United States v. Christian Winslow Hayden

445 F.2d 1365 UNITED STATES of America, Appellee, v. Christian Winslow HAYDEN, Appellant. No. 25803. United States Court of Appeals, Ninth Circuit. April 9, 1971, Rehearing Denied July 26, 1971. Hugh R. Manes (argued), of Stewart, Finkel & Manes, Los Angeles, Cal., for appellant. David Curnow (argued), Richard H. Kirschner, Richard L. Jaeger, Asst. U.S. Attys., David R. Nissen, Chief, Crim. Div., Robert L. Meyer, U.S. Atty., Los Angeles, Cal., for appellee. Before BARNES, JERTBERG, and ELY, Circuit Judges. ELY, Circuit Judge: 1 Hayden appeals from his conviction on two counts of an indictment charging him with having violated 12 of the Universal Military Training and Service Act, 50 U.S.C. App. 462(a). The separate offenses charged were failure to report for a pre-induction physical examination and failure to report for induction. The judgments must be reversed. 2 The facts are not in dispute. However, we think it desirable to review, in some detail, the unusual background of the prosecutions. Hayden urged his conscientious objector beliefs on his Local Board from the time he first registered in 1966. His Board consistently rejected his claims. His first I-A classification was…

Hayden appeals from his conviction on two counts of an indictment charging him with having violated § 12 of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a). The separate offenses charged were failure to report for a pre-induction physical examination and failure to report for induction. The judgments must be reversed.

The facts are not in dispute. However, we think it desirable to review, in some detail, the unusual background of the prosecutions. Hayden urged his conscientious objector beliefs on his Local Board from the time he first registered in 1966. His Board consistently rejected his claims. His first I-A classification was issued April 4, 1967, despite the Board’s failure previously to supply Hayden with a conscientious objector questionnaire (SSS Form 150), a duty imposed upon the Board by regulation. 32 C.F.R. § 1621 .II. 1 Thus, it was necessary for Hayden to request that his classification be reopened in or *1368 der to obtain the opportunity to detail his conscientious objection to war. Upon its receipt of the completed questionnaire and supportive documents, the Board again, on July 11, 1967, classified Hayden I-A. A month later, Hayden made…

(concurring in part and dissenting in part.)

I am in complete agreement with the statement in the majority opinion that:

Therefore, I concur in the majority opinion reversing appellant’s judgment of conviction for his failure to report for induction.

However, I must part company with the majority in its reasoning and action in reversing the judgment of conviction for failure to report for a preinduction physical examination.

The following is summarized from the majority opinion:

It appears from the foregoing summary of the record that throughout the history of this litigation appellant’s classification by the Board and the Appeal Board was I-A. No appeal was taken by appellant from the last order of the Board classifying him as I-A. He failed completely to exhaust his remedies within the Selective Service System.

Contrary to the view taken by the majority, I believe the decision in United States v. Zmuda, 423 F.2d 757 (3d Cir.), cert. denied, 398 U.S. 960 , 90 S.Ct. 2176 , 26 L.Ed.2d 545 (1970), from which a quotation appears in the majority opinion, to be convincingly persuasive that the majority erred in reversing appellant’s judgment of conviction for failure to appear…

The points made in the Petition for Rehearing, with one exception, are frivolous. Indeed, the merits of the majority opinion are barely discussed. The *1379 exception relates to Hayden’s alleged failure to exhaust his administrative remedies and requires us to consider the effect of McGee v. United States, 402 U.S. 479 , 91 S.Ct. 1565 , 29 L.Ed.2d 47 (1971), decided after the issuance of our opinion. It must be concluded that our opinion and McGee are easily reconcilable.

McGee was a registrant whose 1-0 claim was rejected by his local board but who did nothing further about it. He neither requested a personal appearance nor an appeal. Thus, when he urged mis-classification as a defense to a charge following his subsequent failure to report for induction, he was asking the Court to assume a heavy burden. If he had prevailed, any registrant could then submit a carefully drawn Form 150, deliberately fail to pursue the claim through available administrative avenues, and yet nevertheless force the court to interpret a record empty of facts save for the registrant’s own self-serving declarations.

Echoing McKart, however, McGee warns that the ordinary exhaustion requirement “is not to…

(dissenting) :

I respectfully dissent from the Order of the majority in denying appellee’s petition for rehearing and rejecting the suggestion for rehearing en banc.

Appellee does not seek rehearing with respect to the reversal by this Court of appellant’s judgment of conviction for failure to report for induction. I joined the majority in such order of reversal.

Appellee’s petition seeks rehearing only in .respect to the order of this Court reversing appellant’s conviction for failure to report for physical examination. I filed a dissenting opinion stating that in my opinion the judgment of conviction should be affirmed because of appellant’s failure to exhaust his administrative remedies. I adhere to the views expressed therein and will not repeat them here.

The petition for rehearing should be granted and such rehearing should be en banc.

I also dissent from the views expressed in the Supplemental Opinion of the majority filed with its Order denying the petition for rehearing.

In its original opinion the majority reversed the judgment convicting appellant for failure to report for preinduction physical examination because, under a prior indictment charging only that…