Gonzales v. United States, 6045.

• Decision Date: 27 July 1959
• Docket Number: No. 6045.,6045.
• Citation: 269 F.2d 613
• Parties: Raymond GONZALES, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

269 F.2d 613 (1959)

Raymond GONZALES, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 6045.

United States Court of Appeals Tenth Circuit.

July 27, 1959.

Hayden C. Covington, Brooklyn, N. Y. (W. H. Erickson, Denver, Colo., was with him on the brief), for appellant.

Jack K. Anderson, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., James C. Perrill, Asst. U. S. Atty., Denver, Colo., and Daniel O. Omer, Col., JAGC, General Counsel, Selective Service

System, Washington, D. C., were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and LEWIS, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Raymond Gonzales, Jr., was convicted of violating the Universal Military Training and Service Act, as amended, 50 U.S.C.A.Appendix, § 451 et seq., in that he knowingly and wilfully refused to submit to induction into the Military Forces of the United States. A somewhat detailed statement of the facts at the outset may be helpful in an orderly consideration of the questions presented for review.

Appellant is a male citizen of the United States and was subject to registration under the Universal Military Training and Service Act, as amended. He registered with Local Board Number 9, at Boulder, Colorado. In due course he was processed, was classified 1-A on November 13, 1952, and was duly notified of such classification. On receipt of his notice he requested a personal appearance, stating, in a letter dated November 22, 1952, that he was a minister devoting 100 hours a month to actual preaching and an additional 50 to 75 hours in preparation of such work. He attached four affidavits stating that he was engaged in full-time ministerial work.

On December 4, 1952, the Local Board classified him as a conscientious objector and placed him in Class 1-O. Thereafter, on June 30, 1953, the Local Board changed his classification to 1-A. Upon receipt of notice of this change, he requested a personal appearance before the Board and appended a letter appealing his classification. He was granted a hearing August 13, 1953. The Board, on its record, noted his appearance, granted him the right to appeal his 1-A classification, and entered a statement that it had reviewed his classification, reconsidered the information contained in his SSS Form 150, wherein it was stated that he believed in force to the extent that he would defend his person, his church and his home by killing, if necessary. The Board concluded that because of this, he should not be classified as a conscientious objector.

The Selective Service file was referred to the Justice Department, an investigation was conducted by the F.B.I., and its report, together with the file and other papers, was forwarded to Hearing Officer Fred M. Mazzula. He held a hearing in Denver which appellant attended. The Hearing Officer had the F.B.I. files and read them. He reported that appellant was a "sincere member of Jehovah's Witnesses and a believer in its tenets, but the teaching of this sect and the beliefs expressed by this registrant do not establish to the satisfaction of this Hearing Officer that the registrant is opposed to war in any form." The officer recommended that appellant's claim be not sustained. On February 1, 1954, T. Oscar Smith, Special Assistant to the Attorney General, in a letter to the Chairman of the Appeal Board, reviewed appellant's record, quoted from the Hearing Officer's report, and stated, "After consideration of the entire file and record, the Department of Justice finds that the registrant's objections to combatant and noncombatant service are not sustained. It is, therefore, recommended to your Board that registrant's claim for exemption from both combatant and noncombatant training and service be not sustained."

The Appeal Board classified appellant 1-A on April 1, 1954, and on return of the file to the Local Board, the Local Board again classified appellant 1-A, and on May 23, 1956, ordered him to report for induction on June 11, 1956. Notwithstanding his refusal to report, he was not prosecuted. His order to report was cancelled and his case was reopened and he was again classified 1-A. His request for a personal hearing was granted and a personal hearing was held August 17, 1956. He was again classified 1-A. His file was again forwarded to the Appeal Board and was again forwarded to the Justice Department for inquiry and hearing. The entire file, including the F.B.I. report, was forwarded to Hearing Officer Maurice Evensen. He sent a résumé of the F.B.I. inquiry to appellant before the scheduled hearing. Appellant again attended the hearing. Hearing Officer Evensen concluded his report and reported that registrant was opposed to combatant training and service but concluded that registrant was not opposed to noncombatant training and service. He, therefore, recommended that registrant be exempt from combatant training and service only. Upon receipt of the Hearing Officer's report, the Justice Department reviewed it. The Department did not agree with the conclusion of the Hearing Officer.

In a letter to the Appeal Board dated March 21, 1957, the Justice Department recommended that appellant's claim be not sustained. It pointed out that while, as shown by the Board's records, appellant claimed that he was still devoting 100 hours per month to actual preaching, the report of the F.B.I., made a part of the recommendation, showed that he devoted only 20 to 25 hours per month to church activities and only approximately six and one-half hours per month to actual preaching. The Justice Department concluded by stating, "On the other hand the registrant's claim as to the amount of his religious activities is so highly exaggerated, if we are to believe the official records of his religious organization as reported in the résumé and recapitulated above, as to cast doubt upon his veracity and, consequently, upon his sincerity and good faith. Therefore, with due respect to the Hearing Officer's recommendation, the Department of Justice finds that the registrant's claim is not sustained. Accordingly, it is recommended to the Board that registrant's claim be not sustained." A copy of this recommendation was mailed by the Appeal Board to appellant. He answered it and stated that he did not inform the Local Board on August 17, 1956, as contended by the recommendation, that he was devoting 100 hours per month to preaching; that the only time he submitted such information was when he was pioneering, which was in the period of October 1, 1952 to April 16, 1953. On May 2, 1957, the State Appeal Board unanimously concurred in the recommendation of the Justice Department and classified appellant 1-A. Upon return of the file to the Local Board, he was notified of such classification. Thereafter, a new order to report was issued which appellant again ignored and this prosecution followed.

What occurred at the hearing on August 17, 1956, is in a large measure the crux of this case. It is conceded that at that time appellant was not engaged as a full-time minister and was not devoting approximately 100 hours per month to preaching and 50 to 75 hours additional in preparation for preaching. If, in fact, he told the Local Board at that time, as is recorded on its record, that he was so engaged, he was guilty of a false statement which would support a conclusion that he had not painted a complete or accurate picture, and would warrant the further conclusion that he was not sincere in his claim that he was a conscientious objector opposed to all forms of participation in combatant and noncombatant military activity¹ and would support the 1-A classification he received.

It is strenuously urged that appellant did not on August 17, 1956, state to the Board that he was engaged as a full-time minister, devoting 100 hours per month to preaching and 50 to 75 hours per month in preparation for such work. The Board did, at that time, record on its record of his case that that is what he stated. The contention is made that this record was made without receiving such testimony from appellant. In support thereof, it is pointed out that the fourth paragraph of the Board's report of August 17, 1956, is in the identical language of the fourth paragraph of appellant's letter of November 22, 1952, in which he did state that he was, at that time, devoting 100 hours per month to actual preaching and from 50 to 75 additional hours in preparation for such work. But it does not follow from this that no such statement was made by him, in substance, at the August 17 meeting....