United States v. Hunter

• Decision Date: 11 May 1973
• Docket Number: No. 72-1527.,72-1527.
• Citation: 482 F.2d 623
• Parties: UNITED STATES of America v. Richard Anthony HUNTER, Appellant, a/k/a Antonio Estrada Sanchez.
• Court: U.S. Court of Appeals — Third Circuit

482 F.2d 623 (1973)

UNITED STATES of America v. Richard Anthony HUNTER, Appellant, a/k/a Antonio Estrada Sanchez.

No. 72-1527.

United States Court of Appeals, Third Circuit.

Argued March 6, 1973.

Decided May 11, 1973.

Robert E. J. Curran, U. S. Atty., Gary Tilles, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Sanford Kahn, Egnal & Egnal, Philadelphia, Pa., for appellant.

Before GIBBONS and JAMES HUNTER, III, Circuit Judges, and MUIR, District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Appellant Richard Anthony Hunter has been convicted by a jury for failure to report for induction pursuant to 50 U.S.C.A.App. § 462. He is appealing from the denial by the district court of his motion for judgment of acquittal.

He is presenting the same issues to us that he presented to the district court:

1) did the local board\'s failure to arrange a meeting with the government appeal agent invalidate appellant\'s induction order;

2) did the local board deprive appellant of due process of law when it failed to consider some statements in a questionnaire as a claim for a hardship deferment;

3) did the failure of the local board to consider a conscientious objector claim presented by appellant after he was indicted for failure to report for induction invalidate his induction order.

To consider his claims, it is necessary to set forth appellant's selective service history in some detail.

1. Appellant was born May 7, 1949 and registered with his local board on September 7, 1967 under the name of Antonio Estrada Sanchez. He indicated that he was a full time high school student due to graduate in June 1969.

2. November 1967. The board wrote to appellant\'s high school for verification of his status. The school replied that appellant was not on its roll. The board reclassified appellant 1-A and sent him a letter informing him that he had a right to a personal appearance with a government appeal agent who would give him legal counsel on selective service matters.

3. Appellant responded that he did wish a personal appearance. Instead of immediately arranging such an appearance the board answered appellant with the following letter:

"Dear Sir:

"We are in receipt of your letter as of this date in which you request a personal appearance with the Government Appeal Agent.

"If it is for DEPENDENCY OF YOUR MOTHER AND GRANDMOTHER, all you must do is write a letter to our board asking for a hearing with the board members.

"This letter would be placed in your file until after you pre-induction examination—if you are rejected you would be placed in Class I-Y or Class 4-F. No hearing would be necessary.

"If you are found acceptable, you would be granted a hearing with the BOARD MEMBERS and the GOVERNMENT APPEAL AGENT to Discuss your classification in reference to dependency.

"If dependency is the case, we suggest you write the letter immediately. If not, kindly contact me by phone 597-7890 or 597-7891 and I will advise you accordingly."

Appellant telephoned the board and it made a notation on its copy of the letter it had sent to appellant that appellant would have his school forward verification that he was enrolled under the name of Hunter. Appellant apparently made no further request for a personal appearance.

4. May 1968. Appellant returned to the board a current information form. To the dependency question he responded:

". . . As things seem now I will have to answer yes. My mother works for the Board of Education and she will be out of work for the summer. When I get out of school for summer vacation, I will have to get a job."

Having received no verification from appellant\'s school, the board wrote to it but received no reply.

5. January, 1969. After twice having ordered appellant to report for pre-induction physicals, the board, through its own initiative, learned that appellant was enrolled in school under the name of Richard Anthony Hunter.

6. February, 1969. The board granted appellant a I-S(H) classification effective to May 7, 1969.

7. August, 1969. Appellant was reclassified 1-A.

8. August, 1970. Appellant appeared for a pre-induction physical and was classified acceptable after having failed to obey orders to appear on three previous occasions.

9. November, 1970. Appellant failed to appear for induction.

10. December, 1971. After having been indicted for over three months, appellant submitted a conscientious objector form to the board. The board accepted the form but did not act on appellant\'s claim.

FAILURE TO PROVIDE A PERSONAL APPEARANCE

A registrant has a well-established right to see a government appeal agent upon request. 32 C.F.R. 1604.71, Local Board Memorandum No. 82. The government concedes that appellant requested such a meeting and did not receive one, but it argues that under the circumstances of this case appellant was not harmed. It has the burden of proving that no prejudice resulted to appellant because he did not receive such a meeting.

"Once the defendant establishes the deprivation of a procedural right of the magnitude of the right to consult an Appeal Agent, the burden is upon the Government to prove the absence of prejudice beyond a reasonable doubt. Simmons v. United States, 348 U.S. 397, 405-406 75 S.Ct. 397, 99 L. Ed. 453; Steele v. United States, 240 F.2d 142, 146 (1st Cir. 1956)." United States v. Fisher, 442 F.2d 109, 115 (7th Cir. 1971). Accord, United States v. Purcell, 339 F.Supp. 366 (D. Mass.1972). See United States v. Davis, 413 F.2d 148 (4th Cir. 1969); United States v. Jacques, 463 F.2d 653 (1st Cir. 1972).

An examination of the record shows that the government has met its burden in this case. The failure to provide a personal appearance in 1967 did not taint the induction order of 1970.

The board did not ignore appellant's request; it answered him with a simple, straightforward letter. As a result of contact initiated by this letter, appellant received a new classification, I-S(H), granting him a student deferment. This alone is enough to distinguish this case from those cited by appellant since he received a favorable classification. The registrants in the other cases were burdened with unfavorable classifications.

Appellant suggests two ways in which he was prejudiced:

1) he claims that he was entitled to a hardship deferment and that a personal appearance would have shown him the proper procedures to follow to apply for one.

2) he claims that he was entitled to a conscientious objector status and did not apply for one because he was unaware that a Catholic could receive one. If he had been given a personal appearance he could have learned the requirements for conscientious objection.

In view of appellant's actions at that time, it is difficult to believe that he was at all concerned with either consideration. One month before his request to see the agent, appellant submitted a questionnaire to the board indicating neither dependency nor conscientious objector claims. The board's letter set out what appellant had to do if he wanted to submit a claim for a hardship deferment, and appellant's phone call indicated that his concern was with a student deferment (which he ultimately received). Unless we are to enact a per se rule of harm whenever a person is deprived of an appearance with an appeal agent, we feel that the government has met its burden in this case.

HARDSHIP CLAIM

Appellant argues that the board's failure to take any action as a result of a statement he made on his current information questionnaire in May of 1968 invalidates his induction order. He claims that the board had a duty to seek out information from him under United States v. Turner, 421 F.2d 1251 (3d Cir. 1970).

While a local board may have such a duty in certain circumstances, it did not have it in this case. Appellant stated, in response to the dependency question, that: ". . . As things seem now I will have to answer yes. My Mother works for the Board of Education and she will be out of work for the summer. When I get out of school for summer vacation, I will have to get a summer job."

This statement was not sufficient to place upon the board a duty of inquiry. It indicates what it plainly states: that appellant's mother may have been dependent upon him for the time that the schools were not in session. We agree with the conclusion of the district court that this statement was insufficient to place upon the board the necessity of establishing the registrant's belief.

Alternatively, appellant cannot now assert this claim because he failed to exhaust his administrative remedies. E.g. McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). After the May letter in question here, he was reclassified from 1-A to I-S(H). He never appealed his classification. Nor did he ever again indicate to his board that he was concerned over a hardship claim even though he was to have numerous other contacts with it.

CONSCIENTIOUS OBJECTOR CLAIM

Appellant submitted his conscientious objector form one year after refusing induction and three months after his indictment. The board refused to consider this claim, and appellant contends that it was error for it to do so.

A large number of appellate decisions have held, however, that board action on a claim for reclassification submitted after the registrant has refused to submit for induction cannot be a defense to a charge of failing to report for induction. See e. g. United States v. Lathrop, 460 F.2d 761, 764 (3d Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 204, 34 L. Ed.2d 124 (1972); United States v. Neamand, 452 F.2d 25, 27 (3d Cir. 1971); United States v. Powell, 449 F. 2d 706, 710 (3d Cir. 1971); United States v. Noonan, 434 F.2d 582 (3d Cir. 1970), cert. denied, 401 U.S. 981, 91 S. Ct. 1190, 28 L.Ed.2d 333 (1971); United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969); United States v. Swierenga, 425 F.2d 696 (6th Cir. 1970), cert. denied, ...