Neal v. United States

• Decision Date: 15 June 1953
• Docket Number: No. 13970.,13970.
• Citation: 203 F.2d 111
• Parties: NEAL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 111 (1953)

NEAL v. UNITED STATES.

No. 13970.

United States Court of Appeals Fifth Circuit.

March 26, 1953.

Writ of Certiorari Denied June 15, 1953.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, Brooklyn, N. Y., Tom S. Williams, San Antonio, Tex., for appellant.

Wm. H. Russell, Asst. U. S. Atty., Chas. F. Herring, U. S. Atty., and Bradford F. Miller, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES, RUSSELL and STRUM, Circuit Judges.

Writ of Certiorari Denied June 15, 1953. See 73 S.Ct. 1138.

STRUM, Circuit Judge.

Appellant was convicted below of refusing to submit to induction into the Armed Forces of the United States under the Selective Service Act of 1948, 50 U.S. C.A.Appendix, §§ 451-470. He contends here that the administrative proceedings upon which his induction is based are void because he was not accorded a personal hearing by his local draft board before classifying him I-A, and that the action of the draft boards, local and appellate, in so classifying him, and in refusing to reopen his case, was arbitrary, capricious, and without basis in fact, for which reasons, and others to be hereafter mentioned, appellant asserts that he has been denied due process, and that the judgment of conviction should be reversed.

Appellant is a member of Jehovah's Witnesses. On his questionnaire, filed August 10, 1949, he sought a I-A-O classification as a conscientious objector and also a class IV-D classification as a minister of the gospel. On August 22, 1950, appellant was classified I-A-O. He appealed, claiming that he should be classified IV-D as an ordained minister. The Texas board of appeal tentatively denied the classification as a minister on September 15, 1950, and referred the file to the Department of Justice for investigation as to appellant's claim for classification as a conscientious objector, which is standard routine procedure in such cases. See 50 U.S.C.A.Appendix, § 456(j) and 32 Code of Fed.Reg., sec. 1626.25(c).

During the investigation, a Federal Bureau of Investigation agent secured from appellant a written statement waiving appellant's claim as a conscientious objector, and stating that he stood solely upon his claim of exemption as a minister. After considering the report and waiver, the local board on December 6, 1950, reopened the case and by a vote of 4-0 classified appellant I-A, available for military service. The Texas state appeal board approved that classification January 12, 1951, by a vote of 5-0, and the national appeal board, by a vote of 3-0, approved it on July 11, 1951. Appellant appeared before the state appeal board on February 15, 1951. That board reviewed the case at that time, but refused to reopen it.

After the appeal board classified him as I-A, appellant communicated with the Director of Selective Service, pursuant to whose suggestion the local board at Houston, with which appellant was registered, granted appellant a personal appearance and hearing at Houston on March 7, 1951, to consider whether or not the board would again reopen appellant's case for further consideration. As a result of that hearing it was determined not to reopen the case, and appellant was ordered to report for induction March 12, 1951. Appellant's refusal to comply is the basis of his indictment.

There is conflict in the evidence as to what transpired when the F. B. I. agent interviewed appellant at his home on November 2, 1950, as to whether he claimed classification as a conscientious objector, or as a minister. Appellant testified in effect that the agent brought with him a prepared statement for appellant to sign, waiving his claim as a conscientious objector, assured appellant that he was his friend, and told him "You can't rely on both of these grounds; you must take one or the other." Also, that if appellant relied on being a conscientious objector he was subject to being drafted, but if he withdrew his claim and stood upon his ministerial status, he would be exempt. Appellant says that he relied upon and was deceived by these representations, and was thus improperly persuaded to waive his conscientious objector claim.

The agent, on the other hand, testified that he visited appellant in the course of a routine investigation to determine whether appellant was relying on his claim to classification as a conscientious objector, or upon his claim to exemption as a minister, which was not clear from the information previously furnished. He denied making the statements attributed to him by appellant, denied that he practiced any persuasion upon appellant, or that he suggested to him that he waive his claim as a conscientious objector, although the agent admitted that he had with him a prepared statement waiving the conscientious objector claim, which appellant later signed, and which was prepared in advance because the agent understood from information previously furnished him that appellant probably wished to stand on his claim as a minister rather than on his claim as a conscientious objector.

This conflict presents solely a question of credibility to be resolved by the trial judge, before whom the case was on trial without a jury. The judge accepted the agent's testimony as true, and resolved the conflict against appellant. There is ample support in the evidence for that action. We can not say that the trial judge was clearly in error in thus resolving the conflict. With the conflict thus resolved, appellant's claim that he was improperly induced to waive his conscientious objector classification is without support.

Appellant points out that the statute, 50 U.S.C.A.Appendix, § 456(j), and 32 Code of Fed.Reg., sec. 1626.25(c), mandatorily require that where a registrant claims to be a conscientious objector the matter shall be referred to the Department of Justice for investigation, and that that department shall hold a hearing thereon, of the time and place of which the registrant shall be notified, and that in this case no such hearing was held. When, however, as here, the claim of conscientious objector is waived by the registrant, the necessity for such a hearing is obviated. Of course, appellant claims that he did not understandingly waive that claim. But the trial judge found against him on that question on the facts. In his brief, appellant concedes that the F. B. I. agent followed the standard procedure prescribed by the Department of Justice, although he contends that the procedure "is illegal." We find in it, however, no such denial of due process as would render the administrative proceedings void.

The contention that appellant was denied a personal appearance before the local board originates with a letter dated December 12, 1950, written by appellant to the local board at Houston, appealing from his classification as I-A, on December 6, 1950, and asking for a personal appearance before the local board in Austin, Texas (to which city appellant had moved) in order to establish his status as a minister entitled to a IV-D classification. There is no evidence that appellant requested, or was denied, a hearing prior to that time.

Appellant was clearly not entitled to a hearing at Austin, as he was registered with the local board at Houston. The Austin board had no jurisdiction to hear him. Upon the suggestion of the Director of Selective Service, the Houston board, to which the letter of December 12, 1950, was addressed, fixed a hearing for March 7, 1951, as already mentioned, to determine whether or not to reopen appellant's case and reconsider the I-A classification. Appellant had notice of that hearing, and attended it in person.

At the hearing of March 7, 1951, the board asked appellant eight questions dealing with his occupational and ministerial activities and training, and a ninth question, which was "Do you love America enough to fight for it?", to which appellant answered "No." The impression gained by the court at the oral argument on appeal was that when appellant answered the ninth question as just stated, the Board became impatient with appellant, and in effect terminated the hearing. The record shows, however, at pages 54 to 59, that after the question was asked and answered, the board listened to appellant at length while he explained his religious views which he contended entitled him to a IV-D classification.¹

Appellant contends that he desired, and was prepared, to show the board that he devoted 300 hours per month to ministerial work, that his secular work was "incidental to his main job of preaching," and that he was authorized to perform weddings, baptisms, and officiate at funerals. The record discloses that the board gave him ample opportunity to present these matters, but he used the time for other purposes, as shown in Note 1. Moreover, appellant himself testified that at the hearing of March 7, 1951, he told the board that "* * * I put in three hundred hours a month in preaching and that that is more than many of the `religious clergymen' devote to their congregations and go to their congregations (sic) and preach on Sundays do." Record page 58.

The Selective Service regulations, 32 Code of Fed.Reg. 1624.2(b), afford a registrant the right to appear before the local draft board and discuss his classification, point out the class or classes in which he thinks he should be placed, and to direct attention to any information in his file which he believes the board has overlooked, or to which it has not given sufficient weight. While it is not the right of a registrant to prolong the hearing unreasonably, it is the duty of the board to hear his evidence and arguments fully, fairly and with reasonable patience, so that it may properly evaluate the facts on the merits.

What has already been shown in Note 1 demonstrates that the board accorded appellant a hearing which complies with the regulations, and which satisfies the requirements of due process, besides which appellant has had the attention and cooperation...