Opposition Brief — Noonan v. United States

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INDEX

Opinions below

Jurindiction... -- -

Questions presented

Statement .

Argument... -.

Conclusion. .

CITATIONS

Cunes; |

Blades v, United Statea, 407 1, 2x) 1807. . ...

Brown v, United States, 400 I’, 2d 1354. . -.

Ehlert vy. United Statea, No, 120, this Term,

pending on certiorari

Miller vy, United Statea, 388 I’, 2d 073

Mulloy v, United States, 308 U8, 410

Palmer v. United States, 401 ¥, 2d 226. .

Passel v, Laird, 426 1", 2d 1160 aan

Scott v, Commanding Officer, 43) I, 2d 1182.

Straight v. United States, 413 I", 2d 268... -..

United States v. Berger, CA, 9, No, 25190,

decided November 0, 1070 = ;

United States v, Blakely, 424 1°, 2d 1043 _.

United States v. Gearey, 308 I, 2d 144

United States v. Grochowaki, 3 8.8.1. KR, 33880

United States v, Hansen, 314 1, Rupp. 01

United States v. Hart, 483 F, 2d 050 =

United States v, Hineh, 202 1, Supp, 606

United States v. Johnaon, 3 SSL, 8835

United States v. Kerwin, 814 FP. Rupp, 781

United States v. Lloyd, 481 FP. 2d 100

qin er Tt

7

Page

United States v. Lloyd, C.A. 9, No. 25337,

decided December 8, 1970, petition for

certiorari pending, No. 6390, this Term--_- 7

United States v. Powers, 413 F. 2d 834, certi-

orari denied, 396 U.S. 923____._._.__---- 5

United States v. Robley, 423 F. 2d 613, petition

for certiorari pending, No. 261, this Term_- 5

United States v. Seeverts, 428 I. 2d 467-__ ___- 5

United States v. Shermeister, 425 F. 2d 1362_. 5,6

United States v. Shields, 416 F. 2d 935, petition

- for certiorari pending, No. 72, this Term... 6,8

United States vy. Smogor, 411 F. 2d 501, certi-

orari denied, 396 U.S. 972______.._-___-- 5

United States v. Swierenga, 425 F. 2d 696- _ _- 5

United States v. Stoppelman, 406 F. 2d 127,

certiorari denied, 395 U.S. 981_________--

United States v. Wilson, 427 F. 2d 649__-____-

Statute and rules:

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Be ey BE occ daecccagecescioaonee 3, 7,8

So a a wee cine area 6,8

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Gn the Supreme Gourt of the Bnited States

OctToBER TERM, 1970

ce

No. 1134

Grecory Pfut NOONAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals on reargunent

(Pet. App. 14a-20a) is not yet reported. The opinion

of the district court (Pet. App. la-18a) is unreported.

) JURISDICTION

The judgment of the court of appeals was entered

on November 18, 1970. The petition for a writ of cer-

tiorari was filed on December 19, 1970. The jurisdie-

tion of this Court is invoked under 28 U.S.C, 1254(1).

- QUESTIONS PRESENTED

1. Whether petitioner’s challenge to local board

procedures during the processing of his post-indict-

(1)

*

-

ment claim te conscientiew ohjecter state 4 a valtd

to a meparate cfime committed two months

prior tp the filing of such clam.

2. Whether the refusal to permit petitioner te avon

prosecution by submitting te civilian work in lien of

induction is a denial of “equal protection” notwith-

3. Whether petitioner's order of call was unfairty

accelerated bv hrs lecal beard.

Following a nen-jary trial im the United State=

District Court for the Western District of Pennsyt-

vania, petitioner was convicted of refasing to enbnmt

te induction, in viclation of 50 U.S.C. App. 462(a).

On June 5; 1968, he was sentenced to three years’ im-

prisonment. The court of appeals initially reversed,

but, on rehearing, withdrew its prier epimien and

affirmed the conviction (Pet. App. a-30a).

In December 1967, following his withdrawal from

college, petitioner was. reclassified from TI-S (student

deferment) to I-A. He tock and passed a pre-induc-

tion physical examimition, and was ordered to report

for induction on March 25, 1968. He reported as di-

rected, but refused to submit to imduction (Pet. App:

la-2a, 5a). = *

Sixty days later, on May 24, petitiener for the first

time requested an SSS Form 150 (Special Forni for

Conscientious Objector) from his becal beard. The re-

quested form was supphed him, with instructions te

return it on or before June 3. 1968: it was not

3

4;

returned wntil September 20, 1968, In the meantine,

on June 28, 1968, petitioner had been indicted for

having tefased induction on March 25; this ix the

sense toe which be here sande convicted (Pet. Ay.

2a, Wa),

When it ‘received the executed Form 150, the oral

heart sought instructions from the Pennavivania

State Relective Service Director, Tt was told to con-

sider the merits of the claim of conscientions objection

withent regant te the possible criminab action, and

to determine whether the claim warranted a reopen.

ing of petitioner's classification, that is, whether it

reftected a change in his status due to cireumstances

ee

te report for induction (cf. 32 C.F.R. 1625.2). In his

re hoard ( Pet. App. 3a), the Mate

regulations, that there has been a change in the

registrant's status resulting from circumstances

ever which he had no control, then it may re-

open and consider anew the classifteation of the

registrant. However, if the local beard finds

that there has heen no change jn the regis-

trant’s status resulting from circumstances over

which he had ne control, but believes that the

registrant's claim of conscientious objection hax

merit, the hoard may reopen and consider anew

according to Section 1625.3 and can consider

‘this letter as authority te so reepen and con-

sider anew,

3

@ |

ae e p

_ Weitewer was then accorded a pereonal interview

with the loeal board te diceux bik claim. Pollowing

that meeting, the beard determined (1) that there was

“we changes in states,” (2) that the “claim dors not

have merit” and (3) that petitioner “dees not meet the

eriteria for C0." (Pet, App. 3a, BGa) : it thus dented bis

comertentions objector claim and refnsed te reayen,

Petitioner sought an administrative appeal of this

_ decision, but the board denied his request on the

erwned that there ix ne right ef appeal from a de-

Terminetion net te reapen (fet. App. lata, Pa—ia).

The trial and conviction followed, |

The court of appeals originally reversed the convie-

tien on the authority of Miler v. Dnited States, 388

F. 24 973 (CLA, 9), holding that the leral beard had

in fact reapened petitioner's classification (despite it<

purperted refusal te de so) when it considered and

rejected the conscientions objector claim on its merits ;

that petitioner was therefore entitled te an appeal:

and—inferentially—that the order te report for induc.

tien, which petitioner had previously violated, wax

therefere invalid (Pet. App. Ma-I5a, Ma-I7a). On

rehearing, the government accepted the Miller held -

ine, Wut distinguished it. In Miller, the alleged pro-

cedural infirmity had preceded the refusal of induc-

tion: in this case, petitioner's criminal offense nad

eon completed long befere the alleged irregularity oc_.

curved. Any defect in the subsequent Selective Serv-

ice proceedings, the government urged, could not have

exeused or negated that completed offense. The court

of appeals, agreeing, reversed itself and unanimously

¢

5

affirmed the conviction. It held that petitioner contd

ot convert his belated attempt to secure reopening

of his classification into a legal defense to a crime: he

had committed two months before he Began that at:

temapt (Pet. App. Ifa, 18a-20a).

1. The court of appeals’ decision is correct and in |

accord with practically every other appellate decision

that has considered. the question.” See, eg., United

Ntates v. Berger, CA. & No. 25,198, decided Novembet

9, 1970; United States v. Hart, 43 F. 24 950 (CA. 9);

United States v. Secverts, 428 F. 24 467 (C.A.8) : United

States \. Wilson, 427 F. 2d 689 (CA, 9); United

States v. Swievenga, 425 F. 24 96 (C.A. 6); United

/~ Saten \. Blakely, 424 F. 24 1043, 1085 (C.A. 9);

United States \. Powers, 413, F. 2d 834, 838 (C.A. 1),

certiorari denied, 396 U.S. 923; United. States v.

Smogor, 411 F. 24 501, 503 (C.A. 7), certiorari denied,

396 US. 972; United States \. Stoppelman, 406 F. 2d

127, 131-132 (C.A. 1), certiorari denied, 335 U.S. $81.’

'Twe members of the original panel were on the panel which

rendered the decision on rehearing. The third member of the

wyginal panel had dird, and another jedge was substituted.

° The decision in ( nited States ¢. Shermeoister, 425 F. 2d 1362

(CLA, 7), while containing dictum to the effect that the Selec-

tive Service regulations allow “even post-induction day con-

sideration of” requests to reapen classifications (425 F. 2d at

1365). ss distinguishable from the metant case because there

the request for a reopening preceded the date induction,

‘Teo the same effect are United States yRobley, 423 F. 2d

613 (CLA, 9), petition for certiorari ing. Nw. 261, this

Term: Straight v. United States, 4X F. 2d 268, 264 (CLA. 9):

CA

Moreover, the heal board's refvenal te reap. im

thix case was entirely preper. Buen ander nated

States Vv. Lhegd, 1 F. 2d 188 (CLA, 8), a decision

e

Brown v. United States, 0 F.0d 1884 (CAL 8): Bladen v

United States: F Fad 1985 (CLA. 8): Palmer v. Onited

Ntwtes, 41 BF. 24 O28 (CLA. 9). :

takenly refers as a holding. (wited Atetrs \. Grochowsli. %

S.S.R. 3380 (ED. Wier, decided Crteber 9, 1970, not offi.

cially roperted), alee cited at Pet. U1. simply fellows the

Seventh Cirewit decision in United Ntutes y. Shields, U6 F.2d

‘In Lieyd. the State Director had explicitly declined to ex-

eteise any discretion ander 32 C.F.R. 1625.3 because, im his

words, “the registrant has been reperted te the United States

,

\ ;

/

NN

-

‘

; x

State i expressly vrefteed to. authorige a re.

opening ites. the heard first found either a chang:

im the registrant's status or some merit te his con-

screntious ohjector clain: (snpre, p. 3); it found neither

and thus was not compelled to reopen tinder 1625.3.

Nor was the floral beard required te reopen under

the last provies ef 32 CFR. 1625.2, even asenmine

which the registrant has no control.” eY

full consideration of the late claim is a necessary prel- /

‘ade to the board's decision whether to reopen ; the con-

(431 F. 2d at 171). The jedgment of conviction was vacated

“pending an exercise by the State Director pi

%

4,

“traps “wo ; “A

and affirmed the conviction (! nifed States v. Lleyd. CA. 9. |

No. 2337, decided December 4, 1970, pending on petition for

writ of certiorari. No. 6380, this Term).

“In Willer v. United States, 388 F.3d 973 «CA. 9), the court

See Jes F. od at 974-975.

& a

®

Heretics situation ander 32 C.F.R. 1695.2 i< thax ait

this Court had before it in Melon v. United Stites, 398

ULB, 420: ° the mere presentment of a prime frre caer

tor reclemification i eply net enough after there hax

heen an induction netics, See Pree’ \. Laird, 6 Food

18 (CLA, 2). Even ander the rationale of (rated

Notes \. @rareg, 368 F. 24 144—a decision which we

conerder te be erronecons for the reasons stated in our

Wrief in Ebert v. Cated States, Ne. 120, this Term,

Jynt which has been followed by the Third Oirevit

te neapen the beard ant ret Gnd beth that the be-

hefs ripened only after penance of an induction onder

wed that they qualified fer conscentions objector

tates, It conld find neither in thix ease. a

could vet avail himself of the post-indichwent claim

as a defense te the prosecution of his eartier-com.

mitted crime, and since, at all events, the refusal te

reapen by the leval beard was in thix case procedur-

ally correct under beth 32 CFR. 1693.2 and 1625.3.

there ix ne cause for further review by this Court.

2. There ix no merit te petitioner's contention (Pet.

7-8, 13) that the-government's poles allowing a regix-

* Whatever the reach of Molloy in other contexts that question

claim raised for the first time after the date of a registrant's kngw

' Seott v. Commanding Officer, BAF. 98 11828 CA. 3).

* This is net, im.our view. a case that need be held pending:

digpesition bx thix Court of oir petition fer a writ ef cer

erari im lnited States \. Shields, Neo. 72. this Term. The

mower in that case is whether (if the decision ix against the gover.

ments position in the pevding elective conmsmentions obhecter

om.’

a)

trent whe has refered induction to change hie mind

and accept induction even after an indictment: has

been reterwed (resulting ina disnseal of the indict.

ment with the consent of the United States Attorney

and ty leave of the court), amst be extended on an

“equal protection” theory to require the government

te eve a registrant in petitioner's situation a similar

_ appertanity ty aveid prosecution hy submitting to

alternative civilian service as a self-anointed conecien-

- thews objector, Petitioner helds a I-A classification ;

he thus ix entitted to no greater privileges than other

reeitrants with the same classification, The fact that

he applied for but, after full consideration of his

cation as a conectentiens objector ci Mm he More

‘rieht after an indictment ix returned to We assiened

te civilian work in lien of induction than any

other registrant similarly situated, would have had

prior te the indictment. Such alternative service is

only for these registrants holding 1-0 classifications.

and petitioner ix net within this group,

3}. Petitioner's additional contention that he wa-

ordered for induction svoner than he should have beet

under the applicable law and regulations (Pet. 13-17)

canes, Gillette «United States and Neare \. Larsen, Now and

must consider a selective conser

trews ebyecter clan fire durmg a criminal prosecution

: #t te induction. In this case, however.

the board did consider ¢ claim under the State Director's direc:

tive (which also reapening after such consideration

only if specific findings could be nade). Similarly, because the

heard actually considered the claim, this case is net concerned wit!

the ieeve in Flert v. United States, Ne. 120. this Term.

o

wn

a de

soaainaediitemen ol

and findings, was ~itiefied from that er thee

district court had not erred ( Pet, App. 282), Tr ther

crreimstances, there none ercagen for farthee review

of ths largely factual question by this Oeart. It ix

lot disputed that petitioner wax in the class of recs.

trants—nonvahinteers whe had attained the age of 19

hut net 26 (32 CFR. 1631.7( a) (3) )—whe were then

heine called br his jeral heard. Nor ix there eny snc.

gestion of non-compliance with the “oldest * * *

first’ provision of that regulation. Majer James

_Rvans, the manpower officer of the Pennartvania State

Selective Service System, testified that on the hasix of

_ his review of the files, classification records, and min

utes of mectings of petitioner's leral beard, he ted

found no registrant older than petitiencr and availa.

inte ee oe eee ae yi

tiener ( Pet. App. 8a-Sa).

Petitioner maintains that during the pened mM qnes-

tien, the State of Pennxvivania failed te adhere te

preseribed precedares for atlecdting qqireta credits

il debit< as between Jecal beards within States on

the hasix of the number of in-carvile residents within

the respective areas (see 32 CFR. 1311 ef 2eg.).

The ¢lotm is that inadequate account was taken ef en-

Istees under the Armed Forces’ reeruitment pro-

eres. as distineviched frem volunteers preressed

through their local hearts (Pet. 16-17). Hewever, as

the district court's opinion shews (Pet. App. I2a).

2

we

there was <whtantio: omphaner with the reevlater: |

provisions; tor.ix there any basis for an inference

that petitioner has been prejrdied hy the Trans!

COMCRTRTOR

For the reason sated, it ix respectfully submitted

that the petition fora writ of certiorari <honld be

denied. °

eae : Rreis N. Garewern,

>, * « Waa Wesex,

Aawateat Atterney Goncreal.

cP R. Mexatax,’

Atterwe

Fenerangy 197)

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