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UNITED STATES v. TRIMBLE

June 26, 1970

The UNITED STATES of America
v.
Ernest Lynn TRIMBLE


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

I.

 The defendant in this criminal prosecution, Ernest Lynn Trimble, is charged with failing to perform a duty required of him by the provisions of the Selective Service Act of 1948, as amended by the Military Selective Service Act of 1967. The indictment specifically charges that Trimble failed to report for induction into the Armed Forces on June 26, 1968 in violation of 50 Appendix U.S.C.A. §§ 454 and 462.

 The case was tried to the Court on a waiver of a jury trial. Extensive briefs were later filed. For reasons to be elaborated below I shall grant defendant's motion for judgment of acquittal.

 More than fifteen months passed without any further communication between Trimble and his Local Board. Then on March 3, 1967 a new Dependency Questionnaire was mailed to Trimble. When the form was not returned, the Local Board sent Trimble a letter dated March 31, 1967 which stated in part: "If this questionnaire is not received by the next board meeting you will be classified 1-A."

 Four days later, on April 4, 1967, the Local Board met and re-classified Trimble 1-A. Thereafter Trimble was sent numerous communications by his Local Board (now Local Board No. 334 after Local Board No. 35 was divided in two for administrative reasons). Finally when he did not report for induction on June 26, 1968 this prosecution was begun. I do not find it necessary to trace in detail the course of communications which took place after Trimble's re-classification on April 4, 1967, for in my view that re-classification is the critical issue in the prosecution before me and on its validity rests the outcome of this matter. So I ask: was the reclassification of Ernest Lynn Trimble on April 4, 1967 lawful and in accordance with Selective Service System regulations, 32 C.F.R. § 1600 et seq.? Or was the re-classification, as defendant maintains, arbitrary, capricious, and contrary to the regulations?

 II.

 When a local board has classified or re-classified a registrant, the area of review open to the District Court is a narrow one indeed. As the Supreme Court said in the leading case of Estep v. United States, 327 U.S. 114, at pp. 122-123, 66 S. Ct. 423, at p. 427, 90 L. Ed. 567 (1946): "The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." This "basis of fact" test is reiterated by the Supreme Court in Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953).

 III.

 In the Selective Service System regulations, 32 C.F.R. § 1600 et seq., Part 1625 is concerned with "Reopening and Considering Anew Registrant's Classification." § 1625.1(a) teaches that "No classification is permanent." § 1625.2 explains "when registrant's classification may be reopened and considered anew." § 1625.2(b) states:

 
The local board may reopen and consider anew the classification of a registrant upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification * * *. (emphasis added)

 "It is well settled that reclassification of a registrant must be based upon some fact not considered in granting the original classification which would justify a change in classification. " United States v. Pence, 410 F.2d 557, 562 (CCA8, 1969). At the trial Palma Larson, the executive secretary of Local Board No. 35, admitted that when Trimble was re-classified 1-A the Board had not received any new information about Trimble. (Trial Notes of Testimony, p. 44) The United States Attorney likewise admits that "the Local Board had no new facts before it when it acted on April 4, 1967." (Government's Brief, p. 5) Thus § 1625.2(b) is not applicable; nor is § 1625.3 "when registrant's classification shall be reopened and considered anew." (emphasis added)

 As the Government suggests, "the action by the Local Board had to be taken under some other authority." The Government points to 32 C.F.R. § ...


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