Woo v. United States
Decision Date | 27 September 1965 |
Docket Number | No. 19354.,19354. |
Citation | 350 F.2d 992 |
Parties | Gene WOO, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Clark A. Barrett, San Francisco, Cal., for appellant.
Cecil F. Poole, U. S. Atty., San Francisco, Cal., Beatrice Rosenberg, Julia P. Cooper, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before BARNES, HAMLEY and KOELSCH, Circuit Judges.
Appellant was charged and adjudged guilty in the district court with failing to submit himself for induction, and to be inducted, after being classified as Class I-A and being ordered inducted under the terms of the "Universal Military Training and Service Act." (50 U.S.C.App. § 462(a).) Jurisdiction below rested upon 18 U.S.C. § 3231. It rests here upon 28 U.S.C. §§ 1291 and 1294.
When appellant first registered for selective service, he claimed no exemption as a minister or student preparing for the ministry. He first asserted a claim as a conscientious objector after he was notified of his I-A classification. Three years later, having requested a conscientious objector form (Form SSS 150), but never having returned it, he failed to appeal or request a personal appearance before the Board (although advised by the Board he could do either) after notice of his I-A reclassification.
He later requested a second conscientious objector's form and returned it with certain information.1 He again was classified as I-A by the Board, was notified of it and failed to appeal or request a personal appearance. He was then ordered to report for a physical examination, did so, and was accepted for military service. He then again requested an SSS Form 150, and returned it with certain information.2
We note that of the twelve factual statements in the second Form 150 filed February 23, 1962, nine were the same as, or very similar to, nine facts alleged in the first Form 150 filed with the Board August 14, 1961. The additional facts added by the second form were:
(1) That appellant had rejected four opportunities to work for highway agencies;
(2) that appellant had changed his "hope" of going back to Hong Kong to marry and to buy a house;
(3) that the religious sect of appellant's parents was Buddhism.
Appellant also elaborated somewhat upon his belief to say he desired "to gain more knowledge of Jehovah, to become perfect, and thus to be accepted in the new world."
The government brief points out several matters that cast doubt on the inferences appellant requests us to draw as to his sincerity, and demonstrates an absolute failure on his part to exhaust his administrative remedies, and a determination to completely disregard them.
Appellant testified at trial that he still had the first Form SSS 150 which he had requested. Asked why he requested a second form, he said, He recalled receiving a card in May 1961 advising him of his I-A classification, but said he did not understand what "appeal" meant until two days later and that he still did not know how to write a letter and put the word "appeal" in a sentence. He admitted that, prior to 1961, when he filled out the second conscientious objector form, he had had one and one-half years of college (using English textbooks) in the San Francisco area.
Appellant testified that he did not appeal the September 1961 classification because he thought it of no use in that he did not receive the notification until more than ten days after he was officially classified. He testified that when he reported for physical examination he had no conversation with anyone concerning his objections to military service. He never went to the draft board or talked to anyone in selective service about appealing his classification.
(In connection with the question of appellant's sincerity, as it relates to the validity of the local board's classification decision, see Judge Duniway's opinion in Greiff v. United States, 9 Cir., decided July 21, 1965, 348 F.2d 914, and particularly the cases cited in the last paragraph.)
The Selective Service Board then reviewed appellant's case, and voted not to reopen the question of classification.
Two questions arise under these facts: (1) is appellant entitled as a matter of right to have his case reopened; or (2) is appellant entitled to assert the defense of "wrongful classification" at his trial to justify his previous refusal to be inducted?
We think a portion of the opinion of the court below ably discusses the appellant's issues. There it was said:
The district judge then states:
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...Edwards v. United States, 395 F.2d 453 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968); Woo v. United States, 350 F.2d 992 (9th Cir. 1965); Greiff v. United States, 348 F.2d 914 (9th Cir. 1965); Badger v. United States, 322 F.2d 902 (9th Cir. 1963), cert. denied,......
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