Dickinson v. United States, 13165.

• Decision Date: 15 June 1953
• Docket Number: No. 13165.,13165.
• Citation: 203 F.2d 336
• Parties: DICKINSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

203 F.2d 336 (1953)

DICKINSON v. UNITED STATES.

No. 13165.

United States Court of Appeals, Ninth Circuit.

March 9, 1953.

Writ of Certiorari Granted June 15, 1953.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, Brooklyn, N. Y., and John Brill, San Francisco, Cal., for appellant.

Chauncey Tramutolo, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

Writ of Certiorari Granted June 15, 1953. See 73 S.Ct. 1136.

POPE, Circuit Judge.

This is an appeal from a judgment of conviction after trial without a jury upon an indictment charging a refusal to submit to induction and be inducted into the armed forces of the United States in violation of § 12 of the Selective Service Act of 1948, Title 50 U.S.C.A., War, Appendix, § 462 (a).

The appellant, a resident of San Francisco, registered with Local Board No. 37 in that City, and thereafter filed his classification questionnaire on December 10, 1948. He there stated that he was a minister of religion of the Jehovah's Witnesses and had been such since July 1, 1947, although he had not been formally ordained. In response to the question as to the job he was now working at he replied: "I am a minister and support myself by doing radio work at night." Describing the kind of work he did in his present job, he said: "Test tubes, repair radar, interrogator responder equipment". He stated that his employer was the United States Navy at San Francisco naval shipyard. Included in his file in the office of the local board was an additional statement on a separate paper which was apparently filed with the questionnaire. In this he stated that he was prepared to show that as his customary vocation he preached and taught the principles of a religious organization of which he was a member; "and that I am not a person who irregularly or incidentally preaches and teaches the principles of such organization as a regular minister." He stated that he conducted two meetings a week, each one lasting one hour; that he spent time preparing for these meetings, and several hours each week contacting the public and teaching and preaching to interested people. He said that the work which he had described in his questionnaire is done on the swing shift "allowing me the time in the Lord's service." Attached to this statement were certificates purporting to be signed by three individuals reciting that they knew the appellant, that he performed duties as a minister, and that he preached regularly the doctrines of the Watchtower Bible and Tract Society.

The questionnaire also stated that he worked an average of 40 hours a week at his radio job for which he was paid $11.36 per day. He asked classification in class IV-D as a minister of religion. On July 31, 1950, the local board placed him in class I-A. He complained about this and requested a personal appearance before the local board, which he had on September 7, 1950. Following this personal appearance, the board placed in his file the following purported summary of what he stated on that occasion:

"9/7/50 Dickinson Public Bldg. where he preaches. Has not been ordained. Devotes his full time to the work of preaching. Supports himself through this work. Jehovah's witness."

At the trial the appellant testified at length as to what transpired on the occasion of this appearance before the board. He said that the chairman asked him what education he had for the ministry, to which he replied that he had studied the Bible and had delved into other text books of Jehovah's Witnesses with respect to the history of the Bible, the history of Christianity, and related subjects; that he had been given a course on how to prepare and write sermons. After describing at length this training, he said he explained to the board that since his questionnaire was filed, he had given up the job which he then had as a radio technician and had taken up the ministry as his principal vocation; that he had been officially ordained in April, 1949, and was enrolled by the headquarters of Jehovah's Witnesses as a full-time pioneer minister in August, 1949. He said he told the board that as a "fulltime pioneer minister" he devoted 100 hours per month to the work of getting acquainted with people at their doors, leaving Bible literature with them and calling back upon the same persons, and that his work included offering Watchtower magazines to people on the streets. He also stated that he told the Board that in January, 1950, he was assigned to be the overseer of a congregation of people in Coalinga, California, and that he displayed to them the letter making this assignment, along with other similar letters giving him instructions about his work. He said he explained that at Coalinga Jehovah's Witnesses maintained a hall in which meetings were held three and sometimes four times a week, and it was his duty to preach at these meetings and that he delivered the discourses for most of them. He told the board that his missionary responsibility in his position as a pioneer minister extended to an area of 5400 square miles.

He also told the local board in response to their inquiry that he was paid no salary by Jehovah's Witnesses but that he supported himself as a radio man; that he made about $35 a month doing that kind of work and worked about five hours a week at it. He testified that the board was skeptical about his ability to live on $35 a month, but that he explained to them he could since his apartment cost him only $15 a month, he did his own cooking and often was invited to eat out.

He submitted at the time of this personal appearance an affidavit of one C. David Easter which recited that the affiant was an ordained minister of the Watchtower Bible and Tract Society of San Francisco; that he knew that appellant was officially in charge of the missionary work of that organization in a 5400 square miles territory with headquarters at Coalinga, California; that previously appellant had worked with affiant in San Francisco devoting his full time to the ministry, and that appellant had been enrolled "as a full time pioneer minister" by national headquarters as of August 1, 1949.

Following this September 7 appearance before it, the board upon review of the information it then had, classified the appellant in class I-A — available for military service, — and gave him notice. He was ordered to report for a physical examination, was found acceptable, and appealed to the Board of Appeal, where he was again classified in Class I-A on February 19, 1951. He then wrote to the National Director of the Selective Service System requesting that his classification be appealed from the appeal board to the National Appeal Board, and on April 10, 1951, his request was granted and the appeal was taken. A review was had by the National Appeal Board and on June 5, 1951, the members of that Board unanimously voted to place appellant in Class I-A.¹ He was ordered to report for induction on July 16, 1951, and did so report but on the following day he refused to submit to induction or be inducted and his indictment and conviction followed.

It is argued that appellant was justified in refusing to submit to induction because the order for his induction was illegal and void for two reasons. It is said that the local board failed to reduce to writing the additional information which he gave them on the occasion of his personal appearance, that this failure was in violation of the applicable selective service regulations, and that it operated to deny him procedural due process to which he was entitled. The other contention is that there was no basis in fact for the boards' denial of appellant's claim for exemption as a minister of religion, and that the action in placing him in the I-A classification was so arbitrary, capricious and without basis in fact, that it must be held to have been in excess of the boards' jurisdiction.

The regulations which were in force pursuant to the provisions of the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 451 et seq., provided that a registrant should have an opportunity to appear in person before the members of the local board; that at such appearance he might discuss his classification and indicate how he thought he should be classified and why; and that he might present any additional information which he then had, after which the board was charged with considering the new information and with classifying him again. The regulation further provided, with respect to the further information which the registrant might present, that "such information shall be in writing, or, if oral, shall be summarized in writing and, in either event, shall be placed in the registrant's files."²

It will be recalled that the information furnished on this occasion was partly in writing and partly oral. The written information was the affidavit of C. David Easter. The only summarization of the oral statement of appellant was that which we have noted above indicating the day by the figures "9/7/50". The argument is that compliance with the regulations' provision for the placing in the file of a written summary of the additional information furnished by the registrant, is of importance because if such a summary is missing from his file the fact that this additional information has been given is not available to the appeal board when it considers an appeal and again classifies the registrant. Such has been held in United States v. Zieber, 3 Cir., 161 F.2d 90, 92, and in Niznik v. United States, 6 Cir., 173 F.2d 328, 332. In each of these cases the court held that it was not encumbent upon the local board to make any written summary or to do anything to the registrant's file except insofar as the registrant at his personal appearance furnished "further information", that is to say, information not otherwise available to the board in the registrant's files.³ Both courts held that whether the...