Campbell v. United States, 6906.

• Decision Date: 21 February 1955
• Docket Number: No. 6906.,6906.
• Parties: Clifton Charles CAMPBELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

221 F.2d 454 (1955)

Clifton Charles CAMPBELL, Appellant, v. UNITED STATES of America, Appellee.

No. 6906.

United States Court of Appeals, Fourth Circuit.

Argued January 6, 1955.

Decided February 21, 1955.

Argued April 13, 1955.

On Rehearing April 14, 1955.

COPYRIGHT MATERIAL OMITTED

Robert B. Myers, Rockville, Md., for appellant.

Beverly A. Davis, III, Asst. U. S. Atty., Rocky Mount, Va., and John Strickler, U. S. Atty., Roanoke, Va. (Thomas J. Wilson, Harrisonburg, Va., and Benjamin F. Sutherland, Asst. U. S. Attys., Clintwood, Va., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal in a criminal case in which appellant was convicted of failing to report for induction into the military service of the United States, in violation of the terms of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix § 462. Appellant claims to be a conscientious objector. He admits that he was denied this classification by the draft board and that he failed to report for induction when ordered; but he contends that the order of the board classifying him was void because not based upon anything contained in his file and because the board did not reopen his classification when considering two letters referred to it by state headquarters for Selective Service. He contends, also, that the trial judge committed reversible error in not requiring the production at his trial of the F.B.I. report which was furnished the examining officer of the Department of Justice. We think that none of these contentions can be sustained.

Appellant registered under the Universal Military Training and Service Act in 1951. In July of 1952 he filled out and filed with the local draft board a questionnaire in which he made no claim to being a conscientious objector; and the evidence shows that at that time he was asked by the clerk of the board whether or not he was a conscientious objector and replied that he was not. In the following December he filed claim to this classification, which was denied by the board, and he was given classification 1-A. He then requested that he be allowed to appear personally before the board and present his claim, and this request was allowed, but after seeing and hearing him the board adhered to the 1-A classification. He then appealed to the State Appeal Board, which also classified him 1-A. At the time of registration, appellant was an employee of Luray Caverns in Virginia. At the time of claiming exemption as a conscientious objector he was an employee of an overall manufacturing company. Sometime later he left this work and accepted work as an orderly in a hospital in New Hampshire, in what is contended was an attempt to avoid military service. He gave up this work when he was given 1-A classification by the Appeal Board.

After the appeal to the Appeal Board, the procedure prescribed by 50 U.S.C.A. Appendix, § 456(j) was followed, i. e. an investigation was made by the F.B.I. and a hearing was accorded appellant by a hearing officer of the Department of Justice who had received the F.B.I. report and who had furnished him a summary thereof before the hearing. After the hearing, the officer made report to the Department of Justice, which, on the basis of his report, made recommendation to the Appeal Board, recommending against the exemption. Neither the report of the F.B.I. nor the summary thereof furnished appellant was seen by either the local board or the Appeal Board.

After the Appeal Board had acted upon the appeal, the state headquarters of selective service, at appellant's request, asked the local board to include two letters in appellant's file and review them and determine whether the information therein contained was sufficient to warrant a change of classification. The local board considered the letters but found in them no reason for disturbing appellant's classification or for reopening the matter.

Appellant contends that because there was nothing in his file contradicting his claim of being a conscientious objector the board could not lawfully do otherwise than so classify him, relying upon the decision of the Supreme Court in Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132. That case, however, involved the status of a minister of religion, a matter capable of objective proof, not, as here, a matter of subjective belief. Whether or not such belief is entertained in good faith is a matter for decision in the first instance by the local board, the members of which, coming from registrant's community and having seen him and heard his statement with regard to the matter, are presumably better qualified than anyone else could possibly be to pass upon the question of fact involved and decide whether he is telling the truth about being a conscientious objector or whether this is a mere pretense put forward to escape military service. The Appeal Board can and should give weight to the fact that the local board has had the advantage of seeing the registrant and hearing him testify. Neither board is bound to believe a registrant's statement as to his belief, especially when, as here, conscientious objection seems not to have been thought of until military service became imminent. The burden of proof rested upon appellant to prove that he was a conscientious objector. He could not shift the burden of that issue by his statement as to his belief. His contentions to that effect were conclusively answered, we think, by Judge Lindley, speaking for the Court of Appeals of the 7th Circuit in United States v. Simmons, 7 Cir., 213 F.2d 901, 903-904, where he said:

"Defendant contends, on authority of Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152 98 L.Ed. 132, that the denial of a conscientious objection claim has a basis in fact only when the board has procured affirmative evidence which contradicts the representations made by a registrant in his application for exemption, — that the board must make a record to support its order. * * *

"* * * a distinction must be drawn, we believe, between a claim of ministerial status and a claim of conscientious objection status as to susceptibility of proof. Whether a registrant is a minister in the statutory sense, having as his principal vocation the leadership of and ministering to the followers of his creed, is a factual question susceptible of exact proof by evidence as to his status within the sect and his daily activities. No search of his conscience is required. Even though the only tenet of his cult be a belief in war and bloodshed, he still would be exempt from military service if he were, in fact, a minister of religion. Is he affiliated with a religious sect? Does he, as his vocation, represent that sect as a leader ministering to its followers? These questions are determinative and subject to exact proof or disproof.

"The conscientious objector claim admits of no such exact proof. Probing a man\'s conscience is, at best, a speculative venture. No one, not even his closest friends and associates, can testify to a certainty as to what he believes and feels. These, at most, can only express their opinions as to his sincerity. The best evidence on this question may well be, not the man\'s statements or those of other witnesses, but his credibility and demeanor in a personal appearance before the fact-finding agency. We cannot presume that a particular classification is based on the board\'s disbelief of the registrant, but, just as surely, the statutory scheme will not permit us to burden the board with the impossible task of rebutting a presumption of the validity of every claim based ofttimes on little more than the registrant\'s statement that he is conscientiously opposed to participation in war. When the record discloses any evidence of whatever nature which is incompatible with the claim of exemption we may not inquire further as to the correctness of the board\'s order."

The recent case of White v. United States, 9 Cir., 215 F.2d 782, 784-785, is directly in point; and the court there similarly distinguished the Dickinson case, saying:

"The argument appears to add up to the proposition that since the appellant stated in his questionnaire and in letters addressed to the boards that he was conscientiously opposed not only to combatant service but to noncombatant service as well, and since these statements were supported by letters from his mother and his minister, the selective service boards were obliged to make findings in accordance with his claims, in the absence of other affirmative evidence which contradicted his representations. This argument relies upon Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152 98 L.Ed. 132, and appellant

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