this formal meeting is the final step in the procedure leading to selection of a type of work and a place of employment for the conscientious objector. A representative of the state director is obligated to attend, for the purpose of extending his assistance "in reaching an agreement." No limitation is made on what type of agreement may be reached, and thus the procedure would...