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Rhyne v. United States

February 20, 1969


Hastings, Senior Circuit Judge, and Swygert and Cummings, Circuit Judges.

Author: Hastings

HASTINGS, Senior Circuit Judge.

Defendant Melvin Rhyne appeals from a judgment of the district court finding him guilty of knowingly and willfully neglecting, failing and refusing to submit to induction into the armed forces at Chicago, Illinois, in violation of Section 12, Universal Military Training and Service Act, Title 50, U.S.C.A. App. ยง 462. As a result of such judgment, defendant Rhyne was sentenced to three years imprisonment.

On July 13, 1966, Rhyne was reclassified from II-S to I-A by his local selective service board, Board No. 78, Chicago, Illinois. The apparent basis for this reclassification rested on the fact that defendant, by his own acknowledgment, was no longer a full-time student and therefore not entitled to a continuance of his II-S student deferment classification.

On August 16, 1966, pursuant to the I-A classification, Rhyne's local board ordered him to report for induction on September 14, 1966. Rhyne allegedly refused to submit to induction at the assigned induction station which was located in Chicago, Illinois. At the induction center, defendant allegedly refused induction into military service on the ground that his religious convictions as a member of the Jehovah's Witnesses precluded him from serving in the armed forces.

In passing, it is both interesting and curious to note that in reviewing defendant's selective service files we fail to find any evidence that defendant ever appealed any classification given him by his local board. Further, defendant's selective service records do not show that he ever indicated to his local board that he held any religious beliefs or was affiliated with any religious sect whose tenets might entitle him to special draft consideration as a conscientious objector. The first manifestation of his supposed religious scruples came at the time of his refusal to be inducted.

At the trial, the Government had the clerk of defendant's local board, Moncil Swoope, produce and testify concerning defendant's selective service file. The file indicated that defendant refused induction, and it was admitted into evidence over defendant's objection. After calling to the stand two special agents of the Federal Bureau of Investigation, Thomas Colbert and Peter J. Wacks, to identify defendant Rhyne, the Government rested its case.

Thereafter, defendant filed a motion for judgment of acquittal on the ground that the Government failed to establish beyond a reasonable doubt by competent evidence that he did commit the crime of refusing to submit to induction. In filing the motion, defendant contended that his selective service file alone was not sufficient to prove that he did refuse to submit to induction. Defendant urged that this documentary evidence must be corroborated by other evidence, while the Government contended that defendant's selective service record was alone sufficient to establish his guilt of refusing to submit to induction. In view of this controversy between the litigants, the district court, over defendant's objection, granted the Government's request for leave to reopen its case for the purpose of giving the Government an opportunity to adduce evidence in corroboration of that contained in the selective service file.

On appeal, defendant makes no claim he submitted to induction but rather he contends the Government failed to establish the corpus delicti; namely, the Government failed to prove beyond a reasonable doubt by competent evidence that defendant refused induction. Defendant further contends the district court committed prejudicial error in permitting the Government to reopen its case after it had rested and a motion for a judgment of acquittal had been filed by defendant. Defendant also urges that the district court subjected him to double jeopardy, in violation of the Fifth Amendment of the Federal Constitution, by allowing the Government to reopen its case.

On the basis of the reasoning and the authorities set forth in United States v. Holmes, 7 Cir., 387 F.2d 781 (1968), cert. denied, 391 U.S. 936, 88 S. Ct. 1835, 20 L. Ed. 2d 856 (1968), we hold that the district court did not err in admitting into evidence defendant's selective service file and that such evidence was sufficient in this case to establish beyond a reasonable doubt defendant's refusal to submit to induction. See Gonzales v. United States, 364 U.S. 59, 66, 80 S. Ct. 1554, 4 L. Ed. 2d 1569 (1960).

Defendant's selective service file, the contents of which he does not controvert, conclusively establishes that defendant refused to submit to induction. The file contains a copy of a letter sent to the United States Attorney by the Assistant Adjutant at the induction center, First Lieutenant Robert J. Uplinger. This letter states that defendant, in his own handwriting and over his own signature, refused to be inducted. The letter names the persons who witnessed defendant's refusal of induction; it also indicates that in accordance with governing regulations defendant was informed that it is a felony to refuse induction and was advised of the possible consequences of his refusal. The file also contains a witnessed statement of refusal, referred to by First Lieutenant Uplinger in his letter to the United States Attorney, purportedly written and signed by defendant Rhyne. In addition, the file contains a Selective Service Delivery List and the Local Board's minutes, both of which indicate that defendant refused induction.

The undenied and uncontradicted evidence contained in defendant's file is more than sufficient to establish defendant's guilt of refusing to submit to induction. The evidence in support of the judgment of conviction in the instant case is much stronger, both quantitatively and qualitatively, than that found in the case of United States v. Holmes, supra ; a case we find to be dispositive of the issue before us. In Holmes, we affirmed a judgment of conviction premised solely upon evidence garnered from defendant's selective service file. A mere notation on the bottom of a letter contained in that file, indicating that defendant had failed to follow his Board's orders, was deemed sufficient to convict.

In conjunction with the issue of establishing the corpus delicti, defendant raises the question of whether the authorities at the induction station followed the prescribed procedures for dealing with defendant's refusal of induction. Defendant offered no proof that the officials at the induction center failed to process him in conformity with the procedures set forth in Army Regulation 601-270.*fn1 All evidence adduced on the question is to the contrary and indicates that there was substantial compliance with this regulation. As noted, Lieutenant Uplinger's letter states that defendant was informed that refusal to submit to induction constituted a felony and that defendant was advised of the possible sanctions for refusal. In addition, the letter states that defendant was requested to and did make a voluntary signed statement of refusal to serve.

Notwithstanding this evidence of apparent substantial compliance with the prescribed procedures for induction and its refusal, a presumption of regularity attends the induction process. This presumption of validity and regularity which attaches to the induction process must be overcome by probative evidence to the contrary. In Kaline v. United States, 9 Cir., 235 F.2d 54, 59 (1956), the court stated that "The presumption is that the [prescribed] legal steps [for dealing with induction and its refusal] were taken * * *." Even a showing by the defendant of a minor departure from the prescribed procedure will not provide a valid defense where the paramount ...

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