Gene Woo v. United States

350 F.2d 992 Gene WOO, Appellant, v. UNITED STATES of America, Appellee. No. 19354. United States Court of Appeals Ninth Circuit. Sept. 27, 1965. 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. BARNES, Circuit Judge. 1 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. 2 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…

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 *993 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…

(dissenting) :

In order to convict Gene Woo of wil-fully failing to report for induction into the armed forces, it was necessary for the United States to establish, as alleged in the indictment, that he had theretofore been duly classified in Class I-A. Woo defended on the ground that he was not duly so classified. He asserted, in effect, that the facts alleged in each of his three conscientious objector forms established, prima facie, that he was entitled to a different classification, and that these asserted facts are not countered by any evidence in the record.

Insofar as this defense constitutes an attack upon the order of the local board, entered May 1, 1961, and subsequent orders, classifying him as I-A, it is an unavailable defense, since Woo did not administratively appeal from those orders. See Greiff v. United States, 9 Cir., 348 F.2d 914 , decided July 21, 1965; Badger v. United States, 322 F.2d 902, 906 (9th Cir. 1963).

But Woo’s second and third conscientious objector forms were also, in effect, written requests, made pursuant to 32 C.F.R. § 1625.4 , to reopen and consider anew the registrant’s classification. They were so treated by the local board.

Where such a…