Parrott v. United States, 20730

Decision Date16 December 1966
Docket Number20927,20746,No. 20730,20926.,20730
Citation370 F.2d 388
PartiesJoseph Carl PARROTT, Appellant, v. UNITED STATES of America, Appellee. Robert Alan LAWRENCE, Appellant, v. UNITED STATES of America, Appellee. Terry Allan WOLFE, Appellant, v. UNITED STATES of America, Appellee. Leonard Ralph WALKER, II, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

J. B. Tietz, Michael Hannon, Los Angeles, Cal., for appellants.

Manuel L. Real, U. S. Atty., Gabriel Guttierrez, John K. Van de Kamp, Robert L. Brosio, Warren P. Reese, Burt S. Pines, Donald C. Smaltz, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and THOMPSON, District Judge.

BARNES, Circuit Judge:

This is a consolidated appeal from four convictions (two by juries and two by judges) of the four appellants herein charged with violations of the Universal Military Training and Service Act, 50 App.U.S.C. § 462.

Jurisdiction below rested on that statute, and 18 U.S.C. § 3231. Jurisdiction exists here pursuant to 28 U.S.C. § 1291.

Parrott was charged with failure to perform civilian work; Lawrence and Wolfe with refusal to submit to induction; and Walker (in two counts) with failing to report for induction, and failing to notify his local draft board where mail could reach him. Walker received two concurrent three-year sentences; each of the others one three-year sentence.

Each appellant professed conscientious objections to war. Parrott was so classified, but subsequently refused to do civilian work required of conscientious objectors.

Two principal questions are raised — error in admission of evidence, and the failure to grant motions for acquittal. The common evidentiary question existing in all four appeals is the claim the court erred in admitting the Selective Service System file (Exhibit 1) into evidence. We consider it first.

I. The admission of certified copies of the appellants' files.

The government introduced these files (three being photo copies and one an original) each with a certificate attached. No objection is made to the form or contents of any authenticating certificate, save that it "is a thin paper sheet." No case is submitted by appellants as authority for the objection urged. Appellants suggest that if several persons have at various times been temporary lawful custodians of the file, the certificate of but one such person that it is in his custody is valueless. Again no law is cited.

The point is completely without merit. (Cf. Rule 27, Federal Rules of Criminal Procedure; and Rule 44(a), Federal Rules of Civil Procedure.) Both this circuit and others have authorized the introduction into evidence of duly authenticated copies of the registrant's Selective Service files. La Porte v. United States, 300 F.2d 878 (9th Cir. 1962); Yaich v. United States, 283 F.2d 613 (9th Cir. 1960); Kariakin v. United States, 261 F.2d 263 (9th Cir. 1958); Olender v. United States, 210 F.2d 795 (9th Cir. 1954); United States v. Borisuk, 206 F. 2d 338 (3d Cir. 1953). Cf. Wong Wing Foo v. McGrath, 196 F.2d 120, 123 (9th Cir. 1952).

II. Were the classifications improper?
A. The scope of review

The only basis for granting the motions for acquittal would have been the improper classifications of the appellants. Before considering the facts of the cases, however, we must contend with the appellants' assertions as to the standards of judicial review of Selective Service classifications.

1. Appellants first urge generally that the lower courts failed to properly interpret Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). They state "that the board, `* * * must find and record affirmative evidence that he the registrant has misrepresented his case * * *' * * *." (Appellants' Opening Brief, p. 12). This is a misquotation. The Dickinson majority opinion states: "The task of the courts in cases such as this is to search the record for some affirmative evidence to support the local board's overt or implicit finding that a registrant has not painted a complete or accurate picture of his activities." 346 U.S. at 396, 74 S.Ct. at 157.

Mr. Justice Clark then goes on to point out for the majority:

"Local boards are not courts of law and are not bound by traditional rules of evidence; they are given great leeway in hearing and considering a variety of material as evidence. If the facts are disputed the board bears the ultimate responsibility for resolving the conflict — the courts will not interfere. Nor will the courts apply a test of `substantial evidence.\' However, the courts may properly insist that there be some proof that is incompatible with the registrant\'s proof of exemption." Id. at 396, 74 S.Ct. at 157 (note omitted).

The dissenting opinion interprets the majority opinion as requiring that which appellants rely upon, that "the board must find and record affirmative evidence that he the registrant has misrepresented his case." The minority then points out there is nothing in the Act which requires this.

We prefer to follow the precise language of the majority opinion — was there in the record a basis in fact for denying Dickinson's claimed ministerial exemption? And since the ministerial exemption is a matter of legislative grace, "the selective service registrant bears the burden of clearly establishing a right to the exemption." Id. at 395, 74 S.Ct. at 157. And since in Dickinson all evidence before the board established the exemption, the registrant had met the statutory criteria, and the board could not, without any contrary evidence, simply say it disbelieved him, "even in the absence of any impeaching or contradictory evidence." Id. at 396, 74 S.Ct. at 157.

2. Appellants next urge generally that the courts below, save as to the Parrott case, "ignore the doctrine of Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392 99 L.Ed. 428 (1955), wherein the yardstick of sincerity is made decisive." (Appellants' Opening Brief, p. 12.) Witmer v. United States, supra, points out that while the ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form (348 U.S. at 381-382, 75 S.Ct. 392), inconsistent statements of the registrant are sufficient to cast doubt on his claim. In that case the Court could not find, following Dickinson, supra, that there was no basis in fact for the appeals board's decision in denying Witmer a classification as a conscientious objector. We assume that inconsistent actions, as well as statements, are valid proof of a "basis in fact" for the denial of the requested exemption.

We hold the classifications were proper.

In summary, we agree generally with the government's position that under the Act and the Supreme Court's cases interpreting it, a court may not interfere with a registrant's classification unless it finds that there is no basis in fact for the classification, or that the local board acted so arbitrarily and capriciously that the registrant was denied due process. Dickinson v. United States, supra; Witmer v. United States, supra; Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Rogers v. United States, 263 F.2d 283, 285 (9th Cir. 1959); and Badger v. United States, 322 F.2d 902, 907 (9th Cir. 1963).

B. Parrott

In Parrott's case, the burden on him was not met by him — he did not prove he was more than a part-time or half-time or occasional or irregular minister — he did not prove the ministry was his "vocation". No case is presented to us where such a meager ministry requires a finding it is registrant's vocation. Dickinson, supra, 346 at 395, 74 S. Ct. 152.

The judgment of conviction as to Parrott is affirmed.

C. Wolfe, Lawrence and Walker

In the cases of Wolfe, Lawrence and Walker, each upon registration did not originally claim to be a conscientious objector.

Wolfe registered on May 23, 1960. His classification questionnaire, filed July 2, 1962, made no claim he was a conscientious objector. On May 14, 1963, a new questionnaire made no such claim. On June 18, 1963, Wolfe was classified I-A, and was so notified. On January 16, 1964, Wolfe obtained a II-S, or student classification, and notice was mailed to him of that classification. On November 16, 1964, he was reclassified II-S, and a notice mailed to him. On January 6, 1965, Wolfe graduated from college and requested a continued II-S classification so he could go to Mexico City to study Spanish. On February 11, 1965, he was classified I-A, and on March 2, 1965, so notified. He made no request for a personal appearance before the board.

On March 15, 1965, the board received a "Current Information Questionnaire" from Wolfe, and no claim of being a conscientious objector was made. He stated he was aware of his eligibility for the draft, but asked a further postponement to complete his education.

On April 1, 1965, the board mailed an order to appellant to report for a physical examination (SSS Form No. 223). Appellant did not file an appeal from his I-A classification within the period provided by the Selective Service regulations. 32 C.F.R. § 1626.2(c) (1) and (3) (1962). On April 27, 1965, the board mailed a second order to appellant to report for his physical examination, having been informed by appellant that he had not received word of the first order to report for physical examination until April 11, 1965.

On May 5, 1965, the board received from appellant a written request for an interview for the purpose of appealing his I-A classification. The basis for his request was not that he was a conscientious objector, but that he wished to return to college to complete the courses necessary for him to obtain a teaching credential. On May 5, 1965, the board noticed that the appellant had requested an interview and appeal but was late in filing the appeal.

On May 25, 1965, a...

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