Elizarraraz v. United States
| Decision Date | 03 September 1968 |
| Docket Number | No. 24328.,24328. |
| Citation | 400 F.2d 898 |
| Parties | Pablo ELIZARRARAZ, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack C. Eisenberg, Austin, Tex., for appellant.
Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before BELL, COLEMAN and GODBOLD, Circuit Judges.
Appellant, Pablo Elizarraraz, stands convicted in the District Court at Austin of knowingly failing, neglecting, and refusing to perform a duty required of him under the provisions of the Universal Military Training and Service Act, in violation of Title 50 United States Code §§ 456(j) and 462(a).1 We affirm.
Elizarraraz was born January 13, 1941 in George West, Texas. In 1956 he became a member of the religious sect known as Jehovah's Witnesses. He has formal education through the eighth grade. On January 15, 1959, he registered with his local draft board. On the following August 11, he was classified 1-0, conscientious objector. Over four years later, on October 7, 1963, he submitted to the Armed Forces physical examination and was found to be acceptable for military service. On December 13, 1963, while he was living in Corpus Christi, the draft board, in writing, submitted to the registrant three types of civilian work at the Texas State Hospital at Austin deemed appropriate in lieu of military induction.
In response thereto the draft board received a letter from Elizarraraz, as follows:
This written refusal to work in lieu of induction stood up for nearly two years, until May 13, 1965. Elizarraraz was then duly directed to report to the Texas State Hospital at Austin to do hospital work.2 He reported as directed, but upon arrival he refused to sign an employment form required of all individuals who go to work at that institution. He then left the hospital without entering upon, doing, or performing any work. Indictment, conviction, and sentence followed.
Mr. Elizarraraz testified in his own defense. Among other things he stated:
"I met this lady, that I identified myself to her, and she said that she was already waiting for me, and that she had already had a notice from the Draft Board, and she gave me an application and told me to walk out in the hall and fill it out, and so I told her that I had already explained it to my Draft Board in San Benito, my reason for not filling out the application, emphasis supplied and that they still directed me here to Austin, and told me to talk to that lady, or whoever it was over here."
This testimony was followed by these questions and answers:
With particular reference to a meeting with the Draft Board on February 27, 1964, the appellant testified as follows:
Elizarraraz contends on appeal that the Government failed to meet its burden of showing beyond a reasonable doubt that he knowingly failed, neglected, and refused to report to the Austin State Hospital and to perform two years of civilian work in lieu of military service. At the heart of the matter, he urges that he did not fail or neglect or refuse to work but that he only refused to fill in the application form presented to him when he appeared at the Hospital and that such refusal cannot constitute a violation of the statute. We find this contention to be without merit. The appellant freely admitted that he knew before he went to Austin that he would be expected to fill in a job application and that before he left San Benito he told his Draft Board that he would not fill in such an application. He admitted that there was nothing in the application form which violated "his duty to God", even if that had been a justifiable excuse for not filling it in and signing it, cf. United States v. Kime, 7 Cir., 1951, 188 F.2d 677, cert. den., 342 U.S. 823, 72 S.Ct. 41, 96 L.Ed. 622. The decisive factor of the case is that when the registrant was first offered civilian work in lieu of induction he categorically stated that "My religion and my conscience does not permit me to perform any type of civilian work". Prior to trial, he ever afterward adhered to that attitude. We entertain no doubt that the requirement to do civilian work must, of necessity, carry with it the performance of any and all acts, such as appropriate record keeping, reasonably incident to that status.
It is most impressive that although the appellant was ably and energetically represented by appointed counsel at his trial below and on this appeal, the "application form", whatever its contents, was apparently considered to be so devoid of any legal significance that it was not offered in evidence at the trial in the District Court. Therefore, it is not a part of the record here.
From the evidence in this record it was clearly within the province of the jury to believe beyond a reasonable doubt that Elizarraraz's refusal to fill in the form was simply a pretext in furtherance of his previously declared resolution not to do the civilian work required by law. Actually, so far as we know or can tell, the "application form" was, in fact, not a request for work, if we strip the matter of semantics. It was not within the contemplation of the parties that he was applying for a job; he was being assigned to a job. Everybody so understood it, including the balky assignee.
It is true that Elizarraraz at the trial testified that he would be willing to work at the hospital if he did not have to fill in and sign the application form, but this assurance was limited by his further testimony that if he began work without filing such an application he would feel free, at his personal discretion, to prescribe the conditions upon which he would perform assignments.
The requirement to do civilian work in lieu of military induction cannot be frittered away by such defenses as those raised on this appeal.
It is next contended that the District Court committed reversible error when it overruled an objection to the following argument of the prosecutor in his summation to the jury:
The objection to this argument was couched in this language:
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