Peter v. United States

• Decision Date: 10 December 1963
• Docket Number: No. 18546.,18546.
• Citation: 324 F.2d 173
• Parties: Forest Britt PETER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 173 (1963)

Forest Britt PETER, Appellant, v. UNITED STATES of America, Appellee.

No. 18546.

United States Court of Appeals Ninth Circuit.

October 30, 1963.

Rehearing Denied December 10, 1963.

Neyhart & Grodin and Richard R. Heath, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and James F. Hewitt, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MADDEN, Judge of the Court of Claims,^* and HAMLIN and BROWNING, Circuit Judges.

HAMLIN, Circuit Judge.

This is an appeal from a conviction of violation of section 12(a) of the Universal Military Training and Service Act, 62 Stat. 622 (1948), 50 U.S.C.App., § 462(a) (1958). Appellant, Forest Britt Peter, having waived a jury trial, was found guilty of failure to submit to induction into the armed forces by the United States District Court for the Northern District of California, and was committed to the custody of the Attorney General for six months. Jurisdiction of this court is based on 28 U.S.C. § 1291 (1958).

On July 10, 1956, appellant registered for the Selective Service System with Local Board No. 53 in Hayward, California. On May 27, 1957, he completed and returned the standard classification questionnaire. He did not sign section VII of that questionnaire, relating to conscientious objector status, but submitted with the questionnaire a quotation from a poem which expressed opposition to war and a statement of his own concurring with the quotation.¹ On March 10, 1958, the local board received from him a completed SSS Form 150 relating to conscientious objector status. In answer to question 1 in series II, "Do you believe in a Supreme Being?," he answered, "It depends on the definition. See 2 below." Question 2 of the series inquires as to the nature and quality of the belief, question 3 as to its source, and question 5 as to the circumstances, if any, in which force could be used; appellant referred to a separate sheet on which these questions were answered.² He stated he was not a member of a religious sect or organization.

On July 10, 1959, the local board by a 2-to-0 vote classified appellant I-A. On August 3, 1959, appellant appeared at a hearing before the local board where he substantially reiterated the views previously stated. The local board determined by a 2-to-0 vote not to open the case, and a notice of classification was mailed to appellant on August 4. On August 7, appellant wrote a letter to the board which reads as follows:

"Dear Sirs,

"Thank you for your time the other night at the hearing. I\'m sorry you were unable to classify me as a Conscientious Objector.

"The decision however, was not a surprise considering my lack of `proof\' and your lack of moral courage.

"I just hope the war you support won\'t kill us all in the next few years.

"To the future "Forest Britt Peter."

The clerk of the local board interpreted this letter as a request for appeal and forwarded the file to the appeal board on September 9. On October 8, the Appeal Board for the Northern District of California "tentatively determined that the registrant should not be classified in Class I-O or in a lower class," and forwarded the file to the Justice Department for investigation and hearing under section 6(j) of the Universal Military Training and Service Act, 62 Stat. 609 (1948), as amended, 50 U.S.C. App., § 456(j) (1958). On July 29, 1960, the Conscientious Objector Section of the Justice Department recommended to the appeal board that appellant's claim not be sustained, and a copy was mailed to appellant together with a letter advising him that he had thirty days within which to reply to the recommendation.³ Appellant's reply was a long letter alleging inaccuracies and irrelevancies in the hearing officer's report together with a lengthy dissertation on his beliefs, their nature, quality, and source. On November 18, 1960, the appeal board by a 5-to-0 vote continued the classification of I-A.

On July 20, 1961, appellant was ordered to report for a preinduction physical examination scheduled for August 30. Appellant replied with a letter dated August 15 which reads as follows:

"Dear Sirs,

"I will not appear for my Armed Forces Physical Examination August 30th, In accordance with my previously stated views and beliefs as a conscientious objector."

Appellant also forwarded a letter dated August 15, 1961.⁴ Appellant was then ordered to report on November 22 for induction as a delinquent. He replied with a letter to the local board dated October 16 as follows:

"I recently received from you a notice of delinquency for my failure to report for an Armed Forces Physical Examination on August 30, 1961. I do not consider myself delinquent. I remain as before, a conscientious objector to war and to all military institutions. I am a proponent of non violent action and reaction with other human beings, and I could not and will not participate in a physical examination whose purpose is to define my fitness for service in the Armed Forces.

"Once again "Forest Britt Peter."

On advice of counsel, however, appellant reported to the Armed Forces Recruiting Station in Oakland, California, on the appointed day, and there refused to be processed for induction. He was not given a physical examination at that time. Appellant on later dates submitted letters to the local board, the California State Headquarters, and the Director of the Selective Service System, General Hershey, requesting a physical examination, with the avowed purpose of avoiding the effect of the doctrine of exhaustion of administrative remedies. These requests were denied.

On September 26, 1962, appellant was indicted for refusing to submit to induction and was tried and found guilty by the district court without opinion on November 16, 1962.

The issues in this case are: (1) Whether appellant qualifies as a conscientious objector; and (2) whether appellant was precluded from raising the defense because he failed to exhaust his administrative remedies.

In Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 427-428, 90 L.Ed. 567 (1946), the Supreme Court held that "the decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." Appellant contends that there was no basis in fact for the classification given him on the grounds that there is no evidence in the record that anyone at any time questioned the sincerity of his beliefs. The government contends that the local board and the Justice Department's hearing officer had the opportunity to observe the demeanor and attitude of the appellant in his appearances before them and that their refusals to classify him as a conscientious objector show some doubt as to his sincerity. There is some merit in the government's contention. However, even assuming that appellant was absolutely sincere, the record demonstrates that there was a basis in fact for the board's determination that he did not meet the statutory requirements for a conscientious objector.⁵

Appellant concedes that exemption from service as a conscientious objector is not a matter of constitutional right but of legislative grace. To qualify for such a classification, a registrant must meet the standards set forth by Congress in section 6(j) of the Universal Military Training and Service Act, 62 Stat. 609 (1948), as amended, 50 U.S.C.App., § 456(j) (1958):

"Nothing contained in this title * * * shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual\'s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." (Emphasis added.)

Appellant contends that he meets the definition. His argument is that his beliefs have a religious foundation. In support of this, he stated at his trial:

"A. I think my actions are probably motivated most thoroughly by a feeling of relationship and love towards other human beings and other living objects in the world, and in seeing these other living objects. I can narrow it down closer; I can define it as a belief in the mystery of the heart of them, the essence of being alive, and my respecting and loving this livingness in other objects and human beings."

"Q. Well, now, in relation to the question of a Supreme Being ____"

"A. I suppose you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use."

In Berman v. United States, 156 F.2d 377, 380 (9th Cir.), cert. denied, 329 U.S. 795, 67 S.Ct. 480, 91 L.Ed. 680 (1946), this court defined the standard set forth in the predecessor to this act as follows: "It is our opinion that the expression `by reason of religious training and belief' is plain language, and was written into the statute for the specific purpose of...