United States v. Richard Carl Smith

443 F.2d 1278 UNITED STATES of America, Plaintiff-Appellee, v. Richard Carl SMITH, Defendant-Appellant. No. 71-1279. United States Court of Appeals, Ninth Circuit. June 7, 1971. Bert E. Green, San Francisco, Cal., for defendant-appellant. James L. Browning, Jr., U. S. Atty., Jerry Cimmet, Asst. U. S. Atty., F. Steele Langford, Chief, Crim. Div., San Francisco, Cal., for plaintiff-appellee. Before HAMLIN and WRIGHT, Circuit Judges, and GOODWIN, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 Richard Carl Smith appeals his conviction for refusing induction into the Armed Services in violation of 50 U.S.C. App. § 462(a). We affirm. 2 On April 22, 1969, Smith's local board sent him an order to report for induction on May 14, 1969. He reported but refused to submit for induction. 3 Smith's principal contention on appeal is that the order to report was invalid because it was issued in violation of the order of call regulations, 32 C.F.R. § 1631.7 . Pursuant to that defense, he placed in question the files of 33 registrants of his local board, all of whom were older than he and had not been ordered to report for induction. On appeal, eleven of these files remain in…

Richard Carl Smith appeals his conviction for refusing induction into the Armed Services in violation of 50 U.S.C. App. § 462(a). We affirm.

On April 22, 1969, Smith’s local board sent him an order to report for induction on May 14, 1969. He reported but refused to submit for induction.

Smith’s principal contention on appeal is that the order to report was invalid because it was issued in violation of the order of call regulations, 32 C.F.R. § 1631.7 . Pursuant to that defense, he placed in question the files of 33 registrants of his local board, all of whom were older than he and had not been ordered to report for induction. On appeal, eleven of these files remain in question, the government having conceded that one of the original 33 was improperly bypassed and Smith having conceded that the remainder were properly processed by the local board.

Under our decision in United States v. Baker, 416 F.2d 202, 204 (9th Cir. 1969), “the order of call affects registrants’ substantial rights.” Having thus established that the propriety of the order of call was sufficiently in question, the burden of proof shifted to the government to prove that Smith was not called out of order. See…

(concurring) :

I concur in the affirmance of appellant’s conviction.

However, I cannot agree that the court should be placed in the role of a super draft board whose duty is to review and second guess all of the admin *1281 istrative decisions of the local board involving extensions of time for filing claims, postponements of induction for various reasons, failure to process registrants expeditiously and other similar actions.

The opinion states “ * * * the government urges that it has met its burden of proof by establishing that there were no other registrants fully qualified for induction who should have been ordered ahead of Smith.”

I would agree with that position absent convincing proof that the board arbitrarily or deliberately acted improperly to delay a registrant’s induction with the intention or knowledge that the other registrants would be adversely affected.