United States v. Hayden

• Decision Date: 26 July 1971
• Docket Number: No. 25803.,25803.
• Citation: 445 F.2d 1365
• Parties: UNITED STATES of America, Appellee, v. Christian Winslow HAYDEN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 1365 (1971)

UNITED STATES of America, Appellee, v. Christian Winslow HAYDEN, Appellant.

No. 25803.

United States Court of Appeals, Ninth Circuit.

April 9, 1971.

Rehearing Denied July 26, 1971.

COPYRIGHT MATERIAL OMITTED

Hugh R. Manes (argued), of Stewart, Finkel & Manes, Los Angeles, Cal., for appellant.

David Curnow (argued), Richard H. Kirschner, Richard L. Jaeger, Asst. U. S. Attys., David R. Nissen, Chief, Crim. Div., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG, and ELY, Circuit Judges.

ELY, Circuit Judge:

Hayden appeals from his conviction on two counts of an indictment charging him with having violated § 12 of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a). The separate offenses charged were failure to report for a pre-induction physical examination and failure to report for induction. The judgments must be reversed.

The facts are not in dispute. However, we think it desirable to review, in some detail, the unusual background of the prosecutions. Hayden urged his conscientious objector beliefs on his Local Board from the time he first registered in 1966. His Board consistently rejected his claims. His first I-A classification was issued April 4, 1967, despite the Board's failure previously to supply Hayden with a conscientious objector questionnaire (SSS Form 150), a duty imposed upon the Board by regulation. 32 C.F.R. § 1621.11.¹ Thus, it was necessary for Hayden to request that his classification be reopened in order to obtain the opportunity to detail his conscientious objection to war. Upon its receipt of the completed questionnaire and supportive documents, the Board again, on July 11, 1967, classified Hayden I-A. A month later, Hayden made a timely request for a personal appearance, and, on October 5, 1967, was notified that his appearance had been scheduled for October 17th. Hayden failed to appear as scheduled. Because the Board erroneously treated Hayden's request for a personal appearance as an appeal also, it sent his file to the Appeals Board, while continuing his I-A classification. The Appeals Board unanimously upheld the I-A classification on November 16, 1967, and Hayden was so notified by his Local Board on November 28, 1967.

On December 6, 1967, Hayden returned his classification notice to the Board, explaining that the day before his scheduled personal appearance, he had surrendered his draft card to the Attorney General. He further stated that he would thereafter refuse to cooperate with the Selective Service System "in any way" and that he would no longer carry any Selective Service documents. Based on this information, and on the advice of the State Director of Selective Service, the Board declared Hayden delinquent and ordered him for priority induction on March 5, 1968.

After Hayden failed to report on the specified date, he was indicted, on one count, for having violated 50 U.S.C. App. § 462(a), the same statute under which he was convicted in the present case. On that prior indictment, Hayden was tried before District Judge Warren J. Ferguson, sitting without a jury. He was acquitted upon Judge Ferguson's emphatic determination that Hayden's conscientious objector claim was exceptionally well founded:

"If there ever was a case in which the Court is compelled to find the defendant not guilty, this is such a case. * * * No person, no reasonable person who reads this file could come to any other conclusion except the fact that he Hayden is a true, sincere believer in a Supreme Being, he is opposed to killing and violence, and he is a true, dogmatic, ordinary, routine conscientious objector. * *"²

Pursuant to regulations, the Local Board was notified by the United States Attorney of Hayden's acquittal. The Board was also sent at least one copy of Judge Ferguson's opinion.³ Notwithstanding this judicial determination that there was no basis in fact to support the I-A classification, the Local Board did not reclassify Hayden. Instead, it requested Hayden to appear for an "Informal Interview," in order "to develop further facts on which your Conscientious Objector claim is based, and the sincerity of such claim."

Hayden replied to his Board, in writing, stating that he did not believe that such an interview was necessary, inasmuch as Judge Ferguson had already ruled that he was a conscientious objector, and declining the invitation.⁴ Upon receipt of this letter the Board again classified Hayden I-A. This time, a finding was inserted in the file that the record before the Board was insufficient to substantiate Hayden's I-O claim, and that an adverse inference was being drawn regarding sincerity from Hayden's refusal to accede to the invitation to appear for the "Informal Interview." Hayden did not pursue an appeal, and when the time for appeal expired, his Local Board, once more acting upon the advice of the State Director, ordered Hayden to submit himself for a pre-induction physical examination. His failure to appear therefor resulted in a declaration of delinquency and an order to report for priority induction. After Hayden failed to report, he was again indicted, and there followed the convictions from which he now appeals.

I. FAILURE TO REPORT FOR INDUCTION

The Board's order for Hayden to report for induction was invalid, running afoul of the rule of Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). There, the Supreme Court held that accelerated induction of Selective Service registrants, because of their delinquency under the regulations, has not been authorized by Congress. Here, it is hardly deniable, and, indeed, the Government does not deny, that Hayden's order to report came when it did because of his having been declared delinquent. This is irrefutably demonstrated by a notation in the Board's own minutes, "Delinquent — order for induction."

While it virtually concedes the applicability of Gutknecht, the Government attempts to avoid the effect of that authority by urging that its rule not be applied retroactively to Hayden's conviction, which preceded the issuance of Gutknecht by some months. However, the cases in our Circuit are clear: When the record affirmatively reflects accelerated induction, Gutknecht is to be retroactively applied. United States v. Pennington, 439 F.2d 145 (9th Cir. 1971); United States v. Browning, 423 F.2d 1201 (9th Cir. 1970); Gregory v. United States, 422 F.2d 1323 (9th Cir. 1970). Since, therefore, the Government's contention on this point is without merit, it follows that Hayden's conviction for failure to report for induction must be vacated.

II. FAILURE TO REPORT FOR PRE-INDUCTION PHYSICAL EXAMINATION

A. Relevance of Misclassification.

The Government argues that even if Hayden's conviction for failure to report for induction was wrong, we should nevertheless affirm the conviction for failure to report for a pre-induction physical examination. Even if the denial of Hayden's conscientious objector claim were without basis in fact, argues the Government, any misclassification was irrelevant to the issue of Hayden's alleged duty to report for an examination. We reject this argument.

The Government principally relies upon United States v. Zmuda, 423 F.2d 757 (3d Cir.), cert. denied, 398 U.S. 960, 90 S.Ct. 2176, 26 L.Ed.2d 545 (1970). There, the court, while reversing a conviction for failure to report for induction because of Gutknecht, affirmed the accused's conviction, on a second count, for having failed to report for a physical examination. The court was of the opinion that

"the alleged invalidity of appellant\'s classification is not available as a defense to a prosecution for failing to report for a physical examination. The validity of a I-A classification has no relevance to the registrant\'s obligation to undergo an examination to determine his physical eligibility to serve in the armed forces. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)."

423 F.2d at 759. The Zmuda court cited no other authority than McKart, nor did it further discuss the point. This is regrettable, for our very close examination convinces us that McKart does not support the position ascribed to it in Zmuda and here taken by the Government.⁵

McKart's exemption as a sole surviving son (Class IV-A) had been revoked by his Local Board. Because this revocation was the result of an erroneous interpretation of law, rather than an erroneous application of the "clear deferment standards," McKart was under a duty to report for his physical examination despite his entitlement to a IV-A classification. See United States v. Brandt, 435 F.2d 324 (9th Cir. 1970).

However, as we shall demonstrate, there is an exception to the general duty of registrants to report for physical examinations,⁶ an exception applicable to registrants classified as conscientious objectors (I-O). As to these registrants, misclassification may deprive them of a substantial right — the right not to submit to a physical examination.

The position of the Selective Service concerning I-O registrants who fail to report for or to submit to an armed forces physical examination appears to be that they shall nevertheless be treated in all respects as if they had taken such an examination and been found to be medically acceptable. Authority for this approach is found in section 1660 of the Regulations:

"When a registrant in Class I-O has been found qualified for service in the Armed Forces after his armed forces physical examination or when such a registrant has failed to report for or to submit to armed forces physical examination, he shall within ten days after a Statement of Acceptability (DD Form 62) has been mailed to him by the local board or within ten days after he has failed to report for or to submit to armed forces physical examination, submit to the local board three types of civilian work contributing to the maintenance of the national

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