United States v. Smith, 71-1279.

• Decision Date: 07 June 1971
• Docket Number: No. 71-1279.,71-1279.
• Citation: 443 F.2d 1278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Carl SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

443 F.2d 1278 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Carl SMITH, Defendant-Appellant.

No. 71-1279.

United States Court of Appeals, Ninth Circuit.

June 7, 1971.

Bert E. Green, San Francisco, Cal., for defendant-appellant.

James L. Browning, Jr., U. S. Atty., Jerry Cimmet, Asst. U. S. Atty., F. Steele Langford, Chief, Crim. Div., San Francisco, Cal., for plaintiff-appellee.

Before HAMLIN and WRIGHT, Circuit Judges, and GOODWIN, District Judge.^*

EUGENE A. WRIGHT, Circuit Judge:

Richard Carl Smith appeals his conviction for refusing induction into the Armed Services in violation of 50 U.S.C. App. § 462(a). We affirm.

On April 22, 1969, Smith's local board sent him an order to report for induction on May 14, 1969. He reported but refused to submit for induction.

Smith's principal contention on appeal is that the order to report was invalid because it was issued in violation of the order of call regulations, 32 C.F.R. § 1631.7. Pursuant to that defense, he placed in question the files of 33 registrants of his local board, all of whom were older than he and had not been ordered to report for induction. On appeal, eleven of these files remain in question, the government having conceded that one of the original 33 was improperly bypassed and Smith having conceded that the remainder were properly processed by the local board.

Under our decision in United States v. Baker, 416 F.2d 202, 204 (9th Cir. 1969), "the order of call affects registrants' substantial rights." Having thus established that the propriety of the order of call was sufficiently in question, the burden of proof shifted to the government to prove that Smith was not called out of order. See United States v. Weldon, 422 F.2d 800 (9th Cir. 1969), cert. denied 398 U.S. 941, 90 S.Ct. 1855, 26 L.Ed.2d 275 (1970); Rusk v. United States, 419 F.2d 133, 136 (9th Cir. 1969). To meet this burden, the government called Mary Spearman, Executive Secretary of Smith's local board, who explained why each of the eleven was not called ahead of Smith.

This case arose prior to the "lottery" regulations, 32 C.F.R. § 1631.7 (Jan. 1970). Under the regulations applicable at the time of Smith's order, the local board was directed to call (after volunteers), the oldest registrants who were (1) classified I-A, or I-A-O, (2) had been found acceptable for military service and (3) had been mailed a Statement of Acceptability (DD Form 62) at least 21 days prior to the date of induction.

Smith admits that none of the eleven registrants questioned here met all three requirements. All were older than Smith and classified I-A but none had yet been mailed the requisite Statement of Acceptability. Under these facts, the government urges that it has met its burden of proof by establishing that there were no other registrants fully qualified for induction who should have been ordered ahead of Smith. Smith, on the other hand, points to the fact that all eleven were older than he, were classified I-A, and would have been fully qualified had it not been for reasons peculiar to their individual processing by the local board.

We reject the government's position as to the proper standard of review when the order of call defense is raised. To accept it would be to sanction every kind of improper processing at the local board having the effect of delaying the induction of registrants who should be processed ahead of their peers. Local boards are required to deliver a specific number of registrants pursuant to orders from the State Director. Any "advantages" granted to some of its registrants operate to the substantial disadvantage of others. We cannot therefore adopt a rule which would leave the local boards free to perpetrate inequities through improper processing of favored registrants.

A registrant may rely upon improper processing of higher priority registrants in defending a criminal prosecution if he can establish (1) that his local board violated a specific regulation, and (2) that the result was to delay significantly the time when higher priority registrants became fully acceptable for induction.

Applying this standard to Smith, we note at the outset that he was the oldest of five registrants called on April 22. He must therefore show that there were at least four, in addition to the one conceded by the government, who were improperly bypassed in order to establish the...