United States v. Timmins, 72-1351.

• Decision Date: 07 July 1972
• Docket Number: No. 72-1351.,72-1351.
• Citation: 464 F.2d 385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry La Verne TIMMINS, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.2d 385 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Harry La Verne TIMMINS, II, Defendant-Appellant.

No. 72-1351.

United States Court of Appeals, Ninth Circuit.

July 7, 1972.

Francis Heisler (argued), of Heisler & Stewart, Carmel, Cal., for defendant-appellant.

Robert E. Carey, Jr., Asst. U. S. Atty. (argued), John Link, Chester G. Moore, III, Asst. U. S. Attys., James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before HAMLEY and BROWNING, Circuit Judges, and FERGUSON,^* District Judge.

FERGUSON, District Judge:

Appellant appeals from his conviction for refusing to submit to induction into the Armed Forces. We reverse.

On August 11, 1969, appellant registered with his local board and thereafter returned his completed Classification Questionnaire, Form 100, wherein he signed Series VIII claiming to be a conscientious objector. On October 24, 1969, Form 150, Special Form for Conscientious Objector, was mailed to him. He wrote the board on November 4, 1969, that he could not fill out the form because he had not had much "formal religious training", but nevertheless claimed to be a conscientious objector on moral and religious grounds. On November 25, 1969, the board wrote appellant, stating succinctly, "the local board requests that you return Form 150 completed or not immediately". This was not done. Thereafter, on February 2, 1970, appellant was classified I-A and was so notified.

On November 2, 1970, and again on November 4th, the local board received letters from appellant wherein he requested the "new" conscientious objector forms and indicated his willingness to fill them out and return them. On November 6, 1970, the board sent appellant Form 150 and stated that it was "the only Form For Conscientious Objectors that we have". On November 27, 1970, the local board received the uncompleted Form 150 back from appellant with a letter stating that this was the wrong form for his beliefs. "I need the moral form not the religious training one. So I'm sending it back to you in hopes you'll send me the right form." On November 30, 1970, the local board again tersely informed appellant that Form 150 was the only form Selective Service provided for filing a conscientious objector claim.

On December 8, 1970, the local board reviewed appellant's file and determined not to reopen the classification. Appellant was ordered to appear for induction on January 25, 1971. He so reported, but refused to submit to induction.

The testimony adduced at trial indicated that when appellant requested the "new" conscientious objector forms and the "moral form" he was under the impression, based upon newspaper articles, that there had been a change in the law which permitted moral beliefs to be considered for conscientious objector status. These newspaper articles were accounts of the Supreme Court decision in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), wherein the Court held that persons whose opposition to war was based upon moral or ethical beliefs could qualify as conscientious objectors.

This circuit has recognized that unconscionably misleading conduct by the local board may be raised as a valid defense in a criminal prosecution for refusal to submit to induction. United States v. Lansing, 424 F.2d 225 (9th Cir. 1970). To establish such a defense, the defendant must show that the local board conveyed false or misleading information to him and that he was in fact misled by the information or conduct of the board. Further, he must show that his reliance on the misleading information was reasonable in the sense that he was entitled to rely upon the information without making further inquiries of the board. United States v. Lowell, 437 F.2d 906 (9th Cir. 1971); United States v. Wroblewski, 432 F.2d 422 (9th Cir. 1970), cert. denied, 400 U.S. 997, 91 S.Ct. 473, 27 L.Ed.2d 447; United States v. Lansing, supra.

In this case there can be no doubt that appellant was misled by his local board. The board was fully aware that appellant had mistakenly interpreted Form 150 to require formal religious training as a prerequisite to a valid claim of conscientious objection, yet the board failed to take any steps whatever to help him correct his error. The terms "misleading conduct" and "misleading information", as used by this court in the context of selective service cases, are not limited in application to instances where a local board affirmatively conveys false or incorrect information. The terms are also meant to refer to circumstances where the local board, knowing full well that a registrant holds an erroneous impression of his rights or obligations in the selective service system, nevertheless fails to make any effort to correct the registrant's error or assist him in any way.

The classification of registrants is not an adversary proceeding between the local board and the registrant. United States v. Greene, 220 F.2d 792 (7th Cir. 1955). The registrant is not an antagonist, but rather is a young man dealing with his own government without the aid of counsel in an area of the law which can be extremely technical. He must be able to rely upon the local board to deal with him fairly and to offer him assistance when necessary. The selective service system can operate fairly only when the local board, before classifying a registrant, is fully advised of the relevant facts relating to the registrant's circumstances. The board must consider all evidence in the registrant's file. 32 C.F.R. § 1623.1(b); Mizrahi v. United States, 409 F.2d 1219 (9th Cir. 1969); United States v. Turner, 421 F.2d 1251 (3rd Cir. 1970). While the registrant himself necessarily bears primary responsibility for keeping the local board informed of his status, the local board has an obligation to insure that its determinations are based upon complete information, and that all of the registrant's rights are fully respected. To this end, the local board has a crucial responsibility to assist a registrant who shows himself lacking in ability to advance his claims and maintain his rights. United States v. Turner, supra; see also, United States v. Burns, 431 F.2d 1070 (10th Cir. 1970); United States v. Davis, 413 F.2d 148 (4th Cir. 1969); Powers v. Powers, 400 F.2d 438 (5th Cir. 1968).

In this case, the local board failed to meet that responsibility. On two separate occasions appellant wrote to his board that, while he believed himself to be a conscientious objector on...