Richard Beierle v. United States

400 F.2d 128 Richard BEIERLE, Appellant, v. UNITED STATES of America, Appellee. No. 21408. United States Court of Appeals Ninth Circuit. July 30, 1968. Evelyn Magnes, San Jose, Cal., for appellant. Gerald J. Van Hoomissen, Asst. U. S. Atty., Anchorage, Alaska, for appellee. Before HAMLIN, BROWNING, and ELY, Circuit Judges. ELY, Circuit Judge: 1 Appellant Beierle was found guilty of having refused induction into the armed services in violation of section 12 of the Universal Military Training and Service Act, 50 U.S.C. App. § 462. He was thereafter sentenced to the custody of the Attorney General for a period of two years. This appeal followed. 2 Beierle registered with Local Board No. 2 in Fairbanks, Alaska, on October 5, 1964, in compliance with the Universal Military Training and Service Act. The local board subsequently classified him as available for military service (Class I-A), and he did not appeal from this decision. Thereafter, on January 10, 1966, the local board mailed to Beierle an order which began: 3 "You are hereby ordered for induction into the Armed Forces of the United States, and to report at Room #3, Federal Building, Fairbanks, Alaska at 3:30 p. m. m. […

Appellant Beierle was found guilty of having refused induction into the armed services in violation of section 12 of the Universal Military Training and Service Act, 50 U.S.C. App. § 462. He was thereafter sentenced to the custody of the Attorney General for a period of two years. This appeal followed.

Beierle registered with Local Board No. 2 in Fairbanks, Alaska, on October 5, 1964, in compliance with the Universal Military Training and Service Act. The local board subsequently classified him as available for military service (Class I-A), and he did not appeal from this decision. Thereafter, on January 10, 1966, the local board mailed to Beierle an order which began:

Under the heading “IMPORTANT NOTICE,” the document then listed a number of instructions, among which were the following:

After receiving this order, but at a time prior to January 24, 1966, Beierle appeared in person at the office of his local board. He informed the board's clerk that he anticipated that some problems would arise if he were forwarded to the induction center, which, in his case, v/as located in Anchorage, Alaska, and then to an armed forces’ training post. The record discloses that Beierle was…

(dissenting):

This case is controlled by the holding of this court in Brede v. United States, 396 F.2d 155 (9th Cir. 1968), that a conviction under 50 U.S.C. App. § 462(a) (1964) based upon the violation of an order issued by a clerk cannot stand where the applicable Selective Service System regulations provide that orders of the type involved are to be issued by the local board.

The structure of the regulations relevant to the present case is simple and direct. Upon receiving a call from the State Director for a specified number of men to be delivered for induction, “each local board * * * shall select and order to report for induction the number of men required to fill the call from among its registrants. * * * ” 32 C.F.R. § 1631.7 (1967). The “local board shall prepare for each man an Order to Report for Induction,” specifying the date for reporting. 32 C.F.R. § 1632.1 (1967). “When the local board mails to a registrant an Order to Report for Induction * * * it shall be the duty of the registrant to report for induction at the time and place fixed in such order.” 32 C.F.R. § 1632.14 (a) (1967). If for any reason “a registrant fails to report for induction when it is his duty…