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  • United States v. Melvin Harvey Tobias, 447 F.2d 227, 3rd Cir. (1971)

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    This document is a court opinion summarizing a case in which a defendant, Melvin Tobias, appealed his conviction for failing to report for military induction. The court held that Tobias did not properly file for conscientious objector status, as his mere request for a form was not sufficient, and he failed to complete and return the form. The court also held that Tobias' challenge to the composition of the local draft board, raised for the first time in his defense, was barred because he failed to first raise it through the administrative appeals process as required.

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    Filed: 1971-09-03 Precedential Status: Precedential Citations: 447 F.2d 227 Docket: 19351

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    This document is a court opinion summarizing a case in which a defendant, Melvin Tobias, appealed his conviction for failing to report for military induction. The court held that Tobias did not properly file for conscientious objector status, as his mere request for a form was not sufficient, and he failed to complete and return the form. The court also held that Tobias' challenge to the composition of the local draft board, raised for the first time in his defense, was barred because he failed to first raise it through the administrative appeals process as required.

    Copyright:

    Public Domain
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    7 views4 pages

    United States v. Melvin Harvey Tobias, 447 F.2d 227, 3rd Cir. (1971)

    Uploaded by

    Scribd Government Docs
    This document is a court opinion summarizing a case in which a defendant, Melvin Tobias, appealed his conviction for failing to report for military induction. The court held that Tobias did not properly file for conscientious objector status, as his mere request for a form was not sufficient, and he failed to complete and return the form. The court also held that Tobias' challenge to the composition of the local draft board, raised for the first time in his defense, was barred because he failed to first raise it through the administrative appeals process as required.

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    of 4

    447 F.

    2d 227

    UNITED STATES of America


    v.
    Melvin Harvey TOBIAS, Appellant.
    No. 19351.

    United States Court of Appeals, Third Circuit.


    Argued May 6, 1971.
    Decided May 25, 1971.
    As Amended on Denial of Rehearing September 3, 1971.

    Allan H. Cohen, Gatz, Cohen & O'Brien, and Michael Malakoff,


    Pittsburgh, Pa., for appellant.
    Kathleen Kelly Curtin, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L.
    Thornburgh, U. S. Atty., Pittsburgh, Pa., on the brief) for appellee.
    Before HASTIE, Chief Judge, and KALODNER and ALDISERT, Circuit
    Judges.
    OPINION OF THE COURT
    PER CURIAM:

    This is an appeal from a conviction for unlawfully failing to report for


    induction into the armed services. Certain of the errors relied upon by appellant
    "presuppose that he perfected a claim for conscientious objector status which
    should have been, but was not, processed by his local board," United States v.
    Silvera, 441 F.2d 1152 (3 Cir. 1971). Originally issued a II-S deferment based
    on his status as a student at the University of Pittsburgh, appellant was later
    classified I-A. He was mailed Form 217, "Advice of Right to Personal
    Appearance and Appeal," which informed him that he had 30 days from the I-A
    reclassification in which to ask for a personal appearance or to appeal. Nine
    days thereafter he wrote as follows: "I, Melvin Tobias, request Form SS 150 to
    begin procedures for I-O classification." The secretary of the local board,
    complying with his request, sent him the form, returnable on or before February
    17, 1969. The registrant did not fill out the requested Form 150 and did not

    return it to the board. Later he was mailed and requested to complete and return
    a "Current Information Questionnaire" (Form 127). This too was ignored by the
    registrant.
    2

    22 C.F.R. 1621.11 requires a registrant seeking C. O. status to "offer


    information in substantiation of his claim" on Form 150. Local Board
    Memorandum No. 41, then in effect, provided that "[a] registrant should be
    considered to have claimed conscientious objector to war if he has signed series
    VIII of the classification questionnaire (SS Form No. 100), if he has filed a
    special form for conscientious objector (SS Form No. 150), or if he has filed
    any other written statement claiming that he is a conscientious objector."

    We have concluded that the naked request for a Form 150 does not qualify as a
    "written statement claiming that [one] is a conscientious objector." Moreover,
    because the registrant failed to complete and return the furnished Form 150,
    "the board was entitled to proceed, as it apparently did, on the reasonable
    assumption that no C.O. claim was being asserted," United States v. Silvera,
    supra.

    Appellant also contends that the local board was illegally constituted, because
    three of the five members were not residents of the area in which the local
    board had jurisdiction. Regulation 1604.52(c) then provided:1

    The members of local boards shall be citizens of the United States who shall be
    residents of a county in which their local board has jurisdiction and who shall
    also, if at all practicable, be residents of the area in which their local board has
    jurisdiction.

    It was stipulated at trial that five members of boards other than the local board
    in question resided within the area but were not members of this board.

    Appellant's challenge to the constitution of his local board was first asserted as
    an attack on his classification made in his defense to the criminal proceedings
    below. At no time did the registrant so challenge his classification at any
    administrative level of the Selective Service System.2 This failure to exercise
    his right of appeal, and so to exhaust his available administrative remedies, bars
    this subsequent attack. United States v. Zmuda, 423 F.2d 757, 761 (3 Cir.
    1970); United States v. Grundy, 398 F.2d 744, 746 (3 Cir. 1968); DuVernay v.
    United States, 394 F.2d 979, 981 (5 Cir. 1968), aff'd 394 U.S. 309, 89 S.Ct.
    1186, 22 L.Ed.2d 306 (1969).

    In United States v. Deans, 436 F.2d 596, 600 (3 Cir. 1971), this court said:

    In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194
    (1969), the Supreme Court set forth a number of guidelines for the application
    of the exhaustion doctrine in selective service cases. The Court began with the
    premise that a registrant's failure to appeal his classification should not
    foreclose all judicial review in a criminal case unless there is a compelling
    governmental interest to be served in having the Selective Service System
    decide the case before it reaches the courts. [emphasis supplied]

    10

    There is patently a "compelling governmental interest" in placing before the


    Selective Service System a challenge to the constitution of one of its local
    boards. This interest is manifested in a statutory scheme which entrusts to the
    Selective Service System the power to define the jurisdiction and composition
    of the local boards.3 And since the statutory apparatus for establishing local
    boards is vested within the system itself, it is there that such a challenge must
    usually first be brought. The government has a justified interest in insuring that
    challenges to the manner in which its selective service regulations are
    implemented are timely and expeditiously raised before the very administrative
    agency on whose expertise in these matters Congress so heavily relies. This is
    particularly true where, as here, the basis on which board action is challenged is
    neither constitutional nor statutory, but emanates from a regulation promulgated
    from within the Selective Service System itself.4

    11

    We hold that because appellant did not challenge the composition of the board
    at any level in the selective service system, he was precluded from raising it for
    the first time as a defense in this prosecution. We emphasize that we decide
    only that a challenge to a local board on the ground that a majority of its
    members are not residents of the area in which the local board has jurisdiction
    may not be first asserted as a defense to criminal proceedings under the
    circumstances presented by this record, i. e., where no specific allegation of
    discrimination, bias, or prejudice has been lodged against the board.

    12

    The judgment of the district court will be affirmed.

    Notes:
    1

    32 C.F.R. 1604.52(c) presently provides:

    The members of local boards shall be citizens, male or female, of the United
    States who shall be residents of the county in which their local board has
    jurisdiction.
    2

    A registrant has the right to appear before his local board to contest his
    classification, 32 C.F.R. 1624.1, 1624.2, and to appeal to the state appeal
    board from an adverse decision, 32 C.F.R. 1624.2 (e), 1624.13. A further
    appeal may be taken by the registrant to the National Selective Service Appeal
    Board if one or more members of the state appeal board dissents from the
    board's decision, 32 C.F.R. 1627.3

    Military Selective Service Act of 1967, 10(b) (3). Local board areas are
    established by the State Director of Selective Service, 32 C.F.R. 1604.51,
    who is himself appointed by the President of the United States upon the
    recommendation of the state's governor, 32 C.F.R. 1604.11. Local board
    members are also appointed by the President upon the Governor's
    recommendation, 32 C.F.R. 1604.52(b)
    Appeals from board decisions are not limited to the registrant. The state director
    or national director may appeal to the National Selective Service Appeal Board
    from any determinations of the state appeal board, 32 C.F.R. 1627.1.

    The Military Selective Service Act of 1967, like the present regulation, requires
    only that "each member of any local board shall be a civilian who is a citizen of
    the United States residing in the county or political subdivision corresponding
    thereto in which such local board has jurisdiction. * * *" 50 App.U.S.C.
    460(b) (3)

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