United States v. Thomas Stewart Atherton

430 F.2d 741 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Stewart ATHERTON, Defendant-Appellant. No. 23406. United States Court of Appeals, Ninth Circuit. Sept. 10, 1970. J. B. Tietz (argued), Los Angeles, Cal., for defendant-appellant. T. E. Orliss (argued), Ronald S. Morrow, Asst. U.S. Attys., Wm. Matthew Byrne, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before HAMLEY, BROWNING and ELY, Circuit Judges. BROWNING, Circuit Judge. 1 Defendant appeals from his conviction for refusing induction into the armed forces. 50 U.S.C. App. 462. He contends that his conscientious objector claim was rejected because of a misinterpretation of 50 U.S.C. App. 456(j), and that his I-A classification is without basis in fact. 2 The minutes of the local board suggest three possible bases for the rejection of defendant's conscientious objector claim. 3 First, the local board may have relied upon 32 C.F.R. 1625.2, which prohibits the reopening of a registrant's classification after the mailing of an order to report for induction unless the board first specifically finds that there was a change in the registrant's status after the order to report was mailed. 1 4 Here, however, the…

Defendant appeals from his conviction for refusing induction into the armed forces. 50 U.S.C. App. § 462. He contends that his conscientious objector claim was rejected because of a misinterpretation of 50 U.S.C. App. § 456 (j), and that his I-A classification is without basis in fact.

The minutes of the local board suggest three possible bases for the rejection of defendant’s conscientious objector claim.

First, the local board may have relied upon 32 C.F.R. § 1625.2 , which prohibits the reopening of a registrant’s classification after the mailing of an order to *743 report for induction unless the board first specifically finds that there was a change in the registrant’s status after the order to report was mailed.

Here, however, the local board issued two orders to defendant to report for induction. The first was cancelled by the board when defendant filed his Special Form for Conscientious Objectors (SSS Form No. 150). The second order, upon which this prosecution rests, postdated the filing of defendant’s Form 150; and therefore the local board could not properly have applied 32 C.F.R. § 1625.2 to defendant’s claim.

The second and third bases for the rejection of…

(dissenting):

I respectfully dissent. This appeal has had a long and troubled history, and I now file the sixth opinion to be issued in the case. Indeed, the vacillation of the majority in striving to enunciate a palatable rationale for its result reinforces my conviction that the judgment should be affirmed.

The majority filed its first opinion on October 9, 1969, reversing Atherton’s conviction because the appeal board failed specifically to recite a finding that Atherton’s belated protestations of conscientious objector beliefs were insincere. I dissented from that opinion also. Thereafter the Government, “with the approval of the Solicitor General of the United States,” filed a Petition for Rehearing En Banc, vigorously urging that the majority’s original opinion conflicted with numerous precedents, including prior opinions of our own court. The majority then withdrew its original opinion and issued, on April 1, 1970, a substitute that I found equally unacceptable. That second opinion, as I saw it, substituted the majority’s judgment for that of the Selective Service authorities on *747 the question of the sincerity of Atherton in the profession of his alleged conscientious…