United States v. Davis

• Decision Date: 25 May 1972
• Docket Number: No. 71-1581.,71-1581.
• Citation: 460 F.2d 792
• Parties: UNITED STATES of America, Appellee, v. Robert Dean DAVIS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

460 F.2d 792 (1972)

UNITED STATES of America, Appellee, v. Robert Dean DAVIS, Appellant.

No. 71-1581.

United States Court of Appeals, Fourth Circuit.

Argued November 1, 1971.

Decided May 25, 1972.

COPYRIGHT MATERIAL OMITTED

Robert P. Dwoskin, Richmond, Va., (Dubow & Dwoskin, Richmond, Va., on brief), for appellant.

James G. Welsh, Asst. U. S. Atty. (Leigh B. Hanes, Jr., U. S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.

BOREMAN, Senior Circuit Judge:

Robert Dean Davis appeals his conviction by a jury of failing to report for and submit to induction into the armed forces. 50 U.S.C. App. § 462. We reverse.

In September of 1963, Davis entered William and Mary College in Williamsburg, Virginia, and was classified II-S (student deferment) by Local Board 29 (hereafter the board) in Berryville, Virginia. Davis held such II-S classification until June 1967 when he experienced temporary academic difficulty and was out of school pending successful completion of summer school requirements. In July of 1967, Davis filed Selective Service System Form 150, asserting that he was by reason of religious training and belief conscientiously opposed to participation in war in any form, and claiming exemption from both combatant and noncombatant training and service in the armed forces. The board, without assigning reasons for its action, denied Davis' claim and classified him I-A. After a personal appearance the claim was again denied and Davis appealed. However, before the appeal was acted upon, Davis returned to college, and on October 30, 1967, was classified II-S until June 1968.

On June 18, 1968, Davis was again classified I-A. He requested and was granted another personal appearance. According to a memorandum entered in his selective service file by the chairman of the board, Davis, at his appearance on July 16, 1968, stated that he would protect the United States in time of war on home ground. His I-A classification was affirmed and Davis again appealed. On August 20, 1968, without stating any reasons, the Appeal Board voted 3-0 to classify him I-A. Davis was then ordered to report on September 25, 1968, for induction.

Prior to his scheduled induction date, Davis reported to a local board in California (where he had established a new address) and requested a transfer for delivery, pursuant to pertinent regulations. The California board ordered him to report to the Oakland Induction Center on November 20, 1968. Davis reported at that time but refused induction. He was subsequently indicted for refusal to submit to induction in violation of 50 U.S.C. App. § 462, and brought to trial in the District Court for the Northern District of California. On December 24, 1969, at the close of the evidence, District Judge Levin granted a defense motion for Judgment of Acquittal. It is clear from Judge Levin's comments to the jury in explanation of the action taken, which comments were made a part of the record in the instant case, that the basis of the court's decision to acquit Davis was the failure of the board to assign reasons for its denial of Davis' conscientious objector claim. The court, properly it would appear, felt bound by United States v. Haughton, 413 F.2d 736 (9 Cir. 1969), which requires a local board to state its reasons for denying a registrant's conscientious objector claim if such claim is sufficient prima facie to bring him within the statutory exemption.

Davis' file was subsequently returned to the board at Berryville, Virginia, on the recommendation of an Assistant United States Attorney for the Northern District of California. Davis was advised by the board that his classification would be reopened on February 17, 1970, and that if he had additional information to be considered, it should be furnished by that date. Davis submitted no new information and the board classified him I-A, assigning as a reason that his claim for a conscientious objector exemption was "not based upon religious training and belief." A personal appearance and appeal were unsuccessful and on June 15, 1970, Davis was ordered to report for induction on July 22, 1970.

On June 17, 1970, Davis requested that his classification be reopened and that his claim be reconsidered in light of Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), decided June 15, 1970. On July 7, 1970, pursuant to this request, the board reconsidered Davis' claim in light of Welsh, but declined to reopen his classification on its finding that Davis "does not have deeply held religious, moral or ethical beliefs against participation in all wars." The board emphasized the word "all," and expressly referred to Davis' personal appearance of July 16, 1968, at which he had stated that he would protect the United States in time of war on home ground. Davis failed to report as ordered on July 22, 1970. Indictment, conviction in the District Court for the Western District of Virginia, and the instant appeal followed.

Davis' first contention is that his indictment and trial in the Western District of Virginia were precluded by the double jeopardy clause of the Fifth Amendment. The argument is that, "Because Davis won a directed verdict of acquittal after the taking of evidence in the first trial (held in the United States District Court for the Northern District of California on 23-24 December 1969) and since that trial concerned Davis' refusal to submit for induction because he was denied a I-O classification, the effect of that acquittal was to divest the Selective Service System of jurisdiction over Davis and any subsequent indictment arising out of a classification matter would violate the Double Jeopardy Clause . . . ." Recognizing that double jeopardy considerations operate only where the second prosecution is for "the same offense" as that for which the defendant was previously tried and acquitted, that the test to be applied is whether the second charge requires proof of the same facts as the first, and that here the second charge required proof of failure to report at a different place and at a different time than at first ordered,¹ Davis argues nonetheless that, "in fairness," the two acts should be treated as a single offense, i. e., "a continuous refusal to behave in a manner which is demanded of a I-A registrant." Davis seeks to support this analysis by pointing to "the unique nature of the Selective Service System." The Selective Service Act, he says, "incorporates criminal sanctions into the administrative framework to a degree unmatched by any other agency." We see no merit in this argument. The scope and effect of the double jeopardy clause cannot be made to depend upon the nature of the Selective Service System.

Davis further argues that, "Even if the concept of Double Jeopardy in its general sense is not applicable because of its limitation to the same offense, the case at bar was nonetheless controlled by the December 24, 1969 acquittal because of the rule of Collateral Estoppel." To the extent hereinafter explained, we agree.

The principle of collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1190, 25 L.Ed.2d 469 (1970). Collateral estoppel precludes relitigating specific issues once actually litigated between the parties and which were essential to and determined by a prior judgment. Restatement of Judgments, §§ 68, 70 (1942). In criminal law, the principle emerges as a constitutional guarantee, an "ingredient" in the protection afforded by the double jeopardy clause of the Fifth Amendment. Ashe v. Swenson, supra, 397 U.S. at 445, 90 S. Ct. 1189. Where a prior judgment is involved, the court is required to determine exactly what was decided in the earlier trial, United States v. Lopez, 420 F.2d 313 (2 Cir. 1969), and the inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194; accord, Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Kramer, 289 F.2d 909, 915 (2 Cir. 1961). The party seeking the protection of the principle has the burden of proving that the precise issue or question he seeks to preclude was raised and determined in the first action. 1B Moore's Federal Practice ¶ 0.408 1, p. 954; Restatement of Judgments § 68, comment l at 306 (1942).

Davis argues here that the judgment of acquittal entered in the district court in California amounted to a substantive determination on the merits that there was no basis in fact for his I-A classification and that this determination was binding on the trial court below. The Government's response is that the acquittal in California was grounded on the finding that the board had erred procedurally in failing to set forth its reasons for denying Davis' conscientious objector claim. We can agree with the Government that the basis of the California court's decision was in essence the procedural error by the board. Judge Levin made it very clear to the jury that the defense motion he was granting was bottomed on the fact that "the local board, his local draft board, made no finding or gave no reason which would serve as a basis in fact for his classification as a I-A registrant."² But it is clear that Judge Levin's decision also had a substantive aspect. United States v. Haughton, 413 F.2d 736 (9 Cir. 1968), the authority upon which the California court relied, requires a local board to set forth reasons for denying a conscientious objector claim only if it can be said that the registrant has placed himself "prima fade within the statutory exemption." United States v. Haughton, supra at 739. The judgment of acquittal entered by the California...