United States v. Fisher, 18413.

• Decision Date: 14 April 1971
• Docket Number: No. 18413.,18413.
• Citation: 442 F.2d 109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick James FISHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.2d 109 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Patrick James FISHER, Defendant-Appellant.

No. 18413.

United States Court of Appeals, Seventh Circuit.

April 14, 1971.

Irving L. Fink, Edward W. Harris, III, Indianapolis, Ind., for defendant-appellant.

Stanley B. Miller, U. S. Atty., William W. Knowles, Indianapolis, Ind., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, KILEY and PELL, Circuit Judges.

PELL, Circuit Judge.

Following a bench trial, defendant Patrick James Fisher was found guilty of failing and neglecting to comply with an order of his local Selective Service Board to report for and submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462. He was sentenced to imprisonment for a period of 42 months. From the judgment of conviction and sentence, defendant appeals.

Fisher first registered with the Selective Service System in 1963. From that time until December 1, 1967, he was three times classified II-S as a student, and twice classified I-A when he temporarily interrupted his studies. He graduated from college in August 1967.

On December 1, 1967, Fisher filed a Current Information Questionnaire (SSS Form 127) advising his local board of his graduation and of the fact that he was in the custody of an unspecified criminal court "awaiting trial." On December 13, 1967, he was again classified I-A.

On January 15, 1968, Fisher's board ordered him to report for induction. This induction notice was canceled by the board on February 12, 1968, after receiving further information from Fisher concerning the allegedly pending criminal proceeding.

The next reference we find in the record to the pending criminal proceeding is in a Current Information Questionnaire executed by Fisher in October 1968, in which he checked on the form that he was not being retained in the custody of a court of criminal jurisdiction. In the interim, however, this phase of Fisher's status seems to have had no significance to any one.

About February 19, 1968, Fisher requested by letter that his board reopen his classification and furnish him the form for conscientious objector status (SSS Form 150). He also stated that he intended "to ask for a IAO classification." He completed and returned the Form 150 on March 4, 1968. On the form, by his signature, he indicated that not only was he conscientiously opposed to participation in war in any form but that he was further conscientiously opposed to participation in noncombatant training and service in the armed forces. He therefore claimed exemption from both combatant and noncombatant training and service in the armed forces. He had crossed out that part of the form which would have claimed exemption from only combatant training and service. The I-A-O classification would have been the appropriate classification for exemption from only combatant training and service.

In response to some of the questions on the Form 150, Fisher transmitted a separate 22 page longhand manuscript, which he stated had taken him better than a month to prepare. While it appears to be a somewhat rambling dissertation on his beliefs with frequent philosophical overtones, nevertheless, it would appear to present a prima facie case for the conscientious objector status. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); Whitmer v. United States, 348 U.S. 375, 381, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

On March 20, 1968, he requested an appearance before his local board concerning his conscientious objector application. The board granted his request and advised him that he might "make a personal appearance" on April 24, 1968.

Precisely what occurred at Fisher's meeting with his board is the subject of some dispute as is the exact legal nature of the action taken by the board following the meeting. Without at this point going into those disputes, it can be said that the ultimate result was that Fisher was notified that he was classified I-A and not I-O, conscientious objector, nor I-A-O, conscientious objector available for noncombatant service.

Following the unsuccessful exercise of his appeal rights within the Selective Service System, Fisher was ordered to report for induction on January 7, 1969. He appeared at the induction center but refused to take the symbolic step forward for induction. The instant indictment and conviction followed.

Fisher first asserts that he was denied the services of a Government Appeal Agent in violation of his right to procedural due process. Under Selective Service System Regulations, an Appeal Agent is to be appointed for each local board with the duty, among others, to appeal "from any classification of a registrant by the local board which is brought to his attention and, in his opinion, should be reviewed by the appeal board." 32 C.F.R. 1604.71. The regulations require the posting of the name of the Appeal Agent in a public area of the local board office. 32 C.F.R. 1606.62(b).

Fisher contends that the evidence is clear that he desired the services of an Appeal Agent and was denied those services by misleading information given him by the clerk of his local board. Fisher testified that after the April 24 meeting with his local board he telephoned the clerk of the board, May Schort. She told him that he had been classified I-A, that nothing had been added to his file, and that he could appeal. He asked who the Appeal Agent was and May Schort answered that it was Mary King. In fact, Mary King was not an Appeal Agent but was the supervising Executive Secretary of all local boards in the county. The Government did not call May Schort, who was no longer a Selective Service employee, to testify to her conversation with Fisher.¹

While the evidence is to be viewed on this appeal in the light most favorable to the Government's position, the district court did not purport to find a lack of credibility in Fisher's testimony that May Schort had misinformed him as to the identity of the Appeal Agent. The testimony on this point stands unrebutted in the record before us and we must assume it is correct.

The notice of the I-A classification had been mailed to Fisher on April 24, 1968, together with a covering "Advice of Right to Personal Appearance and Appeal," (SSS Form 217) which stated inter alia:

"* * * each local board has available a Government Appeal Agent to aid you with a personal appearance, an appeal, or any other procedural right. The Appeal Agent or his representative will give you legal counsel on Selective Service matters only at no charge.

"If you should desire a meeting with him, this office will arrange a time and place for such a meeting upon request."

A similar notice had been sent to Fisher on the occasion of his December 13, 1967, classification as I-A.

Both Fisher and Mary King testified that he had talked with her by telephone concerning the taking of an appeal. She recalled no details of the conversation but apparently basing her testimony on what she ordinarily did, said she would have told him that he only had to write a letter, address it to his local board and mention the word "appeal" and his complete file would be forwarded to the appeal board. This was substantially the testimony of Mary King. However Fisher stated that she told him she knew of nothing that had been added to his file, that it would not do any good to go through the file since only the vote had been recorded and it was not necessary to rebut the decision of the local board in taking an appeal.

After his appeal failed, Fisher again contacted Mary King concerning what further action he could take and she advised him to contact the State Director.

As late as December 10, 1968, Fisher in a letter to the State Director referred to his Appeal Agent. He testified that this reference was to Mary King. He further testified that he first learned who his true Appeal Agent was in mid-December 1968, after his appeal rights were exhausted.

Fisher also asserts that the Government failed to prove that the name of his Appeal Agent was posted at his local board as required by 32 C.F.R. 1606.62 (b). The only testimony on the subject was by Mary King:

Q. Now, in your office, is the name of the Government Appeal Agent posted anyplace?

A. Yes, it is posted on the bulletin board.

Q. Did Mr. Fisher ever ask you who the Government Appeal Agent was?

A. Not to my knowledge. Mr. Fisher has read the list of names posted on the bulletin board. At least, he has looked at that bulletin board.

Q. You have seen him looking at the bulletin board?

A. Yes, sir.

Fisher points out that this testimony as to the posting relates to the time of trial and in no way shows that the required list was on the bulletin board before or during the time he was appealing nor that he looked at the bulletin board before or during such time.

The trial court found "incredible the testimony that defendant believed Mary King to be the appeals agent. * * *" The court relied upon the fact that the agent's name was posted on a bulletin board with which Fisher was familiar and the fact that defendant had received two communications from his local board signed by Mary King as clerk of the board. The court found as a fact that defendant was not misled.

The inference drawn by the district court that Fisher was not "misled" rather than negating the unrebutted testimony of Fisher that he was misinformed as to the identity of the Appeal Agent would seem affirmatively to lend credibility to this particular phase of the defendant's testimony. "Misled" in ordinary use connotes some factor which achieved that result. Here it was the misinformation which the court, not denying it existed, nevertheless, because of other operative factors, found did not achieve the result of misleading.

Based on all the evidence detailed above, we are forced to conclude that the finding of the district court on the broader issue of Fisher being misled was...