Appendix — Taylor v. United States

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APPENDIX

Exhibit A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA.

Appeal from the United States District Court for the

Northern District of Florida

(June 2, 1971)

Before GEWIN, COLEMAN and AINSWORTH,

Circuit Judges.

GEWIN, Circuit Judge: Appellant Taylor was convicted

for refusing to submit to induction into the armed services

in violation of 50 U.S.C. App. § 462(a). On appeal he con-

tends that his local Selective Service Board gave him mis-

A-2

information which caused him to refrain from making an

application for conscientious objector status prior to the date

on which he was to report for induction. We affirm his con-

viction.

The background facts are these: Following graduation from

the requirement wauld be interpreted literally. Mrs. Duncan

that such a question must be answered by the Board.

Taylor made no formal

to assert a conscientious objector claim. The Consci-

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Appellant's major contention is that he was misled by SSS

Form 150 into thinking that it would be not only fruitless

entious reasons.* Prior to that time

entious Objector Form which he procured from the Board

was never filled in and returned.*

effort

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but also unconscionable for him to seek conscientious objec-

tor status; as a result he claims that he was deprived a full

opportunity to pursue an available classification. It is true

that SSS Form 150 does not mention or suggest the very

broad construction of the requirements for conscientious ob-

jector religious requirements as interpreted by the Supreme

Court in United States v. Welch,* and United States v. See-

ger.= In this regard it could be argued that the old Form

150 possibly did leave some questions unanswered.* Never-

theless, the evidence in this case is undisputed that appellant

acting unilaterally decided on uncounselled, subjective in-

formation that he could not qualify.? Although cases exist

where misleading government activity or information con-

stitutes a good defense to a criminal charge,® more is required

than a bald assertion that the defendant was as a subjective

matter misled, and that his subsequent action resulted from

his mistaken belief. As the court stated in United States v.

Lansing:®

When a defendant claims, as does appellant here, that

his criminal conduct was the result of reliance on mis-

leading information furnished by the government, so-

ciety’s interests in the uniform enforcement of law

4398 U.S. 333 (1970).

5380 U.S. 163 (1965).

6Cf. Gillette v. United States, _.. U.S. —__., 28 L.Ed.2d 168 (1971)

7In United States v. Powers, 413 F.2d 834, 837 (list Cir. 1969) the

court observed: ,

Were unila subjective, uncounselled misunderstanding

¢ oe See t ge of FH -- EN

defense an already laboring vehicle would

in all like be completely immobilized.

®See: United States v. Jowell, 437 F.2d 906 (9th Cir. 1971);

United States v. Bagley, 498 F.2d. 95. (Sth Cis 1970). United

States v. Williams, 2d 288 (10th Cir. 1970); United States

v. Bryan, 263 F. Supp. 895 (N.D. Ga. 1967).

9424 F.2d 225 (9th Cir. 1970).

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requires at the very least that he be able to show that

his reliance on the misleading information was reason-

able — in the sense that a persun sincerely desirous

of obeying the law would have accepted this infor-

mation as true, and would not have been put on notice

to make further inquiries.'®

Under the facts and in the circumstances of this case, we

are convinced that Taylor acted unreasonably. Taylor testi-

fied that he interpreted the language of the form to mean

that some formal or conventional religious basis was required

for a conscientious objector classification, yet he made no

real effort to ascertain the actual requirements for the classi-

fication despite the ready availability of information ead

advice at the local board. Following the example of the

First Circuit Court of Appeals in United States v. Powers,"

we take judicial notice of the fact that a registrant’s Notice

of Classification, which is required to be in his personal

possession at all times, plainly advises registrants in capital

letters — “For Information and Advice, Go To Any Local

Board.” Other provisions advise registrants of the availabil-

ity of Government Appeal,'* of board members ready “to

advise and assist registrants in the preparation of question-

naires and other selective service forms,”'* and of the “posi-

tive information policy” of the Selective Service Board.'*

Moreover, Taylor was specifically advised by Mrs. Duncan

at his Board that to obtain the status of conscientious ob-

'0Ibid at 227. See: United States v. Wroblewski, 432 F.2d 422 (

iar ee United States v. Haseltine, 415 F.2d 334 (9th Cir.

1413 F.2d 834, 837 (1st Cir. 1969).

12See 32 C.F.R. § 1604.71.

1332 CFR. § 1604.41.

1432 CFR. § 1606.61.

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jector he would have to submit a written request within 30

days. When he failed to submit SSS Form 150 within the

specified time limit, Mrs. Duncan wrote him on February

17, 1969, to do so at once or else he would waive any claim

to the status of conscientious objector."* This backdrup of

information was certainly sufficient to put a person sincerely

desirous of complying with the law on notice that he could

have inquired of the board and learned the true status of his

claim.'* Having failed to ask for a reclassification or to press

in any way before induction that he should be reclassified,

or to provide the local board with any information which

could warrant reconsideration of his classification, Taylor can-

not now charge the board with unconscionable dereliction

in violation of due process of the law. Selective Service

Boards cannot be charged with neglect of duty arising cut

of the secretive, unilateral, uncounselled, subjective and un-

communicated decisions of a registrant based upon his in-

dividual ideas and concepts of broad philosophical, moral or

religious questions.”

Appellant’s second contention is that the Board committed

error by refusing to reconsider his classification in light of

1SMrs. Duncan wrote to appellant as follows:

Feb. 17, 1969

Dear Sir:

On yy 16, 1968 you were issued SSS Form 160.

was to be completed ‘and returned to this office in 30

To date this completed form has not been returned.

Please return this form at once or sign the statement be-

‘ low and return. Thank ~~,

ours

I on 4 withdraw my claim as a + ~~ Objector.

Registrant

16For le, see: United States v. Welch, 398 U.S. 333 (1970);

United States v. Seeger, 380 U.S. 163 (1965).

17See McGee v. United States, __ U.S. —— (No. 362, May 17, 1971).

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his post-induction letter.'* While courts have exercised dis-

cretion in rare and unusual cases in determining whether to

consider conscientious objector claims filed after an order to

report for induction but before refusal to report,'® the courts

are virtually unanimous in refusing to require boards to rec-

ognize post induction claims.*° As the court said in Palmer

v. United States:*'

Classification functions of the local board cease with

induction, and a registrant cannot, by refusing to sub-

mit to induction, impose upon the board any new

duties respecting reclassification or reopening . . . To

permit such imposition would be highly disruptive of

the Selective Service process.**

The reason for the strict adherence to this rule against con-

sideration of post induction claims was discussed with ap-

proval by the Supreme Court in Ehlert v. United States.**

A regulation explicitly providing that no conscien-

tious objector claim could be considered by a local

18See note 2.

19United States v. Long, 435, F.2d 830 (10th Cir. 1971); United States

v. Williams, 420 F.2d 288 (10th Cir. 1970).

20United States v. McDuffie, __ F.2d. __ (Sth Cir. 1971) (No.

29780, 1i, 1971 — : United States v.

Lowell, 24 906, 908 (9th Cir. 1971); United States v.

Schrader, 485 F.2d 855 <9th Cir. 1971); United States v

Danell, 834 (ist Cir. 1970): United States v.

426 F.2d 765, 766 (5th Cir. 1970); United States v. Robley,

F.2d 613 (9th Cir. 1970); United States v. Cru 422 F.2d

398 (4th Cir. 1970); Straight v. United States, 413 F.2d 263

(9th Cir. 1969); e v. 389 F.2d 482 (9th

21401 F.2d 226, 227 (9th Cir. 1968).

22Ibid at 227-228.

-_ 5 —_ = 120, April 21 4 or ers United States

; MeDuttie, 5 (bth Cir ) (No. 29780, May

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board unless filed before the mailing of an induction

notice would, we think, be perfectly valid, provided

that no inductee could be ordered to combatant train-

ing or service before a prompt, fair, and proper in-

service determination of his claim. The Military Se-

lective Service Act of 1967 confers on the President

authority “to prescribe the necessary rules and regula-

tions to carry out the provisions of this title. . .” 50

U.S.C. App. § 460(b) (1). To read out of the au-

thority delegated by this section the power to make

reasonable timeliness rules would render it impossible

to require the submission, before mailing of an in-

duction notice, of a claim matured before that time.

The System needs and has the power to make reason-

able timeliness rules for the presentation of claims to

exemption from service.

A regulation barring post-induction notice presen-

tation of conscientious objector claims, with the pro-

viso mentioned, would be entirely reasonable as a

timeliness rule. Selective Service boards must already

handle prenotice claims, and the military has proce-

dures for processing conscientious objector claims that

mature in the service. Allocation of the burden of

handling claims that first arise in the brief period be-

tween notice and induction seems well within the dis-

cretion of those concerned with choosing the most

feasible means for operating the Selective Service and

military systems.*¢

24Ibid at 2-3. The instant case is not identical to Ehlert because

there is no claim of crystallization of belief after the receipt

Se ae Ga ae eee

Sail + * e2 ions aoe anus tht his: Lo -

who conscientious

sag Pt Pan nny after receipt of induction notice

ween sas © ceeneer cate Gan cas wee Gaius te have belt

~w hit receipt of such notice. See: United

States v. xy & F.2d 746 (9th Cir. 1971).

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There was no due process violation in the draft board’s

refusal to reconsider Taylor’s application. The Selective Serv-

ice Board has no obligation to act upon requests which are

made by registrants after the date for his induction has

passed.*® Accordingly, the judgment. of conviction is AF-

FIRMED.

2eEhlert v. United States, __ U.S. ___ (No. 120, April 21, 1971):

Austin v. United Stat 434 F.2d 1301 (5th Cir. 1970); Uniied

F.2d 610, 611 (9th Cir. 1970): United

Cir. ._ See:

773, 774 (9th Cir. 1970); United States

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Exhibit B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term. 1970

No. 29198

D. C. Docket No. CR 1278

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JAPE HOLLEY TAYLOR.

Defendant-Appellant.

\ppeal from the United States District Court for the

Northern District of Florida

Before GEWIN, COLEMAN and AINSWORTH,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgment of the

said District Court ‘n this cause be, and the same is hereby,

b

June 2, 1971

Issued As Mandate:

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Exhibit C

CORRECTED

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 29198

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JAPE HOLLEY TAYLOR.

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of’ Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion June 2, 1971, 5 Cir., 1971, ........ _ ae ).

(August 10, 1971)

Before GEWIN, COLEMAN and AINSWORTH,

Circuit Judges.

PER CURIAM: The Petition for Rehearing is DENIED

and the Court having been polled at the request of one of

Conscious of the travail, dedication, and scholarship that

went into the writing of the panel's opinion in this case, it

was with great reluctance, that i requested en banc consid-

eration. Nevertheless, because of the importance of the issues

decided and because of my fundamental disagreement with

the conclusions reached therein, I felt that en banc ventila-

tion was essential. Now that my request has been rejected,

I feel compelled to record my dissent.

Though there is very little that can be said in view of the

lucid dissent of my Brother Simpson, an opinion in which I

fully concur, my proclivity for verbosity, perhaps, impels me

to add the following thoughts. In the first place, I fully sub-

_ ea a

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1967 provides: “Nothing contained in this title shall

such induction, be ordered by his local board, subject

to such regulations as the President may prescribe, to

perform for a period equal to the period prescribed

in section 4(b) such civilian work contributing to the

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opinions, United States v. Seeger, 1965, 380 U.S. 163, and

Welsh v. United States, 1971, 398 U.S. 333, have consider-

ably enlarged on the conventional meaning of “religious train-

ing and belief’, and have held that in some circumstances

deeply held personal beliefs not commonly thought of on the

street as “religious” may qualify as “religious” within the

the information contained therein is clearly wrong. In many

areas of the law we recognize that to neglect to reveal a ma-

terial fact, in effect to tell a half truth, may be as misleading

and as culpable as an outright lie. That doctrine fits this

situation.

This is not at all to advocate that all court rulings rele-

vant to the Selective Service System must be revealed liter-

ally in the forms used. But the information contained on

the front cover of Form 150 has been a deceptively mislead-

ing half truth since Seeger came down, for more than five

years. The average registrant may not be expected to keep

abreast of Supreme Court rulings. Moreover, the entire em-

phasis of the Selective Service System at this stage of the

process, i.e. classification, is non-legal. Registrants are not

allowed to have legal counsel in attendance at a personal

appearance before the local board when requesting a classi-

fication. Registrants are informed that if they have any

recognizable legal problems, that the board has a legal ad-

visor who will consult with the t upon request. The

attitude projected is “You don’t need a lawyer because you're

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26, at least to any significant extent do not have the finan-

cial resources to employ lawyers to keep them informed as

to recent and relevant Selective Service rulings. For these

reasons I would hold the Selective Service System to a strong

affirmative ati of frankness and candor regarding the

It is a legitimate deduction that the retention of the out-

dated information on Form 150 nullifies in large part the

effect of Seeger and Welsh. This result may be that intended

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111, 5 Cir. 1970, 432 F.2d 287, U.S.A. v. Ray Austin Bagley,

5 Cir. 1970, 436 F.2d 55. McGee v. United States, ........ US.

aaa [May 17, 1971, 39 U.S.L.W. 4571] is not at variance

with these sentiments. In McGee the Court was faced with

a non-cooperating registrant who refused to fill out forms, and

declared that he would not cooperate with the local board.

By contrast, in Taylor, Edwards, supra, and similar misin-

formation cases we have cooperative registrants willing to

work with local boards to receive the classification to which

the law entitles them, who instead find themselves thwarted

in that effort by misleading advice from the Selective Service

System itself.

There is no indication in the record in this case that Tay-

lor's beliefs are not sincerely held sufficiently to qualify for

conscientious objector status under Welsh and Seeger. His

conviction is allowed to stand, however, because he did not

timely assert his CO claim. The blame for this tragic set of

circumstances should fall squarely on officials cf the Selective

Service System. I would like to see a holding that the un-

reasonable actions of the Selective Service Systein denied to

Jape Holley Taylor that due process of law to which he was

constitutionally entitled. This conviction should not stand.

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a

SELECTIVE SERVICE SYSTEM

FORM FOR CONSCIENTIOUS OBJECTOR

CANS | [~ DATE QUESTIONNAIRE RECEIVED —

2. —_ AT LOCAL BOA2D

CY 1a, : L =

“ (Leeal Board Stamp) Complete and returs within 30 days.

_»

I. Name of Registrant (First) (Middle) (Last) 2 Selective Service Ne.

(The shove items, except the date received beck et loca! beard, are to ur Milled in by Une lece! beard Sefere the qmestiommaire te maied )

3. Mailing address (Number and street, city, county and State, and ZIP Code)

i

.

—

:; INSTRUCTIONS

: A reg:strant who claims to be a conscientious jector shall offer information in substantiation of

(SSS Pore pena tPecial form which, when filed, shalt become a part of his Classification Questionnaire

‘orm 100),

‘ : leu.

yf ~ . “4 ’

S sujits cup of te tmaly Gtntm Sete tn

|

“Nothing contained in this. tle shall be construed to require any person _

"| to be subject to combatant and service in the Armed Forces of the

*] United States who, by gn of religious training and belief, is conscien-

rey Sy me ny fon in war in any form. As used in this subsec-

end belief does not include essentially

pollteal, cocistgieal, or phibconghieal views, cea sea ne ammntialy

because of such conscien objections whose claim is sustained by the

local board shall, if he is inducted into the Armed Forces under this title,

be assigned to noncombatant service as defined by the President, or shall,

‘ if he is found to be conscientiously opposed to participation in such noncom.

batant service, in lieu of such induction, be ordered by his local board,

subject to such regulations as the President may prescribe, to perform for

i

(R. 16)

Series 1—CLAIM FOR EXEMPTION

INSTRUCTIONS.—The registrant should sign his name to either statement A or B in this seri

If he cannot sign either one, he must indicate why.

A 1am, by reason of my religious training conscientiously opposed to participation in war ina

training and service in the Armed Forces, but :

called. (Registrants granted this status are classifi

; — ne

(Registrants granted this status are classified I-O.)

INSTRUCTIONS.—If more space is needed use extra sheets of paper.

eeeeeees

Se ee

(2)

A- 2]

restrict you from ministering to the sic

in the Armed Forces as a noncombatant withou

and belief

or

3. To what extent does

and injured, either civilian

weapons?

;

;

H

» Written or oral, to the views herein

expression publicly or privately

4. Have you ever given

expressed as the basis for your claim? Give examples.

(3)

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REGISTRANT'S CERTIFICATE

INSTRUCTIONS.—Every registrant claiming to be a conscientious objector sha!l make

certificate.

NOTICE.—Imprisonment for not more than 5 years or a fine of not more than $10,000, or bot!

fine and imprisonment, is provided by law as a penalty for knowingly making or being a party to the n.

of any false statement or certificate regarding or bearing upon a classification. (Military Selective S

Act of 1967.)

Z. , Certify that I am the registrant 1

and described in the foregoing statements in this form: that I have read (or have had read to me

statements made by and about me, and that each and every such statement is true and complete |

best of my knowledge, information, and belief. The statements made by me in the foregoing

in my own handwriting. ——

Registrant sign here J

; . = a

If anothe; person has assisted the registrant in completing this form, such person shall sig

following statement:

I have assisted the registrant herein named in completing this form.

(4)

the