United States v. Jon Mardis Pennington

Pennington was declared a delinquent and ordered to report for induction. He refused to be inducted, and was tried and convicted. The subsequent decision in Gutknecht v. United States, 396 U.S. 295 , 90 S.Ct. 506 , 24 L.Ed.2d 532 (1970), held the delinquency regulations unlawful.

Whether a registrant is prejudiced by a declaration of delinquency depends upon whether the registrant’s delinquency status accelerated his order of induction. On appeal, therefore, a case tried prior to Gutknecht presents three possibilities. (1) The record may show that the induction order was accelerated. If so, reversal would be required. United States v. Browning, 423 F.2d 1201 (9th Cir. 1970); Gregory v. United States, 422 F.2d 1323 (9th Cir. 1970). (2) On the other hand, the record may show that the induction order was not accelerated. If so, affirmance would be proper. (3) The third possibility is that the record may fail to show either that the induction order was accelerated or that it was not.

This case falls in the third category. When the record is thus inconclusive, a line of cases in this circuit has assumed acceleration and therefore reversed. United States v. Townsend, 431 F.2d 702 (9th…