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United States v. Taranowski

decided: September 22, 1972.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THOMAS EDWARD TARANOWSKI, DEFENDANT-APPELLANT



Swygert, Chief Judge, and Stevens and Sprecher, Circuit Judges.

Author: Per Curiam

Defendant appeals from his conviction, following a bench trial, of violating 50 App. U.S.C. ยง 462 by failing to report for civilian work. He raises several issues on appeal; we need consider only one: Did the failure of the local board to send defendant's mother notice of his I-O classification and of her appeal rights as required by the applicable regulation invalidate the subsequent order to report for civilian work? We conclude that it did and that defendant's conviction must therefore be reversed.

I.

We begin with a chronological statement of the facts. Defendant, a Jehovah's Witness, registered with his local board on September 26, 1968, and filed his first classification questionnaire on October 21, 1968. This questionnaire included information to indicate that he might be entitled to a IV-D ministerial classification or a III-A dependency classification. He completed an additional questionnaire on the support which he provided his widowed mother and 6-year-old sister. That document also contained a statement by his mother that she needed the support which he provided. On November 25, 1968, defendant was classified I-A. On November 26, the board mailed Form 110 notifying him of his classification and Form 217 advising him of his appeal rights. On the same day his mother was mailed Form 111 advising her of her son's classification, and of the rights which she, as a claimed dependent, had to appeal that classification.

On December 13, the board received a letter from defendant requesting "a personal appearance before the appeal board for the purpose of reclassification." Since he was not entitled to a personal appearance before the appeal board but was entitled to a personal appearance before the local board, the board treated the request as one seeking an appearance before the local board and scheduled such an appearance. By letter of December 9, defendant's mother sought "to appeal my son's I-A classification." On January 13, 1969, defendant appeared before the local board. On March 10, his mother appeared. Also on March 10, the board reclassified defendant I-A. On March 11, Forms 110 and 217 were mailed to defendant and Form 111 was mailed to his mother. On March 13, the board received a letter from defendant requesting a meeting with a government appeal agent and "a personal appearance before the local board for the purpose of appealing" his I-A classification. On March 14, the board received a letter from Mrs. Taranowski seeking to "appeal my son's classification again."

An appointment was made for defendant to meet with a government appeal agent on April 16. On April 15, the board received a letter from Mrs. Taranowski supplying information about her expenses which she said she had forgotten when she earlier supplied similar information. Although defendant was apparently not entitled to another personal appearance before the local board, he was nevertheless given an opportunity to appear on April 28.*fn1 At that time he requested Form 150, the special form for conscientious objectors. On May 5, the board received a letter from defendant setting forth some of his religious views. On May 29, the board received the completed Form 150.

On June 9, defendant was reclassified I-O. On June 11, the board mailed Form 110 notifying him of his classification and Form 217 advising him of his appeal rights. Although the board was required to mail Form 111 to defendant's mother advising her of her son's classification and of her rights to appeal that classification, no such form was sent in this instance.*fn2 Defendant, though he had notice of his appeal rights, did not appeal. He was subsequently ordered to report for civilian work. He failed to do so and was in due course indicted, tried, convicted, and sentenced to five years imprisonment.

II.

We need not go into an extended discussion of the legal standard which we must apply. Both defendant and the government accept the proposition, wellsettled in this circuit, that a procedural irregularity will not invalidate subsequent orders of a draft board unless there is a showing of prejudice. United States v. Manns, 232 F.2d 709, 711-712 (7th Cir. 1956); United States v. Isenring, 419 F.2d 975, 980 (7th Cir. 1969), cert. denied, 397 U.S. 1024, 90 S. Ct. 1260, 25 L. Ed. 2d 533.*fn3

III.

Defendant argues that the local board committed prejudicial error in failing to forward his file to the appeal board following receipt of the various letters responding to the classification of November 25 and March 10. We need not decide the propriety of the board's actions in these instances because, even if we assume error, we find no prejudice.

The reclassification on June 9, 1969, revived all rights of appeal.*fn4 Defendant was notified of his rights and had he exercised them he could have suffered no prejudice from any errors the board might have made prior to June 9. Likewise, had Mrs. Taranowski received notice of her appeal rights following the June 9 classification, neither she nor defendant would have been prejudiced by any pre-June 9 conduct by the board. Thus, the issue which we must resolve is whether the failure of the board to give Mrs. Taranowski notice of the June 9 classification and of her rights to appeal that classification resulted in the kind of prejudice which would invalidate the subsequent order to report for civilian work.

IV.

The government argues that Mrs. Taranowski had actual notice of her right to appeal and that therefore neither she nor her son could have been prejudiced by the failure of the board to send her Form 111. The government is, of course, entitled to have the evidence construed in its favor. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680; United States v. Lehman, (7th Cir. Aug. 7, 1972, No. 71-1712), slip opinion p. 2. The evidence clearly supports a conclusion that Mrs. Taranowski knew of her son's classification and of his right to ...


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