United States v. Kilby

• Citation: 446 F.2d 1002
• Decision Date: 17 June 1971
• Docket Number: No. 28781 Summary Calendar.,28781 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barry Everett KILBY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

446 F.2d 1002 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Barry Everett KILBY, Defendant-Appellant.

No. 28781 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 17, 1971.

William C. O'Kelley, Atlanta, Ga., Benjamin Landey, O'Kelley, Hopkins & Van Gerpen, Atlanta, Ga., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Robert E. Whitley, Julian M. Longley, Jr., Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

Barry Everett Kilby was convicted of failing to submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462, and appeals.

Six days after having received his notice to report for induction, appellant, allegedly a member of the Jehovah Witnesses sect, claimed for the first time a conscientious objector exemption. The local board declined to reopen his classification. We affirm.

Appellant contends that the statute 50 U.S.C. App. § 456(j) which provides the conscientious objector exemption prescribes no limitation of time for assertion thereof, and should not be circumvented by the Selective Service Regulations 32 C.F.R. § 1625.a, which preclude the reopening of the classification after notice to report for induction unless the board specifically finds that there has been a change in status resulting from circumstances over which the registrant had no control. In Davis v. United States, 5 Cir., 1967, 374 F.2d 1, we decided an identical contention adversely to the registrant. In so doing we noted that there was some authority upholding registrant's view, but aligned ourselves with the weight of authority to the contrary, 374 F.2d at 4. The Ninth Circuit, sitting en banc, subsequently reached the same conclusion, citing Davis with approval. Ehlert v. United States, 9 Cir., 1970, 422 F.2d 332, 333. The Supreme Court granted certiorari in Ehlert, 397 U.S. 1074, 90 S.Ct. 1525, 25 L.Ed.2d 808 (1970), and in its recent decision, Ehlert v. United States, 402 U.S. 99, 101, 91 S.Ct. 1319, 1321, 28 L.Ed.2d 625 (1971), resolved the "conflict among the circuits over the interpretation of the governing Selective Service regulation", noting the Fifth Circuit (in Davis) and the Ninth Circuit to be in accord on one side of the conflict. In affirming the Ninth Circuit, upholding the conviction of Ehlert, the Supreme Court said:

"A regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would, we think, be perfectly valid, provided that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim. The Military Selective Service Act of 1967 confers on the President authority `to prescribe the necessary rules and regulations to carry out the provisions of this title * * *.\' 50 U.S.C. App. § 460(b) (1). To read out

...