Badger v. United States, 18483.

• Decision Date: 13 November 1963
• Docket Number: No. 18483.,18483.
• Citation: 322 F.2d 902
• Parties: Richard Arlen BADGER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

322 F.2d 902 (1963)

Richard Arlen BADGER, Appellant, v. UNITED STATES of America, Appellee.

No. 18483.

United States Court of Appeals Ninth Circuit.

September 24, 1963.

Rehearing Denied November 13, 1963.

J. B. Tietz, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, Norman T. Ollestad and William D. Keller, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and SWEIGERT, District Judge.

JERTBERG, Circuit Judge.

Appellant was indicted for knowingly failing and neglecting to report for civilian employment contributing to the maintenance of the national health, safety and interest as ordered by his local draft board in lieu of induction,¹ in violation of 50 App.U.S.C. § 462. At the trial of the case to the court, a jury having been waived, the entire selective service file of the appellant was received in evidence. No other evidence was offered by either party. Appellant filed a motion for judgment of acquittal which the District Court denied. The District Court then found appellant guilty of the offense set forth in the indictment, and appellant was sentenced to imprisonment for a term of three years.

Jurisdiction of the District Court was invoked under the provisions of 18 U.S.C. § 3231. Jurisdiction of this Court to review the appeal rests on the provisions of 28 U.S.C. §§ 1291 and 1294.

Appellant seeks reversal of the judgment of conviction on two main grounds:

1. That he was entitled to exemption as a minister of religion and therefore should have been classified as IV-D rather than as I-O (conscientious objector); and

2. That the provisions of the Universal Military Training and Service Act authorizing civilian employment in lieu of induction for persons classified I-O (50 App.U.S.C. § 456(j)), and the corresponding regulation of the Selective Service System (32 C.F.R. § 1660), violate the Thirteenth Amendment of the United States Constitution because such call for "a private, nonfederal labor draft for the performance of services that are not exceptional or related to the national defense" in the absence of a national emergency.

On July 19, 1956, the appellant registered with local Selective Service Board No. 116 in Los Angeles. Shortly thereafter he filed his classification questionnaire and a special form requesting classification as a conscientious objector. On August 5, 1959, appellant was classified I-A by his local draft board. On August 14, 1959, he wrote the local board requesting a hearing regarding his classification and stating "I do not believe I have been properly classified, and would like to discuss this matter with you. I would like to have the opportunity to present evidence of my status." On the same date he addressed a separate letter to his local board which stated, in its entirety, "I, Richard Badger, subject to the right of personal apperance (sic), wish to appeal my classification to the appeal board."

On September 17, 1959, appellant appeared before his local board for a hearing. At that time he submitted a written statement entitled "personal summary" and six letters written by persons familiar with his religious activities. The personal summary submitted at the hearing commences,

"In accordance with section 1624.2 (B) of the Selective Service Regulations I would like to discuss my classification and point out facts that will determine whether my classification should be IV-D or I-O."

Appellant went on to state in his personal summary that he is one of Jehovah's Witnesses and is conscientiously opposed to his personal participation in military service; that since 1948 he has been active in house to house ministry and an active member of the "Theocratic Ministry School"; that he attends five meetings of Jehovah's Witnesses per week and regularly gives talks at such meetings and at ministry school; that he is engaged in a training program in which he accompanies "a more qualified minister" in house to house ministry; that he was formally ordained as a minister in January of 1951;² that he devotes 30 to 35 hours per month to the ministry inclusive of meeting attendance, house to house ministry and preparation for talks; that "I am at the present time a part time minister and that my congregation is to be found in the homes of the people"; that he has attended numerous regional, national and international conventions of Jehovah's Witnesses since 1948; that he has conducted Bible studies in people's homes; that the Bible is the basic text-book of his study and preparation for the ministry; that he looks to certain passages in the Bible for an authoritative basis for his conscientious objection to combatant and non-combatant military service; and concluded,

"Because of this religious training and bach ground (sic) I am conscientiously opposed to my partisipation (sic) in both combatant and non-combatant warfare. I trust that this information will be of aid in rendering me my proper classification."

Of the six letters submitted by appellant at the September 17, 1959, hearing, all speak of appellant's sincerity of religious belief and activities; five give estimates of the time which appellant devoted to ministerial duties at that time, all of which correspond with the declaration appellant made in his personal summary; three recommend classification as a conscientious objector; and two of the latter three state that appellant did not qualify for the minister's exemption. Also on September 17, 1959, appellant informed the board, by way of answers written on a questionnaire, that he did not receive pay from his religious organization for his services as a minister; that he was employed during 1959 as a salesman representing Harly Products on a commission basis; that he worked at such job 40 hours per week and had earned from $800.00 to $1,000.00 to date in 1959.

During his personal appearance before the local board on September 17, 1959, appellant stated to the board "I would be satisfied with the I-O classification" and that since he was not a "Pioneer" he didn't believe he had grounds for a IV-D classification. Appellant was informed that he would be reclassified as I-O and that he would have ten days to appeal if he were not satisfied with such classification.

On February 7, 1961, appellant filed a Current Information Questionnaire with his local draft board in which he stated he was presently working as a salesman selling auto supplies to service stations for Harly Products Company, and that he had been employed on this job for the past two years and seven months. On August 18, 1961, pursuant to an order of the local board, appellant reported for a physical examination and was determined acceptable for service. On October 9, 1961, appellant wrote his board informing it of a change of address and of the fact that he was married. On October 19, 1961, appellant was informed by his draft board, in a letter captioned "re: Marital Status", that the board was of the opinion that the reopening or reclassification of his case was not warranted.

On October 26, 1961, the local board offered appellant three types of civilian work in lieu of induction into military service.³ By letter, appellant replied to the local board that he did not wish to perform any of the types of work offered, and stated:

"My disire (sic) as one of Jehovah\'s Witnesses is to be recognized as a minister. As such my desire and my intentions are to increase my ministry to a greater capacity. I believe that this is my obligation as a Christian. Therefore I believe that accepting these jobs would interfere with and keep me from attaining such a status.

"I would appreciate it if the Local Board would consider this letter as a request to recognize and accept my ministry as Civilian Work contributing to the maintenence (sic) of the national health and safety of the people.

"I believe that the ministry is the most important civilian work because it contributes to the Spirtual (sic) well being of the community or country. I have been assigned a personal congregation or a personal missionary territory from the Inglewood Congregation of Jehovah\'s Wittnesses (sic) and would desire to keep myself in a position so that I can fullfill (sic) this desire and obligation."

On January 8, 1962, appellant met with the local board and a representative of the State Director of the Selective Service System in an effort to reach agreement as to the type of civilian service which appellant might perform in lieu of induction. At this meeting, appellant reiterated his objection to his participation in military service and stated:

"I desire my classification to be IV-D. I accepted the I-O when I began to understand that I would not get a IV-D. I felt I might get it later. The I-O class was lower but I wanted a IV-D."

During the course of this meeting appellant further stated that he was presently working for his father who was engaged in the business of manufacturing and distributing waxes and polishes to service station owners; that he worked from 30 to 50 hours per week on a commission basis; that he had earned as much as $150.00 per week and his present earnings were $20.00 or $30.00 per week; that he was presently devoting from 20 to 25 hours per week to ministerial work, two to five of which consisted of ministry from house to house; that he desired to know the procedure for obtaining relief from civilian work "for hardship reasons"; that the necessity to aid his father, who had suffered a heart attack, in developing the wax and polish business constituted his hardship; and that if he were engaged in civilian work in lieu of induction he would be able to devote the same amount of time to ministerial work, but that such civilian work would conflict with his activities as a minister in that he wouldn't be able to decide which hours to devote to ministerial duties.

On January 8, 1962, the local...