United States v. Stoppelman, No. 7174.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtALDRICH, , WOODBURY, Senior Circuit , and COFFIN, Circuit
Citation406 F.2d 127
PartiesUNITED STATES of America, Appellee, v. David B. STOPPELMAN, Defendant, Appellant.
Decision Date16 January 1969
Docket NumberNo. 7174.

406 F.2d 127 (1969)

UNITED STATES of America, Appellee,
v.
David B. STOPPELMAN, Defendant, Appellant.

No. 7174.

United States Court of Appeals First Circuit.

January 16, 1969.


406 F.2d 128
COPYRIGHT MATERIAL OMITTED
406 F.2d 129
Edward L. Richmond, Boston, Mass., with whom Parsons, Bloom, Richmond & Del Vecchio, Boston, Mass., was on brief, for appellant

Edward F. Harrington, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, WOODBURY*, Senior Circuit Judge, and COFFIN, Circuit Judge.

COFFIN, Circuit Judge.

This appeal from a conviction for refusal to report for induction into the armed forces centers mainly on the question whether or not appellant made a timely written request to his draft board to reopen and reconsider his classification.

Appellant was first classified in 1965 and given a student deferment.1 This was changed to 1-A in March, 1967, the board having no information that appellant was still a student. No appeal was taken and appellant subsequently took his physical examination and was found acceptable for induction.

On October 2, 1967 the board issued an order to appellant, addressed to his home in Newton, Massachusetts, to report for induction on October 30. On the same day appellant, then in California, wrote his parents that he had come to a decision that he "simply cannot co-operate with the machinery for the war and am going to return my draft-card." He asked his parents to obtain the names and addresses of the local board members so he could write to them personally. Shortly after receiving this letter, appellant's father visited the local board clerk, and, deeply concerned, asked what could be done. According to the father's testimony, the clerk replied that nothing could be done there, that the father should mail the notice to appellant and have his case transferred to San Francisco. There was no testimony by the father as to any talk of reopening appellant's classification and the clerk remembered none. There is a conflict in the testimony, appellant's father saying that he read the letter to her and the clerk saying that it had not been read. There was no other alleged conversation relating to names and addresses of the board members. Appellant's father did not leave the letter with the clerk.

Appellant shortly returned home, had consultations with his parents and with two Rabbis, and on October 20, 1967 visited his local board. He handed the clerk a letter and at the same time turned in his Notice of Classification and his Registration Certificate. The letter referred to United States participation in the war in Vietnam as "criminal" and to the Selective Service System as furnishing the "resources for this action and other suppressions of self-determination in the world." It then declared that appellant would not cooperate with the Selective Service System and would accept no classification or deferment "which implies my consent to its right to function."2 Appellant testified that he asked the clerk to bring the letter to the attention of the board. The clerk testified that appellant said

406 F.2d 130
very little, that she did not recall any request to show the letter to members of the board, and that she said, "I hope you know what you are doing, David."

The clerk did not bring the letter to the attention of the board, which in fact had no meeting between that day and the date scheduled for induction, October 30. She called the deputy state director of the selective service system, Colonel Feeney, and informed him of the letter and appellant's return of his draft cards. He instructed her to file the letter and registration forms and, if appellant failed to report for induction on October 30, to notify the United States Attorney of appellant's delinquency. 32 C.F.R. § 1642.41.

Appellant did not report for induction on October 30 and the matter was referred to the United States Attorney. On December 20, 1967, appellant's counsel wrote to the local board, requesting a Special Form for Conscientious Objector (150). This was never issued.

Appellant's major contention is that the local board never held a meeting to decide whether or not it would reopen his 1-A classification. The basic regulation is set forth in the margin.3 Our task is to assess the duty of the local board on the facts disclosed by the record as of October 2, when appellant's father visited the clerk; October 20, when appellant made his visit; and December 20, when counsel requested the conscientious objector form.

The father's visit on October 2 clearly imposed no legal requirement on the clerk. Appellant's letter to his parents, even if the evidence showed conclusively that it was read to the clerk, was not a request for action of any kind. At most it contemplated a future communication to board members. Admittedly, the clerk could have suggested the filing of a form 150 and an effort to secure reopening of appellant's classification. But this is not to say that she was required to intervene with a registrant who had supposedly made up his mind to turn in his draft cards.

We have more difficulty with appellant's letter of October 20. It was a deliberate communication of his philosophy and intended action which, it seems to us in view of the serious consequences to the registrant, might well have been brought to the attention of board members. Some thoughtful probing of appellant's views might either have caused appellant to change them or to change his intended course of conduct by seeking reclassification as a Conscientious Objector.4 If the board were convinced, the subsequent course of events would have been avoided. The localized emphasis of the Selective Service System ought to foster such efforts to avoid the inexorability of fate stemming from premature judgments based on misunderstanding of regulations which must seem incredibly complex to the layman.

We would say that clerks file such communications without calling them to the board members' attention at considerable risk to the validity of subsequent proceedings. Appellant is quite right in pointing out that unilateral prior determination by a clerk that a communication

406 F.2d 131
is not a written request for classification reopening could effectively deprive a board of its responsibility to use its judgment.5 In this case, however, the letter was all too clear that no reopening of classification was sought but that complete rejection of the system was the only course consistent with appellant's stated views. This was corroborated in the most convincing way by appellant's act of turning in his Registration Certificate and Notice of Classification.6 To say that the clerk had a responsibility in this case to notify the board would in effect be to write a new regulation that all communications evidencing an intent not to comply with board orders and selective service regulations must speedily be brought to the board's attention. Such a detailed and arbitrary judicial mandate would, we think, be unwise. If the problem of non-communication by clerks to boards in proper cases is serious and widespread, it is the executive branch, perhaps prompted by Congressional concern, which should tailor...

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61 practice notes
  • Sellars v. United States, No. 10508.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 27, 1979
    ...Blackburn, 446 F.2d 1089 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972); United States v. Stoppellman, 406 F.2d 127, 133 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969); that some jurors made improper remarks during deliberatio......
  • Murray v. Vaughn, Civ. A. No. 4018.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • June 6, 1969
    ...however, be a relevant factor in the board's determination concerning the sincerity of the objector's claim. United States v. Stoppelman, 406 F.2d 127 at 131 n. 7 (1st Cir. The application of these standards to the instant case reveal a clear violation of the regulatory procedures. Here pla......
  • Government of Virgin Islands v. Gereau, Nos. 74-2019
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 3, 1975
    ...Blackburn, 446 F.2d 1089 (5th Cir. 1971), Cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972); United States v. Stoppelman, 406 F.2d 127 (1st Cir.), Cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 27 See, E. g., United States v. Kohne, 358 F.Supp. 1046 (W.D.Pa.1973), ......
  • Commonwealth v. Heang, SJC–10376.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 15, 2011
    ...call into question a verdict. See Commonwealth v. Martell, 407 Mass. 288, 295, 553 N.E.2d 219 (1990), quoting United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969) (“fact that some jurors have weaker wills than others—or ......
  • Request a trial to view additional results
61 cases
  • Sellars v. United States, No. 10508.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 27, 1979
    ...Blackburn, 446 F.2d 1089 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972); United States v. Stoppellman, 406 F.2d 127, 133 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969); that some jurors made improper remarks during deliberatio......
  • Murray v. Vaughn, Civ. A. No. 4018.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • June 6, 1969
    ...however, be a relevant factor in the board's determination concerning the sincerity of the objector's claim. United States v. Stoppelman, 406 F.2d 127 at 131 n. 7 (1st Cir. The application of these standards to the instant case reveal a clear violation of the regulatory procedures. Here pla......
  • Government of Virgin Islands v. Gereau, Nos. 74-2019
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 3, 1975
    ...Blackburn, 446 F.2d 1089 (5th Cir. 1971), Cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972); United States v. Stoppelman, 406 F.2d 127 (1st Cir.), Cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 27 See, E. g., United States v. Kohne, 358 F.Supp. 1046 (W.D.Pa.1973), ......
  • Commonwealth v. Heang, SJC–10376.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 15, 2011
    ...call into question a verdict. See Commonwealth v. Martell, 407 Mass. 288, 295, 553 N.E.2d 219 (1990), quoting United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969) (“fact that some jurors have weaker wills than others—or ......
  • Request a trial to view additional results

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