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United States v. Fry.


decided: March 11, 1953.


Author: Swan

Before SWAN, Chief Judge, and CHASE and CLARK, Circuit Judges.

SWAN, Chief Judge.

This is an appeal from a conviction for refusal to take the necessary one step forward constituting induction into the armed forces. The appellant was tried without a jury and at the conclusion of the evidence moved for a judgment of acquittal, which the court denied in an opinion reported in D.C., 103 F.Supp. 905. He was sentenced to three years imprisonment and thereafter was enlarged on bail. Although several questions have been argued upon the appeal the only one we regard as necessary for determination is the contention that the defendant was deprived of procedural rights by the failure of the local draft board to mail him a classification notice as required by the Selective Service Regulations.

There is no dispute as to the facts. The appellant is a British national who emigrated to the United States in 1947. He registered with his local draft board and duly filed a classification questionnaire, in which he claimed exemption from military service as an alien, stated that he was a student preparing for the ministry under the direction of the Watchtower Bible and Tract Society of Jehovah's Witnesses, and requested that he be furnished Form 150 for conscientious objectors. On November 1, 1948 the local board gave him a IV-C classification and so advised him by mailing Form 110. Thereafter it sent him Form 150 for conscientious objectors. He completed this form and returned it, and on April 22, 1949, the board reclassified him as I-A-O, a conscientious objector classification which made him liable for non-combatant service. Form 110 notifying him of this change of classification was mailed to him. He then asked for a personal hearing and appeared before the board on June 8, 1949. Up to this point no procedural irregularity had occurred. After his personal appearance, the board overruled his claim for exemption either as a minister or divinity student or as a conscientious objector, and again classified him in I-A-O. But the board failed to inform him of its action either orally or by mailing Form 110 as required by the Regulations.*fn1 Without giving him such notice the local board sent his file to the appeal board, including therein what the appellant contends is an inadequate summary of his testimony before the local board.*fn2 Had he received a Form 110 notice, he could have attached to his appeal a statement specifying the matters in which he believed the local board erred.*fn3 On the basis of the file and without the benefit of a written statement by the registrant, the appeal board decided against his claims and forwarded the file to the Department of Justice for its advisory recommendation in accordance with the Regulations, 32 C.F.R.§ 1626.25. The hearing officer of the Department of Justice recommended that the appellant be reclassified in I-A. The appeal board adopted this recommendation. The registrant appealed to the national selective service appeal board, but without success. Thereafter he was ordered to report for induction, and refused to take the one step forward which would constitute his induction.

In the district court the Government contended that the failure of the local board to notify the registrant of the classification given after his personal appearance on June 8th did not substantially prejudice him because he appeared on August 31, 1949 before the hearing officer of the Department of Justice and was permitted to submit a certificate showing that he had been duly ordained as a Jehovah's Witness minister, and the appeal board considered this new evidence before making its final determination on February 7, 1950. The trial judge thought that the case was more like Martin v. United States, 4 Cir., 190 F.2d 775, certiorari denied 342 U.S. 872, 72 S. Ct. 115, 96 L. Ed. 656, than it was like United States v. Stiles, 3 Cir., 169 F.2d 455, and ruled that the irregularity in the procedure was harmless. With this ruling we cannot agree. The Martin case is not controlling because there the registrant had actual notice of the board's action before he appealed. In the Stiles case, like the case at bar, he did not have such notice.*fn4 For the reasons stated in the Stiles opinion we think the failure to give the required notice was not a mere formal defect but deprived the registrant of a substantial right.*fn5 Accordingly the judgment is reversed and a judgment of acquittal is directed.

On Petition of Appellee for Rehearing.

Per Curiam.

By way of answer to the Government's argument based on Bowles v. United States, 319 U.S. 33, 63 S. Ct. 912, 87 L. Ed. 1194, counsel for appellant relies chiefly on the Supreme Court's subsequent decision in Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567. That case permitted the defendant in a criminal prosecution such as this to attack the determination of a local draft board on the ground that it exceeded its jurisdiction even though the Selective Service Act, 50 U.S.C.A.Appendix, § 310(a)(2), declares local board decisions to be final except for administrative appeal. Counsel argues persuasively that the same limitation on the word "final" should be applied to the finality accorded presidential determinations by 50 U.S.C.A.Appendix, § 460(b)(3). The Estep opinion does not even mention the Bowles care. If there be any inconsistency between them, we shall, until otherwise instructed, follow the later authority. The petition for rehearing is denied.

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