United States v. Wood

Decision Date10 November 1969
Docket NumberNo. 27153.,27153.
Citation413 F.2d 437
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kenneth WOOD, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Clay C. Long, Atlanta, Ga., for appellant.

Charles L. Goodson, U. S. Atty., Charles B. Lewis, Jr., Asst. U. S. Atty., Allen L. Chancey, Jr., Acting U. S. Atty., Atlanta, Ga., for appellee.

Before COLEMAN and SIMPSON, Circuit Judges, and MEHRTENS, District Judge.

Certiorari Denied November 10, 1969. See 90 S.Ct. 256.

COLEMAN, Circuit Judge:

This appellant was ordered by his Local Selective Service Board to report as a conscientious objector for instructions to proceed to the Kansas City General Hospital and Medical Center for employment in lieu of active military duty and to remain in such employment for twenty-four consecutive months or until released or transferred by proper authority. He did not comply and was indicted for violating 50 Appendix U.S.C. § 462. On a trial to the District Court without a jury he was found guilty and sentenced to a term of eighteen months. He had requested and been denied appointed counsel. We affirmed, 373 F.2d 894 (1967). The Supreme Court remanded the case to the District Court to hold a hearing for the purpose of determining Wood's financial status as affecting his right to court appointed counsel, 389 U.S. 20, 88 S.Ct. 3, 19 L.Ed. 2d 20 (1968); 373 F.2d 894, 387 F.2d 353, 5 Cir., 1968. As result of this hearing, counsel was appointed, with Wood to pay part of the cost.

Upon the second trial, again to the Court without a jury, Wood was again convicted. He was sentenced to the custody of the Attorney General for a period of five years, although the new sentence did make the appellant eligible for parole at any time, 18 U.S.C. § 4208(a) (2). The appellate record is silent as to the reasons which prompted the District Judge to impose a penalty of five years in the second instance as compared to eighteen months on the first.

Under the authority of North Carolina v. Pearce, and Simpson v. Rice, decided by the Supreme Court on June 23, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the enhanced sentence must be vacated and the case remanded to the District Court for resentencing.

On the merits, the conviction must be affirmed.

Woods completed his classification questionnaire on August 1, 1959. He was classified 1-A on June 21, 1960. Notice of this classification was mailed to him but he denied receiving it. No appeal was filed. On August 1, 1959, Wood claimed he was a minister of religion regularly serving in that capacity, and that he had so served as a minister of Jehovah Witnesses since November 5, 1955 (when he was fifteen years of age). He did not file a conscientious objector form at any time prior to September 16, 1963. When he filed his questionnaire in 1959 Wood reported thereon that he was then employed forty hours a week in private industry and, except for unemployment in 1962 and 1963 this continued to be true. He was so employed on September 16, 1963.

On May 8, 1963, Wood was given a pre-induction physical examination and found qualified.

On September 9, 1963, Wood was ordered to report for induction on September 25, 1963.

On September 16, 1963, he appeared before the Local Board and stated that he was conscientiously opposed to military service. When asked why he had waited so long to assert it he replied, in effect, that he had been relying on his ministerial status. This was obviously incorrect for he had been given a pre-induction physical...

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5 cases
  • Dearinger v. United States, 71-2806.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 1, 1972
    ...1969); United States v. Gross, 416 F.2d 1205 (8th Cir. 1969); United States v. King, 415 F.2d 737 (6th Cir. 1969); and United States v. Wood, 413 F.2d 437 (5th Cir. 1969). 1 See n. 8 of the majority 1a In fact, Dearinger had no prior criminal record. He had had some juvenile proceedings aga......
  • James v. Copinger
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 20, 1971
    ...(1969); United States v. Gross, 416 F.2d 1205 (8th Cir. 1969); United States v. King, 415 F.2d 737 (6th Cir. 1969); United States v. Wood, 413 F.2d 437 (5th Cir. 1969); Pinkard v. Neil, 311 F.Supp. 711 (M.D.Tenn.1970); Torrance v. Henry, 304 F.Supp. 725 (E.D.N.C.1969). We are in accord. But......
  • Allen v. Henderson, 29110.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 3, 1970
    ...those constitutional considerations having to do with imposing a more severe sentence upon reconviction. See, however, United States v. Wood, 5 Cir., 1969, 413 F.2d 437. ...
  • Henderson v. United States, 30786 Summary Calendar.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 13, 1971
    ...articulated in North Carolina v. Pearce, supra. This principle, which was accorded retroactive effect by this Court in United States v. Wood, 5th Cir. 1969, 413 F.2d 437,1 requires that "* * * whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons fo......
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