United States v. Watson

• Decision Date: 01 June 1971
• Docket Number: No. 20399.,20399.
• Citation: 442 F.2d 1273
• Parties: UNITED STATES of America, Appellee, v. Richard Leslie WATSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

442 F.2d 1273 (1971)

UNITED STATES of America, Appellee, v. Richard Leslie WATSON, Appellant.

No. 20399.

United States Court of Appeals, Eighth Circuit.

May 11, 1971.

Rehearing Denied May 27, 1971.

As Modified June 1, 1971.

COPYRIGHT MATERIAL OMITTED

Louis Gilden, St. Louis, Mo., for appellant.

Daniel Bartlett, Jr., U. S. Atty., Peter T. Straub, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before MATTHES, Chief Judge, Mr. Justice CLARK,^* and BRIGHT, Circuit Judge.

MATTHES, Chief Judge.

Appellant was tried before the court without a jury on July 10, 1969 and was found guilty of failing to comply with an order of the local Selective Service Board to report for and submit to induction in the armed forces on January 16, 1969, in violation of Section 462, Title 50, App., United States Code. The district court's opinion is reported at 314 F.Supp. 483 (E.D.Mo.1970).

In this in forma pauperis appeal, the issues presented are focused upon asserted invalid procedures by the local board. We affirm.

Appellant was classified I-A by his local board on March 8, 1967 and retained that classification at all times pertinent to this appeal. On August 7, 1968, an Order to Report for Induction (SSS Form 252) was placed in the mails ordering appellant to report on September 20, 1968. A medical report, indicating that appellant's wife was expecting a baby in mid-December, 1968, was filed by appellant with the local board on September 17, 1968, at which time the clerk of the board informed appellant that it had been filed too late since his induction notice had already been mailed. On the same day appellant requested and received SSS Form 150 (conscientious objection).

On the morning of September 20, 1968, the appellant reported as ordered and submitted to the induction procedures up to the point of taking the symbolic step forward. That ceremony was to take place after the noon lunch hour. Appellant filed his SSS Form 150 with the board during the lunch period and then reported back to the induction center but refused to submit to induction. Following the usual procedure, he was removed from the ceremony room, informed of the penalties for refusing induction, and returned to the room where he again refused to step forward. He was then (apparently) permitted to leave the induction center.

After receiving appellant's claim of conscientious objection and notification of his refusal to submit to induction, the local board, pursuant to LBM 14, paragraph 9,¹ forwarded appellant's cover sheet to the State Director for review and a determination as to whether appellant should be reported to the United States Attorney for prosecution.

On October 9, 1968, the State Director wrote the local board stating that under the provisions of paragraph 9 he recommended to the local board that:

"* * * on the occasion of their next meeting they review and consider the information submitted by the registrant with respect to his claim of conscientious objection, and to thereafter reopen and consider the registrant\'s classification anew if at the time of the meeting it is determined that there has been a change in the registrant\'s circumstance over which he had no control and which would justify a change in the registrant\'s classification from Class I-A to Class I-O. The classification will not be reopened if it is the determination of the Board that the evidence would not justify the change in the registrant\'s classification; in this latter event it would then be appropriate to proceed with the submission of Delinquent Registrant Report, SSS Form 301.

"The following thought is offered as a possible assistance to the local board and/or the registrant; prior to the next regularly scheduled meeting, the Board might wish to call for the registrant to be available for an interview somewhat in the nature of the consideration mentioned in Paragraph 3(b) of LBM No. 41."² Footnote added

The United States Attorney, who had received a copy of the State Director's letter, wrote the Director on November 6, 1968, recommending that the induction of appellant be postponed, that he be given a courtesy hearing, and that the local board should decline to reopen appellant's classification if the board determined that appellant's views matured prior to the order to report for induction. The State Director then wrote the local board stating that it should pay attention to the United States Attorney's letter and use it as a guide in their consideration of the matter. Although copies of those letters were placed in his selective service file, copies were not sent to appellant.

The State Director, by letter of November 19, 1968, authorized the local board to postpone the induction until the matters in the United States Attorney's letter had been resolved. On November 20, a postponement SSS Form 264 was sent to appellant stating that his induction was postponed "until further notice." On the same date, the local board sent a letter inviting appellant to appear before it on December 11, 1968 at about 2:45 p. m.

Appellant appeared on that date. The record shows that he was informed that the meeting was only a courtesy hearing, that appellant was questioned as to when he first believed that he was a conscientious objector, that he stated it was in July of 1968 when he was introduced to the minister of the World Wide Church of God, and that the board decided not to reopen the classification. On December 20, appellant was notified by letter from the local board that the postponement was cancelled and that he was "reordered to report for induction on 16 January 1969."

Following denial of his request for a personal appearance, appellant reported for induction as ordered on January 16, and again refused to take the symbolic step forward. This prosecution was initiated by filing an indictment on March 20, 1969.

Before considering the contentions advanced by appellant we engage in a discussion of principles which are relevant to the questions presented.

Decisions of local boards are final even though erroneous if they are made in conformity with the regulations. It is not for the courts to sit as super draft boards substituting their judgment on the weight of the evidence for that of the designated agencies. The scope of review is narrow, permitting the reviewing court to overturn a draft classification only if it has no basis in fact or if the local board's action has the effect of denying appellant basic procedural fairness. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Dickinson v. United States, 346 U.S. 389, 74 S.C. 152, 98 L.Ed. 132 (1953); Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Vaughn v. United States, 404 F.2d 586 (8th Cir. 1968) vacated on other grounds, Morico v. United States, 399 U.S. 526, 90 S.Ct. 2230, 26 L.Ed.2d 776 (1970); United States v. Freeman, 388 F.2d 246 (7th Cir. 1967). Neither will the decisions of the local boards be disturbed in all cases where procedural error is found in the induction process. As this court stated in United States v. Chaudron, 425 F.2d 605, 608 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 93, 27 L.Ed.2d 89 (1970), "courts have divided the waters of procedural irregularity: Those causing substantial prejudice to flow to the registrant are deemed to mandate sustainment of his defense. * * * but those less murky and not rising to the level of substantial prejudice are allowed to trickle off harmlessly." See also Oshatz v. United States, 404 F.2d 9, 12 (9th Cir. 1968). The registrant asserting prejudice has the burden of proving it. United States v. Chaudron, supra; Fore v. United States, 395 F.2d 548, 554 (10th Cir. 1968).

I. POSTPONEMENT

Appellant contends that inasmuch as he reported for induction and refused to submit or step forward on September 20, 1968, the force of the induction order was spent and the State Director was powerless to postpone induction, but was required to either turn the case over for prosecution or reopen the classification. From this premise the argument is made that appellant could not legally be prosecuted for failure to submit to induction on January 16, 1969. We disagree.

Appellant relies on 32 C.F.R. § 1632.2(a) which in pertinent part provides:

"* * * the local board may, after the Order to Report for Induction (SSS Form No. 252) has been issued, postpone the time when such registrant shall so report for a period not to exceed 60 days from the date of such postponement, subject, however, to one further postponement for a period not to exceed 60 days; And provided also, That the Director of Selective Service or any State Director of Selective Service (as to registrants registered within his State) many, for a good cause, at any time prior to the issuance of an Order to Report for Induction (SSS Form No. 252) postpone the issuance of such order until such time as he may deem advisable, or the Director of Selective Service or any State Director of Selective Service (as to registrants registered in his State) may, for good cause, at any time after the issuance of an Order to Report for Induction (SSS Form No. 252), postpone the induction of a registrant until such time as he may deem advisable * *." (Emphasis supplied)

The plain language of the regulation clearly does not support the appellant's contentions. We agree with the district court's observation that postponement subsequent to the event postponed may present a problem in semantic logic. 314 F.Supp. at 490. However, under the circumstances of this case, where the actions of the board were the result of appellant filing SSS Form 150 shortly before the completion of the induction process, we conclude the State Director was warranted under the powers granted by 32 C.F.R. § 1632.2(a) in issuing a postponement to permit consideration of the conscientious objector claim. The appellant has not demonstrated that he was prejudiced by this action of the State Director.

App...