United States v. Heywood, 72-1963.

• Decision Date: 29 December 1972
• Docket Number: No. 72-1963.,72-1963.
• Citation: 469 F.2d 602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William M. HEYWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.2d 602 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. William M. HEYWOOD, Defendant-Appellant.

No. 72-1963.

United States Court of Appeals, Ninth Circuit.

November 15, 1972.

Rehearing Denied December 29, 1972.

Richard P. Fox (argued), Los Angeles, Cal., for defendant-appellant.

Robert C. Bonner, Asst. U. S. Atty. (argued), Eric A. Nobles, Barbara Meiers, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY and CARTER, Circuit Judges, and McNICHOLS,^* District Judge.

CARTER, Circuit Judge:

This appeal from convictions on two counts of failure to report for a pre-induction physical examination, directly presents the question whether a Selective Service registrant, classified I-A, has a duty to report for such examination, regardless of the validity of his classification. We affirm.

Appellant was classified I-A in October, 1969. In September, 1970, he claimed conscientious objector status; his draft board rejected this claim in January, 1971. Thereafter, appellant admittedly received and ignored two separate notices to report for pre-induction physical examination, from which derived these convictions.

Appellant urges that the case is controlled by United States v. Hayden (9 Cir. 1971) 445 F.2d 1365, and that Hayden, at pp. 1369-1370, has specifically rejected the holding of United States v. Zmuda (3 Cir. 1970) 423 F.2d 757, cert. den., 398 U.S. 960, 90 S.Ct. 2176, 26 L.Ed.2d 545.

United States v. Hayden (9 Cir. 1971) 445 F.2d 1365, can be distinguished and is not controlling. In that case, Hayden had previously been indicted for failure to report for induction under 50 U.S.C. App. § 462(a). The case was tried, and the trial judge determined that there was no basis in fact to support Hayden's I-A classification, and that Hayden was in fact a bona fide conscientious objector. Hayden was acquitted on those grounds, and the local board was notified of the decision. However, it did not reclassify Hayden. Instead, it asked Hayden to report for an informal interview concerning his conscientious objector claim, an invitation that he declined, stating in a letter that in light of the judge's opinion and the record already before the board, he felt no need to come to the interview. He was again classified I-A.

Once again, he was indicted for failure to report for induction and for failing to report for a pre-induction physical examination, and was convicted on both charges. On appeal, we reversed the conviction for failure to report for induction, on the basis of Gutknecht v. United States, 1970, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532. As to the failure to report for the pre-induction physical (the issue with which we are concerned here) we also reversed. We held that those registrants who are classified I-O are an exception to the rule that persons classified I-A, I-O and I-A-O must report for a pre-induction physical examination. If a I-O registrant does not appear for the examination, he is treated under the regulations as if he had been found qualified. In other words, we held that registrants classified I-O have a right not to take the pre-induction physical examination, even though they may be ordered to do so.

We next held that in the very unusual circumstances of Hayden's case, the board had misclassified him. We held that the board could not re-impose a classification which a federal court had invalidated unless there were newly discovered facts or considerations which would merit doing so. The record before the board was the same as before, and thus the board should have foreclosed itself from "any conclusion inconsistent with the judicial declaration before it." 445 F.2d at 1374. In sum, in the circumstances of that case, Hayden was considered misclassified as I-A; he was considered in effect as being classified I-O; and as a I-O registrant he was immune to prosecution for failure to report for a pre-induction physical examination.

In so holding, we emphasized that Hayden is not a far reaching decision. Speaking for the court, Judge Ely was careful to state: "Hayden is in . . . an extremely unique position . . . This case is in a unique posture." 445 F.2d at 1379. Applying the doctrine of collateral estoppel, Judge Ely held that the board was foreclosed "from any conclusion inconsistent with the judicial declaration before it," i. e., that Hayden was a "sincere, genuine conscientious objector." Hayden, at 1373-1374.

Given our holding that Hayden was a sincere conscientious objector (I-O), Judge Ely was correct in distinguishing the following cases. United States v. Zmuda (3 Cir. 1970) 423 F.2d 757, cert. den. 398 U.S. 960, 90 S.Ct. 2176, 26 L.Ed. 2d 545 (1970), did not control because Zmuda was classified I-A, although he was claiming a I-O. Hayden at 1369-1370. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) was not controlling because McKart had been convicted only of failing to report for induction, not failing to submit to a physical examination. Hayden at 1370, note 5. McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), which rested on the theory of failure to exhaust administrative remedies, did not control Hayden, wherein the registrant was held to have exhausted his remedies. We do not reach that question here.¹

Unlike I-O registrants, those classified I-A are potentially available for unlimited military service and early determination of their physical fitness is desirable. See, McKart, supra, 395 U.S. at 201, 89 S.Ct. 1657.

We conclude that Hayden is not controlling and is distinguishable without doing violence to the holding therein.

In United States v. De La Parra (9 Cir. 1971) 445 F.2d 1405, we affirmed a conviction of a registrant classified I-A on the same charge of failure to report for a physical examination. Although a per curiam, the decision is in point. We stated: "We do not find the punitive aspects here that were present in United States v. Hayden, 9 Cir., 445 F.2d 1365 decided April 9, 1971, which is clearly distinguishable."

It is significant that Judge Ely was a member of the panel in De La Parra. He was familiar with De La Parra when the petition for rehearing was denied in Hayden on July 26, 1971. 445 F.2d at 1378. In the supplemental opinion denying rehearing, Judge Ely stated: "In the light of that trial the prior trial in the district court, the subsequent approach taken by Hayden's Board is, at its best, inexplicable." He footnoted the statement as follows: "Another panel of our court has recently characterized it as `punitive.' United States v. De La Parra, 445 F.2d 1405 (9th Cir., June 3, 1971) This motivation has been held, in another context, to be intolerable. Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970)." Hayden at 1379-1380 and n. 1.

Although McKart v. United States, supra, is not in point, there are strong dicta (if we can call Supreme Court language dicta) supporting affirmance here. The Court stated:

"But more importantly, a registrant is under a duty to comply with the order to report for a physical examination and may be criminally prosecuted for failure to comply. If the Government deems it important enough to the smooth functioning of the System to have unfit registrants weeded out at the earliest possible moment, it can enforce the duty to report for pre-induction examinations by criminal sanctions." Id. 395 U.S. at 201, 89 S.Ct. at 1667 Footnotes omitted

"An invalid classification . . . would not be a defense today to a prosecution for failure to report for a pre-induction examination." Id. p. 203, 89 S.Ct. at 1667.

The penalties for ignoring an order to report...