United States v. Van Hook

• Citation: 284 F.2d 489
• Decision Date: 10 January 1961
• Docket Number: No. 12967.,12967.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Peter VAN HOOK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

284 F.2d 489 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. Donald Peter VAN HOOK, Defendant-Appellant.

No. 12967.

United States Court of Appeals Seventh Circuit.

November 22, 1960.

Rehearing Denied, January 10, 1961.

Francis Heisler, Mark L. Schwartzman, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., S. John Templeton, Jr., Asst. U. S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Howard R. Kaufman, Asst. U. S. Attys., Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, KNOCH, Circuit Judge, and MERCER, District Judge.

Rehearing Denied, En Banc, January 10, 1961.

KNOCH, Circuit Judge.

Defendant was indicted for felonious refusal to submit to induction in violation of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq. He pleaded not guilty and waived trial by jury. The District Court found defendant guilty and sentenced him to imprisonment for three years. Defendant brought this appeal.

The order to report for induction was based on a Selective Service Classification of 1-A-O (non-combatant service with the United States Armed Forces) made by the Illinois State Appeal Board, to which defendant had appealed from a 1-A-O classification made by his local board in Sullivan County, Illinois.

Defendant contends that the government's exhibits B to B-36 (documents from defendant's Selective Service file) were improperly admitted in evidence. These dealt with defendant's prior refusal of induction in 1953. They were part of a file returned to the local board under date of May 10, 1955, for reprocessing in the light of recent court decisions, as a result of which the United States Attorney and the Illinois State Headquarters of the Selective Service System were then closing their file on defendant.

By virtue of the local board's failure to start proceedings anew, defendant argues that he was prevented from supplying such additional information as he might have provided had new questionnaires and forms been sent to him. He mentions, for example, that his religious convictions had deepened between 1952 and 1955. However, the record shows that defendant was given an opportunity to present to the local board and to the State appeal board, which considered the matter de novo, any additional statements or affidavits touching his requested classification of 1-O (conscientious objector to both combatant and non-combatant service).

It appears from the record that documents from the Selective Service file were admitted as official records. Government counsel when offering the file, made it clear at the outset that defendant was being tried solely for the 1957 refusal of induction (pursuant to defendant's 1957 classification) and not for defendant's prior refusal of induction in 1953 (pursuant to a 1951 classification). There was no jury. We are satisfied that the District Court considered only the relevant data.

Defendant also complains of the admission of government's exhibit B-59, a letter dated September 10, 1957, sent to the local board by the State appeal board, in which the appeal board states that its members have reached their conclusion that defendant should be classified 1-A-O on the basis of the facts set out before it, and independently of the conclusions of the local board.

The State appeal board, with the local board, and the Presidential appeal board, all have concurrent power to determine questions and claims respecting classification, and each considers anew the matter of appropriate classification independently of the others. Defendant contends that the local board failed to apply proper standards. He sought to prove at the trial that certain local board members refused to classify any registrant as 1-O, regardless of qualifications therefor, because, in ascertaining whether the local quota had been filled, 1-O classifications were not counted. Whether the local board applied proper standards was immaterial in view of the appeal board's consideration and classification de novo. United States v. Chodorski, 7 Cir., 1957, 240 F.2d 590, 591, certiorari denied 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed.2d 858, and cases therein cited.

We cannot accept defendant's characterization of the appeal board's letter as a mere "self-serving document." It was an official record of the action taken, wherein the appeal board stated:

"We find we are in disagreement with certain conclusions of the local board as set forth in the memoranda of the actions taken by the local board in classifying this registrant. For this reason we are entirely ignoring all of the local board\'s conclusions as stated in their memoranda.

"We note that the registrant\'s file appears to be full and complete and that the registrant and all other interested parties have been given unlimited opportunity to place in his cover sheet all of the facts he desired to file or to have filed on his behalf in support of his claim as a conscientious objector."

Defendant invites our attention to Ypparila v. U. S., 10 Cir., 1954, 219 F.2d 465, as support for his position that the State appeal board's letter was an inadequate statement. In that case a State board had classified Ypparila as 1-A-O in January, 1952. The National Selective Service Appeal Board in January, 1953, classified him as 1-A. The Department of Justice had been reconsidering the status of Jehovah's Witnesses, in view of a recently published article indicating that Jehovah's Witnesses were not pacifists because they believed in participation in theocratic wars and in the Armageddon prophesied in Revelations. The Department of Justice began to rule that registrants who were Jehovah's Witnesses and who believed in participation in theocratic wars and Armageddon, were not conscientiously opposed to participation in war of any form.

The Court in the Ypparila case said that the National Board was not required to make formal findings or render opinions as a basis for its action, but that in the instant case, the Board should have indicated whether it disagreed with the findings of the prior adjudicators, or whether it was basing its classification on the legal proposition that Ypparila, being a Jehovah's Witness, could not claim he was conscientiously opposed to participation in war of any form. In the latter event, the Court thought that the Board's classification would have been arbitrary.

Defendant also relies on United States v. Wilson, 7 Cir., 1954, 215 F.2d 443. Kendall K. Wilson, a member of Jehovah's Witnesses, was classified 1-O by his local board. Although Wilson had applied for classification as a conscientious objector, he asserted that he was also entitled to classification as a minister of religion, and he appealed. The appeal board classified him 1-O. He then had his file sent to the National Director. The National Selective Service Board, without any further evidence, without seeing Wilson, on the basis of the contents of the file alone, classified him 1-A without stating any reason. This Court found nothing in the file inconsistent with the classification made by the local and appeal boards. The government argued that by insisting on classification as a minister, Wilson had abandoned his classification as a conscientious objector; that his employment as a railway operator and his willingness to participate in theocratic wars were inconsistent with conscientious objection to participation in war. This Court found these arguments without merit and held that the ruling of the National Selective Service Board was arbitrary, capricious and without basis in fact.

These cases are clearly distinguished from the case before us here.

It is defendant's position that no corpus delicti was established. One witness, a Federal Bureau of Investigation Special Agent, testified to defendant's admission, some months after the alleged act, that he "did not submit to induction on the morning of October 3, 1957." Defendant argues that this admission was insufficient proof.

The government also introduced, over defendant's objection, exhibit B-74, which reads as follows:

"3 October 1957 "U. S. District Attorney "219 S. Clark Street "Chicago, Illinois

"Dear Sir:

"In compliance with Paragraph 27b, Special Regulations XXX-XXX-X, Department of the Army, dated 5 November 1951, the name and circumstances surrounding the refusal of VAN HOOK, Donald Peter, 1008 S. Hamilton St. Sullivan, Illinois, Selective Service Number 11 177 33 32, who refused to submit to induction into the Armed Forces of the United States is hereby submitted:

"Donald Peter Van Hook, was ordered to report for induction into the Armed Forces of the United States on Thursday 3 October 1957 by Selective Service, Local Board No. 177, whose address is County Court House, Sullivan, Illinois. Mr. Van Hook refused induction on the grounds that he is a `Conscientious Objector\' and

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