United States v. Reeb, 25759.

• Decision Date: 10 December 1970
• Docket Number: No. 25759.,25759.
• Citation: 433 F.2d 381
• Parties: UNITED STATES of America, Appellee, v. Robert Edward REEB, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

433 F.2d 381 (1970)

UNITED STATES of America, Appellee, v. Robert Edward REEB, Appellant.

No. 25759.

United States Court of Appeals, Ninth Circuit.

October 27, 1970.

Rehearing Denied December 10, 1970.

Bert E. Green, of Berg & Green, San Francisco, Cal., for appellant.

Coleman Bresee, David P. Bancroft, Asst. U. S. Attys., James L. Browning, U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, KOELSCH and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge:

Robert Edward Reeb appeals from his conviction for refusing to submit to induction in violation of 50 U.S.C. App. § 462.

The Government argues that we do not have jurisdiction to entertain this appeal because Reeb was committed for a sixty-day observation and study under 18 U.S.C. § 5010(e). Such a commitment, the Government contends, does not constitute a final decision of the district court within the meaning of 28 U.S.C. § 1291.

We hold that such a commitment constitutes imposition of sentence insofar as appealability is concerned. See United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969). This court therefore has jurisdiction.

One of Reeb's defenses at the trial was that he was improperly classified I-A, because his local board, Selective Service Local Board No. 57, San Mateo County, California, was improperly constituted. Reeb asserts that the court erred in rejecting this defense.

The point involves the statutory and regulatory residence provisions governing local board membership. Title 50 U.S.C. App. § 460(b) (3) provides that each member of any local board shall reside in the county or political subdivision corresponding thereto in which such local board has jurisdiction. 32 C.F.R. § 1604.52(c) provides that local board members "* * * shall also, if at all practicable, be residents of the area in which their local board has jurisdiction."

This regulation was amended on September 2, 1970, to omit the quoted words so that now the only geographical requirement is that members of local boards reside in the county served by the board. See Executive Order 11555, 35 Fed.Reg.No.175, page 14191 (9/2/70). Since, in Reeb's case, the local board acted prior to September 2, 1970, he is entitled to the benefit of the regulation as it read prior to that date.

San Mateo County has two local boards No. 57 and No. 58. All members of Reeb's Local Board No. 57 reside in San Mateo County. However, on several critical dates during the processing of his file, there was an insufficient quorum of these board members who lived within the geographical area assigned to that local board. No proof was offered as to whether it was "practicable" for Local Board No. 57 to have at least a quorum of members who resided within the geographical confines of that board. However, we will assume for present purposes that it would have been practicable in populous and fairly compact San Mateo County.

The applicable portion of this regulation uses "shall" which is usually employed as an imperative. However, "shall" may sometimes be directory only, just as "may" may be mandatory. Wilshire Oil Company of California v. Costello, 348 F.2d 241, 243 (9th Cir. 1965). The interpretation of these words depends upon the background circumstances and context in which they are used and the intention of the legislative body or administrative agency which used them.

Here the most significant background circumstance is that the geographical provision of the regulation goes beyond what Congress thought was necessary to assure that draft boards would function in an atmosphere of "friends and neighbors." As for the context in which the critical words appear, it will be noted that the regulation links "shall" with "if at all practicable." The latter words seem more in keeping with the expression of a preference than the announcement of a command.

No clear-cut evidence of agency purpose in promulgating 32 C.F.R. § 1604.52 (c) has been called to our attention. It is entirely possible that the primary objective was not that of serving the interests of registrants, but of simplifying the functioning of draft boards. Board members must frequently assemble. The clerk of the board must often contact board members. A regulation providing that board members reside in the geographical area served by the board, "when practicable," makes sense from the standpoint of administration. But if this was the purpose we think it unlikely that the regulation was intended to be mandatory.

These considerations lead us to conclude that the language in question may fairly be construed as meaning "it is preferable, if circumstances permit, that members of the local boards be residents of the respective areas in which their boards have jurisdiction." Language of this kind is directory rather than mandatory.¹

If we are mistaken in this analysis and the regulation should be regarded as mandatory, we in any event think the failure to abide by the regulation did not prejudice Reeb in the administrative processing of his case, and such failure therefore does not constitute a defense to the charge. The regulation, 32 C.F.R. § 1604.52(c), does not deal with procedures closely identified with fairness and due process as in the case of a regulation providing a right to a hearing, or a right to cross-examine witnesses,² or a Selective Service regulation which, if followed, might have excused a registrant from induction.³ Nor is there any contention that the failure to comply with this regulation resulted in any invidious discrimination against Reeb or a class of registrants of which he is a member.

In our opinion there is no showing of prejudice to the registrant here arising from the fact that board members live within the county but without the geographical area served by the local board. As discussed below, the reasons Reeb did not satisfy the requirements for the classification he sought are wholly unrelated to the residence of the board members, and they are reasons which would exist regardless of the place of residence of the members.

On the dual grounds that the regulation is not mandatory and that, if mandatory, non-compliance was not prejudicial in this case, we conclude that the trial court did not err in rejecting Reeb's defense based upon 32 C.F.R. § 1604.52 (C).⁴

Reeb next contends that he was denied his constitutional right to due process of law under the Fifth Amendment, in that he was denied the right to counsel before his draft board.

Reeb asserts that a letter he wrote to his board on January 3, 1968, was a request for counsel before his draft board. In that letter he said:

"If at all possible, I would like you to make an appointment for me to see the selective service system\'s `Attorney of and/or for appeals.\'"

The request for an appointment with the Government Appeal Agent was not timely and was not granted.

The request of January 3, 1968, apart from being untimely, was not a request that Reeb be represented by counsel before the board. Thus no such request was denied by the board.⁵

Reeb argues that he should have been acquitted because there was no basis in fact for the denial of his conscientious objector application. He also asserts that the induction order denied him the free exercise of his religion and the equal protection of the law. He further asserts that the denial amounted to an unconstitutional establishment of religion for it deprived him of a conscientious objector classification as a Roman Catholic opposed to the Vietnam war as unjust. We will discuss these two arguments together.

On June 12, 1967, Reeb, then classified I-A, applied for classification as a conscientious objector. His local board denied the application and retained him in I-A. Reeb took an administrative appeal. On November 20, 1967, the appeal board rejected Reeb's claim for conscientious objector status and classified him I-A.

On January 12, 1968, Reeb requested a personal interview with his local board. This was granted and the interview was held on May 13, 1968. At this interview Reeb asked that his classification be re-opened. The local board decided not to reopen.

In his correspondence with the local board Reeb made a number of statements pertaining to his opposition to war on religious and moral grounds. However, many of these statements disclosed that his objections were primarily directed to "this war," meaning the Vietnam war. Moreover, at his personal interview on May 13, 1968, Reeb expressed agreement with the contents of a letter from his father to...