United States v. Pennington, 24355.
| Decision Date | 11 May 1971 |
| Docket Number | No. 24355.,24355. |
| Citation | 439 F.2d 145 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jon Mardis PENNINGTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David K. Yamakawa, Jr. (argued), San Francisco, Cal., for defendant-appellant.
George Rayborn, Ass't. U. S. Atty., (argued) Robert L. Meyer, U. S. Atty., Henry J. Novak, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before BROWNING, WRIGHT and KILKENNY, Circuit Judges.
Pennington was declared a delinquent and ordered to report for induction. He refused to be inducted, and was tried and convicted. The subsequent decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), held the delinquency regulations unlawful.
Whether a registrant is prejudiced by a declaration of delinquency depends upon whether the registrant's delinquency status accelerated his order of induction. On appeal, therefore, a case tried prior to Gutknecht presents three possibilities. (1) The record may show that the induction order was accelerated. If so, reversal would be required. United States v. Browning, 423 F.2d 1201 (9th Cir. 1970); Gregory v. United States, 422 F.2d 1323 (9th Cir. 1970). (2) On the other hand, the record may show that the induction order was not accelerated. If so, affirmance would be proper. (3) The third possibility is that the record may fail to show either that the induction order was accelerated or that it was not.
This case falls in the third category. When the record is thus inconclusive, a line of cases in this circuit has assumed acceleration and therefore reversed. United States v. Townsend, 431 F.2d 702 (9th Cir. 1970); United States v. McQueary, 429 F.2d 984 (9th Cir. 1970); United States v. Supina, 428 F.2d 1226 (9th Cir. 1970); United States v. Stow, 427 F.2d 891 (9th Cir. 1970); United States v. Broyles, 427 F.2d 358 (9th Cir. 1970); United States v. Thomas, 422 F. 2d 1327 (9th Cir. 1970).
The most recent case, however, remanded to the district court for a determination of whether the defendant's delinquency status accelerated his induction order. United States v. Davis, 432 F.2d 1009 (9th Cir. 1970). We think this is the more appropriate disposition. We feel free to adopt it since the possibility of remand is not considered in our earlier opinions.
Because the trial took place before Gutknecht, the government had no reason to attempt to show that Pennington was not prejudiced, and the district court had no occasion to decide that question.
Accordingly, this case is remanded for an evidentiary hearing to determine whether Pennington's...
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United States v. Hayden
...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). Si......
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United States v. Dobie
...Training & Service Act, 50 U.S.C.App. §§ 451-73. 3 United States v. Dobie, 429 F.2d 32, 33 (4th Cir. 1970); accord, United States v. Pennington, 439 F.2d 145 (9th Cir. 1971). In other cases which have come to our attention, the federal courts of appeal have reversed the convictions of delin......
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United States v. Fox, 71-1917.
...cards. In two cases, we have remanded instead of reversing, United States v. Davis, 9 Cir., 1970, 432 F.2d 1009; United States v. Pennington, 9 Cir., 1971, 439 F.2d 145. In Davis, the trial judge on remand found that there had been no acceleration, and we then affirmed. United States v. Dav......
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United States v. Irvin, 23773.
...a "nunc pro tunc" hearing to determine whether Irvin was in fact competent at the time he stood trial. Such cases as United States v. Pennington, 9 Cir., 1971, 439 F.2d 145, and United States v. Shea, 9 Cir., 1970, 436 F.2d 740, 743, did not involve either section 4244 or the "difficulties ......