United States v. Cordova, 71-1332.

• Decision Date: 09 February 1972
• Docket Number: No. 71-1332.,71-1332.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Francis CORDOVA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

454 F.2d 763 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Francis CORDOVA, Defendant-Appellant.

No. 71-1332.

United States Court of Appeals, Tenth Circuit.

February 9, 1972.

Charles W. Johnson, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on brief), for plaintiff-appellee.

Walter L. Gerash, of Gerash & Kaiser, Denver, Colo., Kenneth A. Padilla, Denver, Colo., on the brief, for defendant-appellant.

Before BREITENSTEIN, HILL and McWILLIAMS, Circuit Judges.

BREITENSTEIN, Circuit Judge.

A jury found defendant-appellant guilty of refusing to submit to induction into the Armed Forces of the United States in violation of 50 App.U.S.C. § 462(a) and he appeals.

After registration with his Local Board in August, 1966, defendant, with unimportant interruptions, was classified II-S or II-S(C) until July, 1969, when he was classified I-A and later ordered to report for induction. He refused induction and his file was referred to the United States Attorney for prosecution. Because of administrative irregularities in the Board's proceedings, prosecution was declined. Although the delinquency was purged from the defendant's Selective Service file, he was never notified of that action or of the failure to prosecute. On April 14, 1970, he was classified I-A and sent the usual notice.

At the trial defendant testified that his conscientious objector beliefs crystallized in late April and that he telephoned the Board some time that month. Another witness confirmed the making of the call. The defendant said that he told the Board clerk his name and inquired about requesting CO status. The clerk asked if he had received his Notice to Report for Induction and, unaware that his previous delinquency had been purged, he answered that he had already refused induction. The clerk responded that "it was too late, that it was out of the hands of the Selective Service System, that it was in the hands of the District Attorney and that there was nothing the Local Board could do."

The call was not noted in the defendant's file but the Board's usual practice was not to note oral inquiries. Although the clerk did not remember the phone call, she admitted that it could have taken place and that she might have responded in the manner alleged. The government contends that the telephone call never occurred.

At the trial, the district court determined that it would resolve the issues of proper classification and lawful issuance of the induction order as questions of law, and that the jury would determine whether the defendant knowingly and wilfully refused to submit to induction. Evidence of the phone call was admitted as relevant to the question of specific intent. The court instructed the jury that it was to decide whether the defendant had the requisite intent. The jury returned a general verdict of guilty.

In the course of the trial the defendant urged that United States v. Burns, 10 Cir., 431 F.2d 1070, was controlling. An objection to the instructions was made on the basis of Burns. Notwithstanding, the court tried the case according to the mentioned format.

In Burns, the registrant, while classified I-A, went to his Board to inquire about CO classification. The secretary of the Board gave him misleading information which lead him to believe that he had no basis for a CO claim and that it would be useless to file one. Ibid. at 1071 and 1073. In reversing a judgment of conviction based on a jury verdict of guilty, we held that the misleading information had deprived the registrant of important administrative rights and precluded a conviction for failure to submit to induction. Ibid. at 1074.

We see no escape from Burns. At the trial one witness besides the defendant testified that the phone...