United States v. Stoppelman, 7174.

• Decision Date: 16 January 1969
• Docket Number: No. 7174.,7174.
• Citation: 406 F.2d 127
• Parties: UNITED STATES of America, Appellee, v. David B. STOPPELMAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

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.

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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 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 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 the requirement to the need.⁷

This brings us to the postreporting date request for a Conscientious Objector form. While courts have differed in their willingness to consider conscientious objector claims filed after an order to report but before refusal to report, see n. 7, there is virtual unanimity among the reported decisions in refusing to require boards to recognize post-induction date claims. Such is the clear, if not explicit, rationale of United States v. Stafford, 389 F.2d 215 (2d Cir. 1968); see also United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967); Palmer v. United States, 401 F.2d 226 (9th Cir. 1968); Davis v. United States, 374 F.2d 1 (5th Cir. 1967); Keene v. United States, 266 F.2d 378, 384 (10th Cir. 1959).⁸

Appellant has cited one case, United States v. McNeal, Crim. No. 41993 (N.D.Cal. Sept. 10, 1968),⁹ where the court held inter alia that a request for a form 150, made two days after the date set for induction, ought to have been considered by the board. This holding, however, would seem to have been implicitly overruled by the Ninth Circuit in Palmer v. United States, 401 F.2d 226 (9th Cir. Sept. 25, 1968) where the court held that a registrant had no right to have a post-induction date conscientious objector claim considered. Moreover, the only authority cited for the holding in McNeal was 32 C.F.R. § 1625.14.¹⁰ This regulation speaks only in terms of the effect of a board's action in reopening a classification on noncompliance of its prior orders. It does not speak in terms of a registrant's right to seek a reopening of his classification. We read it as saying merely that if a board, either on its own motion or on a timely request, has decided to reopen a classification, the fact that a registrant has, pending decision, refused to comply with a prior order to report, the registrant shall not be reported to be a delinquent. See 32 C.F.R. § 1642.41. This regulation gives a power to the board, not a post-induction date right to a registrant. So do we also read 32 C.F.R. § 1642.42 which empowers the board, after a delinquent has been reported as such to the United States Attorney for prosecution, to advise the United States Attorney of any action it has taken in the interim on the registrant's classification. Here, too, is a safety valve for the board, not a button which can be pushed at will by the registrant.¹¹

Were the law to permit registrants to remain silent after being ordered to report for induction, to refuse induction (or to fail to appear for induction) and only subsequently by a first request for reopening of their status on grounds of conscientious objection to compel board consideration of the request, a premium would be placed on dilatory...