Appendix — Ehlert v. United States

INDEX

P.

Designation of portions of record to be reproduced in the aes

single appendix

Docket entries

Pleadings in the United States District Court:

Indictment

Waiver of jury trial

Defendant’s trial brief

Notice of appeal

Certificate of clerk to record on appeal

Points on appeal and designation of record (Rule 17(6))

Reporter's transcript of proceedings, page 31, line 6 through

page 96 ..cccccccccce TIT TTT TTT eee

United States Court of Appeals for the Ninth Circuit:

Opinion of three-judge panel, September 11, 1968

Order of the Court of Apyxala, October 18, 1968

Order recalling mandate, October 23, 1968

Order of the Court of Appeals, October 23, 1968

Opinion of the Court of Appeals, en banc, February 2,

Exhibit, pages from Petitioner’s Selective Service File

Certificate of clerk of United States Court of Appeals, Ninth

Circuit, under Rule 21, Revised Rules of the Supreme

Court of the United States

Paut N. Hatvonik,

CHARLES C. MARSON,

American Civil Liberties Union

of Northern California,

503 Market Street,

Sen Francisco, California 94105,

Telephone: (415) 433-2750,

Newt Horton,

1330 Broadway,

Oakland, California 94612,

Telephone: (415) 452-2133,

STaNLEY J. FRIEDMAN,

MortiMER H. HERzsTEIN,

500 Sansome Street,

Sen Francisco, California 94111,

Telephone: (415) 434-0610,

Attorneys for Petitioner.

Iu the Supreme Court

Bnited States

OctToBER TERM, 1970

No. 120

,

Wu1amM Warp EBLERT,

Petitioner,

vs. .

Untrep STATES OF AMERICA,

Respondent. j

DESIGNATION OF PORTIONS

OF RECORD TO BE

REPRODUCED IN THE SINGLE APPENDIX

ry

2

To Erwin N. Griswold, Solicitor General and Attor.

ney for Respondent:

Please Take Notice that Petitioner designates the

following portions of the record in the above-entitled

case as the portion to be reproduced in the single

appendix:

1) All docket entries.

2) All pleadings in the District Court and the

Judgment of the District Court.

3) Page 31, beginning at line 6, through page 34

of the Reporter’s Transcript of proceedings of March

29, 1967, in the District Court.

4) The opinion of the three-judge panel of the

Court of Appeals rendered on September 11, 1968.

5) Order of Court of Appeals, dated October 18,

1968, reversing judgment of the District Court.

6) Order of Court of Appeals, dated October 23,

1968, recalling mandate.

7) Order of the Court of Appeals, dated October

23, 1968, requiring the case to be heard en bance.

8) Opinion of the Court of Appeals, en bance, ren-

dered on February 2, 1970.

9) Order of the Court of Appeals, en bance, en-

tered February 2, 1970, affirming the judgment of the

District Court.

10) As an exhibit to be included in the Single

Appendix. the following pages from Petitioner’s Se

lective Service file, which was introduced into evi-

dence in the District Court: 7, 17, 18, 22, 24, 25, 26,

27, 28, 35, 36, 37, 39, 63.

—

3

The issue petitioner intends to present for' review

is that set forth in the ‘‘Question Presented”, page 2

of the Petition for Writ of Certiorari.

Dated, May 13, 1970.

Paut N. HALvoniK,

CHARLEs C. MARSON,

NerL Horton,

STANLEY J. FRIEDMAN,

Morttmmer H. HERZSTEIN,

By Pavt N. HAtvonix,

Attorneys for Petitioner.

4

CRIMINAL DOCKET 41137

THE UNITED STATES

vs.

WILLIAM WARD EHLERT

Arthur Wells, Jr., Ret’d., Attorney for Defendant

50 USC App. 462—Refused to Submit to Induction

1 Count

Cash Received :

6-5-67 Appeal 5.00

Cash Disbursed :

Jun 61967 C.D 1-96 5.00

May 31 1967

Proceedings

1966:

Dec. 14—

Ord. Indictment filed, issue summons ret.

1/11/67 (Sweigert)

1. Filed Indictment, issued summons.

1967 :

Jan. L1—

Deft. Arr’t., plead NOT GUILTY. Ord. case

con to 2/10/67 to be set for Jury Trial.

(Sweigert)

2. Filed Appearance as Atty, for deft.

Jan. 13—

3. Filed Elec Ree of Arr’t. & Plea (Env. No. 767)

by Rich.

4. Filed summons on ret. ex.,

Feb. 10—

Deft. waived trial by Jury in writing. Ord.

case con to 3/29/67 for Court Trial.

(Sweigert)

Feb. 13—

5. Filed Waiver of Jury Trial.

(Sweigert)

Mar. 29—

Ord. case assigned to Judge Zirpoli for Trial.

(Carter)

Mar. 29—

Ord. Court Trial Evid. intro. Deft. adjudged

GUILTY as charged. Ref. to Prob. Off. Ord.

case con to 4/24/67 for Judg’t. Deft. to remain

on O/R. (Zirpoli)

6. Filed Deft’s. Tria] Brief.

7

6

Apr. 24—

Ord. case con to 4/27/67 @ 9:45 am. for

Judg’t. (Zirpoli)

Apr. 27—

Ord. case con to 5/31/67 @ 9:45 A.M. for

Judg’t. (Zirpoli)

May 31—

Ord. Deft. sent. to 2 yrs. impr. (Zirpoli)

June 1—

7. Entered Judg’t. and commitment (filed

5/31/67 (Zirpoli)

June 5—

8. Filed Notice of Appeal.

June 6—

Made and mailed Notice and Notice of Appeal

to USA.

Made and mailed Statement of Docket Entries

to CCA. and Copy of Notice of Appeal.

7

No. 41137

United States District Court

Northern District of California

The United States of America

Vs.

William Ward Ehlert

INDICTMENT

VIOLATION: Title 50 U.S.C. Appendix, Section

462—Refused to Submit to Induction.

A true bill,

/s/ Plandus Wainwright

Foreman.

Filed December 14, 1966,

James P. Welsh, Clerk.

Presented in Open Court and Ordered

Summons 1/11/67

/s/ W.T. Sweigert

Cecil F. Poole

United States Attorney

Attorney for Plaintiff

In the United States District Court

for the Northern District of California

Criminal No. 41137

United States of America, '

Plaintiff,

= :

William Ward Ehlert,

Defendant. i

VIOLATION: Title 50 U.S.C. Appendix, Section

462—Refused to Submit to Induction.

INDICTMENT

The Grand Jury charges: THAT

WILLIAM WARD EHLERT,

defendant herein, on or about February 9, 1966, in

the City of Oakland, County of Alameda, State and

Northern District of California, did willfully and

knowingly fail and neglect to perform a duty required

of him under and in the execution of the Universal

Military Training and Service Act, as amended, and

the rules, regulations, and direction duly made pur-

suant thereto, in that he, having reported for indue-

—

tion as ordered by his local board, did then and there

refuse to submit to induction into the Armed Forces

of the United States.

A True Bill.

/s/ Plandus Wainwright

/s/ Cecil F. Poole

Cecil F. Poole

United States Attorney

PGS :kt

Filed December 14, 1966,

James P. Welsh, Clerk.

10

District Court of the United States

Northern District of California

No. 41137

The United States of America 4

vs. >

Wm. Ward Ehlert ;

WAIVER OF JURY TRIAL

In conformity with Rule 23 of the Rules of Crimi-

nal Procedure for the District Courts of the United

States, effective March 21, 1946, we, the undersigned,

do hereby waive trial by jury and request that the

above entitled cause be tried before the Court sitting

without a jury.

Dated: San Francisco, California, February 10,

1967.

/s/ William Ward Ehlert

Defendant

/s/ Arthur Wells, Jr.

Attorney for Defendant

/s/ Paul Sloan

Assistant United States Attorney

Approved :

/s/ W.T.Sweigert

Judge, United States District Court,

Northern District of California

Filed February 13, 1967,

James P. Welsh, Clerk.

Wells & Chesney

9560 Telegraph Avenue

Suite 404

Berkeley, California 94704

849-4010

Attorneys for Defendant.

In the United States District Court

For the Northern District of California

Criminal No. 41,137

United States of America, }

Plaintiff,

Vs. >

William Ward Ehlert,

Defendant. |

Violation: Title 50 U.S.C. Appendix, Section 462—

Refused to Submit to Induction.

DEFENDANT’S TRIAL BRIEF

Statement of the Case

The material facts appear in the Selective Service

file. Defendant wishes to stress the following:

1. He was sent an Order to Report for Induction

on June 16, 1965, which ordered him inducted on July

14, 1965. (No. 17)

2. On July 13, 1965, defendant sent to the local

board a letter indicating that he could not accept

12

induction and requesting conscientious objector status,

Most important is the third paragraph of the letter

(No. 18):

You may consider this an inappropriate time

for such a request. Unfortunately, I have been

unable to make a decision of such moment until

faced with the absolute necessity to do so. Since

the receipt of my induction notice, I have begun

to be more fully aware of the implications of

military service at this time.

3. Defendant was given SS form 150. (No. 22) on

July 14.

4. Defendant submitted his 150 on July 26, its due

date (No. 25).

5. No actions appear to have been taken on the

SS 150. The file was sent to the state director.

6. The U.S. Attorney declined prosecution. (No.

35)

7. The local board reconsidered defendant’s classi-

fication sometime between January 7 and January

19, 1966 (Nos. 35, 36) and declined to reopen. The

reason given was that the information submitted did

not indicate ‘‘a change in. . . status beyond [defend-

ant’s] control”.

8. Defendant was ordered to report under the orig-

inal ORI. The new reporting date was sent to him

three days after reopening was denied. (No. 38)

9. Defendant reported for but refused to be in-

ducted. (No. 43)

—

13

Argument

I

There are numerous points which defendant wishes

to raise which will not be briefed. The reason therefor

is that these points have been previously adjudicated

and rulings adverse to defendant now appear to be

law, at least in this Circuit. Defendant will raise

these points in order to preserve them on appeal, but

understands that this court is bound by appellate de

cisions.

i

However, defendant asserts that grounds exist

which compel this court to find defendant not guilty

The local board’s decision not to reopen was based

solely on the ground that defendant’s change in status

to that of a conscientious objector was not beyond his

control. On the record, this decision was erroneous.

If a change in status occurs due to a change in con-

science after an Order to Report for Induction, re-

fusal to reopen is error and appeal lies therefrom.

Keene v. U.S., 266 F.2d 378, 384 (1959).

The Second Circuit has recently recognized that

conscientious objection may not mature until after

receipt of an induction notice and may in fact be pre-

cipitated by receiving such notice. U.S. v. Gearey,

368 F.2d 144 (1966). As aptly put by that court:

The considerations are quite different, however,

when a claim of conscientious objection, raised

for the first time after receipt of an induction

notice, is based on a claim which had not previ-

14

ously matured. Section 6(j) does not set any time

limit by which an applicant’s conscientious ob.

jections must fully crystallize in his mind, ...

The realization that induction is pending, and

that he may soon be asked to take another’s life,

may cause a young man finally to crystallize and

articulate his once vague sentiments.

The evidence here clearly discloses that the induc-

tion order itself triggered the crystalization of defend-

ant’s beliefs. Defendant stated (No. 18) that “... I

have been unable to make a decision of such moment

until faced with the absolute necessity to do so.”

This court is well aware of the complex of factors

which may make up conscentious objection. It is not

a simple thing, such as a missing leg which gives a

4-F classification. Rather, a man’s whole life is in

review. The more sincere and honest one tries to be

with oneself, the more difficult the decision becomes,

for conscientious objection implies a total posture to-

wards the world. One must strive for consistency of

belief and action in situations where one is in a small

minority and is met with inconsistency and questions

of difficult balancing every day. It should be no sur-

prise that some cannot make the decision until exter-

nal events force the decision upon them.

Further, it is most probable that one cannot ever

control whether he is or is not a conscientious objec-

tor, in the same way that one cannot control a belief in

God.

This defendant should have a right to an appear-

ance and appeal through the Selective Service Sys-

15

tem. The reasons therefore are clearly stated by the

Gearey court:

The obvious purpose of the statutory scheme

which provides for intervention by the Justice

Department into the Sciective Service appeal

procedure, is to furnish a fount of information

concerning an appellant’s conscientious objection

claim to the Appeal Board, so that a careful and

enlightened decision can be reached. The Depart-

ment’s recommendation is based not only on the

hearing which it conducts, but also on the report

it receives from the FBI concerning the accuracy

and sincerity of the applicant’s claim. The Justice

Department’s role in the appeal procedure serves

another purpose. It introduces into the inquiry a

government agency less intimately associated with

the armed forces than the Selective Service Sys-

tem, and not as concerned with meeting fixed

quota calls. As a result, a more objective and dis-

interested approach to granting exemptions can

be expected.

Admittedly, defendant’s SS Form 150 is not a work

of art. However, it does show that the defendant may

have been confused about the legal meaning of ‘‘re-

ligious” as that term is understood since the Seeger

decision. Defendant’s answer to question #6 on his

SS Form 150 (No. 26) indicates he believed ‘‘re-

ligious” meant a connection with orthodox religion.

Perhaps defendant qualifies as a ‘‘Seeger C.0.” The

best way to find out is through the Selective Service

System.

To sum up: no evidence whatsoever appears from

which the board could conclude that defendant’s

16

change in status to that of a conscientious objector

was within his control. In fact, the evidence is all to

the contrary. His change in status having been beyond

his control, he is entitled to a reopening and a recon.

sideration with a right of appeal therefrom.

Wells & Chesney,

Attorneys for Defendant.

By Arthur Wells, Jr.

Filed March 29, 1967,

James P. Welsh, Clerk.

Wells & Chesney

9550 Telegraph Avenue

Suite 404

Berkeley, California 94704

849-4010

Attorneys for Defendant.

In the United States District Court

For the Northern District of California

Criminal No. 41,137

United States of America, j

Plaintiff,

V8.

William Ward Ehlert,

Defendant.

a

NOTICE OF APPEAL

Notice is hereby given that William Ward Ehlert,

defendant herein, appeals to the United States Court

of Appeals for the Ninth Circuit from the final judg-

ment entered in this proceeding on May 31, 1967. —

Dated: June 2, 1967.

Wells & Chesney, |

By Arthur Wells, Jr.

Filed June 5, 1967,

James P. Welsh, Clerk.

18

In the United States District Court

For the Northern District of California

Criminal No. 41,137

United States of America, :

Plaintiff,

™ ,

William Ward Ehlert,

Defendant.

CERTIFICATE OF CLERK TO RECORD ON

APPEAL

I, James P. Welsh, Clerk of the United States Dis-

trict Court for the Northern District of California,

do hereby [sic] that the foregoing and accompanying

documents listed below, are the originals (with the

exception of the Indictment and Judgment and Com-

mitment, which are certified copies) on file in the

above entitled case and constitutes the record on

appeal herein.

Indictment

Waiver of Jury Trial

Defendant’s Trial Brief

Judgment and Commitment

Notice of Appeal

Statement of Docket Entries

Pre PF Pr

19

7. Plaintiff’s Exhibit No. 1

Ri ccc Volumes of Reporter’s Transcript.

In Witness Whereof, I have hereunto affixed my

hand and the seal of the above entitled Court this 7th.

day of June, 1967.

James P. Welsh, Clerk,

By: Ramon E. Xavier, Deputy Clerk.

Wells & Chesney

2550 Telegraph Avenue

Suite 404

Berkeley, California 94704

849-4010

Attorneys for Appellant.

United States Court of Appeals

For the Ninth Circuit

No. 21,930

United States of America, )

Plaintiff and Respondent,

vs. ,

William Ward Ehlert,

Defendant and Appellant.

POINTS ON APPEAL AND DESIGNATION OF

RECORD (RULE 17(6))

To the Clerk of the above-entitled Court:

1. A concise statement of the point on which Ap-

pellant intends to rely is as follows:

Appellant stands convicted of failing to submit to

induction in violation of 50 U.S.C. Appendix $462.

Appellant claimed a change in status to that of con-

scientious objector after receiving his notice of in-

duction. The lower court found that defendant-

appellant factually had a change of status which was

beyond his control. However, that court ruled that, as

a matter of law, a factual change in status to that of

conscientious objector was not legally a change be-

yond one’s control and therefore appellant was not

denied due process by failure of the draft board to

reopen and reconsider his claim and to afford him a

right of appeal.

The lower court erred in holding, as a matter of

law, that a change in status to that of conscientious

objector cannot be beyond the control of the regis-

trant.

2. Appellant designates the following as the rec-

ord which is material to the consideration of the

appeal :

1) All oral proceedings in this action, including all

oral testimony, and all comment and argument of

counsel and court;

2) All original papers transmitted by the District

Court Clerk to this Court;

3) Government Exhibit No. 1, which is a certified

copy of Appellant’s Selective Service file.

Dated: 26 June 1967.

Wells & Chesney,

By Arthur Wells, Jr.,

Attorney for Defendant

and Appellant.

Filed June 26, 1967,

James P. Welsh, Clerk.

Reporter's Transcript of Proceedings, page $1, line 6 through

page 34:

[B.T. 31] The Court: Well, are you gentlemen

ready to submit it?

Mr. Wells: Yes.

Mr. Sloan: I think there is a very practical cop-

sideration in all cases as to what decision the Board

makes on these last minute submissions of a claim of

conscientious objection. The Court in Boyd concluded

that there must be some end to the time when regis.

trants can raise the claim of conscientious objection

rather than raise and re-raise the right to review.

That would result in chaos. I think this is the very

purpose of the regulation.

The Court: Of course, Judge Kaufman has a dif-

ferent interpretation. Well, I would say this, that if

this were a case in Judge Kaufman’s circuit I would

feel, based on the record before me, I would have to,

I would have to acquit the accused. But being pri-

marily subject to the interpretation of the Ninth Cir.

cuit, I feel that based on the Boyd case and the Par-

rott case, that the evidence of course is clear that

[R.T. 32] the accused did not report into the service.

The only other action relates to the action of the

Board and interpreting the action of the Board and

the propriety of the action and the basis of the ae-

tion, I should be guided by Ninth Circuit cases, and

guided by those cases and by the record, I feel there

is a basis for the action of the Board and therefore

I have to find the defendant guilty.

I do so recognizing that the legal basis for the ulti-

mate finding as relates to the action of the Board, in

view of the reasoning in the Geary case, leaves us

with a question of some merit.

Now, I don’t know whether there will be an appeal

taken or not, or even that this is a case that ought to

be appealed. You might get a more definitive state

ment from the Court of Appeals as to just how far

they intend the Boyd case to apply.

Now, having found the defendant guilty, and in-

structing the Clerk to record him guilty, what do you

have in mind in relation to judgment?

Mr. Wells: I would ask the matter be submitted

to the probation department.

The Court: I will submit it to the probation de-

partment. How much time do you want, or do you

think we should have?

[R.T. 33] Mr. Wells: They usually take three

weeks.

Mr, Sloan: That would be ample, I am sure. We

would have no objection to his remaining on his own

recognizance.

The Court: He may continue on his own recogni-

zance. Do you know whether the defendant intends to

take an appeal ?

Mr. Wells: He does intend to take an appeal. As

far as that goes, I might point out that part of that

question is the question of an appeal bond so that he

might remain out.

The Court: Oh, I don’t think we are going to have

any problem on that because, very frankly, I think

there is reasonable merit to this case. On that ques-

tion, I don’t know how the Government feels about it.

Mr. Sloan: No, I don’t think we will raise any

problem.

08 wenn

The Court: I have enough question in my ow

wisdom to know that this is a good case for appeal

and that I could be reversed.

Mr. Wells: Yes. No, I just meant as far as him

staying out pending the appeal.

The Court: That’s what I say. Having all those

facts in mind, I don’t think you are going to have any

[R.T. 34] problem on that score. At the present time

he is out on his own recognizance pending the report

of the probation officer. After I receive that report of

the probation officer I will pronounce judgment and

sentence. I am not indicating by anything I say what

my attitude may be with relation to the judgment

itself.

The Clerk: Let’s make it April 24th, Your Honor,

at 9:45 a.m.

The Court: Very well.

Kenneth J. Peck,

Official Reporter.

United States Court of Appeals

For the Ninth Circuit

No. 21,930

William Ward Ehlert, q

Appellant,

= ‘

United States of America,

Appellee. J

[September 11, 1968]

On Appeal from the United States District Court

for the Northern District of California

Before: MERRILL and BROWNING, Circuit

Judges, and KILKENNY, District Judge

MERRILL, Circuit Judge:

Appellant has been convicted of a violation of 50

US.C.App. §462, in refusing to submit to induction

into the armed forces. He was, on June 14, 1964,

ordered to report for induction and thereafter sought

to reopen his classification in order to establish his

status as a conscientious objector.

In this respect Selective Service Regulations,

32 C.F.R. §1625.2, provide in part:

“The classification of a registrant shall not be

reopened after the local board has mailed to such

registrant an Order to Report for Induction * * *

unless the local board first specifically finds that

there has been a change in the registrant’s status

resulting from circumstances over which the reg.

istrant had no control.”

The local board refused to reopen, advising appel-

lant that its action was based upon its determination

that “the information submitted on SSS form 150

was not a change in your status which was beyond

your control.”

The District Court, in denying motion for acquittal,

ruled as matter of law that changes in status involving

conscientious objection were not beyond the control

of the registrant. That ruling is here asserted as error,

Whether the crystalization of a conscientious objec-

tion to war can constitute a circumstance over which

the registrant has no control is a question upon which

the circuits have disagreed. Upon the affirmative side

are United States v. Gearey, 368 F.2d 144 (2d Cir.

1966), and Keene v. United States, 266 F.2d 378 (10th

Cir. 1959). Upon the negative side is United States

v. Schoebel, 201 F.2d 31 (7th Cir. 1953), with approv-

ing dicta in Davis v. United States, 374 F.2d 1 (5th

Cir. 1967), and United States v. Al Majied Muham-

mad, 364 F.2d 223 (4th Cir. 1966).

This court has never definitively ruled upon the

question. In two cases relied upon by the District

Court, language suggests our alignment with Schoebel.

Parrott v. United States, 370 F.2d 388 (9th Cir.

1966) ; Boyd v. United States, 269 F.2d 607 (9th Cir.

1959). On the other hand in Boswell v. United States,

390 F.2d 181 (9th Cir. 1968), we recently held that

the registrant was entitled to the opportunity to file

a conscientious objection form for which application

was made after notice of induction had been mailed.

We expressly rejected the contention that denial of

such right was harmless and nonprejudicial. In Dug-

dale v. Untted States, 389 F.2d 482 (9th Cir. 1968),

the difference between Gearey and the language in

Boyd and Parrott was noted and the choice of rule

was expressly reserved. Briggs v. United States, .......

(9th Cir. 1968), followed the same course.

We here hold that the dictates of a registrant’s con-

science can constitute a circumstance beyond his con-

trol. Conscientious objection itself would seem to be a

contradiction of control. It is difficult to see how one

could in his thinking depart at will from a conviction

which honestly is dictated by conscience. Conversely,

a belief conveniently subject to the control of the

holder would hardly seem to be conscientiously enter-

tained. Accordingly, crystalization of a conscientious

objection occurring after notice of induction can con-

stitute a change over which the registrant had no

control, justifying reopening of classification under

§1625.2.

Reversed and remanded for further proceedings in

the light of this opinion.

KILKENNY, Dissenting.

Impressed, as I am, with the logic of United States

v. Schoebel, 201 F.2d 31 (7th Cir. 1953), and this

Court’s approval of Schoebel in Boyd v. United

States, 269 F.2d 607 (9th Cir. 1959) and Parrott v.

United States, 370 F.2d 388 (9th Cir. 1966), I would

affirm.

United States Court of Appeals

for the Ninth Circuit

No. 21930

DC _ # 41137

William Ward Ehlert, a

Appellant,

COR

United States of America,

Appellee.

APPEAL from the United States District Court

for the Northern District of California

JUDGMENT

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the Northern District of California and

was duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause

be, and hereby is reversed and that this cause be,

and hereby is remanded to the said District Court

for further proceedings in accordance with the opin-

ion of this Court.

A True Copy:

Attest: October 15, 1968

Wm. B. Luck, Clerk

By /s/ William E. Wilson

William E. Wilson, Chief Deputy

Filed and entered September 11, 1968

Filed October 18, 1968,

James P. Welsh, Clerk.

In the United States Court of Appeals

for the Ninth Circuit

No. 21,930

William Ward Ehlert, ;

Appellant,

V8.

United States of America,

Appellee.

ORDER RECALLING MANDATE

Before: MERRILL and BROWNING,

Circuit Judges

The certified copy of the judgment issued on Sep-

tember 11, 1968, is recalled.

Charles M. Merrill

James R. Browning

Circuit Judges

Filed October 23, 1968,

Wm. B. Luck, Clerk,

United States Court of Appeals

for the Ninth Circuit

No. 21,930

,

William Ward Ehlert,

Appellant,

V8.

United States of America,

Appellee.

ORDER

It is ordered that, upon the vote of a majority of

the active judges of the court, the assignment of the

above entitled cause, heretofore made to Circuit

Judges Merrill and Browning and District Judge Kil-

kenny, be withdrawn and that the appeal be heard

en banc on a day to be fixed.

The question with which the panel will be partic-

larly concerned is whether the crystalization of a

draft registrant’s conscientious objection, arrived at

only after notice to report for induction, can consti-

tute a change of status over which the registrant has

no control, so as to require a reopening of his classi-

fication under section 1625.2 of the Selective Service

Regulations.

Filed October 23, 1968,

Wm. B. Luck, Clerk.

ot eae ne 6 ee te ale

31

United States Court of Appeals

for the Ninth Circuit

No. 21,930 In Bane

.

William Ward Ehlert,

Appellant, | .

vs. ‘

United States of America,

Appellee. }

[February 2, 1970]

Appeal from the United States District Court

for the Northern District of California

Before: CHAMBERS, BARNES, HAMLEY, MER-

RILL, KOELSCH, BROWNING, DUNI-

WAY, ELY, CARTER, HUFSTEDLER,

WRIGHT, KILKENNY and TRASK, Cir-

cuit Judges.

KILKENNY, Circuit Judge:

Appellant, on June 14, 1964, was ordered to report

for induction and thereafter sought to reopen his

classification in order to establish his status as a

conscientious objector. Subsequently, he was convicted

of failing to submit to induction into the Armed

Forces in violation of 50 U.S.C.App. § 462.

Selective Service Regulations, 32 C.F.R. § 1625.2,

in pertinent part, provide:

32

“‘The classification of a registrant shall not be

reopened after the local board has mailed to such

registrant an Order to Report for Induction...

unless the local board first specifically finds that

there has been a change in the registrant’s status

resulting from circumstances over which the

registrant had no control.”

In refusing to reopen his classification, the local

board advised appellant that its action was based

upon its determination that ‘‘the information sub-

mitted on SSS form 150 was not a change in your

status which was beyond your control.”

The District Court, in denying motion for acquittal,

ruled as a matter of law that changes in status in-

volving conscientious objection were not beyond the

control of the registrant. That ruling is here asserted

as error.

Whether the crystallization of a conscientious objec-

tion to war can constitute a circumstance over which

the registrant has no control is a question upon which

the circuits have disagreed. Upon the affirmative side,

among others, are United States v. Sandbank, 403

F.2d 38 (2d Cir. 1968), cert. denied 394 U.S. 961

(1969) ; United States v. Gearey, 368 F.2d 144 (2d

Cir. 1966), cert. dented 389 U.S. 959 (1967), rehear-

ing denied 389 U.S. 1010 (1967), and Keene v. United

States, 266 F.2d 378 (10th Cir. 1959). Upon the nega-

tive side, among others, are United States v. Schoebel,

201 F.2d 31 (7th Cir. 1953), with approving dicta in

Davis v. United States, 374 F.2d 1 (5th Cir. 1967);

33

United States v. Jennison, 402 F.2d 51 (6th Cir.

1968), cert. dented 394 U.S. 912 (1969) ; United States

v. Helm, 386 F.2d 434 (4th Cir. 1967), cert. denied

390 U.S. 958 (1968), and United States v. Al-Majied

Muhammad, 364 F.2d 223 (4th Cir. 1966).

This court has never definitively ruled upon the

question. In two cases relied upon by the District

Court, language suggests our alignment with Schoe-

bel. Parrott v. United States, 370 F.2d 388 (9th Cir.

1966) ; Boyd v. United States, 269 F.2d 607 (9th Cir.

1959). In Dugdale v. United States, 389 F.2d 482 (9th

Cir. 1968), the difference between Gearey and the

language in Boyd and Parrott was noted and the

choice of rule was expressly reserved, Briggs v.

United States, 397 F.2d 370 (9th Cir. 1968) and

Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968)

also distinguish Gearey. At first glance, Boswell v.

United States, 390 F.2d 181 (9th Cir. 1968), would

seem to support appellant’s views. While some of the

language there employed points in that direction, a

close analysis reveals that the precise point here pre-

sented was not there in issue. To the extent, if any,

that Boswell may be in conflict with our views herein

expressed, it is overruled.

The statutory authorization for C.F.R. § 1625.2 is

found in 50 U.S.C.App. § 460, which provides, among

other things, that the President may “prescribe the

necessary rules and regulations to carry out the pro-

visions of this title.” All of the authorities agree that

the regulation is within the perimeter of the grant of

power. Moreover, it is conceded that registrants, eligi-

34

ble for the draft, should not be permitted, without

limitation, to challenge their status. Without such a

regulation, the manpower quotas of Selective Service

could not be met with any degree of certainty. An

orderly administration of the Selective Service Sys-

tem requires such a regulation. Appellant does not

really challenge the reasonableness of the regulation,

nor its application to one whose conscientious objec-

tion matures prior to the notice to report. He urges

that his views on the subject ‘‘crystallized” after he

received the notice, and that we should follow the

lead of Sandbank, Gearey, Keene and other similar

cases,

Presumptively, every human is a rational being,

having a free will and in complete charge of his own

thinking. Section 1625.2, with one exception, was en-

acted for the specific purpose of putting to an end

the function of the Selective Service System once a

registrant had received his notice to report. The men-

tioned exception being those cases where the regis-

trant is in a position to furnish the Board with objec-

tive evidence entitling him, prima facie, to a change

of status by reason of circumstances beyond his con-

trol. True enough, the regulation does create a brief

period during which a registrant is not eligible to

present a claim of conscientious objection. This result,

in our opinion, does not invalidate the regulation. The

logic behind requiring a person troubled with con-

scientious objection to state his claim before receipt

of the notice to report is extremely practicable. A

Board can readily ascertain the validity of an ‘‘ex-

35

treme hardship”,’ ‘‘sole surviving son”,? and other

such claims and can dispose of them, without diffi-

culty, one way or the other, prior to the reporting

date. The exact opposite is true of a claim of exemp-

tion based on conscientious objection. An adjudication

on the sincerity of a registrant’s conscientious objec-

tion requires an exploration in depth into his past

and present family, religious and vocational life.

After such an adjudication, if we followed Gearey

and similar authorities, it would then be necessary to

make the additional adjudication on when there was

a crystallization or maturing of the registrant’s views.

No such procedure is contemplated by the regulation

under scrutiny.

We conclude that a crystallization of, or a change

in, a registrant’s views on conscientious objection is

not a change in his status resulting from circum-

stances over which he has no control, within the mean-

ing of 32 C.F.R. § 1625.2. The judgment of the lower

court is AFFIRMED.

CHAMBERS, CHIEF JUDGE, BARNES, CAR-

TER, WRIGHT and TRASK, CIRCUIT J UDGES,

CONCURRING,

DUNIWAY, Circuit Judge:

I concur. I do not think that the claimed “‘erystal-

ization” of conscientious objection can be said to be

“a change in . . . status resulting from circumstances

132 C.F.R. § 1622.30 (b).

*32 C.F.R. § 1622.40 (a) (10).

SE re +

36

over which the registrant has no control.” (Emphasis

added.) The word ‘‘circumstances” indicates to me

some fact, act or event external to the mind or con.

sciousness of the registrant, rather than the mysteri-

ous and unfathomable internal mental and spiritual

processes of the registrant himself. Whether those

processes are beyond the registrant’s control I leave

to the philosophers among us. I think that, whatever

the answer to that question may be, they are not

circumstances beyond his control.

Dictionary definitions tend to confirm this view,

Funk & Wagnall’s New Standard Dictionary defines

“circumstances” as ‘‘1. Something existing or occur-

ring incidental to some other act or event; a related

or concomitant act or thing.” (Emphasis added.)

Webster's New International Dictionary, 2d ed., de-

fines the word as ‘‘1. One of the conditions under

which an act or event takes place or with respect to

which a fact is determined; a condition, fact or event

accompanying, or determining the occurrence of

another fact or event.” (Emphasis added. )

The practical considerations mentioned by my

brother Kilkenny strongly reenforce these views. The

regulation should be construed in a manner consistent

with those considerations.

Judge Barnes, Ely and Carter concur in the fore-

going concurring opinion.

ELY, Circuit Judge (Concurring) :

I concur in the majority opinion, and I also endorse

the logical analysis expressed by my Brother Duni-

way. At the same time, ] believe that additional

factors should be recorded,

We took this case en bane for the purpose of con-

sidering and resolving the one important problem

which the principal opinion attacks, and I am glad

that our court has now supplied desired guidance on

that issue. My examination of the record convinces

me, however, that insofar as this particular appeal is

concerned, we may have indulged ourselves in a great

deal of unnecessary intellectual exercise. The con-

tents of Ehlert’s Selective Service file lead me to be-

lieve that there was no alternative to the affirmance

of Ehlert’s conviction even had the majority adopted

the position taken by my Brother Merrill.

The sole question before the District Court was

whether Ehlert’s local board erred in refusing to re-

ypen Ehlert’s classification. Under the applicable Reg-

ulation (32 C.F.R. §1625.2), all recognize that the

board was disempowered to reopen the classification

vithout expressly finding that there was a change in

Ehlert’s status resulting from circumstances over

which he had no control. In determining whether or

not it could make that finding, the board could, of

“ourse, look only to that which Ehlert himself sub-

nitted in support of his belated claim for conscien-

‘ious objector status." Even in cases not involving an

lleged change in status after receipt of the induction

1This was conceded in the District Court. The trial judge

ecognized that there was no triable issue of fact and that his

cope of review was confined to the determination of whether the

ontents of Ehler’s Selective Service file disclosed the absence of

ny basis in fact for the board’s refusal to reopen the classifica-

ion. In this connection, Judge Zirpoli commented that “the very

naximum you can go by is whatever was before the Board.”

OTE IRE OLE ON IES ON BOTT C50

———————

38

notice, the registrant must ‘‘clearly establish” his

right to an exemption or deferred status. Petrie »v,

United States, 407 F.2d 269 (9th Cir. 1969); Badger

v. United States, 322 F.2d 902, 906 (9th Cir. 1963).

Ehlert set forth his representations, after he re.

ceived his notice to report for induction, in the stand-

ard Selective Service Form SSS 150. As I interpret

those representations, none of them supplied the

barest basis, even vestigial, upon which the local board

could have supported a finding either that Ehlert

claimed to be opposed conscientiously to war in any

form or that his alleged beliefs crystalized after his

receipt of his notice to report for induction. The

board would be required to make the determination

whether Ehlert’s representations would support the

required finding, and we must presume the regularity

of the board’s proceedings. Oesteretch v. Selective

Service Local Bd. No. 11, 393 U.S. 233, 241, 21 L. Ed.

2d 402, 89 Sup. Ct. 414 (1968) (Harlan, J., concur-

ring); Bishop v. United States, 412 F.2d 1064, 1067

(9th Cir. 1969).

The threshold question of whether Ehlert claimed

to be opposed conscientiously to war in any form

focuses our attention on his statements that ‘‘I believe

that service in the armed forces of this country at this

time is work toward the end of the destruction of the

human race,” and ‘‘the sole purpose of military serv-

ice in this country today is preparation for a nuclear

orgasm which would be totally destructive of human

life and values.” (Emphasis supplied.) He also stated

that he did not believe in a Supreme Being, and that

he had no “‘religious” convictions. Furthermore, he

did not claim to be driven by any moral or philosophi-

eal code that could be equated with ‘‘religion” within

the meaning of United States v. Seeger, 380 U.S. 163,

13 L. Ed. 2d 833, 85 Sup. Ct. 850 (1965).

In addition to his failure to state a prima facie

claim of conscientious objection, Ehlert also failed to

present any facts that would have justified a finding

that he had undergone a ‘‘change in status,” i.e., he

did not present a claim that his beliefs had crystalized

after receipt of his induction notice. In answer to the

inquiry as to ‘“‘when . . . you received the training and

acquired the belief which is the basis of your claim

...)” Ehlert replied, ‘The time period is from Sep-

tember, 1960, to the present. The source and the

method have been the intellectual atmosphere of the

University of California and its surrounding and the

natural workings of an eager-to-know and questioning

mind.” In a letter to his local board Ehlert stated

that he had been ‘‘unable to make a decision of such

moment until faced with the absolute necessity to do

so. Since the receipt of my induction notice, I have

begun to be more fully aware of the implications of

military service at this time.” This latter statement

constitutes the only semblance of a claim that a new

belief was reached after the induction notice, and it

formed the basis for the argument at trial. District

Judge Zirpoli expressed, as one of his then thoughts,

the opinion that this language should be interpreted

to mean that Ehlert had long been aware of his be-

liefs but had simply been unable to decide whether to

39

claim the status to which he felt entitled. At least,

the board was warranted in interpreting the letter in

this fashion and there was abundant basis in fact to

support that interpretation. Judge Zirpoli observed

that a basis in fact for this interpretation existed by

reason of the long period of the development of

Ehlert’s attitude coupled with the late filing of the

claim. Surely, too, the board was entitled to infer

that Ehlert himself believed that he had undergone

no change in status. When Ehlert presented his new

claim, he wrote, ‘‘I realize that I no longer have the

legal right to apply for the status of conscientious

objector... .”

In his footnote 1, my Brother Merrill remarks,

‘**The points raised in Judge Ely’s concurring opinion

were not reached by the District Court. . . . Before

the District Court the appellant asserted that the local

board’s decision not to reopen was based solely on the

ground that his change in status was not beyond his

control. The District Court dealt with the case in a

manner consistent with this position.” I cannot ac-

cept this conclusion. The judgment of conviction it-

self does not, of course, contain specific reasoning or

include any explanation by the District Court for the

ultimate determination of guilt. During the oral argu-

ment of counsel, there were numerous Socratic ex-

changes in which the learned trial judge clearly indi-

cated his consideration of separate legal approaches.

It is true that in the fina] exchange, the court made

a comment which supports a portion of the minority’s

footnote 1. During the argument, however, the Gov-

41

_ ermnment’s attorney strenuously contended, and I be-

lieve correctly, that there was no factual basis upon

which the board could have found a change in status.

On this, in the extended colloquy, the District J udge

commented, “They [the board] were not obligated to

reopen.” In think it is obvious, therefore, that the

District Court did in fact consider, as it was obli-

gated to consider, the problem to which my comments

are directed. It is not unusual for a court, during an

analytical exchange, to express thoughts that it may

not, in the end, retain; consequently, I believe that we

should not cull a judge’s off-hand oral comments from

the record and employ only some of them in order to

conclude definitively that the trial court’s ultimate

conclusion was based solely upon only a portion of his

comments.

The minority also, in its footnote 1, notes ‘‘“From

the record it would appear doubtful that they [the

points I discuss] were reached even by the local

board.” This conclusion flies in the face of the pre-

sumption of regularity noted earlier, since the board

would be required to make these determinations be-

fore it could inform the registrant that it would not

reopen or, most certainly, before it could make the

required finding that there had been presented a

prima facie claim of a change of status resulting from

circumstances beyond the registrant’s control. Here,

the only significant notation made by the board and

appearing in the Selective Service file is “‘Reviewed

and not reopened.” From this, I cannot agree that

there is any doubt whatsoever that the board, per-

forming its duty with regularity, could have blinded

itself to the recorded facts which I have specified.

All the above notwithstanding, it seems clear to me

that even if we construe the District Court’s state

ments at the conclusion of the argument as a ruling

that as a matter of law there could be no change to

conscientious objector status after receipt of the in-

duction notice, still we should hold that the District

Court was not in a position to reach this question

since Ehlert presented no factual basis upon which

his board could have justifiably based a finding that

he had presented a prima facie claim for a change of

status resulting from circumstances beyond his con-

trol.2 From Ehlert’s own revelations, the board was

thoroughly justified in concluding that his represen-

tations as to his beliefs, even if true, would not legally

entitle him to conscientious objector status and that

such beliefs were not first reached after the notice to

report for induction was sent and received. Even,

therefore, if we assume, arguendo, that the opposing

views’ of the dissenters are correct, I submit that we

2The Gearey court itself recognized that late filing could be a

factor in determining the sincerity of the claim or the time of

erystalization. United States v. Gearey, 368 F.2d 144, 150 (2d

Cir. 1966).

8The dissenters see a “hiatus” created by the fact that a literal

construction of Department of Defense Directive No. 1300.6 could

support the conclusion that the military will not consider claims

arising before actual induction. I believe that the supposed

“hiatus” is more fancied than real. I do not read the directive

in this way, since the thrust of the directive is toward claims

arising before the induction notice. Moreover, I am confident

that military authorities would recognize a probable constitutional

obligation to consider the genuineness of an inductee’s claim that

conscientious objector beliefs had become fixed within the brief

period between the time of the notice to report for induction

and his actual induction into the armed forces.

would neverthless be compelled to affirm the judgment

of conviction.

CHAMBERS, Circuit Judge, concurring:

In my view, the case should be disposed of as Judge

Ely would. However, a clear majority of the judges,

including the dissenters, thinks the case should be

resolved ‘‘on the Road to Damascus.” On that road,

I agree with Judge Kilkenny. Therefore, I concur in

Judge Kilkenny’s opinion.

MERRILL, Circuit Judge, with whom Circuit Judges

HAMLEY, KOELSCH, BROWNING and HUF-

STEDLER join, Dissenting:

The majority opinion, affirming the District Court,

holds as matter of law that crystallization of a regis-

trant’s conscientious objection to war is not, under 32

C.F.R. § 1625.2, ‘‘a change in [his] status resulting

from circumstances over which [he] had no control.”

In this posture of the case we must assume that ap-

pellant in fact enjoys the status of a conscientious

objector but is precluded from recognition of that

status by virtue of the provisions of the regulation.

Two distinct contentions were advanced by appellee

in support of the District Court. The majority opin-

ion appears to rely on both.

1The points raised in Judge Ely’s concurring opinion were not

reached by the District Court. From the record it would appear

doubtful that they were reached even by the local board. Before

the District Court the appellant asserted that the local board’s

decision not to reopen was based solely on the ground that his

change in status was not beyond his control. The District Court

dealt with the case in a manner consistent with this position.

mag

44

1. First it was contended that crystallization of

conscientious objection is not a ‘‘circumstance” under

the regulation ; that by “circumstances” the regulation

was intended to include only such objectively ascer.

tainable conditions as a change in dependeney status

or physical condition ; that it was not meant to include

such intangible considerations as state of mind. For

two reasons I find this contention unacceptable: (a) I

do not believe the regulation is rationally subject to

such a construction; (b) so construed, I would hold

the regulation to be contrary to statute and invalid.

(a) A ‘“‘change in the registrant’s status” under

the regulation can have reference only to a change

in the registrant’s right to a particular classification.

‘‘Circumstances” in this context can have reference

only to the conditions relevant to such a change of

status. In the case of the conscientious objector status

the only relevant condition or circumstance is the reg-

istrant’s state of mind. The effect of the majority's

construction is to single out conscientious objector as

one status entitled to no consideration at this stage

of the proceedings. I cannot attribute to the regula-

tion such a discriminatory result.

Further this construction would seem to create an

anomalous situation noted in United States v. Gearey,

368 F.2d 144 (2d Cir. 1966); cert. denied, 389 US.

959 (1967).?

2Footnote 11, 368 F.2d at page 150, states:

“Any other conclusion would result in the anomalous situ-

ation that individuals whose claim of conscientious objection

mature either prior to receipt of a notice of induction or

after induction itself, would be permitted to apply for defer-

45

The Congressional policy against requiring com-

. batant training and service of those conscientiously

opposed to participation in war is one of long stand-

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

It finds its counterpart in the policy of the armed

forces that conscientious objectors should be dis-

charged from service or assigned noncombatant duty.

The armed forces quite appropriately focus their at-

tention on conscientious objection crystallizing after

induction, leaving cases of earlier crystallization to

the jurisdiction of the Selective Service System.

The majority’s construction thus creates a hiatus:

Those who become conscientious objectors after notice

of induction but before actually being inducted would

appear to be excluded from application of the Con-

gressional policy. Application of the policy is made

to depend not on one’s true status but on when one

acquired it.

'(b) Legislation creating this exemption from mili-

tary service, 50 U.S.C.App. §456(j) provides for no

such limitation. The enforcement of orderly pro-

ment, while those whose beliefs formed during the interim

period, would not be able to properly raise their claims. It

would appear this is so because Department of Defense Di-

rective No. 1300.6 states:

Federal courts have held that a claim to exemption from

military service under the UMT&S Act must be interposed

prior to notice of induction and failure to make timely

claim for exemption constitutes waiver of the right to

claim. Therefore, request for discharge after entering mili-

tary service, based solely on conscientious objection which

existed but was not claimed prior to induction or enlist-

ment, cannot be entertained. Similarly, requests for dis-

charge based solely on conscientious objection claimed and

denied by Selective Service prior to induction cannot be

entertained.’

anne ——

cedures may well require default to be imposed for

failure of a registrant to claim in timely fashion,

But here the limitation is not based on procedural

default. It acts upon the substance of the status itself,

and serves to diminish what Congress has bestowed,

I regard it as beyond the rule-making power of the

System so to exclude from application of the exemp-

tion anyone who by virtue of his status is entitled

to it under law; or, for reasons of expediency, to

relieve itself from the onus of its clear ovligation to

entertain timely claims of status on the part of regis.

trants not yet inducted into military service.

2. It was next contended that this ‘‘cireumstance”

(crystallization of conscientious belief), accepting it

as such, cannot be said to be one over which the regis-

trant has no control. In other words, assuming appel-

lant to be a true conscientious objector, it was within

his control not to become one.

This strikes me as a disparagement of the concept

of conscience most out of tune with the prevailing

mores of the day. One simply cannot order his cons¢ci-

ence to be still or make himself believe what he does

not believe and I must reject the implication that it

is right and proper that one should suffer loss of

status for having failed to bring his conscience to

heel.

Conscientious objection, in truth, is a contradiction

of control. Just as a conviction honestly dictated by

conscience cannot be banished at the will of the

holder, so, conversely, a belief conveniently subject to

the control of the holder is not conscientiously enter-

tained.

47

The issue for the board after notice of induction,

is, then, no different from that presented by an earlier

claim: Is the avowed -belief. conscientiously enter-

tained ?* Only the procedure of its resolution differs.

But this factual issue should be faced and not be dis-

of as a matter of law on such an assumption

as is here advanced.

I would reverse.

*The further issue is presented: Did the belief in fact erystallize

after receiving notice of induction and thus constitute a change in

status? Dugdale v. United States, 389 F.2d 482 (9th Cir. 1968).

48

United States Court of Appeals

for the Ninth Circuit

No. 21930

William Ward Ehlert, ;

Appellant,

™ »

United States of America,

Appellee. }

APPEAL from the United States District Court

for the Northern District of California

JUDGMENT

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States Distriet

Court for the Northern District of California and

was duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause Py

and hereby is affirmed.

Filed and entered February 2, 1970

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63

United States Court of Appeals

for the Ninth Circuit

No. 21930

William Ward Ehlert, }

Appellant,

vs.

United States of America,

Appellee.

CERTIFICATE OF CLERK, UNITED STATES

COURT OF APPEALS FOR THE NINTH CIR-

CUIT, TO RECORD CERTIFIED UNDER RULE

.21 OF THE REVISED RULES OF THE SU-

PREME: COURT OF THE UNITED STATES.

I, William B. Luck, as Clerk of the United States

Court of Appeals for the Ninth Circuit, do hereby

certify this transcript of record in three volumes to

be a full, true and correct copy of the entire record,

excluding original exhibits, of the above entitled cause

in the said Court of Appeals, made pursuant to the

request of counsel for the appellant and certified

under Rule 21 of the Revised Rules of the Supreme

Court of the United States.

Attest my hand and seal of the said

the United States Court of Appeals

for the Ninth Circuit, at the City of

San Francisco, in the State of Cali-

bd fornia, this 24th day of February,

1970.

William B. Luck, Clerk

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