United States v. Ronne

• Decision Date: 07 August 1969
• Docket Number: No. 23817,23629,23788.,23837,23817
• Citation: 414 F.2d 1340
• Parties: UNITED STATES of America, Appellee, v. Garry Albert RONNE, Appellant. UNITED STATES of America, Appellee, v. Donald Lester WOOLERY, Jr., Appellant. UNITED STATES of America, Appellee, v. Terry Lynn FRENCH, Appellant. UNITED STATES of America, Appellee, v. Lowell Keith DITMARS, Jr., Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

414 F.2d 1340 (1969)

UNITED STATES of America, Appellee, v. Garry Albert RONNE, Appellant.

UNITED STATES of America, Appellee, v. Donald Lester WOOLERY, Jr., Appellant.

UNITED STATES of America, Appellee, v. Terry Lynn FRENCH, Appellant.

UNITED STATES of America, Appellee, v. Lowell Keith DITMARS, Jr., Appellant.

Nos. 23817, 23837, 23629, 23788.

United States Court of Appeals Ninth Circuit.

August 7, 1969.

William M. Hardy (argued), San Jose, Cal., Clark A. Barrett (argued), San Mateo, Cal., for appellants.

Paul G. Sloan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., Crim. Div., San Francisco, Cal., for appellee.

Before HAMLEY and KOELSCH, Circuit Judges, and KILKENNY, District Judge^*.

HAMLEY, Circuit Judge:

Defendants Ronne, Woolery, French and Ditmars, all I-O conscientious objectors in the selective service system, appeal from their respective convictions for failure to report for assigned civilian work in lieu of induction into the Armed Forces. Their appeals were consolidated for hearing and disposition, together with that of the appellant in United States v. Hughes, 9 Cir., 414 F.2d 1330.¹

In all five appeals the principal arguments advanced for reversal are the same. While there are variations in the evidence received in each case, there exists sufficient similarity so that a determination of the common issues by this court in one of the appeals will control disposition of those issues in the other appeals. Accordingly, our decision rendered on July 25, 1969, in United States v. Hughes is dispositive of the principal contentions advanced in the four above-entitled appeals.

In the Ronne and Ditmars appeals, however, additional issues are raised which are not disposed of by the Hughes decision. These additional issues are discussed below.²

Ronne Appeal

Ronne contends that the appeal board arbitrarily failed to classify him as a minister of religion (IV-D). Had he been given such a classification he would not have been subject to either induction or a board order to perform civilian work in lieu of induction. Daniels v. United States, 9 Cir., 372 F.2d 407, 409, n. 2.

As the Government concedes, Ronne was at one time a Pioneer Minister in Jehovah's Witnesses and, as such, was entitled to a ministerial classification. However, there is a basis in fact in the record for the apparent conclusion of the board of appeal that his ministerial activity was thereafter discontinued to such an extent that he not only had abandoned his status as a Pioneer Minister but had, in other respects, dropped off his ministerial activity to the point where there was no reasonable basis for such a classification. United States v. Tichenor, 6 Cir., 403 F.2d 986, relied upon by Ronne, is distinguishable since in that case the sole basis for denying a IV-D classification was that Tichenor was not certified by his church as a "Pioneer." The board in that case apparently took the position that it was necessary to be so certified in order to qualify for the IV-D classification.

Ronne also argues that he was deprived of due process of law because he allegedly did not have a reasonable opportunity to meet with the local board at the 32 C.F.R. § 1660.20(c) meeting held on March 29, 1967. Upon receiving notice of that meeting, Ronne wrote to his local board in Ukiah, California, advising that he had just found employment in Olympia, Washington, and asking that his file be transferred to the local board in Olympia. The clerk of Ronne's local board wrote to him air mail special delivery on March 27, 1967, stating that there was no provision for such a transfer. The meeting was held on the appointed day in Ronne's absence.

On the next day, March 30, 1967, Ronne telephoned the assistant clerk of the board, presumably from Olympia, stating that he had not, until that day, received the board's letter of March 27, 1967. Ronne told the clerk that he had not received the notice of the meeting, dated March 15, 1967, until March 24, 1967, since he had been looking for work and had therefore not been at the address he had given to the board. He also stated that he could not afford to make the trip to Ukiah as he had been out of work and had just found a job. Ronne confirmed this conversation in a letter written to the board on March 31, 1967.

Ronne alleges that the clerk of the board did not advise the board members of the reason Ronne was unable to be present for the March 29, 1967 meeting. Whether or not the clerk so advised the members, the fact is that neither in his letters, nor in his telephone call, did Ronne ask to have the section 1660.20(c) meeting continued to another date. Nor is there any indication in his file that he ever requested a second opportunity to meet with the local board.

We hold that Ronne was not denied due process or any procedural right established by statute or regulation by reason of the fact that the section 1660.20 (c) meeting was held in his absence.

Ronne additionally argues that there is no showing that he "wilfully and knowingly" failed to report for civilian work. He alleges that he did not appear because the clerk of the local board advised him not to report for civilian work.

The assertion that the clerk advised Ronne not to report for civilian duty is based on his trial testimony with respect to what the clerk told him. This testimony is not corroborated by the agency file. According to that file, he telephoned the board office on May 11, 1967, and stated that he would not be reporting for civilian work since he was going to refuse such employment and did not want to incur any travel expense. He confirmed this statement in a letter to the board, basing his refusal to accept work upon religious grounds. He made no mention in the letter of any advice by the clerk that he did not need to report. The trial judge, as the fact-finder, was not required to accept Ronne's testimony concerning this matter.

There was ample evidence to show that Ronne wilfully and knowingly refused to perform assigned civilian work.

Ditmars Appeal

Ditmars contends, in effect, that the local board disregarded applicable regulations and deprived him of due process of law in failing to classify him III-A. This classification is provided for in 32 C.F.R. § 1622.30. Insofar as here relevant, this regulation provides that there shall be placed in Class III-A any registrant whose induction into the Armed Forces would result in extreme hardship to his wife. 32 C.F.R. § 1622.30(b). Ditmars argues that the board should have placed him in this classification because his wife had had a series of major operations on her back, rendering her completely dependent upon him.³

At the oral argument at the close of Ditmars' trial, the only reason advanced by the Government why the board should not have reopened his classification to determine whether he should be reclassified III-A, was that a conscientious objector, classified I-O, is not eligible for a III-A classification. The record does not indicate the ground on which the trial judge, in Ditmars' nonjury trial, rejected the defense based upon the contention that Ditmars should...