United States v. Powers

• Decision Date: 10 November 1969
• Docket Number: No. 7284.,7284.
• Citation: 413 F.2d 834
• Parties: UNITED STATES of America, Appellee, v. John William POWERS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

413 F.2d 834 (1969)

UNITED STATES of America, Appellee, v. John William POWERS, Defendant, Appellant.

No. 7284.

United States Court of Appeals First Circuit.

July 14, 1969.

Certiorari Denied November 10, 1969.

Ronald F. Kehoe, Boston, Mass., by appointment of the Court, for appellant.

Stanislaw R. J. Suchecki, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Garrett C. Whitworth, El Paso, Tex., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied November 10, 1969. See 90 S.Ct. 256.

COFFIN, Circuit Judge.

This is an appeal from a conviction under the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a). Appellant, John William Powers, was sentenced to two years imprisonment for failing to comply with an order of his Middleboro, Massachusetts draft board to report and submit to induction.

Appellant registered with his local board in April 1966. He requested a Form 150, Special Form for Conscientious Objectors, by signing the appropriate space on his Classification Questionnaire. He received a Form 150, but did not fill it out, and returned it to the board with a note indicating that he was withdrawing his claim. The reason now alleged for his failure to complete the Form 150 is that he was misled by the form and wording of the Supreme Being question into thinking that one must possess an orthodox religious belief to qualify.

In March 1967 appellant's mother requested that her son be given a hardship deferment. A Dependency Questionnaire was filed and the board granted appellant a personal interview on April 12, 1967. The board awarded him a III-A (hardship) deferment for one year. The board Executive Secretary subsequently wrote one Dr. Zawacki to inquire whether appellant's presence at home was necessary to protect his mother from an older schizophrenic brother. The doctor replied that appellant was not needed at home. This letter was laid before the board at their May 1967 meeting. No action, however, was taken until June 1967 when the board revoked appellant's III-A deferment and reclassified him I-A. Appellant attacks the procedures surrounding this revocation.

Appellant failed to request a personal appearance or to appeal this new I-A classification. He received a Notice of Classification (SSS Form 110), and Notice of Appeal (SSS Form 217). Appellant's mother resided in the same home as did appellant. She testified that she knew he had received a notice. She claimed, however, that she could not recall receiving a Classification Advice (SSS Form 111) which the Executive Secretary said had been sent. The jury impliedly found that she had received such an Advice.

The evidence is undisputed that the Executive Secretary in December 1967 selected appellant to report for induction without formal board authorization. The Executive Secretary also signed the induction order. Appellant places the legality of both actions in issue.

Appellant failed to report for induction on January 24, 1968.¹ He was indicted in August 1968.

Appellant asserts that only after indictment did he learn of the significance of the United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), decision. In September 1968 he requested another Form 150. The Deputy State Director of Selective Service, Colonel Paul Feeney, advised the board to issue the Form. It was issued and appellant completed and returned it. The board refused to consider the Form 150, asserting that the case was "out of their hands".

On October 21, 1968, appellant's mother requested a form in order to file a new hardship deferment claim, on the basis that her income had been reduced by a daughter moving out of the household. Though advised by Colonel Feeney that the board could issue the form, the chairman postponed action until the next meeting. In the meantime, however, Mrs. Powers had obtained a sample form, filled it out and, filed it along with other documentation. Before the board actually met again, appellant's case had been called for trial. Appellant contends that the board was required to reopen his case, which would allegedly have cancelled the induction order and have mooted the prosecution.

THE FORM 150 ISSUE

Appellant contends that a question on SSS Form 150, Special Form for Conscientious Objectors, so misled him that he withdrew his application for conscientious objector status and that "elementary fairness requires that the board cure the defect by considering and acting upon the aborted claim." He asserts that the question "Do you believe in a Supreme Being", coupled with a form allowing only a "yes" or "no" answer led him to the conclusion that one must possess an orthodox religious belief — which he did not feel he possessed — to qualify for the exemption. Appellant submits that it was impossible for him to give a mere "yes" or "no" answer to this question. Appellant further submits that Selective Service was at fault in providing a 1959 version of this form after the expansion of "religious" given by the Court in United States v. Seeger, supra.²

While the 1959 Form 150 may have presented some obstacles to presentation of a registrant's case, we do not find them insurmountable. The form allowed the use of "extra sheets of paper"; question 2 under Series II invited a registrant to expound in detail regarding his religious beliefs; and we note that the alleged confinements of the form did not prevent appellant from submitting his beliefs on it in September 1968, after he had refused induction. Nowhere did the form state that one must believe in a Supreme Being to qualify.

This is not a case where a registrant was affirmatively misled by a Selective Service employee or official. See, e.g., Powers v. Powers, 400 F.2d 438 (5th Cir. 1968). Here the evidence is undisputed that appellant unilaterally decided that he could not qualify. We take judicial notice that a registrant's Notice of Classification, which is required to be in his personal possession at all times, United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), advises registrants in large capital letters:

"FOR INFORMATION AND ADVICE, GO TO ANY LOCAL BOARD

This notice also advises the registrant of the availability of Government Appeal Agents. See 32 C.F.R. § 1604.71. The board may also have advisors "to advise and assist registrants in the preparation of questionnaires and other selective service forms." 32 C.F.R. § 1604.41. Their names and addresses are to be "conspicuously posted in the local board office". The regulations also declare that Selective Service has "a positive information policy". 32 C.F.R. § 1606.61.

Despite the possible availability of information and advice at the local board, there is no evidence that appellant sought out such aid when he personally returned the form to the board in May 1966. While there is an affirmative duty on local boards in certain instances to notify registrants regarding procedural rights, see Steele v. United States, 240 F.2d 142 (1st Cir. 1956), the instant case does not present such a situation. Were unilateral, subjective, uncounselled misunderstanding of Selective Service requirements and definitions to be a defense to prosecution, an already laboring vehicle would in all likelihood be completely immobilized.

PREMATURE REVOCATION OF HARDSHIP DEFERMENT

We are unable to question whether the board had a "basis in fact" for revoking appellant's hardship deferment, because appellant knowingly failed to exhaust his administrative remedies either by requesting a personal appearance or appealing. Powers stated in his September 1968 Form 150 and again repeated at trial that he failed to appeal his June 1967 I-A classification because "I didn't like the idea of telling you people all about my family problems * *." and "I wanted a chance to confront the law * * *." This is not one of those exceptional cases where knowing failure to appeal does not preclude judicial review. United States v. McKart, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (U.S. Supreme Court, May 26, 1969).³

THE POST-INDICTMENT DEPENDENCY CLAIM

Appellant seeks to distinguish United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969), in which we held that a registrant has no right to have his conscientious objector claim considered if he first asserted it after the induction date. He contends that there was here a demonstrable change in his mother's financial circumstances after the induction date and therefore that there was no question of his sleeping on his rights, unlike the situation in Stoppelman. He further argues that what is involved here is his mother's claim and that his refusal of induction should not affect her rights.

Admittedly Stoppelman was concerned with a late-filed conscientious objector claim, which necessarily involves evidence more subjective in nature than that ordinarily present in a hardship request. But it remains true that once a valid order to report for induction has been wilfully disobeyed, a crime has been committed, and "what occurs after refusal * * * is not relevant to that issue." Palmer v. United States, 401 F.2d 226, 228 (9th Cir. 1968); Blades v. United States, 407 F.2d 1397 (9th Cir. 1969). United States v. Burlich, 257 F.Supp. 906 (S.D.N.Y.1966), heavily relied upon by appellant, is not to the contrary, for it simply recognizes the obligation of a board prior to the date of issuance of the induction order to reopen a registrant's classification if he presents a prima facie case for a hardship deferment. Not to do so invalidates the induction order. Id. at 913.

THE CLERK SIGNATURE ISSUE

Appellant argues that the local board Executive Secretary, Mrs. Stonkus, "had not been authorized to sign the order to report as an official paper." The regulations provide that "official papers issued by a local board may be signed by the clerk of the local board if he is authorized to do so by resolution duly adopted by...