Petition for Writ of Certiorari — United States v. King

Jn the Supreme Court of the Gnited States

OcToBER TERM, 1972

No.

UNITED STATES OF AMERICA, PETITIONER

v.

ALLAN Ray KING

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. 9-10) is not yet reported. The opinions of the dis-

trict court (App. C, infra, pp. 11-17; App. D, infra, pp.

19-20) yw not reported.

JURISDICTION

_ The judgment of the court of appeals (App. B,

- infra, p. 10a} was entered on March 21, 1973. By order

_ of April 13, 1973, Chief Justice Burger extended the

- time for filing a petition for a writ of certiorari to

(1)

501-574—73—_1

Ope

2

and including April 30, 1973. The jurisdiction of this

Court.is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether under the amended Criminal Appeals Act

(18 U.S.C. 3731), which provides that the United

States may appeal to the court of appeals from a deci-

sion of a district court dismissing an indictment “ex-

cept * * * where the double jeopardy clause of the

United States Constitution prohibits further prosecu-

tion,” no appeal lies if the district court considers evi-

dence beyond the face of the indictment, in ruling on

a pre-trial motion to dismiss, before a jury has been

empanalled or a non-jury trial begun, so that no jeop-

ardy has attached.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Consti-

tution provides in pertinent part:

* * * nor shall any person be subject for

the same offence to be twice put in jeopardy of

life or limb; * * *.

Title 18 U.S.C. 3731, as amended, 84 Stat. 1890,

provides:

In a criminal case an appeal by the United

States shall lie to a court of appeals from a

decision, Judgment, or order of a district court

dismissing an indictment or information as to

any one or more counts, except that no appeal

shall lie where the double jeopardy clause of

the United States Constitution prohibits further

prosecution.

An appeal by the United States shall lie to

a court of appeals from a decision or order of

a district courts suppressing or excluding evi-

_-_

dence or requiring the return of seized prop-

erty in a criminal proceeding, not made after

the defendant has been put in jeopardy and

before the verdict or finding on an indictment

or information, if the United States attorney

certifies to the district court that the appeal is

not taken for purpose of delay and that the

evidence is a substantial proof of a fact material

in the proceeding.

The appeal in all such cases shall be taken

within thirty days after the decision, judgment

or order has been rendered and shall be dili-

gently prosecuted.

Pending the prosecution and determination

of the appeal in the foregoing instances, the

defendant shall be released in accordance with

chapter 207 of this title.

The provisions of this section shall be liber-

ally construed to effectuate its purposes.

3

STATEMENT

On October 19, 1971, a grand jury in the United

States District Court for the Southern District of

West Virginia returned an indictment charging re-

spondent, Allen Ray King, with willfully failing to

report for induction into the Armed Forces, in viola-

tion of 50 U.S.C. App. 462(a). Prior te trial, King

moved to dismiss the indictment on the ground that

the local board’s denial of his claim for classification as

a conscientious objector was improper, and that the

order to report for induction was therefore invalid.

The district court granted the motion (App. D, infra,

pp. 19-20), and the United States appealed to the court

of appeals under the Criminal Appeals Act, 18 U.S.C.

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3731, as amended by the Omnibus Crime Control Act

of 1970, 84 Stat. 1890, The court of appeals dismissed

the appeal on the ground that it lacked jurisdiction,

holding that the Act does not “encompass appeals

from a decision reached by going beyond the ‘face of

the record’ ” (App. A, infra,?.19.

1, The material facts are not in dispute. King regis-

tered with his local board on March 29, 1968, and

shortly thereafter made a claim for conscientious ob-

jector status. On July 15, 1968, the local board denied

the claim without any stated reasons. King was noti-

fied of his I-A classification, and was advised of his

right to a personal appearance before the local board

and of his right of appeal to the State Appeal Board.

He failed to exercise either right, and was subse-

quently ordered to report for induction. The present

indictment followed his failure to report for induction

as ordered (App. C, infra, p.12).

2. Prior to trial, King moved to dismiss the indict-

ment pursuant to Rule 12(b) (1), Fed. R. Crim. P., on

the ground, inter alia, that the local board’s failure to

state reasons for the denial of his conscientious objec-

tor claim invalidated his I-A classification and his

subsequent order for induction. The district court

denied the motion to dismiss in a Memorandum Opin-

ion and Order filed March 16, 1972, holding that, after

reviewing King’s Selective Service file, it was not per-

suaded that he had presented a prima facie case for

conscientious objector status; and even assuming,

arguendo, that he had, his failure to exhaust his ad-

ministrative remedies precluded any claim of prej-

PS ELEM LG PEI LI LOL ET LILES NESS NE LERE LET IE E II LO SIO ANEET S ; iE eS

5

udice as a result of the local board’s failure to state

its reasons for denying his claim (McGee v. United

States, 402 U.S. 479; App. C, infra, pp. 11-18).

Prior to trial King renewed his motion to dismiss

the indictment in light of a recent post-McGee opin-

ion of the Court of Appeals for the Fourth Circuit

(United States v. Davis, 460 F. 24 792). The district

court granted the motion, and dismissed the indict-

ment in a Memorandum Order of J uly 11, 1972, hold-

ing that Davis required it to find that the local board’s

failure to state reasons for denying the conscientious

objector classification was improper, and that the

order to report for induction was invalid (App. D,

mfra, pp. 19-20).

3. The government filed a timely notice of appeal

to the court of appeals, pursuant to 18 U.S.C. 3731,

seeking review of the district court’s determination

that King had been improperly denied a conscientious

objector classification. The court of appeals, however,

held that Section 3731, which authorizes an appeal to

the court of appeals, from ‘‘a decision, judgment, or

order of a district court dismissing an indictment

** * except * * * where the double jeopardy clause

of the United States Constitution prohibits further

prosecution,” did not authorize an appeal from the

pretrial dismissal of the indictment here. The court of

appeals held that Section 3731 did not confer jurisdic-

tion to hear an appeal from a pretrial dismissal of an

*The district court did not allude to its initia] alternative

finding that King had not established a prima facie case for a

conscientious objector classification,

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indictment that rests not upon the sufficiency of the

indictment alone, but upon the facts outside the indict-

ment (App. A, infra, p. 10):

18 U.S.C. § 3731 is the source of any juris-

diction this Court has of criminal appeals by

the United States. Its scope is narrow and does

not encompass appeals from a decision reached

by going beyond the “face of the record.”

United States v. Stsson, 399 U.S. 267, 281

. (1970). The decision here involved further

inquiry than the sufficiency of the indictment on

its face. After reviewing the Selective Service

file the District Court made findings essential

to its decision. While termed a dismissal of the

indictment, it was in reality a summary judg-

ment of acquittal. A similar result was so char-

acterized in United States v. Findley, 439 F.

2d 970 (1st Cir. 1971), which found that result

unappealable by the United States under 18

U.S.C. § 3731. We agree with the reasoning of

that court.

REASONS FOR GRANTING THE WRIT

We have set forth in detail the reasons the grant-

ing the writ here in our petition for certiorari in

United States v. Rothfelder,’ which we are filing contem-

poraneously to seek review of a similar decision by the

Court of Appeals for the Sixth Cireuit. Rothfelder pre-

sents the same issue of statutory construction raised

here, as well as a related issue involving the application

of the Double Jeopardy Clause. These cases, as we have

* We are furnishing copies of our petition in Rothfelder to

the respondent herein.

ieee NMS NVEMOR SO ie SRNR RE ME 4 CER RG RS EO ED EARNING SS NS NN

7

shown in the Rothfelder petition, raise an important

issue of statutory construction involving the Criminal

Appeals Act, 18 U.S.C. 3731, the principal jurisdictional

statute governing appeals by the government in erim-

inal cases. The construction placed on the Act by the

court below deprives the United States of the right

to appeal from a wide variety of pretrial orders dis-

missing indictments which do not turn on “the suf-

ficiency of the indictment alone,”’ but involve the

application of legal principles to generally undis-

puted or stipulated facts. The limitation engrafted

by the court of appeals on the broad language of

Section 3731 is contrary to the expressed intent of

Congress in amending Section 3731 to permit ap-

peals in cases such as this. These considerations, as

we have shown, along with a developing conflict

among the courts of appeals as to the effect of the

1971 amendments to the Criminal Appeals Act, war-

rant the granting of the petition for certiorari here.

Since the statutory issue raised here and in United

States v. Rothfelder, is the same, the Court may wish to

delay the disposition of this petition pending the hear-

ing and determination of Rothfelder, which also

presents the related Double J eopardy question.

SONG WAT SUEY Sate

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CONCLUSION

The petition for the writ of certiorari should be

granted.

Respectfully submitted.

ERwIn N. GRISWOLD,

Solicitor General.

Henry E. Perersdy,

Assistant Attorney General.

Rosert L. KEvcH,

THADDEvS B. Hopapon,

Attorneys.

Aprit 1973.

ERASER II ARIE GGT ELLE NPL OG SEE REO LE LET EE LIMO E TEL SS

APPENDIX A

United States Court of Appeals

For the Fourth Circuit

UNITED States or .A MERICA, APPELLANT

i

ALLEN Ray KING, APPELLEE

Appeal from the United States District Court for the

Southern District of West Virginia. Dennis

Raymonp Kyapp, District Judge

Argued February 8, 1973—Decided March 21, 1973

Before Haynswortn, Chief Judge, Burzxer, Circuit

Judge, and Bryan, District J udge.

Wayne A. Rich, Jx., Assistant United States At-

torney (John A. Field, I II, United States Attorney,

on brief) for Appellant: James M. Brown [eourt-

appointed counsel] for Appellee.

PER CURIAM.

The defendant was indicted for violation of the

Universal Military Training and Service Act, 50

U.S.C. App. § 462, in that he failed to report for in-

duction after having heen ordered to do so. He moved

to dismiss the indictment on the grounds that (1) he

Was entitled to classification as a conscientious objec-

tor and thus exempt from induction, and (2) the local

board’s I-A classification of him was invalid for fail-

ure of that board to state its reasons for denying him

conscientious objector status. The District Court re-

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501-574-732

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10 i .

viewed the Selective Service file of the defendant to }

determine whether the defendant had made out a

prima facie case of entitlement to a conscientious ob-

jector classification. It determined that he had, and

that the local hoard had failed to state reasons for its |

denial of his application. Reasoning, under United — »

States v. Broyles, 423 F. 2d 1299 (4th Cir. 1970), that

this was fatal to a prosecution such as the instant one,

the District Court dismissed the indictment. The

United States appeals.

We conclude that the order of dismissal is not ap- )

pealable by the United States and that the appeal

must be dismissed.

18 U.S.C. § 3731 is the source of any jurisdiction

this Court has of criminal appeals by the United

States. Its scope is narrow and does not encompass ap-

peals from a decision reached by going beyond the

“face of the record.” United States v. Sisson, 399 U.S.

267, 281 (1970). The decision here involved further in-

quiry than the sufficieney of the indictment on its face.

After reviewing the Selective Service file the District

Court made findings essential to its decision. While

termed a dismissal of the indictment, it was in reality

a summary judgment of acquittal. A similar result

was so characterized in United States v. Findley, 439

KF. 2d 970 (1st Cir. 1971), which found that result un-

appealable by the United States under 18 U.S.C.

§ 3731. We agree with the reasoning of that court.

Aceordingly we do not reach the merits of the ap-

peal and for want of jurisdiction the appeal is DIS-

MISSED.

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APPENDIX B

[Filed, March 21, 1973, Samuel W. Phillips, clerk. ]

United States Court of Appeals for the Fourth

Circuit

No. 71-2213

UNITED STATES, APPELLANT

v.

ALLEN Ray Kina

Judgment

Appeal from the United States District Court for the

Southern District of West Virginia

This cause came on to be heard on the record from

the United States District Court for the Southern Dis-

trict of West Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered

and adjudged by this Court that appeal from the judg-

ment of the said District Court appealed from, in this

cause, be, and the same is hereby, dismissed.

SaMUEL W. PHILmtPs,

Clerk.

(10a)

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APPENDIX C

United States District Court, Southern District of

West Virginia, Beckley

Criminal No, 71-8

UNITED StaTESs OF AMERICA

Vv.

ALLEN Ray Kina

MEMORANDUM OPINION AND ORDER

Defendant was indicted for a Violation of the

Universal Military Training Act for refusing to re-

port for, and submit to, induction into the Armed

Forces of the United States. On January 25, 1972,

defendant filed his Motion to Dismiss based on three

grounds, A hearing was held on February 9, 1972,

in Beckley, West Virginia, at which time counsel

presented arguments to the Court.

With regard to the first asserted ground for dis-

missal, ic, that the indictment. fails to state facts

sufficient to constitute an offense against the United

States, the Court is of the opinion that the indictment

meets the requirements of the Federal Rules of

Criminal Procedure and adequately charges the de-

fendant with an offense under the Universal Military

Training and Service Act. Item No. 2 of defendant’s

motion is a matter for determination at a trial on the

merits,

There remains for determination by the court the

issue raised by the third ground asserted by defendant

in his motion. It is defendant’s contention that hav-

ing presented a prima facie claim for conscientious

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objector status, the Draft Board’s failure to state

any reasous for denying said classification renders de-

fendant’s classification T-A, and subsequent order of

induction invalid, In effect what defendant is saying

is that it is obligatory on the Local Board to set

out the reasons for its rejection of registrant’s claim

for conscientious objector status onee he has made

a prima facie showing of entitlement, and that failure

so to do at the time of classification of the registrant

[—\ fixes his rights as of that very day; and that any

subsequent order based thereon is invalid and unen-

forceable. In other words, defendant asserts it is not

necessary to appeal an improper elassifieation at the

administrative level, but that one may rely on the

deficiency of the Local Board and avoid the effect of

any order entered thereon.

The undisputed facts as determined from the record

may be briefly summarized as follows:

On April 10, 1968, defendant registered with Local

Board No. 3 in Fayetteville, West Virginia. On April

22. 1968, he submitted SSS Form 150 by which he

Claimed conscientious objector status. On June 12,

1968, by a regular form notiee Loeal Board 3 required

the defendant to appear in person, and on June 17,

1968, he appeared hefore the Board in person. On

July 15 of that vear he was classified T-A and mailed

a Form SSS 110 notifying him of his elassifieation.

He was also sent SSS Form 217, which form advised

him of his right to a personal appearance and appeal

within 80 days. The 30 days elapsed with defendant

taking no action to appeal his classification. Moreover,

defendant has never asked for an appeal of his classi-

fication, The Local Board in denying his conscientious

objector status failed to give the reason therefor.

Thus, the Court is presented with the question of

whether or not defendant made out a prima facie case

TANPT LIN TREN CEMA LINO PL ORR ANGLO STS ALI NO LIF! SY

13

to be classified as a conscientious objector, and if so,

whether failure of the Local Board to state the reasons

for rejection of conscientious objector status is fatal

to the indictment.

The Court must first determine whether or not the

defendant has established a prima facie case of entitle-

ment to conseientious objector status. On this issue the

court has examined Government’s Exhibit No. 1, the

Selective Service file of the defendant, including, but

not limited to, the SSS Form 150.

The Court is aware that formal membership in a re-

ligious organization is not a prerequisite to conscien-

tious objector classification, U.S. v. Seeger, 38 U.S.

163 (1965). Moreover, the court is aware also of the

fact that it must construe the faets in a way most fav-

orable to a registrant in determining whether the de-

fendant had submitted sufficient information to his

Local Board to constitute a prima facie ease for eon-

scientious objector status. U.S. v. James, 417 F.2d 826

(4th Cir. 1969). Tn light of the dearth of information

submitted by the defendant to his Loeal Board, the

court is not persuaded that the defendant has in fact

presented a prima facie ease for conscientious objector

status.

Even assuming, arguendo, that the defendant has

in fact established a prima facie case of entitlement to

conscientious objector status, the eourt is not eon-

vineed that in this particular ease the failure of the

Local Board to cite reasons for its denying the de-

fendant a econsvientious objector classification is fatal

to the indictment.

Counsel for the defendant cites three recent Fourth

Cireuit cases, U.S. v. Broyles, 423 F.2d 1299 (4th Cir.

1970), O’Brien v. Resor, 423 F.2d 594 (4th Cir. 1970),

and U.S. v. James, supra.

DE FPN PAL MALTA TROL AL HAIRS, ORY, SRT GIR RMR SY LRT ORT Na i tas ih yn ak a

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The government does not believe it necessary to out-

line in detail ‘the faets and holdings of each of the

foregoing cases. ‘In each case an indictment was re-

turned against an individual who refused induction

into the armed services. In addition, the Local Boards

had failed to state reasons for their refusal to classify

the defendants as conscientious objectors. Each de-

fendant appealed his classification, At no time, how-

ever, during the appellate procedure were the records

of the various Boards supplemented by the assign-

ment of reasons for rejection of conscientious ob-

jector status; and the record thus remained deficient

upon exhaustion of administrative remedies. The

Fourth Cireuit held in each instance that where a

defendant is convicted for refusing to submit for

induction after having established a selective service

prima facie entitlement to conscientious objector

classification, orders classifying him as [I-A and

ordering him to report for induction without any

statement by the Selective Service Boards as to the

basis of their decision, are invalid.

The government believes the aforesaid Fourth Cir-

cuit cases to be factually distinguishable from the case

at bar in one vital aspect—the defendant in the case

at bar did not appeal his denial of conscientious

objector classification to the State Appeal Board. In

other words, the defendant failed to exhaust his

administrative remedies even though he was clearly

advised of his right thereto.

Subsequent to the Fourth Cireuit cases, hereinhe-

fore cited, the Supreme Court, in Meee v. U.WS., 402

U.S. 479 (1970), distinguished those cases wherein a

registrant should be required to exhaust administra-

tive remedies from those instances in which it would

not be necessary. In McGee v. U.S., supra, McGee

had, in 1966, applied for conscientious objector status

Lega REEL ETT MPA IE NAAR EN tate i y

we

15

to his local Selective Service Board, which Board

advised him that his claim would be passed on when

a student deferment expired. His Board was informed

in 1967 that he had been accepted for a graduate

program where he would probably qualify for theo-

logical exemption. No request was made for ministe-

rial student status, nor was pertinent supporting

information presented. Petitioner refused to fill out

a current information questionnaire sent to him on

his graduation from college, announcing that he would

not cooperate with the selective service system. Fol-

lowing the Local Board’s subsequent reclassification

of petitioner I-A, he did not seck a personal appear-

ance before the board or appeal his case to the Board

of Review. He refused to submit to induction for

which, along with other draft law violations, he was

prosecuted and convicted. The Court of Appeals,

rejecting petitioner’s defense that the Local Board

had erred in its classification, affirmed the lower

court’s decision.

The Supreme Court, upon timely appeal, reasoned

that McGee’s failure to exhaust his administrative

remedies jeopardized the interests of the Selective

Service System as the administrative agency responsi-

ble for classifying registrants. Necessarily involved

therein is the full gathering of facts and use of the

system’s expertise to assess a registrant’s claims to

exempt status. A registrant must comply with the reg-

ulations. Failure so to do thus bars petitioner’s defense

that he was erroneously classified. The Court discussed

the “exhaustion of administrative remedies doctrine”’

in detail, and on page 483 of the opinion stated that:

* * * “the doctrine when properly invoked

operates to restrict judicial serutiny of admin-

istrative actions having to do with the classifi-

cation of a registrant, in the case of a registrant

‘ os y ‘ied ree e

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who has failed to pursue normal administrative

remedies, and thus has sidestepped a corrective

process which might have cured or rendered

moot the very defect later complained of in

court.’’ [emphasis supplied]

The Court then proceeded to discuss the case of

McKart v. U.S., 395 U.S. 185 (1969), wherein the reg-

istrant failed to take an administrative appeal from

the Local Board’s denial of “sole surviving son”

status. When the issue of McKart’s entitlement to

exempt status was raised in criminal court, the court

held that the claim should be heard as a defense to the

charge despite “failure to exhaust.”’ The Court’s rea-

soning therein was that the validity of the claim was

a question “solely * * * of statutory interpretation,”

and that failure to exhaust had not inhibited the mak-

ing of an administrative record inasmuch as all the

relevant facts had been presented. The issue, therefore,

was not a factual issue which might have been properly

determined had he exhausted the available administra-

tive appellate procedure, but was a question of law—

that of interpretation of a statutory provision.

In McGee, however, the Court found that McGee’s

failure to exhaust did ‘‘jeopardize the interest in full

administrative fact gathering and utilization of agency

expertise.’’ As stated in McKart, “The Selective Serv-

ice System and the courts may have a stronger interest

in having the question decided in the first instance by

the Local Board, and then by the Appellate Board,

which considers the question anew.”’ McKart v. U.S,

supra.

It is the Government’s considered opinion that this

ease is not a ease in which “entitlement to an exemp-

tion would be automatically made out, given a minimal

showing by the registrant or minimal investigatory

ET RDP EE PST SEP ES DELO LOC ELE IGE LITA

17

effort by the Local Board.”” McGee v. U.S., supra. In-

deed, a close review of the information contained in

defendant’s selective service file, including the special

form for conscientious objector status (SSS Form

150) clearly indicates that this is a claim for conscien-

tious objector status which is dependent upon a care-

ful factual analysis—an analysis that the defendant

never gave the Appeal Board an opportunity to make.

The Appeal Board classifies de novo, and might con-

ceivably have determined that the record should have

been supplemented by the Local Board. Where the

issue involves a question of fact, the administrative

procedure should be exhausted. If courts held other-

wise, indeed, as indicated in McGee, the claimant

might be tempted to circumvent further fact finding

processes once conscientious objector status is denied

at the Local Board level and take a chance at showing

in court that the only administrative record available

shows no basis for denial of the claim.

While the Local Board, in the instant case, erred in

failing to list reasons for denial, this situation might

have been remedied had defendant followed proper

administrative procedures of which he had been ad-

vised. As hereinbefore noted, classification comes as

the product of administrative action based upon fac-

tual considerations within the framework of the Selec-

tive Service law. Proper classification is dependent

upon factual development. The Boards set up for that

very purpose, under the provisions of the act, should

make that determination. The Appeal Board, having

the authority to hear these very matters de novo, is a

part of the administrative machinery and its ultimate

action on a registrant’s claim is obviously contem-

plated under the Act. Here the defendant did not avail

himself of the rights afforded him thereunder, and

now cannot be heard to complain. A full development

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at the administrative level may or may not have estab-

lished his entitlement to the status he sought. But,

the government takes the position that the defendant

was obligated to take that route before he can be

heard to complain of the denial of such entitlement.

Accordingly, it is hereby ORDERED that defend-

ant’s Motion to Dismiss be and the same is hereby

denied.

Dennis R. Knapp,

United States District Judge.

Dated at Charleston this 16th day of March 1972.

APPENDIX D

United States District Court Southern District of

West Virginia, Beckley

Criminal Action No. 71-8 BK

Untrep States oF AMERICA

v.

ALLEN Ray Kine

MEMORANDUM ORDER

Defendant was indicted for violation of the Uni-

versal Military Training Act for refusing to report

for, and submit to, induction into the Armed Forces

of the United States. On J, anuary 25, 1972, the de-

fendant filed a motion to dismiss, which motion was

denied by the Court in a memorandum opinion dated

March 16, 1972. Subsequent thereto, the defendant re-

newed its motion to dismiss, which motion the court

now has under consideration.

The aforementioned memorandum opinion of the

Court summarizes the facts of the case and the Court

deems it unnecessary to repeat them herein. The

Court, in that opinion, based its decision on cGee Vv.

United States, 402 U.S. 479 (1970). In the McGee

ease, the Supreme Court held that where the issue in-

volves a question of fact rather than a question of

law, the available administrative procedures should

be exhausted. The Court indicated that if the courts

held otherwise, the claimant might be tempted to cir-

cumvent further fact finding processes once conscien-

(19)

20

tious objector status is denied at the Local Board level

and take a chance at showing in court that the only

administrative record available shows no basis for

denial of the claim.

In the instant case, the Local Board erred in fail-

ing to list reasons for denying the defendant con-

scientious objector status. The defendant failed to take

any steps toward appealing his classification.

The defendant’s motion is premised on the recent

decision of the U.S. Court of Appeals for the 4th

Circuit in the ease of U.S. v. Robert Dean Davis,

Criminal Action No. 71-1581. The Court, in that case,

states that when an administrative appeal is taken

from a 1-A classification; the registrant need only

contest those reasons put forth by the draft board for

its action in denying conscientious objector status.

Apparently, the Court is of the firm opinion that the

failure of the local board to cite reasons is fatal to a

prosecution for failure to obey an order to report for

induction which is the charge in the indictment in the

instant case. The Court further reiterated its holding

in U.S. v. Broyles, 423 F. 2d 1299 (4th Cir. 1970), re-

quiring a local board to state the basis of a rejection

of a conscientious objector claim where the registrant

has established a prima facie case.

While the Court made no comment on the Supreme

Court’s opinion in McGee v. U.S., supra, inasmuch as

its opinion in the Davis case was issued subsequent

to McGee, it would appear to be controlling in the

instant situation.

Accordingly, it is hereby ORDERED that the in-

dictment against Allen Ray King be, and the same

is, hereby dismissed.

Dennis R. Knapp,

United States District Judge.

Dated at Charleston this 11th day of July, 1972.

U.S. GOVERNMENT PRINTING OFFICE: 1973

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